[Federal Register Volume 67, Number 18 (Monday, January 28, 2002)]
[Proposed Rules]
[Pages 3849-3867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1770]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH95


Endangered and Threatened Wildlife and Plants; Proposed 
Determination of Critical Habitat for the Newcomb's Snail

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
designation of critical habitat for the Newcomb's snail (Erinna 
newcombi) pursuant to the Endangered Species Act of 1973, as amended 
(Act). The proposed critical habitat consists of nine stream segments 
and associated tributaries, springs and seeps on the island of Kauai, 
Hawaii, totaling approximately 26.29 kilometers (16.35 miles).
    If this proposal is made final, section 7 of the Act requires 
Federal agencies to ensure that actions they fund, authorize, or carry 
out do not destroy or adversely modify critical habitat for the 
survival and recovery of the species.
    Section 4 of the Act requires us to consider economic and other 
impacts of specifying any particular area as critical habitat. We 
solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation. We may revise or further refine critical habitat 
boundaries described in this proposal after taking into consideration 
the comments or any new information received during the comment period, 
and such information may lead to a final regulation that differs from 
this proposal.

DATES: We will consider comments from all interested parties received 
by March 29, 2002. Requests for public hearing must be received by 
March 14, 2002.

ADDRESSES: Submit comments and requests for public hearing to Pacific 
Islands Fish and Wildlife Office, U.S. Fish and Wildlife Service, 300 
Ala Moana Boulevard, Room 3-122, Box 50088, Honolulu, Hawaii 96850.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, Pacific 
Islands Fish and Wildlife Office, at the above address (telephone: 808/
541-3441; facsimile: 808/541-3470).

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian archipelago consists of eight main islands and the 
numerous shoals and atolls of the northwestern Hawaiian Islands. The 
islands were formed sequentially by basaltic lava that emerged from the 
earth's crust located near the current southeastern coast of the island 
of Hawaii (Stearns 1985). Ongoing erosion has formed steep-walled 
valleys with well-developed soils and stream systems throughout the 
chain. Kauai, geologically the oldest and most northwesterly of the 
eight main islands, is characterized by deep valleys, high rainfall, 
abundant vegetation, and numerous streams and springs.
    The island of Kauai is 1,430 square kilometers (km\2\) (552 square 
miles (mi\2\)) in size, the fourth largest of the main Hawaiian 
islands. Most of the land mass of Kauai was formed between 5.6 and 3.6 
million years ago from one or more large shield volcanoes. More recent, 
secondary eruptions occurred over the eastern portion of the island as

[[Page 3850]]

recently as the Pleistocene epoch, approximately 0.6 million years ago. 
Due to the age and climate of the island, Kauai is heavily eroded, with 
numerous steep, water-carved valleys and gulches.
    The prevailing northeasterly trade winds are typically laden with 
moisture in the central Pacific latitudes where Kauai is located. 
Substantial precipitation is brought to the windward and interior 
portions of the island as a result of uplift and cooling of the warm, 
moist surface airmass as it flows over the steep topography of the 
island. The high elevation areas in the vicinity of the Alakai Plateau 
such as Mt. Waialeale (1,600 meters (m), 5,248 feet (ft)), are among 
the rainiest places on earth, receiving an average of 11.3 m (444 
inches (in)) of precipitation annually (Juvik and Juvik 1998). This 
large volume of rainwater flows to perennial and intermittent streams 
and wetlands, and infiltrates into the island's aquifers. The west and 
southwest coastal areas of the island lie in the rain shadow of the 
Alakai Plateau and interior uplands, and these areas receive 
considerably less rain.
    Kauai has at least 61 streams that are considered perennial, and a 
similarly large number of intermittent streams (Hawaii Stream 
Assessment (HSA) 1990). The Hanalei River, for example, is 27 km (17 
mi) in length and is the largest stream system in the State by volume, 
with a long-term mean discharge of 216 cubic feet per second (34-year 
average calculated from 1964 to 1997). The headwaters of the Hanalei 
River are near the summit of Mt. Waialeale and the river flows towards 
Hanalei Bay on the island's north shore. The basalts that form the bulk 
of the main Hawaiian islands are porous and permeable, which 
facilitates infiltration and storage of groundwater. A lens-shaped body 
of groundwater (the basal lens) exists within these porous basalts at 
lower elevations. In some areas, the basal lens is partially confined 
by lower-permeability coastal alluvial and calcareous deposits 
(``caprock''). Recent groundwater investigations in the southern Lihue 
basin indicate that permeabilities of both the basalt and the younger 
rock from secondary eruptions are low, which allows the basal 
groundwater lens to thicken and thereby reach greater elevations than 
on the other Hawaiian islands (Izuka and Gingerich 1998). This causes 
basal groundwater to enter and support stream and spring flow up to 
relatively high elevations. Because the basal lens groundwater reserve 
is very large in size, streams, springs, and rock seeps (rheocrenes) 
fed by basal groundwater exhibit highly permanent, stable flows. In 
addition to the basal lens, smaller, perched groundwater systems form 
at higher-elevations above dense geologic features of low permeability 
such as those formed by layers of ash. Groundwater bodies may also form 
within higher elevation geologic formations as a result of confinement 
by dikes, which are vertical sheets of low-permeability rock that cut 
through more permeable basalt in some places. Groundwater bodies that 
form behind these perched and dike-confined aquifers contribute water 
to streams and springs at higher elevations, although these aquifers 
are smaller in volume than basal systems and their contribution to 
surface water would be expected to be reduced during prolonged drought 
(MacDonald et al. 1960).
    Human-caused modifications to surface and ground water systems on 
Kauai and throughout Hawaii have profoundly altered natural hydrologic 
regimes. Plantation irrigation systems, built to support the 
cultivation of sugar cane over a century ago, transfer large volumes of 
water out of natural watercourses and into extensive systems of 
ditches, tunnels, flumes, reservoirs, and ultimately to fields. 
Historically, stream water diversion structures were typically built to 
be highly efficient in their ability to entrain water. These dams 
usually divert all flowing stream water at moderate to low flows, 
leaving the stream channel below the dam dry. At least one third of all 
Kauai's streams are significantly dewatered for agricultural and 
industrial water supplies (HSA 1990); in 1994, a total of 224.17 
million gallons per day (mgd) was used island-wide for irrigation, and 
93.72 mgd was used for generation of hydroelectric power (Wilcox 1996).
    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 Kauai. Newcomb's snail is unique among the 
Hawaiian lymnaeids in that the shell spire typically associated with 
lymnaeids has been substantially reduced. The result is a smooth, black 
shell formed by a single, oval whorl, 6 millimeters (mm) (0.25 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) contradicted 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 et al. (1995) all followed Morrison and referred to 
Newcomb's snail as Erinna newcombi. This is the currently accepted 
scientific name for Newcomb's snail.
    The Newcomb's snail is restricted to freshwater. 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 widely 
dispersing larval stages; the entire life cycle is tied to the stream 
system in which the adults live (Baker 1911). Very little is known 
about the biological or environmental factors that affect population 
size in Newcomb's snails. Important factors may include annual, multi-
year or decadal changes in streams flows, severe-weather high-flow 
channel-scouring events, or periods of severe or prolonged drought. 
Dispersal of the snails in both upstream and downstream directions 
within a stream system probably plays an important function in gene 
flow and in colonizing or recolonizing suitable habitat, especially 
microhabitat that is protected from channel scour. Dispersal of 
Newcomb's snail between stream systems is likely very infrequent due to 
their freshwater habitat requirements, and 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 (Neritina spp.), 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

[[Page 3851]]

the oceanic expanses that separate the Hawaiian Islands and colonize 
streams on any or all of these islands. This dispersal capacity is not 
available to the Newcomb's snail.
    Based on past and recent field observations, the specific habitat 
requirements of the Newcomb's snail include fast-flowing perennial 
streams and associated springs, seeps, and vertical-to-overhanging 
waterfalls (Stephen Miller, U.S. Fish and Wildlife Service in litt. 
1994a, 1994b; Polhemus et al. 1992; Burch 1968; and Hubendick 1952). 
Surveys of main stream channels of many of the perennial streams of 
Kauai indicate that the Newcomb's snail is found only in protected 
areas within main stream channels (Michael Kido, University of Hawaii, 
in litt. 1994). The limited occurrence of this snail in main stream 
channels is likely due to periodic channel scouring by sediment, rocks, 
and boulders that are moved downstream during runoff events due to the 
frequent heavy rains. Consequently, suitable habitat is generally 
associated with overhanging waterfalls located in the main channel of 
perennial streams supported by stable groundwater input, or with small, 
spring-fed tributaries. Another common element among the sites 
harboring snail populations is that the water source appears to be 
consistent and permanent, even during severe drought.
    Five populations of Newcomb's snail were identified prior to 1925. 
These include populations from sites located in Waipahee Stream (a 
tributary to Kealia Stream), Wainiha River, Hanakapiai Stream, Hanakoa 
Stream, and Kalalau Stream. Three of these populations (Wainiha River, 
Hanakapiai Stream, and Hanakoa Stream) are now thought to be 
extirpated. Of the two remaining pre-1925 populations, one (Waipahee 
Stream) is small and the other (Kalalau Stream) is relatively large 
(see below). Since about 1993, surveys of approximately 50 sites 
located along numerous streams and their associated tributaries and 
springs on Kauai have located four previously unknown populations of 
Newcomb's snail (M. Kido, in litt. 1994). The current known range of 
Newcomb's snail is limited to very small sites located within six 
stream systems in north- and east-facing drainages on Kauai. They are: 
Kalalau Stream; Lumahai River; Hanalei River (four subpopulations); 
Waipahee Stream (a tributary to Kealia Stream); two subpopulations in 
Makaleha Stream (a tributary to Kapaa Stream); and the North Fork 
Wailua River.
    No historic information is available on the population size of 
Newcomb's snail. However, recent reports indicate that two of the six 
known populations of Newcomb's snail are relatively large: the Kalalau 
Stream and Lumahai River populations. The Kalalau Stream population is 
found in the northeastern fork of Kalalau Stream on two permanent 
waterfalls and in the stream reach 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 waterfall, including the area behind the falling 
water, is approximately 800 snails/square meter (m\2\) (75 snails/
square foot (ft\2\)) (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 may be limited to the lower section of the waterfall that 
receives a high amount of spray from the falling water. 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. 1995a).
    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/m\2\ 
(2 to 3 snails/ft\2\) distributed over 2 to 3 m\2\ (21 to 32 ft\2\) (M. 
Kido, in litt. 1994; M. Kido, pers. comm. 1995b). This is considerably 
smaller than the population in Kalalau Stream described above. 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 (which forms a series of 
very small tributaries to Makaleha Stream) covers approximately 20 to 
30 m\2\ (212 to 318 ft\2\) (S. Miller, in litt. 1994a). Snail densities 
at this site are difficult to estimate but may be as high as 20 to 30 
snails/m\2\ (1 to 3 snails/ft\2\) (S. Miller, in litt. 1994a).
    The sizes of three other populations of Newcomb's snail have been 
characterized as small. The population in the Waipahee tributary of 
Kealia Stream is estimated to cover 5 to 10 m\2\ (53 to 106 ft\2\) with 
a density of approximately 50 to 80 snails/m\2\ (4 to 8 snails/ft\2\) 
(Adam Asquith, U.S. Fish and Wildlife Service, in litt. 1994). 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, 1995a). One subpopulation has approximately 10 to 20 snails/m\2\ 
(1 to 2 snails/ft\2\) and occupies 2 to 3 m\2\ (21 to 32 ft\2\) (M. 
Kido, in litt. 1994). A second subpopulation supports approximately 25 
snails. The two remaining subpopulations in the Hanalei River are 
reported to be small with very few snails (M. Kido, in litt. 1995a). 
The population found in the upper reaches of the North Fork of the 
Wailua River just upstream of a concrete agricultural water diversion 
intake, appears to vary over time but was made up of just a few 
scattered individuals during surveys in 1996 and 1997 (M. Kido, pers. 
comm. 1995b; M. Kido, pers. comm. 2000).
    Based on these data, we estimate that the six 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 populations found in Kalalau Stream and the 
Lumahai River.

Previous Federal Action

    The February 28, 1996, Federal Register 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 we have on file 
sufficient information on biological vulnerability and threats to 
support issuance of a proposed rule to list, but issuance of the 
proposed rule is precluded by other higher priority listing actions. We 
published a proposed rule on July 21, 1997 (62 FR 38953), to list this 
species as threatened. On January 26, 2000 (65 FR 4162), we published a 
final rule determining Newcomb's snail to be a threatened species.
    In the final listing rule we determined that designation of 
critical habitat for the Newcomb's snail would be prudent because such 
a designation could benefit the species beyond listing as threatened by 
extending protection under section 7 of the Act to currently unoccupied 
habitat and by providing informational and educational benefits. 
Despite the prudency determination, we also indicated that we were not 
able to develop a proposed critical habitat designation for the 
Newcomb's snail at that time due to budgetary and workload constraints. 
However, on June 2, 2000, the U.S. Fish and Wildlife Service was 
ordered by U.S. District Court (Conservation Council for Hawaii vs. 
Bruce Babbitt and Jamie Rappaport Clark, Civil No. 99-00603 SCM/BMK) to 
publish the critical habitat designation for Newcomb's snail by 
February 1, 2002. The plaintiffs and the Service have entered into a 
consent decree

[[Page 3852]]

stating that we will jointly seek an extension of this deadline to 
August 10, 2002 (Center for Biological Diversity, et al. vs. Norton, 
Civil No. 01-2063 (JR) (D.D.C.); October 2, 2001). This proposed rule 
responds to the court's order.
    On March 5, 2001, we mailed letters to 104 potentially interested 
parties informing them that the Service was in the process of 
designating critical habitat for the Newcomb's snail and requesting 
from them information concerning the range of the Newcomb's snail, 
observational life history accounts, current threats, and management 
activities on lands where Newcomb's snail currently occurs or occurred 
in the past. The letters contained a fact sheet describing the 
Newcomb's snail and included a map depicting the current range of the 
Newcomb's snail. Recipients of these letters included land owners and 
managers that own and manage land at the two sites where Newcomb's 
snails are found on private lands, and the various State agencies 
responsible for managing State of Hawaii lands and water resources at 
the other locations where the Newcomb's snail are known to occur. We 
received seven responses to our written request for information: four 
from various State agencies within the Hawaii Department of Land and 
Natural Resources (State Historic Preservation Office, Commission on 
Water Resource Management, Land Division, and the Office of the 
Chairperson of the Board of Land and Natural Resources), one from the 
Office of Hawaiian Affairs, one from the Office of the Mayor of Kauai 
County, and one from a Museum-affiliated researcher. The information 
provided in the responses was considered and incorporated into this 
proposed rule. In addition, on March 15, 2001, a public informational 
meeting was held on Kauai to provide an opportunity for the general 
public, non-governmental organizations, and representatives from 
government agencies to meet with Service personnel and discuss the 
critical habitat designation process.

Critical Habitat

    Critical habitat is defined in section 3 (5)(A) of the Act as--(i) 
the specific areas within the geographic 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 
geographic 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.
    In order for occupied habitat to be included in a critical habitat 
designation, the habitat features must be ``essential to the 
conservation of the species.'' Such critical habitat designations 
identify, to the extent known using the best scientific and commercial 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Regulations under 50 CFR 424.02(j) define special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species. Special management and 
protection are not required if adequate management and protection are 
already in place. Adequate special management or protection may be 
provided by a legally operative plan/agreement that addresses the 
maintenance and improvement of the primary constituent elements 
important to the species and manages for the long-term conservation of 
the species. If any areas containing the primary constituent elements 
are currently being managed to address the conservation needs of the 
Newcomb's snail and do not require special management or protection, 
they would not meet the definition of critical habitat in section 
3(5)(A)(i) of the Act and would not be included in this proposal.
    In order for unoccupied habitat to be included in a critical 
habitat designation, it must be ``essential to the conservation of the 
species.'' Conservation is defined in section 3(3) of the Act as the 
use of all methods and procedures which are necessary to bring any 
endangered or 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 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. Destruction or adverse 
modification is defined as the direct or indirect alteration that 
appreciably diminishes the value of critical habitat for the 
conservation 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. Aside from the added protection that may be provided under 
section 7, the Act does not provide other forms of regulatory 
protection to lands designated as critical habitat. Because 
consultation under section 7 of the Act does not apply to activities on 
private or other non-Federal lands that do not involve a Federal nexus, 
critical habitat designation does not afford any additional regulatory 
protection under the Act.
    Critical habitat also provides non-regulatory benefits to the 
species by informing the public of areas that are important for species 
recovery and where conservation actions would be most effective. 
Designation of critical habitat can help focus conservation activities 
for a listed species by identifying areas that contain the physical and 
biological features that are essential for conservation of that 
species, and can alert the public as well as land-managing agencies to 
the importance of those areas. Critical habitat also identifies areas 
that may require special management considerations or protection, and 
may help provide protection to areas where significant threats to the 
species have been identified or help to avoid accidental damage to such 
areas.
    When we designate critical habitat at the time of listing, as 
required under Section 4 of the Act, or under short court-ordered 
deadlines, we may not have the information necessary to identify all 
areas which are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we know to be 
critical habitat, using the best information available to us.
    Within the geographic area of the species, we will designate only 
currently known essential areas. We will not speculate about what areas 
might be found to be essential if better information became available, 
or what areas may become essential over time. If the information 
available at the time of designation does not show that an area 
provides essential life cycle needs of the species, then the area will 
not be included in the critical habitat designation. Our regulations 
state that, ``The Secretary shall designate as critical habitat areas 
outside the geographic area presently occupied by the species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species'' (50 CFR 424.12(e)). 
Accordingly, when the best available scientific and commercial data do 
not demonstrate that the conservation needs

[[Page 3853]]

of the species require designation of critical habitat outside of 
occupied areas, we will not designate critical habitat in areas outside 
the geographic area occupied by the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published on July 1, 1994 (59 FR 34271), provides guidance to 
ensure that decisions made by the Service represent the best scientific 
and commercial data available. It requires that our biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, 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 should be the listing package for the species. 
Additional information may be obtained from a recovery plan, articles 
in peer-reviewed journals, conservation plans developed by states and 
counties, scientific status surveys and studies, and biological 
assessments, unpublished materials, and expert opinion or personal 
knowledge.
    Habitat is often dynamic, however, and populations 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, all should understand that 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. It is 
possible that federally funded or assisted projects affecting listed 
species outside their designated critical habitat areas could 
jeopardize those species. 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 and recovery efforts if new information available 
to these planning efforts calls for a different outcome.

Methods and Criteria Used To Identify Critical Habitat

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12), we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the survival and recovery of the Newcomb's snail. This 
information included: Peer-reviewed scientific publications (Hubendick 
1952, Morrison 1968, Patterson and Burch 1978, and Cowie et al. 1995); 
unpublished reports, field notes and correspondence by Service 
personnel, State agency biologists, and university researchers (M. 
Kido, in litt. 1994, 1995a, 1995b; S. Miller, in litt. 1994a, 1994b; A. 
Asquith, in litt. 1994; Donald Heacock, Hawaii Department of Land and 
Natural Resources Division of Aquatic Resources, pers. comm. 1994, D. 
Heacock pers. comm. 2001); and responses to the Newcomb's snail 
critical habitat outreach material mailed to Federal, State, and 
private land managers and land owners.
    Most of the currently occupied Newcomb's snail sites are located in 
close proximity to one another. For example, the Hanalei river 
population is located just 3.2 km (1.9 mi) from the North Fork Wailua 
River population, and the Makaleha Springs population is just 2.5 km 
(1.6 mi) from the Waipahee Stream population. The exception is the 
population found in Kalalau Stream, which is located 11 km (6.3 mi) 
from the Lumahai River population, its nearest neighbor. Despite the 
relatively short distances between snail populations, the steep, rugged 
terrain and circular shape of the island creates conditions that allow 
the sites to be exposed to severe weather and other natural phenomena 
from markedly different directions. For example, the Hanalei River 
valley is aligned in a south-to-north direction, while the North Fork 
Wailua River valley extends from north-to-south. The two Newcomb's 
snail populations in these drainages are separated by a distance of a 
few km, but the ridge between them is over 900 m (2953 ft) in 
elevation. Because the terrain where Newcomb's snail is found is remote 
and extremely rugged, three of the six known populations (located in 
Kalalau Stream, Lumahai River and Waipahee Stream) have not been 
resurveyed since their initial discovery or rediscovery. Growth rates, 
life span, reproductive potential, age at first reproduction, dietary 
needs, and microhabitat preferences are not known. As noted above, 
accurate population estimates and the natural variability of 
populations over time are also not available. We are in the process of 
developing a draft recovery plan for this species. We anticipate the 
draft being available for public review and comment by the spring of 
2002.
    Because of the topography of the island and the prevalent weather 
patterns, torrential rains that may cause flooding, channel scour, and 
landslides are usually restricted to one or two quadrants of the island 
during any single storm event. Recent examples of such recurring 
natural phenomena include Hurricane Iniki (a category 4 hurricane which 
devastated Kauai on September 11, 1992), Hurricane Iwa (November 23, 
1982), and the huge upper Olokele Valley landslide of October 31, 1981 
(Fitzsimons et al. 1993, Jones et al. 1984). Each of these events 
markedly degraded or entirely eliminated large areas of potential 
Newcomb's snail habitat which had never been surveyed to locate snail 
populations. These physical conditions indicate that recovery through 
protection of the existing populations, plus reestablishment of 
populations in suitable areas of historical range that provide a wide 
geographical separation, is necessary for the ensured survival of the 
species. We therefore find that inclusion of three currently unoccupied 
areas identified as containing the primary constituent elements is 
essential to the conservation of the Newcomb's snail. These three sites 
are located in the northwest quadrant of the island, in drainages 
between the Lumahai River and Kalalau Stream populations. These three 
locations are identified as priority recovery units for translocation 
efforts in the draft Newcomb's snail Recovery Plan currently under 
preparation by the Service.
    Complete recovery will require restoration of Newcomb's snails to 
areas of historically occupied habitat either through natural dispersal 
or translocation. Mere stabilization of Newcomb's snail populations 
within its currently occupied habitat will not achieve recovery of the 
species. The locations currently occupied by known Newcomb's snail 
populations are not sufficiently dispersed to consider the species safe 
from extinction. Existing known populations are found in remarkably 
small areas of only a few square meters of aquatic habitat, each of 
which is at risk from even a small,

[[Page 3854]]

localized landslide or high flow event. Recovery actions are likely to 
include: Maintaining existing populations through regulatory mechanisms 
that protect water resources, watershed protection and stabilization 
efforts; control of non-native predators; and translocation of snails 
for the purpose of reestablishing additional self-sustaining 
populations in the wild. Recovery criteria will require persistence of 
populations of snails that are geographically separated in natural 
habitats to reduce the threat of total elimination of entire 
populations through catastrophic events such as hurricanes, landslides, 
fire, drought, and predator invasions.
    We used several criteria to identify and select locations proposed 
for designation as critical habitat: (1) We began with all locations 
that are currently occupied by Newcomb's snail; (2) we then added three 
locations where Newcomb's snail was found historically but is now 
thought to be extirpated in the northwest extent of its range. In 
deciding which unoccupied areas to propose for designation as critical 
habitat, we gave preference to sites that (a) were most recently known 
to be occupied, or (b) provided the greatest geographic diversity to 
the array of locations under consideration for critical habitat. Two of 
these sites are on lands that are publicly owned (Na Pali Coast State 
Park and Hono O Na Pali Natural Area Reserve) and one site is on 
private land. These areas are in the northwest quadrant of the island 
and would presumably be most exposed to severe weather events such as 
hurricanes from the north and northwest. With the exception of the 
Kalalau Stream population, all other populations of Newcomb's snails 
are located in the northeast or southeast quadrants of the island, and 
these sites would be exposed to severe weather events such as 
hurricanes primarily from the east and northeast.
    Nine critical habitat units are proposed, and these units are 
located within three stream complexes that share similar 
characteristics (Table 1). The stream complexes share common 
topography, watershed characteristics, population characteristics, and 
exposure to natural disasters. Each stream complex and the proposed 
critical habitat units within them are discussed below.
    Within the proposed critical habitat unit boundaries, only 
waterbodies containing one or more of the primary constituent elements 
are proposed as critical habitat. Existing features and structures 
within the boundaries of the mapped units, such as dams, ditches, 
tunnels, flumes, and other human-made water features that do not 
contain the primary constituent elements, are not proposed as critical 
habitat. Federal actions limited to those areas, therefore, would not 
trigger a section 7 consultation unless they affect the species and/or 
primary constituent elements in adjacent critical habitat.

Table 1.--Proposed Critical Habitat Units for the Newcomb's Snail by Lower and Upper Boundary Elevations in Meters (M) (Feet (ft)) and the Length of the
                                                     Stream Segments in Kilometers (km) (Miles (mi))
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                  Critical habitat
         Stream complex                 units             Ownership       Lower boundary elevation   Upper boundary elevation    Stream segment length*
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Na Pali Coast Streams.......  (a) Kalalau Stream  State--Na Pali      183 m (600 Ft)...........  488 m (1,600 ft).........  1.38 km (0.86 mi)
                                                      Coast State Park.
                                 (b) Hanakoa Stream  State--Na Pali      122 m (400 ft)...........  457 m (1,500 ft).........  0.80 km (0.50 mi)
                                                      Coast State Park.
  (c) hanakapiai Stream          State--Na Pali      183 m (600 ft)....  457 m (1,500 ft).........  0.56 km (0.35 mi)........
                                  Coast State Park.
II. Central Rivers.............  (a) Wainiha River.  Private--Alexander  244 m (800 ft)...........  457 m (1,500 ft).........  5.26 km (3.27 mi)
                                                      and Baldwin, Inc..
  (b) Lumahai River              Private--Kamehameh  183 m (600 ft)....  457 m (1,500 ft).........  5.0 km (3.11 mi).........
                                  a Schools.
  (c) Hanalei River              State--Halela       122 m (400 ft)....  457 m (1,500 ft).........  7.58 km (4.71 mi)........
                                  Forest Reserve.
III. Eastside Mountain Streams.  (a) Waipahee        Private--Cornersto  244 m (800 ft)...........  366 m (1,200 ft).........  2.41 km (1.50 mi)
                                  Stream.             ne Hawaii
                                                      Holdings, LCC.
                                 (b) Makaleha        State--Kealia       183 m (600 ft)...........  457 m (1,500 ft).........  1.59 km (0.99 mi)
                                  Stream.             Forest Reserve.
                                 (c) North Fork      State--Lihue-Koloa  305 m (1000 ft)..........  427 m (1,400 ft).........  1.71 km (1,06 mi)
                                  Wailua River.       Forest Reserve.
    TOTAL......................  ..................  ..................  .........................  .........................  26.29 km (16.35 mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Length of main stream channel, does not include tributaries or springs.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12 in determining which areas to propose as critical 
habitat, we are required to consider those physical and biological 
features that are essential to the conservation of the species and that 
may require special management considerations and protection. Such 
features are termed Primary Constituent Elements, and include but are 
not limited to: space for individual and population growth and for 
normal behavior; food, water, air, light, minerals and other 
nutritional or physiological requirements; cover or shelter; space for 
breeding and reproduction; and habitats that are protected from 
disturbance and are representative of the historic geographical and 
ecological distributions of the species.
    The primary constituent elements for the Newcomb's snail are those 
habitat components that are essential for the primary biological needs 
of foraging, sheltering, reproduction, and dispersal. These primary 
constituent elements are found in locations that, as a result of their 
geologic and hydrologic setting in the landscape, support permanently 
flowing streams, springs and seeps in mid-elevation locations in 
valleys on the island of Kauai. The primary constituent elements are: 
cool, clean, moderate-to fast-flowing water in streams, springs and 
seeps; the associated watersheds and hydrogeologic features that 
capture and

[[Page 3855]]

direct water flow to these spring and stream systems; a hydrologic 
regime that supports perennial flow throughout even the most severe 
drought conditions; and stream channel morphology that provides 
protection from channel scour by having overhanging waterfalls, 
protected tributaries, or similar areas. All proposed critical habitat 
areas contain one or more of the primary constituent elements for the 
Newcomb's snail.

Proposed Critical Habitat Designation

    Locations proposed as critical habitat provide the full range of 
primary constituent elements needed by the Newcomb's snail, including 
foraging, sheltering, reproduction, and dispersal. Proposed critical 
habitat is limited to segments of perennial streams, their tributaries, 
and associated springs. Critical habitat boundaries were derived using 
topographical characteristics of the valley and nearby drainages 
immediately adjacent to locations where Newcomb's snails occur or 
occurred historically. The upper and lower elevations of critical 
habitat boundaries were chosen based upon the elevational distribution 
from each recorded population, or nearby watersheds where Newcomb's 
snails are found or were found historically. An area of upland riparian 
habitat adjacent to the actual aquatic sites is included in the 
designation of critical habitat. The size of the riparian area was 
determined based on the steepness of the adjacent valley walls, the 
number and size of adjacent small drainages, and the distance and 
elevation gain to adjacent ridge lines. The riparian areas are included 
in this critical habitat designation because the stream and spring 
systems that contain or may contain Newcomb's snails are dependent upon 
riparian areas for shade, moderating water flow, sediment retention, 
and nutrient inputs.
    Areas proposed as critical habitat for the Newcomb's snail occur in 
nine separate watersheds and may include the main channel of a named 
stream, contiguous named and unnamed tributaries, and springs and 
seeps. Proposed critical habitat includes locations under State and 
private ownership and includes six sites currently known to be occupied 
and, in addition, includes three locations where the species was known 
to occur in the early 1900s, but where it is now thought to be 
extirpated.
    Stream reaches are identified using elevations of the stream or 
tributary channels as upstream and downstream boundaries; these 
elevations were derived separately for each of the nine reaches and 
were delineated by recognizing unique physiographic features within 
each watershed such as waterfalls, small tributaries, and springs. A 
brief description of each stream reach and reasons for proposing it as 
critical habitat are presented below.

Unit I: Na Pali Coast Streams

    Streams of the Na Pali Coast are small, short, and flow over steep 
terrain. These streams are located in the northwest quadrant of the 
island, and, because they are located in smaller watersheds, they are 
directly exposed to coastal weather conditions. Rainfall in this area 
is lower than in the other watersheds proposed for critical habitat. 
The vegetation of the Na Pali Coast Stream Complex consists primarily 
of mixed-species mesic forest composed of native and introduced plant 
species. The higher elevations are primarily native forest, but the 
lower elevations are more disturbed and are dominated by introduced 
plant species. One of the three locations currently has snails present. 
The other two locations were known to harbor Newcomb's snail 
populations relatively recently but the species is now thought to be 
extirpated at those sites.

Unit I(a): Kalalau Stream

    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with the east fork of Kalalau Stream and its 
tributaries, including springs and seeps, from an elevation of 183 to 
488 m (600 to 1,600 ft). This reach contains one of the two largest 
known populations of Newcomb's snails, and it contains the largest 
population of snails documented on public lands. At least two large, 
vertical or overhanging waterfalls in this reach appear to provide 
important refuge from high, channel-scouring flows (S. Miller, in litt. 
1994b). This population is currently the most isolated of the Newcomb's 
snail populations, and it is separated from the nearest neighboring 
population, located in Lumahai River, by 11.8 km (7.3 mi). It is the 
only remaining population in the northwest quadrant of the island.
    This unit is essential to the conservation of Newcomb's snail 
because it has the most robust population of snails ever recorded, as 
documented in Service surveys conducted in 1994. This unit is required 
to maintain one of the six known populations of snails. This stream 
segment is located within the Na Pali Coast State Park. Kalalau Stream 
has no water diversions.

Unit I(b): Hanakoa Stream

    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with Hanakoa Stream and its tributaries, 
including springs and seeps, from an elevation of 122 to 457 m (400 to 
1,500 ft). Historical records from the early 1900s indicate that 
Newcomb's snails were found in this stream; however, a recent survey 
failed to locate any snails (S. Miller in lit. 1994b). This reach is 
located on the northwest side of the island and is exposed to severe 
weather approaching from the northwest. Hanakoa Stream was heavily 
impacted by Hurricane Iniki in 1992 (Fitzsimons et al. 1993), prior to 
surveys intended to locate populations of Newcomb's snail.
    This unit is essential to the conservation of Newcomb's snail 
because it was occupied until recently and is therefore one of only 
nine locations known with certainty to contain suitable habitat 
conditions for Newcomb's snails. For the reasons discussed above, it is 
essential to the conservation of the species to have stream sites in 
the northwest part of its range available for repopulation by Newcomb's 
snails either by natural dispersal or through experimental 
translocation. This stream segment is located within the Na Pali Coast 
State Park and is adjacent to the Honu O Na Pali Natural Area Reserve. 
Hanakoa Stream has no water diversions.

Unit I(c): Hanakapiai Stream

    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with Hanakapiai Stream and its tributaries, 
including springs and seeps, from an elevation of 183 to 457 m (600 to 
1,500 ft). Historical records indicate that Newcomb's snail occurred in 
this reach; however, no recent surveys have located snails (M. Kido, in 
litt. 1994, A. Asquith pers. comm. 2001). This reach, like those in 
Kalalau and Hanakoa streams, is located in the northwest portion of the 
island and is exposed to severe weather from the north and northwest 
(Fitzsimons et al. 1993).
    This unit is essential to the conservation of Newcomb's snail 
because it was occupied until recently and is therefore one of only 
nine locations known with suitable habitat conditions for Newcomb's 
snails. Because it is located in the northwest part of its range and 
has exhibited habitat conditions known to support Newcomb's snail in 
the recent past it should continue to be available for repopulation by 
Newcomb's snails either by natural dispersal or through

[[Page 3856]]

experimental translocation. This stream segment is located within the 
Na Pali Coast State Park and is adjacent to the Honu O Na Pali Natural 
Area Reserve. Hanakapiai Stream has no water diversions.

Unit II: Central Rivers

    The central rivers of Kauai are large relative to other streams in 
the State, and flow through relatively low-gradient watersheds. These 
rivers are located in the northern half of the island and, because 
their headwaters are located well inland and in large valleys, are 
exposed to weather conditions that are greatly influenced by the 
surrounding landmass. Rainfall in this area is higher than in the other 
watersheds proposed for critical habitat. The vegetation of the Central 
Rivers Complex watersheds consists primarily of mixed-species wet and 
mesic forest composed of native and introduced plant species. The 
higher elevations are primarily native forest, but the lower elevations 
are more disturbed and are dominated by introduced plant species. Two 
of the three locations currently have Newcomb's snail populations 
present, and the remaining location was known to harbor Newcomb's snail 
populations historically, but the species is now thought to be 
extirpated there.
Unit II(a): Wainiha River
    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with the Wainiha River and its tributaries, 
including springs and seeps, from an elevation of 244 to 457 m (800 to 
1,500 ft). Historical records indicate that Newcomb's snail occurred in 
this stream, which is one of the largest stream systems in the State. 
Surveys have failed to locate snails (M. Kido, in litt. 1994). This 
site is located well inland in a steep-walled valley that is in the 
northwest portion of the island. The potential exposure to severe 
weather at this site is primarily from the north, but this exposure is 
greatly influenced by the precipitous valley walls, which rise some 975 
m (3,200 ft) above the stream channel.
    This stream segment is located on private land. A major water 
diversion structure is located at the 213 m (700 ft) elevation of 
Wainiha River below which the river channel is frequently dry. The dam 
is located approximately one kilometer downstream of the lower boundary 
of the area proposed for designation as critical habitat. This 
diversion removes an average of 50 million gallons per day (2.19 cubic 
meters per second) of water from the river at the 213 m (700 ft) 
elevation; this water is transported in ditches, tunnels, and flumes 
approximately 5.3 km (3.3 m) downstream to a powerhouse. This facility 
is the largest hydroelectric power producer in the State.
    This unit is essential to the conservation of Newcomb's snail 
because it was historically occupied and is therefore one of only nine 
locations known with certainty to contain suitable habitat conditions 
for Newcomb's snails. This location should be considered for 
experimental repopulation by Newcomb's snails through translocation 
efforts.
Unit II(b): Lumahai River
    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with Lumahai River and its tributaries, 
including springs and seeps, from an elevation of 183 to 457 m (600 to 
1,500 ft). One of the largest populations of Newcomb's snails ever 
documented occurs in this reach of Lumahai River and its tributaries. 
This stream segment is located on private land. Lumahai River has no 
water diversions.
    This unit is essential to the conservation of Newcomb's snail 
because it has one of the most robust population of snails ever 
discovered, as recorded at the time of the discovery of the population 
by Hawaii Department of Land and Natural Resources division of Aquatic 
Resources personnel in 1994. This unit is required as critical habitat 
to maintain and recover one of the six known populations of Newcomb's 
snails.
Unit II(c): Hanalei River
    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with the Hanalei River and its tributaries, 
including springs and seeps, from an elevation of 122 to 457 m (400 to 
1,500 ft), excluding ditches and flumes. The four sub-populations found 
within this stream system represent the largest number of Newcomb's 
snail sub-populations occurring within a single watershed. Segments of 
several named tributaries to the Hanalei River are included in this 
designation, and these include Kaapoko, Kaiwa, and Waipunaea Streams. 
This stream segment is located within the Halela Forest Reserve on 
State lands. The proposed critical habitat that contains the Hanalei 
River subpopulations of Newcomb's snail is essential to the 
conservation of the species because this area is needed to maintain one 
of the six existing known populations of snails.
    A complex of stream diversion works that includes dams, ditches and 
tunnels, is found at the 378 m (1,240 ft) elevation of the Hanalei 
River, in the vicinity of the upper two main-channel Hanalei River sub-
populations and upstream of the Kaapoko tributary sub-population at an 
elevation of 396 m (1,300 ft). These dams and associated ditches and 
tunnels historically diverted large volumes of water out of Kaapoko 
tributary and the Hanalei River to watersheds in the southeast portion 
of the island for irrigation use. Typical diversion structures in 
Hawaiian streams completely divert all of a streams flowing water 
during moderate-to low-flow periods, leaving the stream channel below 
the dam completely dry. The water diversion structures and associated 
ditches and tunnels in the upper Hanalei River and its tributaries are 
currently in disrepair and, although they locally alter flow 
characteristics, no water is diverted out of the Hanalei watershed at 
this time.

Unit III: Eastside Mountain Streams

    The streams proposed for critical habitat designation that flow 
towards the east and southeast portions of the island are intermediate 
in size. Rainfall is moderate in comparison to the other locations 
proposed as critical habitat. All three of the locations included in 
this stream complex are known to be occupied by extant populations of 
snails. The vegetation of the Eastside Mountain Stream watersheds 
consists primarily of mixed-species wet forest composed of native and 
introduced plant species. The higher elevations are primarily native 
forest, but the lower elevations are more disturbed and are dominated 
by introduced plant species.
Unit III(a): Waipahee Stream (tributary to Kealia Stream)
    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with Waipahee Stream and its tributaries, 
including springs and seeps, from an elevation of 244 to 366 m (800 to 
1,200 ft). Newcomb's snail was historically known to occur in Waipahee 
Stream, and a recent survey has confirmed the presence of Newcomb's 
snails within this reach. The proposed critical habitat that contains 
the Waipahee Stream population of Newcomb's snail is essential to the 
conservation of the species because this area is needed to maintain one 
of the six existing populations of snails.
    Waipahee Stream is located on private land that, in the lower 
elevation areas, is undergoing a transition in use from commercial 
plantation-style sugarcane agriculture to pasture, forestry, 
diversified crops, and ``ecotourism'' use. Higher elevation areas of 
these private

[[Page 3857]]

lands, such as where Newcomb's snails are found, are not used for 
agriculture and are relatively undisturbed. Water is diverted from 
Kealia Stream at several locations at lower elevations.
Unit III(b): Makaleha Stream (tributary to Kapaa Stream)
    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with Makaleha Stream and its tributaries, 
including Makaleha Springs, other springs, and seeps, from an elevation 
of 183 to 457 m (600 to 1,500 ft). The Makaleha Stream and Makaleha 
Springs Newcomb's snail populations have been surveyed several times in 
recent years. Two subpopulations are known to occur within this reach: 
Newcomb's snails are found within the complex of small tributary 
streams originating from Makaleha Springs, and a small number of snails 
are found upstream of the springs at a waterfall located in the 
Makaleha Stream main channel. This stream segment is located within the 
Kealia Forest Reserve on State lands. Water is diverted from Makaleha 
Stream and Kapaa Stream at several locations at lower elevations. The 
proposed critical habitat that contains the Makaleha Stream population 
of Newcomb's snail are essential to the conservation of the species 
because this area is needed to maintain one of the six existing 
populations of snails.
Unit III(c): North Fork Wailua River
    Critical habitat for Newcomb's snail is proposed for all flowing 
surface waters associated with the North Fork of the Wailua River and 
its tributaries, including springs and seeps, from an elevation of 305 
to 427 m (1,000 to 1,400 ft), excluding ditches and flumes. This 
population was the most recent to be discovered and is apparently 
small. This is the only population located in the southwest quadrant of 
the island and is found in a watershed that flows to the west. This 
stream segment is located within the Lihue-Koloa Forest Reserve on 
State lands. Water is diverted from the North Fork Wailua River at an 
elevation of 326 m (1,070 ft), within the area proposed as critical 
habitat. This diversion removes approximately 13 mgd from the stream. 
The proposed critical habitat that contains the North Fork Wailua River 
population of Newcomb's snail is essential to the conservation of the 
species because this area is needed to maintain one of the six existing 
populations of snails.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act 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 designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that actions 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species nor 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. Through this consultation 
we would ensure that the permitted actions do not destroy or adversely 
modify 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 and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed if those actions may affect designated critical habitat.
    Activities on Federal lands that may affect the Newcomb's snail or 
its critical habitat would require section 7 consultation; however, no 
populations of Newcomb's snail are known to exist on Federal land. 
Activities on private or State lands requiring a permit from a Federal 
agency, such as a permit from the U. S. Army Corps of Engineers (ACOE) 
under section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., from the Federal Highway Administration, 
Federal Aviation Administration, Federal Emergency Management Agency, 
or Natural Resources Conservation Service) 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 
lands that are not federally funded or permitted do not require section 
7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may adversely modify such 
habitat or that may be

[[Page 3858]]

affected by such designation. Activities that may result in the 
destruction or adverse modification of critical habitat include those 
that alter the primary constituent elements to an extent that the value 
of critical habitat for the conservation of the Newcomb's snail is 
appreciably reduced. We note that such activities may also jeopardize 
the continued existence of the species. Activities that may directly or 
indirectly adversely affect critical habitat include, but are not 
limited to:
    (1) Destroying or degrading Newcomb's snail habitat (as defined in 
the primary constituent elements discussion) through activities 
adjacent to or upstream of Newcomb's snail habitat. Such activities may 
include reduction or redirection of stream or spring water flow, dam 
construction, channel alteration or realignment, substrate alteration, 
or other direct means (e.g., pesticide or herbicide application, waste 
discharge, groundwater withdrawal, groundwater contamination, reduction 
of groundwater recharge, etc.).
    (2) Appreciably decreasing habitat value or quality through 
indirect effects (e.g., introduction or promotion of potential 
predators, diseases or disease vectors, vertebrate or invertebrate food 
competitors, invasive plant species, watershed degradation through 
overgrazing, augmentation of feral ungulate populations, an altered 
fire regime, or other activities that degrade water quality or quantity 
to an extent that it detrimentally affects stream structure and 
function).
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the conservation of a listed 
species. Actions likely to result in the destruction or adverse 
modification of critical habitat are those that would appreciably 
reduce the value of critical habitat for both the survival and recovery 
of the listed species.
    Actions likely to result in the destruction or adverse modification 
of critical habitat would almost always result in jeopardy to the 
species concerned, particularly when the area of the proposed action is 
occupied by the species concerned. In those cases, critical habitat 
provides little additional protection to a species, and the 
ramifications of its designation are few or none. However, there is a 
potential benefit from critical habitat designation in unoccupied 
areas, and consultation under section 7 of the Act would be triggered 
in these areas if they were designated as critical habitat.
    Federal agencies already must consult with us on activities in 
areas currently occupied by the species to ensure that their actions do 
not jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the ACOE under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Development on private or State lands requiring permits from 
other Federal agencies, such as Department of Housing and Urban 
Development;
    (4) Military training or similar activities of the U.S. Department 
of Defense on their lands or lands under their jurisdiction;
    (5) Construction of communication sites licensed by the Federal 
Communications Commission;
    (6) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities by Federal agencies;
    (7) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency; and
    (8) Other activities such as those funded or authorized by the U.S. 
Department of Agriculture (Forest Service, Natural Resources 
Conservation Service), Department of Transportation, Department of 
Energy, Department of the Interior (U.S. Geological Survey, National 
Park Service, Bureau of Reclamation), Department of Commerce (National 
Oceanic and Atmospheric Administration), Environmental Protection 
Agency, or any other Federal agency.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Pacific Islands Ecological Services Field Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and plants and inquiries about prohibitions and permits should 
be directed to the U.S. Fish and Wildlife Service, Endangered Species 
Act Section 10 Program at the same address.
Application of the Section 3(5)(A) Criteria Regarding Special 
Management Considerations or Protection
    Special management and protection are not required if adequate 
management and protection are already in place. Adequate special 
management or protection is provided by a legally operative plan/
agreement that addresses the maintenance and improvement of the primary 
constituent elements important to the species and manages for the long-
term conservation of the species. If any areas containing the primary 
constituent elements are currently being managed to address the 
conservation needs of the Newcomb's snail and do not require special 
management or protection, they would not meet the definition of 
critical habitat in section 3(5)(A)(i) of the Act and so would not be 
included in this proposed rule.
    To determine if a plan provides adequate management or protection 
we consider: (1) Whether a current plan specifies the management 
actions and whether such actions provide sufficient conservation 
benefit to the species; (2) whether the plan provides assurances that 
the conservation management strategies will be implemented; and (3) 
whether the plan provides assurances that the conservation management 
strategies will be effective. In determining if management strategies 
are likely to be implemented, we consider whether: (a) A management 
plan or agreement exists that specifies the management actions being 
implemented or to be implemented; (b) the plan includes a timely 
schedule for implementation; (c) there is a high probability that the 
funding source(s) or other resources necessary to implement the actions 
will be available; and (d) the party(ies) have the authority and long-
term commitment to the agreement or plan to implement the management 
actions, as demonstrated, for example, by a legal instrument providing 
enduring protection and management of the lands. In determining whether 
an action is likely to be effective, we consider whether: (a) The plan 
specifically addresses the management needs, including reduction of 
threats to the species; (b) such actions have been successful in the 
past; (c) the plan includes provisions for monitoring and assessment of 
the effectiveness of the management actions; and (d) adaptive 
management principles have been incorporated into the plan.
    Based on information provided to us by land owners and managers to 
date, we will need to work with the land owners and managers to 
adequately

[[Page 3859]]

manage to address the threats to the Newcomb's snail. Several areas are 
covered under current management plans and are being managed in a 
manner that meets some of the conservation needs of the Newcomb's 
snail, but we find that the management does not adequately reduce the 
primary threats to this species.

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available, and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. We may exclude 
areas from critical habitat designation if the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species. We will conduct an analysis of 
the economic impacts of designating these areas as critical habitat 
prior to a final determination. When completed, we will announce the 
availability of the draft economic analysis with a notice in the 
Federal Register.
    Currently, no habitat conservation plans (HCPs) include the 
Newcomb's snail as a covered species. However, we believe that in most 
instances the benefits of excluding HCPs from critical habitat 
designations will outweigh the benefits of including them. In the event 
that future HCPs are developed within the boundaries of designated 
critical habitat, we will work with applicants to ensure that the HCPs 
provide for protection and management of habitat areas essential for 
the conservation of this species. This will be accomplished by either 
directing development and habitat modification to nonessential areas, 
or appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the critical habitat.
    We will also provide technical assistance and work closely with 
applicants throughout the development of any future HCPs to identify 
lands essential for the long-term conservation of the Newcomb's snail 
and appropriate management for those areas. The take minimization and 
mitigation measures provided under such HCPs would be expected to 
protect the essential habitat lands proposed as critical habitat in 
this rule. Furthermore, we will complete intra-Service consultation on 
our issuance of section 10(a)(1)(B) permits for these HCPs to ensure 
permit issuance will not destroy or adversely modify critical habitat.

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We are particularly interested in 
comments concerning:
    (1) The reasons why any area should or should not be determined to 
be critical habitat as provided by section 4 of the Act and 50 CFR 
424.12(a)(1), including whether the benefits of designation will 
outweigh any threats to the species due to designation;
    (2) Specific information on the number and distribution of 
Newcomb's snail and what habitat is essential to the conservation of 
this species and why;
    (3) Whether lands within proposed critical habitat are currently 
being managed to address conservation needs of the Newcomb's snail;
    (4) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (6) Whether future development and approval of conservation 
measures (e.g., Conservation Agreements, Safe Harbor Agreements, etc.) 
should be excluded from critical habitat and, if so, by what mechanism; 
and
    (7) Economic and other values associated with designating critical 
habitat for the Newcomb's snail, such as those derived from non-
consumptive uses (e.g., hiking, camping, wildlife-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs).
    If we receive information that any of the areas proposed as 
critical habitat are currently being managed to address the 
conservation needs of the Newcomb's snail and provide adequate 
management and protection, we may exclude such areas from the final 
rule because they would not meet the definition of critical habitat in 
section 3(5)(A)(i) of the Act. We may also exclude areas pursuant to 
section 4(b)(2) of the Act if information on impacts received during 
the public comment period or developed as part of the economic analysis 
indicates that the benefits of exclusion outweighs the benefits of 
inclusion, provided it will not result in extinction of the species. If 
you wish to comment on this proposed rule, you may submit your comments 
and materials concerning this proposal by any one of several methods 
(see ADDRESSES):
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold their home 
address, which we will honor to the extent allowable by law. There also 
may be circumstances in which we would withhold a respondent's 
identity, as allowable by law. If you wish for us to withhold your name 
and/or address, you must state this request prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, 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 Pacific 
Islands Fish and Wildlife Office in Honolulu.

Peer Review

    In accordance with our policy published 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 listing and critical habitat decisions are 
based on scientifically sound data, assumptions, and analyses. We will 
send copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite the peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designations of 
critical habitat.
    We will consider all comments and data received during the 60-day 
public 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 must be made at least 15 
days prior to the close of the public comment period. We will schedule 
public hearings on this proposal, if any are requested, and announce 
the dates, times, and places of

[[Page 3860]]

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 language or jargon that interferes with the clarity? (3) Does 
the format of the proposed rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the proposed rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the document? (5) Is 
the background information useful and is the amount appropriate? (6) 
What else could we do to make the proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (E.O.) 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB) in accordance with the four criteria discussed below. We 
are preparing a draft analysis of this proposed action, which will be 
available for public comment, to determine the economic consequences of 
designating the specific areas as critical habitat. The availability of 
the draft economic analysis will be announced in the Federal Register 
so that it is available for public review and comments.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas would be excluded from critical habitat 
designation pursuant to section 4 of the Act, we do not believe this 
rule will have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, jobs, the environment, public health or safety, 
or State, local or tribal communities. Therefore, we do not believe a 
cost benefit and economic analysis pursuant to E.O. 12866 is required.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency. Section 7 of the Act requires Federal agencies to ensure that 
they do not jeopardize the continued existence of the species. Based on 
our experience with the species and its needs, we believe that any 
Federal action or authorized action that could potentially cause an 
adverse modification of the proposed critical habitat would currently 
be considered as jeopardy to the species under the Act in areas 
occupied by the species.
    Accordingly, we do not expect the designation of areas as critical 
habitat within the geographical range of the species to have any 
incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. The designation of areas as critical habitat 
where section 7 consultations would not have occurred but for the 
critical habitat designation may have impacts on what actions may or 
may not be conducted by Federal agencies or non-Federal persons who 
receive Federal authorization or funding that are not attributable to 
the species listing. We will evaluate any impact through our economic 
analysis (under section 4 of the Act: see the ``Exclusions Under 
Section 4(b)(2)'' section of this rule). Non-Federal persons who do not 
have a Federal sponsorship of their actions are not restricted by the 
designation of critical habitat.
    (b) This rule is not expected to create inconsistencies with other 
agencies' actions. Federal agencies have been required to ensure that 
their actions do not jeopardize the continued existence of the 
Newcomb's snail since its listing in January of 2000. The prohibition 
against adverse modification of critical habitat is expected to impose 
few, if any, additional restrictions to those that currently exist in 
the proposed critical habitat on currently occupied lands. We will 
evaluate any impact of designating areas where section 7 consultations 
would not have occurred but for the critical habitat designation 
through our economic analysis. Because of the potential for impacts on 
other Federal agency activities, we will continue to review this 
proposed action for any inconsistencies with other Federal agency 
actions.
    (c) This proposed rule, if made final, will not significantly 
impact entitlements, grants, user fees, loan programs, or the rights 
and obligations of their recipients. Federal agencies are currently 
required to ensure that their activities do not jeopardize the 
continued existence of the species, and, as discussed above, we do not 
anticipate that the adverse modification prohibition (resulting from 
critical habitat designation) will have any incremental effects in 
areas of occupied habitat on any Federal entitlement, grant, or loan 
programs. We will evaluate any impact of designating areas where 
section 7 consultations would not have occurred but for the critical 
habitat designation through our economic analysis.
    (d) OMB has determined that this rule will raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement 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. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that rule will not have a significant 
economic effect on a substantial number of small entities. SBREFA also 
amended the RFA to require a certification statement. In today's rule, 
we are certifying that the rule will not have a significant effect on a 
small number of small entities. However, should the economic analysis 
prepared pursuant to section 4(b)(2) of the ESA indicate otherwise, we 
will revisit this determination at that time. The following discussion 
explains our rationale.
    Small entities include small organizations, such as independent 
non-profit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses. Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than

[[Page 3861]]

100 employees, retail and service businesses with less than $5 million 
in annual sales, general and heavy construction businesses with less 
than $27.5 million in annual business, special trade contractors doing 
less than $11.5 million in annual business, and agricultural businesses 
with annual sales less than $750,000. To determine if potential 
economic impacts to these small entities are significant, we consider 
the types of activities that might trigger regulatory impacts under 
this rule as well as the types of project modifications that may 
result. In general, the term significant economic impact is meant to 
apply to a typical small business firm's business operations.
    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. In some circumstances, especially with 
proposed critical habitat designations of very limited extent, we may 
aggregate across all industries and consider whether the total number 
of small entities affected is substantial. In estimating the numbers of 
small entities potentially affected, we also consider whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation. In areas where the species is present, 
Federal agencies are already required to consult with us under section 
7 of the Act on activities that they fund, permit, or implement that 
may affect Newcomb's snail. If this critical habitat designation is 
finalized, Federal agencies must also consult with us if their 
activities may affect designated critical habitat. However, we do not 
believe this will result in any additional regulatory burden on Federal 
agencies or their applicants because consultation would already be 
required due to the presence of the listed species, and the duty to 
avoid adverse modification of critical habitat would not trigger 
additional regulatory impacts beyond the duty to avoid jeopardizing the 
species. An action that appreciably diminishes habitat for the 
conservation of the species may also jeopardize the continued existence 
of the species by reducing population numbers, decreasing reproductive 
success, or altering species distribution because of negative impacts 
to such habitats.
    Even if the duty to avoid adverse modification does not trigger 
additional regulatory impacts in areas where the species is present, 
designation of critical habitat could result in an additional economic 
burden on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities. However, since Newcomb's 
snail has only been listed since January 2000, and there are no 
consultations involving the species, the requirement to reinitiate 
consultations for ongoing projects will not affect a substantial number 
of small entities.
    When the species is clearly not present, designation of critical 
habitat could trigger additional review of Federal activities under 
section 7 of the Act. Because Newcomb's snail has been listed only a 
relatively short time and there have been no activities with Federal 
involvement in these areas during this time, there is no history of 
consultations based on the listing of this species. Therefore, for the 
purposes of this review and certification under the Regulatory 
Flexibility Act, we are assuming that any future consultations in the 
area proposed as critical habitat will be due to the critical habitat 
designation.
    None of the proposed designation is on Federal lands. Six of the 
nine sites are on lands owned and managed by the State of Hawaii, which 
is not a small entity for purposes of this analysis. This includes 
units within the Na Pali Coast State Park, Hono O Na Pali Natural Area 
Reserve, the Halela Forest Reserve and the Lihue-Koloa Forest Reserve. 
All of these land areas are primarily managed for conservation of 
natural resources, including threatened and endangered species. In 
state lands, activities with no Federal involvement would not be 
affected by the critical habitat designation.
    Three of the nine units of the proposed designation are on private 
land. On private lands, activities that lack Federal involvement would 
not be affected by the critical habitat designation. No activities of 
an economic nature currently occur on the private lands in the area 
encompassed by this proposed designation. These areas are in the State 
Conservation District and have a very limited range of allowable 
activities that could occur there under the State Conservation District 
Use permitting program. Because of the Conservation District zoning, 
and because the sites are so remote and inaccessible that helicopter 
transport is normally required for access, even small-scale commercial 
or agricultural development is unlikely. Therefore, Federal agencies 
such as the Economic Development Administration, which is occasionally 
involved in funding municipal projects, is unlikely to be involved in 
projects in these areas. On the Island of Kauai, previous consultations 
under section 7 of the Act between us and other Federal agencies most 
frequently involved the Department of the Navy, and the U.S. Army Corps 
of Engineers (ACOE). In the case of ACOE consultations, the applicant 
is often the County of Kauai which is not considered a small entity as 
defined here. ACOE consultations involve permits for discharge of fill 
material in wetlands or waterways and occur due to the presence of 
threatened or endangered species (primarily the five endangered 
Hawaiian waterbirds) that spend at least part of their life in aquatic 
habitats. Because the stream channels proposed for Newcomb's snail 
critical habitat are so remote, no consultations due to ACOE permits 
are anticipated for activities such as road construction. Construction 
of new diversion structures in the stream segments proposed for 
critical habitat, or rehabilitation of the abandoned water diversion 
structures in the proposed Hanalei critical habitat unit, is unlikely 
because agriculture practices have changed and irrigation demands have 
greatly diminished, but if such activities do occur and involve 
discharge of fill, ACOE permitting and section 7 consultation would be 
required.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements. First, if we 
conclude, in a biological opinion, that a proposed action is likely to 
jeopardize the continued existence of a species or adversely modify its 
critical habitat, we can offer ``reasonable and prudent alternatives.'' 
Reasonable and prudent alternatives are alternative actions that can be 
implemented in a manner consistent with the scope of the Federal 
agency's legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid jeopardizing the 
continued existence of listed species or resulting in adverse 
modification of critical habitat. A Federal agency and an applicant may 
elect to implement a reasonable and prudent alternative associated with 
a biological opinion that has found jeopardy or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing

[[Page 3862]]

the reasonable and prudent alternative. However, unless an exemption 
were obtained, the Federal agency would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives. Secondly, if we find that a 
proposed action is not likely to jeopardize the continued existence of 
a listed animal species, we may identify reasonable and prudent 
measures designed to minimize the amount or extent of take and require 
the Federal agency or applicant to implement such measures through non-
discretionary terms and conditions. We may also identify discretionary 
conservation recommendations designed to minimize or avoid the adverse 
effects of a proposed action on listed species or critical habitat, 
help implement recovery plans, or to develop information that could 
contribute to the recovery of the species.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects--including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. As we have no consultation history for 
Newcomb's snail, we can only describe the general kinds of actions that 
may be identified in future reasonable and prudent alternatives. These 
are based on our understanding of the needs of the species and the 
threats it faces, especially as described in the final listing rule and 
in this proposed critical habitat designation, as well as our 
experience with the listed terrestrial snails in Hawaii. The kinds of 
actions that may be included in future reasonable and prudent 
alternatives include conservation set-asides, management of competing 
non-native species and predators, restoration of degraded habitat, 
construction of protective fencing, and regular monitoring. As required 
under section 4(b)(2) of the Act, we will conduct an analysis of the 
potential economic impacts of this proposed critical habitat 
designation, and will make that analysis available for public review 
and comment before finalizing this designation.
    In summary, we have considered whether this proposed rule would 
result in a significant economic effect on a substantial number of 
small entities. It would not affect a substantial number of small 
entities. The entire designation involves six sites on state lands and 
three sites on privately owned land; all of which are located in areas 
where likely future land uses are not expected to result in Federal 
involvement or section 7 consultations. As discussed earlier, the 
private lands are within the state Conservation District and no 
commercial activities are undertaken at those locations and, therefore, 
are not likely to require any Federal authorization. In these areas, 
Federal involvement--and thus section 7 consultations, the only trigger 
for economic impact under this rule--would be limited to a subset of 
the area proposed. The most likely Federal involvement would be through 
some unforeseen activity within a stream channel that would call for a 
permit or authorization from the ACOE. Because of the rugged terrain 
and extreme remoteness of the island interior, we anticipate that 
projects involving the ACOE and other Federal agencies will be 
infrequent within the proposed designation. This rule would result in 
project modifications only when proposed Federal activities would 
destroy or adversely modify critical habitat. While this may occur, it 
is not expected frequently enough to affect a substantial number of 
small entities. Therefore, we are certifying that the proposed 
designation of critical habitat for Newcomb's snail will not have a 
significant economic impact on a substantial number of small entities, 
and an initial regulatory flexibility analysis is not required. 
However, should the economic analysis of this proposed rule indicate 
that there may be significant economic impacts on a substantial number 
of small entities, we will revisit this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211, which 
applies to regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Though this proposed rule is a significant regulatory action under 
Executive Order 12866, 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 
August 25, 2000 et seq.):
    (a) This rule, as proposed, will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. Small governments will be affected only to the extent that 
any programs having Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely affect the 
critical habitat. However, as discussed above, these actions are 
currently subject to equivalent restrictions through the listing 
protections of the species, and no further restrictions are anticipated 
to result from critical habitat designation of occupied areas. In our 
economic analysis, we will evaluate any impact of designating areas 
where section 7 consultations would not have occurred but for the 
critical habitat designation.
    (b) This rule, as proposed, will not produce a Federal mandate on 
State, local, or tribal governments or the private sector of $100 
million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The 
designation of critical habitat imposes no obligations on State or 
local governments.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Newcomb's snail in a preliminary 
takings implication assessment. The takings implications assessment 
concludes that this proposed rule does not pose significant takings 
implications. Once the revised economic analysis is completed for this 
proposed rule, we will review and revise this preliminary assessment as 
warranted.

Federalism

    In accordance with Executive Order 13132, this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with the Department of the Interior and Department 
of Commerce policy, we requested information from appropriate State 
resource agencies in Hawaii. The designation of critical habitat for 
Newcomb's snail would have little incremental impact on State and local 
governments and their activities. The designations may have some 
benefit to these governments in that the areas essential to the 
conservation of this species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are identified. While this

[[Page 3863]]

definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long range planning rather than waiting for case-by-case section 7 
consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate 
critical habitat in accordance with the provisions of the Act. The 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the Newcomb's snail.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required. An agency may not conduct or sponsor and a 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

National Environmental Policy Act

    We have determined that we do not have to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reason for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. The proposed designation of 
critical habitat for the Newcomb's snail does not contain any Tribal 
lands or lands that we have identified as impacting Tribal trust 
resources.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Pacific Islands Fish and Wildlife 
Office (see ADDRESSES section).

Author

    The primary author of this document is Gordon Smith, Pacific 
Islands Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose 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. In Sec. 17.11(h) revise the entry for ``Snail, Newcomb's'' under 
``SNAILS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate
----------------------------------------------------                      population where                                   Critical
                                                       Historic range      endangered or       Status       When listed       habitat      Special rules
          Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
             SNAILS
 
                   *                  *                  *                  *                  *                  *                  *
Snail, Newcomb's...............  Erinna............  U.S.A. (HI),......  N/A..............  T                        680        17.95(f)
                                 newcombi..........
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95 (f) by adding critical habitat for the 
Newcomb's snail (Erinna newcombi) in the same alphabetical order as 
this species occurs in Sec. 17.11(h), to read as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *

Newcomb's snail (Erinna newcombi)

    (1) Critical Habitat Units are depicted for the County of Kauai, 
Hawaii, on the maps below.
    (2) Within these areas, the primary constituent elements 
required by the Newcomb's snail are those habitat components that 
are essential for the biological needs of foraging, sheltering, 
reproduction, and dispersal. These primary constituent elements are 
found in locations that support permanently flowing streams, 
springs, and seeps in mid-elevation locations in valleys on the 
island of Kauai. The primary constituent elements are: cool, clean, 
moderate- to fast-flowing water in streams, springs, and seeps; the 
associated watersheds and hydrogeologic features that capture and 
direct water flow to these spring and stream systems; a hydrologic 
regime that supports perennial flow throughout even the most severe 
drought conditions; and stream channel morphology that provides 
protection from channel scour by having overhanging waterfalls, 
protected tributaries, or similar refugia.
    (3) Existing features and structures, such as dams, ditches, 
tunnels, flumes, and other human-made aquatic habitat features that 
do not contain one or more of the primary

[[Page 3864]]

constituent elements, are not proposed as critical habitat.
    (4) Critical Habitat Unit I--Na Pali Coast Streams.
    (i) Unit I(a): Kalalau Stream (149 ha; 368 ac)
    The Kalalau Stream Newcomb's snail critical habitat location 
consists of all flowing surface waters within 63 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 435010, 2450871; 
434991, 2450828; 435008, 2450782; 435112, 2450715; 435107, 2450681; 
435044, 2450591; 435058, 2450537; 435120, 2450441; 435078, 2450308; 
435048, 2450279; 435017, 2450341; 434968, 2450375; 434678, 2450406; 
434682, 2450441; 434678, 2450551; 434618, 2450603; 434578, 2450602; 
434518, 2450564; 434418, 2450540; 434444, 2450711; 434428, 2450733; 
434388, 2450657; 434338, 2450612; 434278, 2450596; 434228, 2450621; 
434188, 2450596; 434166, 2450621; 434159, 2450691; 434148, 2450691; 
434058, 2450599; 433995, 2450571; 433968, 2450540; 433878, 2450559; 
433825, 2450544; 433767, 2450451; 433738, 2450478; 433700, 2450581; 
433670, 2450611; 433670, 2450671; 433633, 2450738; 433715, 2450996; 
433732, 2451168; 433740, 2451380; 433642, 2451551; 433633, 2451598; 
433688, 2451664; 433842, 2451694; 434206, 2451592; 434680, 2451547; 
435053, 2451609; 435129, 2451611; 435147, 2451590; 435114, 2451460; 
435048, 2451400; 434973, 2451360; 435041, 2451320; 435043, 2451250; 
435134, 2451170; 435126, 2451120; 435089, 2451069; 435075, 2451013; 
435018, 2450933; 435010, 2450871;
    (ii) Unit I(b): Hanakoa Stream (63 ha; 156 ac)
    The Hanakoa Stream Newcomb's snail critical habitat location 
consists of all flowing surface waters within 24 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 435729, 2453628; 
435717, 2453789; 436111, 2454127; 436637, 2454087; 436700, 2454008; 
436719, 2453907; 436658, 2453889; 436654, 2453857; 436735, 2453697; 
436744, 2453577; 436558, 2453527; 436518, 2453555; 436478, 2453559; 
436250, 2453496; 436152, 2453358; 436123, 2453263; 436068, 2453238; 
435998, 2453171; 435918, 2453168; 435869, 2453229; 435799, 2453248; 
435780, 2453320; 435770, 2453490; 435729, 2453628.
    (iii) Unit I(c): Hanakapiai Stream (35 ha; 86 ac )
    The Hanakapiai Stream Newcomb's snail critical habitat location 
consists of all flowing surface waters within 25 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 438438, 2453772; 
438785, 2453827; 438899, 2453794; 438961, 2453796; 439113, 2453829; 
439216, 2453871; 439257, 2453846; 439234, 2453666; 439263, 2453606; 
439310, 2453377; 439299, 2453306; 439258, 2453253; 439158, 2453265; 
439098, 2453290; 438949, 2453407; 438769, 2453508; 438692, 2453457; 
438674, 2453387; 438618, 2453307; 438591, 2453347; 438578, 2453417; 
438525, 2453507; 438443, 2453622; 438429, 2453677; 438438, 2453772.
    (iv) Map 1--Unit I--Na Pali Coast Streams-follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA02.061
    
    (5) Critical Habitat Unit II--Central Rivers
    (i) Unit II(a): Wainiha River (229 ha; 566 ac)
    The Wainiha River Newcomb's snail critical habitat location 
consists of all flowing surface waters within 97 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 442795, 2446794; 
442920, 2446901; 442806, 2446971; 442788, 2447024; 442714, 2447047; 
442714, 2447111; 442595, 2447098; 442621, 2447201; 442708, 2447313; 
442348, 2447194; 442331, 2447221; 442451, 2447358; 442418, 2447470; 
442243, 2447470; 442368, 2447704; 442088, 2447660; 442149, 2447860; 
442108, 2447916; 441936, 2447898; 441979, 2448161; 441686, 2448150; 
441684, 2448250; 441799, 2448430; 441655, 2448417; 441686, 2448587; 
441884, 2448882; 442498, 2449142; 442608, 2449108; 442607, 2448878; 
442728, 2448926; 442797, 2448769; 442572, 2448540; 442605, 2448467; 
442519, 2448310; 442521, 2448210; 442618, 2448118; 442768, 2448120; 
442780, 2447942; 442967, 2447939; 442876, 2447700; 443058, 2447588; 
443075, 2447517; 443239, 2447510; 443207, 2447420; 443222, 2447360; 
443111, 2447280; 443229, 2447111; 443274, 2446940; 443358, 2446898; 
443560, 2446922; 443608, 2446854; 443678, 2446875; 443708, 2446811;

[[Page 3865]]

443764, 2446846; 443780, 2446780; 443823, 2446750; 443757, 2446661; 
443768, 2446624; 444168, 2446355; 444308, 2446345; 444278, 2446241; 
444314, 2446077; 444508, 2445964; 444575, 2445968; 444575, 2445921; 
444660, 2445851; 444723, 2445696; 444809, 2445671; 444941, 2445544; 
444983, 2445431; 444918, 2445128; 444854, 2445447; 444688, 2445518; 
444579, 2445642; 444532, 2445651; 444538, 2445724; 444487, 2445730; 
444468, 2445801; 444348, 2445871; 444153, 2445926; 444153, 2446001; 
444079, 2446172; 443964, 2446197; 443912, 2446265; 443718, 2446356; 
443618, 2446334; 443613, 2446426; 443508, 2446587; 443388, 2446514; 
443368, 2446613; 443208, 2446600; 443098, 2446552; 443073, 2446656; 
442946, 2446651; 443000, 2446763; 442828, 2446711; 442795, 2446794.
    (ii) Unit II(b): Lumahai River (492 ha; 1216 ac)
    The Lumahai River Newcomb's snail critical habitat location 
consists of all flowing surface waters within 89 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 447598, 2445954; 
447344, 2446136; 447298, 2446352; 447248, 2446290; 447178, 2446384; 
447088, 2446327; 446972, 2446364; 446950, 2446572; 446787, 2446678; 
446648, 2446627; 446648, 2446739; 446445, 2446836; 446409, 2447000; 
446278, 2447034; 446208, 2447169; 446097, 2447178; 446141, 2447349; 
446024, 2447449; 446014, 2447649; 445808, 2447618; 445809, 2447680; 
445839, 2447840; 445616, 2447859; 445773, 2448009; 445589, 2448069; 
445728, 2448189; 445531, 2448299; 445685, 2448359; 445605, 2448469; 
445728, 2448478; 445854, 2448578; 445858, 2448680; 445728, 2448778; 
445759, 2448939; 445618, 2448896; 445548, 2448954; 445318, 2448932; 
445338, 2449080; 445164, 2449034; 445171, 2449211; 444998, 2449168; 
444932, 2449348; 445008, 2449493; 445936, 2450417; 446309, 2450498; 
446262, 2450317; 446309, 2450238; 446476, 2450245; 446385, 2450007; 
446688, 2450060; 446714, 2449913; 446811, 2449890; 446799, 2449758; 
446998, 2449747; 447028, 2449643; 447101, 2449690; 447098, 2449525; 
447228, 2449509; 447343, 2449387; 447229, 2449247; 447298, 2449117; 
447128, 2449116; 446901, 2448918; 447174, 2448778; 447144, 2448668; 
447066, 2448628; 447190, 2448478; 446898, 2448400; 446778, 2448451; 
446649, 2448198; 446831, 2448108; 446782, 2447899; 447064, 2447862; 
446986, 2447707; 447038, 2447583; 447225, 2447529; 447162, 2447395; 
446973, 2447289; 447008, 2446969; 447288, 2446719; 447234, 2446659; 
447268, 2446571; 447448, 2446499; 447548, 2446559; 447484, 2446393; 
447518, 2446304; 447739, 2446259; 447507, 2446131; 447598, 2445954;
    (iii) Unit II(c): Hanalei River (876 ha; 2165 ac)
    The Hanalei River Newcomb's snail critical habitat location 
consists of all flowing surface waters within 91 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 450038, 2447210; 
451786, 2447529; 453099, 2446469; 453648, 2446167; 453691, 2445925; 
453614, 2445904; 453508, 2446074; 453044, 2445908; 452961, 2445785; 
452974, 2445578; 453125, 2445605; 453267, 2445468; 453258, 2445377; 
453550, 2445238; 453508, 2445111; 453318, 2445096; 453238, 2444991; 
453098, 2445064; 453010, 2444769; 452768, 2444606; 452680, 2444349; 
452760, 2444169; 452581, 2444039; 452723, 2443844; 452429, 2443810; 
452486, 2443680; 452419, 2443309; 452280, 2443240; 452198, 2443073; 
452088, 2443185; 451948, 2442960; 451678, 2442885; 451549, 2442979; 
451471, 2442787; 450955, 2442448; 451082, 2442651; 450916, 2442988; 
450337, 2443081; 450718, 2443188; 450968, 2443197; 451068, 2443077; 
451255, 2443133; 451414, 2443330; 451612, 2443370; 451552, 2443666; 
451549, 2444330; 451107, 2443911; 450988, 2444210; 450894, 2443874; 
450638, 2443920; 450431, 2443773; 450492, 2444026; 450614, 2444100; 
450468, 2444134; 450592, 2444250; 450389, 2444360; 450621, 2444363; 
450698, 2444275; 450967, 2444669; 450939, 2444770; 450803, 2444769; 
450978, 2444899; 450611, 2445032; 450698, 2445101; 450573, 2445219; 
450969, 2445168; 450768, 2445479; 451068, 2445422; 451226, 2445489; 
451158, 2445584; 451251, 2445606; 451216, 2445692; 451335, 2445819; 
451188, 2445824; 451124, 2445925; 450928, 2445983; 450904, 2446088; 
451017, 2446148; 450940, 2446208; 451031, 2446325; 451208, 2446428; 
450928, 2446552; 450788, 2446490; 450688, 2446603; 450538, 2446560; 
450668, 2446774; 450418, 2446700; 450199, 2446739; 450133, 2446913; 
449784, 2447034; 450038, 2447210.
    (iv) Map 2--Unit II--Central Rivers--follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA02.062
    

[[Page 3866]]


    (6) Critical Habitat Unit III--Eastside Mountain Streams
    (i) Unit III(a): Waipahee Stream (106 ha; 262 ac)
    The Waipahee Stream Newcomb's snail critical habitat location 
consists of all flowing surface waters within 89 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 458928, 2447407; 
458921, 2447414; 458943, 2447424; 458998, 2447420; 459102, 2447444; 
459044, 2447534; 459104, 2447563; 459108, 2447613; 459085, 2447643; 
459100, 2447671; 459118, 2447693; 459108, 2447714; 459078, 2447703; 
459048, 2447661; 459028, 2447663; 459017, 2447694; 459045, 2447696; 
459054, 2447727; 459118, 2447770; 459164, 2447749; 459191, 2447646; 
459231, 2447596; 459309, 2447603; 459321, 2447623; 459306, 2447685; 
459351, 2447663; 459398, 2447531; 459478, 2447584; 459518, 2447553; 
459568, 2447656; 459586, 2447613; 459648, 2447556; 459738, 2447649; 
459918, 2447569; 459998, 2447569; 460018, 2447584; 460048, 2447572; 
460092, 2447599; 460188, 2447591; 460225, 2447606; 460592, 2447476; 
460703, 2447365; 460814, 2447311; 460738, 2447092; 460451, 2446778; 
460396, 2446632; 460318, 2446566; 460314, 2446634; 460270, 2446746; 
460127, 2446673; 460168, 2446764; 460178, 2446877; 460058, 2446836; 
459978, 2446834; 459906, 2446782; 459887, 2446803; 459902, 2446878; 
459848, 2446946; 459818, 2446933; 459778, 2446940; 459694, 2446904; 
459702, 2447004; 459648, 2447020; 459638, 2447098; 459608, 2447104; 
459508, 2447031; 459502, 2447068; 459448, 2447061; 459500, 2447134; 
459467, 2447203; 459445, 2447214; 459408, 2447183; 459388, 2447194; 
459318, 2447163; 459268, 2447169; 459248, 2447139; 459218, 2447136; 
459182, 2447074; 459148, 2447057; 459078, 2447076; 459083, 2447094; 
459148, 2447124; 459185, 2447224; 459166, 2447274; 459178, 2447334; 
459118, 2447345; 458948, 2447313; 459001, 2447384; 458928, 2447407.
    (ii) Unit III(b): Makaleha Stream (95 ha; 235 ac)
    The Makaleha Stream Newcomb's snail critical habitat location 
consists of all flowing surface waters within 68 boundary points 
with the following coordinates in UTM Zone 4 with the units in 
meters using North American Datum of 1983 (NAD83): 459368, 2444730; 
459372, 2444732; 459414, 2444830; 459438, 2444851; 459498, 2444854; 
459528, 2444873; 459588, 2444828; 459601, 2444832; 459689, 2444388; 
459662, 2444260; 459604, 2444112; 459455, 2444044; 459279, 2444030; 
459064, 2444037; 459008, 2444069; 459002, 2444101; 458968, 2444099; 
458944, 2444123; 458878, 2444096; 458808, 2444142; 458803, 2444197; 
458748, 2444245; 458658, 2444279; 458633, 2444322; 458576, 2444325; 
458582, 2444377; 458552, 2444407; 458568, 2444467; 458478, 2444527; 
458474, 2444587; 458537, 2444607; 458492, 2444667; 458608, 2444684; 
458633, 2444746; 458545, 2444763; 458495, 2444803; 458485, 2444833; 
458418, 2444844; 458347, 2444897; 458418, 2444925; 458411, 2444963; 
458504, 2444960; 458503, 2444991; 458458, 2445046; 458458, 2445076; 
458528, 2445084; 458582, 2445036; 458678, 2444990; 458718, 2445049; 
458798, 2444992; 458818, 2444992; 458868, 2445050; 458908, 2445056; 
458933, 2445106; 458927, 2445176; 458854, 2445276; 458808, 2445463; 
458960, 2445258; 459033, 2445116; 459033, 2445066; 458978, 2444969; 
458983, 2444831; 459038, 2444842; 459088, 2444900; 459158, 2444877; 
459218, 2444913; 459331, 2444816; 459368, 2444730.
    (iii) Unit III(c): North Fork Wailua River (64 ha; 158 ac)
    The North Fork Wailua River Newcomb's snail critical habitat 
location consists of all flowing surface waters within 97 boundary 
points with the following coordinates in UTM Zone 4 with the units 
in meters using North American Datum of 1983 (NAD83): 450656, 
2440137; 450861, 2440154; 450920, 2440206; 450968, 2440196; 451045, 
2440217; 451079, 2440286; 451145, 2440241; 451197, 2440262; 451211, 
2440324; 451291, 2440314; 451291, 2440244; 451426, 2440217; 451589, 
2440237; 451616, 2440286; 451811, 2440230; 451800, 2440137; 451873, 
2440095; 451918, 2440151; 452209, 2439915; 452223, 2439665; 452140, 
2439565; 451672, 2439575; 451343, 2439745; 450968, 2440043; 450840, 
2440040; 450656, 2440137.
    (iv) Map 3--Unit III--Eastside Mountain Streams--follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA02.063
    


[[Page 3867]]


    Dated: January 15, 2002.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-1770 Filed 1-25-02; 8:45 am]
BILLING CODE 4310-55-P