[Federal Register Volume 67, Number 161 (Tuesday, August 20, 2002)]
[Rules and Regulations]
[Pages 54026-54056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20696]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Newcomb's Snail; Final Rule

  Federal Register / Vol. 67 , No. 161 / Tuesday, August 20, 2002 / 
Rules and Regulations  

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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; Designation of 
Critical Habitat for the Newcomb's Snail

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Newcomb's snail (Erinna newcombi) pursuant to 
the Endangered Species Act of 1973, as amended (Act). The designated 
critical habitat consists of eight stream segments and associated 
tributaries, springs and seeps, and adjacent riparian areas on the 
island of Kauai, Hawaii, totaling 19.76 kilometers (12.28 miles) of 
stream channel and 1,812 hectares (4,479 acres).
    Critical habitat identifies specific areas, both occupied and 
unoccupied, that are essential to the conservation of a listed species 
and that may require special management considerations or protection. 
All areas designated as critical habitat for the Newcomb's snail 
contain the primary constituent elements (habitat components) essential 
for the conservation of the species. This final rule takes into 
consideration the potential economic and other effects of designating 
critical habitat for the Newcomb's snail.
    We solicited data and comments from the public on all aspects of 
the proposed rule and draft economic analysis. We revised the proposal 
and the draft economic analysis to incorporate or address new 
information received from public comments on the proposed critical 
habitat designation and the draft economic analysis on the proposed 
designation and new scientific and commercial information made 
available since the proposal was published.

DATES: This rule is effective September 19, 2002.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Pacific Islands Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 300 Ala Moana Boulevard, Room 3-122, Box 50088, Honolulu, HI 
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 (km2) 
(552 square miles (mi2)) 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 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 (cfs) (6.12 
cubic meters per second (cms), 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 
ground water. A lens-shaped body of ground water (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 ground water 
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 ground water lens to thicken and thereby 
reach greater elevations than on the other Hawaiian islands (Izuka and 
Gingerich 1998). This causes basal ground water to enter and support 
stream and spring flow up to relatively high elevations. Because the 
basal lens ground water reserve is very large in size, streams, 
springs, and rock seeps (rheocrenes) fed by basal ground water exhibit 
highly permanent, stable flows. In addition to the basal lens, smaller, 
perched ground water systems form at higher elevations above dense 
geologic features of low permeability such as those formed by layers of 
ash. Ground water 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. Ground water 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

[[Page 54027]]

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 the 
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 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 ground water 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 and documented 
in museum records and other literature 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. Other records that are older and not as well-
substantiated in museum collections or other literature include 
populations in Limahuli Stream and Hanapepe Stream.
    At least two of these populations (in Hanakapiai Stream and Hanakoa 
Stream) are now thought to be extirpated. A population in the Wainiha 
River was apparently located in about 1987 but has not been revisited 
since it was found, and its status is unkown (R. Kinzie, pers. comm 
2002, in litt. 2002). 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 (two subpopulations). A few individual snails have been 
observed in Lumahuli Stream (M. Kido, pers. comm., 2001), but if a 
viable population occurs there, it has not been located.
    No historic information is available on the population size of the 
Newcomb's snail. However, recent reports indicate that two of the six 
known populations of the 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

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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 the Newcomb's 
snail from the Lumahai River, although this population has been 
reported to be large (M. Kido, in litt. 1995).
    The population in Makaleha Stream is divided into two 
subpopulations. The subpopulation at the waterfall that forms the head 
of the main channel of Makaleha Stream is estimated at 30 snails/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, in litt. 1995). 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. 1994a). The 
population of Newcomb's snail in the Hanalei River is divided into four 
subpopulations in the upper reach of this river (M. Kido, in litt. 
1994, 1995). One subpopulation has approximately 10 to 20 snails/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. 1995). The 
population found in 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 (A. Asquith, in litt. 1995). A second, larger subpopulation is 
reported from the Kawaikini waterfall area in the headwaters of the 
North Fork Wailua River, but no estimates were made of its population 
size (M. Kido, in litt. 2002).
    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 in Center for Biological Diversity v. 
Babbitt, Civil No. 99-00603 (D. Haw.), 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 extending this deadline 
to August 10, 2002. This 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 is 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 the 
process of identifying critical habitat. 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. Approximately ten people attended 
this meeting.
    We published a proposed rule to designate critical habitat in the 
Federal Register on January 28, 2002 (67 FR 3849). The public comment 
period was originally scheduled to end on March 29, 2002. However, on 
March 29, 2002, we published a combined Notice of Availability for the 
Draft Economic Analysis and a notification for public hearing (67 FR 
15159). This action extended the public comment period to April 29, 
2002. The issues raised in the comments received on the proposed rule 
and our responses are presented later in this document.

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

[[Page 54029]]

conservation of the species. ``Conservation'' means the use of all 
methods and procedures that are necessary to bring an endangered or a 
threatened species to the point at which listing under the Act is no 
longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. 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. Further, 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.
    However, critical habitat also provides non-regulatory benefits to 
the species by informing the public and private sectors 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 the 
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 to help 
to avoid accidental damage to such areas.
    In order to be included in a critical habitat designation, the 
habitat or its physical or biological features must be ``essential to 
the conservation of the species.'' Critical habitat designations 
identify, to the extent known and using the best scientific and 
commercial data available, habitat areas that provide at least one of 
the physical or biological features essential to the conservation of 
the species. These are also known as primary constituent elements, as 
defined at 50 CFR 424.12(b). Section 3(5)(C) of the Act states that not 
all areas that can be occupied by a species should be designated as 
critical habitat unless the Secretary determines that such areas are 
essential to the conservation of the species. Our regulations (50 CFR 
424.12(e)) also 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.''
    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 criteria, 
establishes procedures, and 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 rule 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 and 
other unpublished materials.
    Section 4 of the Act requires that we designate critical habitat 
based on what we know at the time of the designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the section 9 prohibitions, as determined 
on the basis of the best available information at the time of the 
action. Federally funded or assisted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, Habitat Conservation Plans (HCP), or other 
species conservation planning 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 conservation 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, 1995; S. Miller in litt. 1994a, 1994b; A. Asquith, 
in litt. 1994, 1995; Donald Heacock, Hawaii Department of Land and 
Natural Resources Division of Aquatic Resources, in litt. 1994; D. 
Heacock, pers. comm., 2002); information solicited by the Service from 
Federal, State, and private land managers and land owners prior to 
development of the draft critical habitat proposal; and comments and 
testimony obtained after publication of the proposed critical habitat 
designation for the Newcomb's snail.
    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 (2.0 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 11.8 km (7.3 mi) 
from the Lumahai River population, its nearest neighbor. Despite the 
relatively short straight-line distances between snail populations, the 
steep, rugged terrain and circular shape of the island creates local 
topography 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 kilometers, however the extremely 
steep ridgelines between

[[Page 54030]]

them are over 900 m (2,953 ft) in elevation. Because the terrain where 
Newcomb's snails are found is remote and rugged, three of the six known 
populations (located in Kalalau Stream, Lumahai River, and Waipahee 
Stream) have not been censused 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, and 
we anticipate the draft being available for public review and comment 
by the fall 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 the northwest and northern portions of 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 possibly 
eliminated large areas of potential Newcomb's snail habitat which had 
never been surveyed to locate snail populations. In the other extreme, 
serious drought is a regularly recurring natural phenomenon in the 
central Pacific (Giambelluca et al. 1991). 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 
two currently unoccupied areas identified as containing the primary 
constituent elements is essential to the conservation of the Newcomb's 
snail. These two sites are located in the northwest quadrant of the 
island, in drainages between the Lumahai River and Kalalau Stream 
populations. These two locations are identified as priority recovery 
units for translocation efforts in the draft Newcomb's snail Recovery 
Plan currently under preparation by the Service.
    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 provide long-term conservation 
for the species. The sub-units 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, 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 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, drought, and predator invasions.
    We used several criteria to identify and select sub-units for 
designation as critical habitat: (1) We began with all locations that 
are currently confirmed occupied by Newcomb's snail; (2) we then added 
two 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 designate as critical habitat, we 
gave preference to sites that: (a) Were well documented in museum and 
other historical records, (b) were most recently known to be occupied, 
and (c) provided the greatest geographic diversity to the array of 
locations under consideration for critical habitat. These two sites are 
on lands that are publicly owned (Na Pali Coast State Park and Hono O 
Na Pali Natural Area Reserve). 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 northeast and east.
    Within the critical habitat unit boundaries, only waterbodies 
containing the primary constituent elements are designated as critical 
habitat. Existing features and structures within the boundaries of the 
mapped units, such as dams, ditches, tunnels, flumes, and other human-
made features that do not contain the primary constituent elements, are 
not included 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.

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 designate 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; their adjacent riparian areas and hydrogeologic features that 
capture and direct water flow to these spring and stream systems; a 
perennial flow of water 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 designated critical habitat areas contain the 
primary constituent elements for the Newcomb's snail.

Critical Habitat Designation

    Three critical habitat units are established with eight stream sub-
units within those units. Unit I, entitled the Na Pali Coast Streams, 
consists of sub-

[[Page 54031]]

units identified in Kalalau Stream, Hanakoa Stream, and Hanakapiai 
Stream. Unit II, entitled the Central Rivers, consists of sub-units 
identified in Lumahai River and Hanalei River. Unit III, entitled the 
Eastside Mountain Streams, consists of subunits identified in Waipahee 
Stream, Makaleha Stream, and North Fork Wailua River. These three units 
are made up of stream complexes that share similar characteristics 
(Table 1). Each stream complex shares common topography, watershed 
characteristics, snail population characteristics, and exposure to 
natural disasters.
    The final designation was reduced from that originally proposed. 
The proposed designation of critical habitat included nine stream sub-
units and 26.29 km (16.35 mi) of stream channel and a total acreage of 
2,109 ha (5,212 ac), the final rule includes eight stream sub-units and 
19.76 km (12.28 mi) of stream channel and a total acreage of 1,812 ha 
(4,479 ac). The rationale for altering the final designation from that 
proposed is discussed in detail below.
    Sub-units designated as critical habitat provide the full range of 
primary constituent elements needed by the Newcomb's snail, including 
foraging, sheltering, reproduction, and dispersal. Critical habitat is 
limited to areas that contain primary constituent elements. Critical 
habitat boundaries were derived using topographical characteristics of 
the valley and include segments of perennial streams where Newcomb's 
snails occur or occurred historically, their tributaries, associated 
springs, and seeps. The upper and lower elevations of critical habitat 
boundaries were chosen based upon the elevational distribution from 
each recorded population, or from nearby watersheds where Newcomb's 
snails are found or were found historically. In addition to segments of 
perennial streams, their tributaries, and associated springs, and the 
area of upland riparian habitat where these occur and are necessary to 
maintain watershed integrity, is included in the designation of 
critical habitat. The riparian areas are included in this critical 
habitat designation because the stream and spring systems identified 
are dependent upon riparian areas for moderating water flow, shading 
which contribute to cool water temperatures, sediment retention which 
contributes to water clarity, and nutrient inputs. The boundaries of 
the riparian areas were delineated and mapped using the known or 
inferred stream channel elevation contours of the perennial stream 
segments. Riparian area boundaries were generally broader in larger 
watersheds which have low-gradient valley floors. These large 
watersheds also tend to contain more tributary subwatersheds with 
perennial water flow, as in the case of the Hanalei River where one of 
these tributaries contains a known subpopulation of Newcomb's snails. 
The mapped riparian area boundaries were smaller in those stream 
segments that exhibit narrow valley floors and steep valley walls 
directly adjacent to the streams (for example: Hanakoa and Hanakapiai 
Streams).
    Areas designated as critical habitat for the Newcomb's snail occur 
in eight separate streams and include the main channel of a named 
stream, contiguous named and unnamed tributaries, and adjacent springs 
and seeps, and associated riparian areas (Table 1). Critical habitat 
includes sub-units under State and private ownership and includes six 
sites currently known to be occupied (Kalalau Stream, Lumahai River, 
Hanalei River, Waipahee stream, Makaleha Stream, and North Fork Wailua 
River) and, in addition, includes two sub-units where the species was 
known to occur in the early 1900s, but where it is now thought to be 
extirpated (Hanakoa and Hanakapiai Streams).

 TABLE 1.--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    Critical habitat                                                                                  Stream segment
              unit                     sub-units            Ownership        Lower boundary elevation   Upper boundary elevation         length\*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Na Pali Coast Streams........  (a) Kalalau Stream.  State--Na Pali       183 m....................  488 m....................  1.38 km
                                                        Coast State Park.   (600 ft).................  (1,600 ft)...............   (0.86 mi)
                                  (b) Hanakoa Stream.  State--Na Pali       122 m....................  457 m....................  0.80 km
                                                        Coast State Park.   (400 ft).................  (1,500 ft)...............  (0.50 mi)
                                  (c) Hanakapiai       State--Na Pali       183 m....................  457 m....................  0.56 km
                                   Stream.              Coast State Park.   (600 ft).................  (1,500 ft)...............  (0.35 mi)
II. Central Rivers..............  (a) Lumahai River..  Private--Kamehameha  183 m....................  457 m....................  5.0 km
                                                        Schools.            (600 ft).................  (1,500 ft)...............  (3.11 mi)
                                  (b) Hanalei River..  State--Halela        122 m....................  457 m....................  7.58 km
                                                        Forest Reserve.     (400 ft).................  (1,500 ft)...............  (4.71 mi)
III. Eastside Mountain Streams..  (a) Waipahee Stream  Private--            262 m....................  366 m....................  1.73 km
                                                        Cornerstone Hawaii  (680 ft).................  (1,200 ft)...............  (1.08 mi)
                                                        Holdings, LLC.
                                  (b) Makaleha Stream  State--Kealia        183 m....................  457 m....................  1.59 km
                                                        Forest Reserve.     (600 ft).................  (1,500 ft)...............  (0.99 mi)
                                  (c) North Fork       State--Lihue-Koloa   335 m....................  427 m....................  1.12 km
                                   Wailua River.        Forest Reserve.     (1,100 ft)...............  (1,400 ft)...............  (0.7 mi)
                                                                                                                                 -----------------------
    Total.......................  ...................  ...................  .........................  .........................  19.76 km
                                                                                                                                  (12.28 mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\ Length of main stream channel, does not include tributaries or springs.

    Certain areas with reported, but unconfirmed, populations of the 
Newcomb's snail have not been designated as critical habitat. We did 
not designate critical habitat in the Hanapepe Stream system where 
museum specimens apparently were collected in the 1840s but where no 
subsequent surveys have been undertaken. Also, we did not designate two 
areas where new information indicated that Newcomb's snails were 
observed in recent years, but whose populations have not been 
confirmed: a population at Kawaikini Falls of the upper North Fork 
Wailua River, and a population in a spring/tributary adjacent to the 
Waihina River at an approximate stream channel elevation of 180 to 190 
m (590 to 620 ft). These additional sites are on river systems that are 
already represented in the critical habitat designation, and thus are 
not essential to the conservation of the

[[Page 54032]]

species, or are not designated for the reasons discussed under the 
section ``Summary of Changes from the Proposed Rule'' below.
    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 eight 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 designating it 
as critical habitat are presented below.

Unit I: Na Pali Coast Streams

    Streams in the Na Pali Coast unit 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 designated as critical 
habitat. The vegetation of the Na Pali Coast Stream Unit consists 
primarily of mixed-species mesic (moderate moisture) 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. Newcomb's snail is known 
from three stream sub-units in this unit, Kalalau Stream, Hanakoa 
Stream, and Hanakapiai Stream. Kalalau Stream is currently occupied. 
Hanakoa Stream and Hanakapiai Stream were known to harbor Newcomb's 
snail populations relatively recently but the species is now thought to 
be extirpated at those sites.
Sub-Unit I(a): Kalalau Stream
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with the east fork of Kalalau Stream and its 
tributaries, including springs and seeps, and riparian habitat 
necessary to maintain the integrity of the watershed. The Kalalau 
Stream location designated includes 1.38 km (0.86 mi) of stream channel 
and 149 ha (368 ac) and lies within the elevational contours 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 
observed 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 
known 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 sub-unit is essential to the conservation of Newcomb's snail 
because it has the most robust population of snails ever recorded, as 
documented in a Service survey conducted in 1994. This sub-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.
Sub-Unit I(b): Hanakoa Stream
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with Hanakoa Stream and its tributaries, including 
springs and seeps and riparian habitat necessary to maintain the 
integrity of the watershed. The Hanakoa Stream location designated 
includes 0.80 km (0.50 mi) of stream channel and 63 ha (156 ac) and 
falls within the elevational contours 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 litt. 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 sub-unit is essential to the conservation of Newcomb's snail 
because the currently known occupied sub-units are not sufficient to 
provide for the long term conservation of the species alone. The sub-
units currently known to be occupied by 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, localized landslide or high flow event. 
Hanakoa Stream also adds to the geographic diversity by adding areas in 
the northwest quadrant of the island which is likely to be most exposed 
to severe weather events such as hurricanes from the north and 
northwest. Currently, the only known occupied site in this quadrant is 
Kalalau Stream. 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 
northeast and east. This location on Hanakapiai stream is within the 
historical range of Newcomb's snail, is well documented in museum and 
other historical records, and was most recently known to be occupied 
compared to other streams (the early 1900's as opposed to Hanapepe 
Stream where specimens were collected in the 1840's with no additional 
information available). Additionally, this stream segment is located 
within the Na Pali Coast State Park and is adjacent to the Honu O Na 
Pali Natural Area Reserve and has no water diversions which make it 
less likely to have land use conflicts.
Sub-Unit I(c): Hanakapiai Stream
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with Hanakapiai Stream and its tributaries, including 
springs and seeps, and riparian habitat necessary to maintain the 
integrity of the watershed. The Hanakapiai Stream location designated 
includes 0.56 km (0.35 mi) of stream channel and 35 ha (86 ac) and 
falls within the elevational contours 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; G. Smith, pers. obs. 2002). 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 sub-unit is essential to the conservation of Newcomb's snail 
because currently occupied sub-units and the addition of one other 
unoccupied stream is not sufficiently dispersed to consider the species 
safe from extinction. As with sub-unit I(b), the addition of Hanakapiai 
Stream will provide section 7 protections for additional habitat 
necessary to re-establish the snail in additional streams in this part 
of the island and once the snails are reestablished, will decrease the 
risk of losing the presence of snails in the northwest quadrant of the 
island. Streams in the northwest quadrant of the island are likely to 
be most exposed to severe weather events such as hurricanes from the 
north and northwest and currently only contains one occupied location 
in Kalalau Stream. The five other known occupied stream sub-units are 
located in the northeast or southeast quadrants of the island, and 
these sites would be

[[Page 54033]]

exposed to severe weather events such as hurricanes primarily from the 
northeast and east. This location on Hanakoa stream is within the 
historical range of Newcomb's snail, is well documented in museum and 
other historical records, and was most recently known to be occupied 
compared to other streams (the early 1900's as opposed to Hanapepe 
Stream where specimens were collected in the 1840's with no additional 
information available). In addition, this stream segment is located 
within the Na Pali Coast State Park and is adjacent to the Honu O Na 
Pali Natural Area Reserve and has no water diversions, making it less 
likely to have conflicting land uses.

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 designated as 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. The two sub-units, Lumahai River and Hanalei River are 
occupied by Newcomb's snail.
Sub-Unit II(a): Lumahai River
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with Lumahai River and its tributaries, including 
springs and seeps, and riparian habitat necessary to maintain the 
integrity of the watershed. The Lumahai River location designated 
includes 5.0 km (3.11 mi) of stream channel and 492 ha (1,216 ac) and 
falls within the elevational contours 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 sub-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 sub-unit is required as critical 
habitat to conserve one of the six known populations of Newcomb's 
snails.
Sub-Unit II(b): Hanalei River
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with the Hanalei River and its tributaries, including 
springs and seeps, and riparian habitat necessary to maintain the 
integrity of the watershed. The Hanalei River location designated 
includes 7.58 km (4.71 mi) of stream channel and 876 ha (2,165 ac) and 
falls within the elevational contours 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 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 stream's 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 have 
been in disrepair since the early 1990s. Although these human-made 
features locally alter flow characteristics, no water is currently 
diverted out of the Hanalei watershed.

Unit III: Eastside Mountain Streams

    The streams designated as critical habitat in this area flow 
towards the east and southeast portions of the island and are 
intermediate in size. Rainfall is moderate in comparison to the other 
sub-units designated as critical habitat. All three of the sub-units 
included in this stream complex, Waipahee Stream, Makaleha Stream, and 
North Fork Wailua River, are occupied by 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.
Sub-Unit III(a): Waipahee Stream (Tributary to Kealia Stream)
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with Waipahee Stream and its tributaries, including 
springs and seeps, and riparian habitat necessary to maintain the 
integrity of the watershed. The Waipahee Stream location in the 
proposed rule included 2.41 km (1.50 mi) of stream channel and 106 ha 
(262 ac). Due to new information received during the comment period, 
indicating that some of the area originally proposed does not contain 
the primary constituent element of perennial flow, we reduced the size 
of this designation by 0.68 km (0.43 mi) of stream channel and 40 ha 
(99 ac). The Waipahee Stream location designated now includes 1.73 km 
(1.08 mi) of stream channel and 66 ha (163 ac) and falls within the 
elevational contours of 262 to 366 m (680 to 1,200 ft). Newcomb's snail 
was historically known to occur in Waipahee Stream, and a survey has 
confirmed the presence of Newcomb's snails within this reach (A. 
Asquith, in litt. 1994a).
    The location designated on Waipahee Stream is occupied by Newcomb's 
snail and 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 areas below the 
262 m (680 ft) elevation and outside of designated critical habitat, is 
undergoing a transition in use from commercial plantation-style 
sugarcane agriculture to pasture, forestry, diversified crops, and 
``ecotourism'' use. Higher elevation areas (above the 262 m (680 ft) 
elevation) of these private 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 (below the 262 m (680 ft) elevation) outside of the 
designated critical habitat location.

[[Page 54034]]

Sub-Unit III(b): Makaleha Stream (Tributary to Kapaa Stream)
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with Makaleha Stream and its tributaries, including 
Makaleha Springs, other springs, and seeps, and riparian habitat 
necessary to maintain the integrity of the watershed. The Makaleha 
Stream location designated includes 1.59 km (0.99 mi) of stream channel 
and 95 ha (235 ac) and falls within the elevational contours 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.
    The critical habitat that contains the Makaleha 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.
    Water is diverted from Makaleha Stream and Kapaa Stream at several 
locations at lower elevations (below 183 m (600 ft) elevation) and 
outside of designated critical habitat locations.
Sub-Unit III(c): North Fork Wailua River
    Critical habitat for Newcomb's snail is designated for all flowing 
waters associated with the North Fork of the Wailua River and its 
tributaries, including springs and seeps, and riparian habitat 
necessary to maintain the integrity of the watershed. The North Fork 
Wailua location in the proposed rule included 1.71 km (1.06 mi) of 
stream channel and 64 ha (158 ac). Due to new information received 
during the comment period indicating that some of the area we proposed 
did not contain the primary constituent element of perennial flow, we 
reduced this designation by 0.59 km (0.37 mi) of stream channel and 28 
ha (68 ac). The North Fork Wailua River location designated now 
includes 1.12 km (0.7 mi) of stream channel and 36 ha (90 ac) and falls 
within the elevational contours of 335 to 427 m (1,100 to 1,400 ft). 
This population was discovered in 1995 and has fluctuated in size in 
subsequent observations (A. Asquith, in litt. 1995). This stream 
segment is located within the Lihue-Koloa Forest Reserve on State 
lands. A water diversion exists just downstream of the critical habitat 
boundary.
    The location designated as critical habitat in the North Fork 
Wailua River is occupied by Newcomb's snail and is essential to the 
conservation of the species because this area is needed to maintain one 
of the six known populations of snails.

Effects of Critical Habitat Designation

Section 7--Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement is met 
through section 7 consultation under the Act. Our regulations define 
``jeopardize the continued existence'' as to engage in an action that 
reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of the 
critical habitat for both the survival and recovery of the species (50 
CFR 402.02). Such alterations include, but are not limited to, adverse 
changes to the physical or biological features, i.e., the primary 
constituent elements, that were the basis for determining the habitat 
to be critical.
    The relationship between a species' survival and its recovery has 
been a source of confusion to some in the past. We believe that a 
species' ability to recover depends on its ability to survive into the 
future when its recovery can be achieved; thus, the concepts of long-
term survival and recovery are intricately linked. However, in the 
March 15, 2001, decision of the United States Court of Appeals for the 
Fifth Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 
245 F.3d 434) regarding our previous not prudent finding, the Court 
found our definition of destruction or adverse modification as 
currently contained in 50 CFR 402.02 to be invalid. In response to this 
decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species.
    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. This consultation assists 
Federal action agencies in ensuring that the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in jeopardizing a listed species or the destruction or 
adverse modification of critical habitat, we would 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

[[Page 54035]]

technologically feasible, and that the Director believes would avoid 
jeopardy or the 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) which may affect a listed 
species or its critical habitat will 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 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, ground water withdrawal, ground water contamination, 
reduction of ground water recharge, etc.).
    (2) Appreciably decreasing habitat value or quality through 
indirect effects (e.g., introduction or promotion of 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).
    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 FOR 
FURTHER INFORMATION CONTACT 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

    Areas containing the primary constituent elements that are under 
management to fully address the conservation needs of the Newcomb's 
snail and that do not require additional special management or 
protection do not meet the definition of critical habitat in section 
3(5)(A)(i) of the Act and would not be included in this critical 
habitat designation. 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.
    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, 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. For example, in the case of most state-owned and 
managed Forest Reserves and certain areas within State Parks, hunting 
of feral ungulates is a management action that is undertaken to 
maintain the integrity of the watersheds by retaining vegetative cover, 
reducing the effects of overgrazing on forest vegetation and soils, and 
subsequently limiting transport of sediments into streams. Despite the 
beneficial results of some management plans currently under 
implementation, we find that at no site does the current management 
adequately reduce the primary threats to this species, nor did any land 
owner or land manager expect that their actions were sufficient for 
consideration for exclusion under 3(5)(A)(i) of the Act.

Habitat Conservation Plans

    Since there are no approved HCPs in which the Newcomb's snail is a 
covered species or other conservation plans that are currently 
completed that specifically address the Newcomb's snail, we did

[[Page 54036]]

not exclude any lands from this critical habitat designation pursuant 
to section 4(b)(2) of the Act on this basis.
    However, we believe that in many instances the benefits of 
excluding HCPs from critical habitat designations will outweigh the 
benefits of including them. We will 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 may 
protect the essential habitat lands designated 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. 
If an HCP that addresses the Newcomb's snail as a covered species is 
ultimately approved, the Service may reassess the critical habitat 
boundaries in light of the HCP.

Summary of Comments and Recommendations

    In the proposed rule published on January 28, 2002, (67 FR 3849) we 
requested all interested parties to submit comments on the specifics of 
the proposal including information related to biological justification, 
policy, economics, and proposed critical habitat boundaries. The 
comment period was scheduled to close on March 29, 2002. The comment 
period was extended until April 29, 2002 (67 FR 15159) to allow for 
additional comments on the proposed designation, and comments on the 
draft economic analysis (EA) of the proposed critical habitat.
    We contacted all appropriate State and Federal agencies, county 
governments, elected officials, the Office of Hawaiian Affairs, and 
other interested parties and invited them to comment. In addition, we 
invited public comment through the publication of legal notices in two 
newspapers: the Honolulu Advertiser and the Garden Isle on March 29, 
2002. We provided notification of the draft EA through telephone calls, 
letters, and news releases faxed and/or mailed to affected elected 
officials, media outlets, local jurisdictions, and interest groups. We 
also published the draft EA and associated material on our Region 1 
Fish and Wildlife Office Internet site following its release on March 
29, 2002. In addition to inviting public comment on the proposed 
designation and the draft EA analysis on the proposed designation, the 
latter notices announced the date and time of a public hearing on the 
proposed designation. The hearing was held on April 17, 2002, in Lihue, 
Kauai from 6:00 p.m. to 8:00 p.m. Transcripts of this hearing are 
available for inspection (see ADDRESSES section). The hearing was 
attended by approximately 15 people, and 9 persons provided oral 
testimony. Immediately prior to the hearing, Service staff presented 
informational materials to the public and were available for an 
informal question and answer session. Approximately 15 people attended 
the question and answer session.
    Six biologists, with expertise in the fields of malacology (the 
study of mollusks) and stream ecology of Hawaii, provided scientific 
and technical peer review for the designation of critical habitat for 
the Newcomb's snail; all six responded with written comments. Four of 
the six expressed clear support for the designation, though they 
recognized the limitations of scientific knowledge of life history and 
population characteristics of Newcomb's snail. The remaining two 
scientific reviewers were of the opinion that, due to the lack of 
detailed distribution, life history, and population data for the 
species, the proposal could not be objectively reviewed. Three of the 
six stated that their review was made difficult by a lack of adequate 
scientific documentation specifically regarding threats due to 
predation and habitat degradation. Four of the reviewers supported 
including additional historically occupied sites because Newcomb's 
snail is cryptic and populations are highly localized; these reviewers 
felt that there was a high likelihood of undiscovered populations 
existing in these areas, and that there was a strong possibility of 
reconfirming occupation by snails of historically documented sites. One 
reviewer reported a population of Newcomb's snail previously unknown to 
the Service. This population was observed in the Wainiha river 
watershed in the late 1980s, downstream of the existing hydroelectric 
diversion. These snails were not found in the main river channel but in 
a spring-fed tributary. Two of the reviewers suggested specific 
locations where critical habitat should have been expanded; in one case 
this was to protect additional watershed areas upstream of the current 
boundaries. The other reviewer specifically suggested expanding the 
critical habitat to include the Wainiha River downstream of the 
hydroelectric diversion dam to protect the population of Newcomb's 
snails reported from that location. Our responses to these comments are 
either addressed in the text or below.
    We received a total of 1,818 comment letters/testimonies, during 
the public comment period, a large number of these (1,800) were similar 
in nature and appeared to be from an organized mass mailing. Comments 
were received from a variety of State and local agencies, and separate 
private organizations or individuals. Of these 1,818 comments, 1,808 
were in favor of the designation, 9 against it, and 1 was neutral. We 
reviewed all comments received for substantive issues and comments, and 
new information regarding the Newcomb's snail. Similar comments were 
grouped into three general issues relating specifically to the proposed 
critical habitat determination and draft EA on the proposed 
determination. Comments have been incorporated directly into the final 
rule or final addendum to the economic analysis or addressed in the 
following summary.

Issue 1. Biological Justification and Methodology

    1. Comment: The majority of peer reviewers noted the lack of 
knowledge regarding basic biology of the species. Two of the scientific 
reviewers noted that little peer-reviewed biological and ecological 
information is available for the Newcomb's snail, and that much of the 
technical information used for the critical habitat designation is 
based on unpublished reports and field observations by Service staff, 
State biologists, and university researchers.
    Our Response: As noted in the Background section of this rule, the 
Service recognizes the limited amount of scientific data available for 
this species, especially the very limited amount of information that is 
available in a peer-reviewed format. However, we are currently under 
court order to proceed with the designation of critical habitat. Center 
for Biological Diversity v. Babbitt, Civil No. 99-00603 (D. Haw. June 
2, 2002). The Endangered Species Act requires us to use the best 
available scientific and commercial information in undertaking species 
listing and recovery actions, including the designation of critical 
habitat as set forth in this rule. Prior to the rulemaking process 
associated with listing the Newcomb's snail as threatened, the Service 
participated in or led a number of reconnaissance surveys in numerous 
watersheds on Kauai to document presence or absence of Newcomb's snails 
at these locations. In addition, our natural resource partners, 
including the University of Hawaii Sea Grant College Program, the State 
of Hawaii Department of Land and

[[Page 54037]]

Natural Resources Division of Aquatic Resources, and the University of 
Hawaii Stream Research Center, have provided us reports of field 
observations at many sites on Kauai including data from visits to at 
least 20 streams in watersheds across the island. While we acknowledge 
the lack of peer-reviewed published information regarding the Newcomb's 
snail, we have used the best scientific and commercial data available 
to identify and delineate the critical habitat boundaries.
    2. Comment: Many areas of potential but unsurveyed critical habitat 
exist on Kauai. More specifically, several peer reviewers noted this as 
follows: (1) A thorough investigation should be conducted to determine 
whether other populations exist that may require critical habitat 
designation; (2) existing but undocumented populations should not be 
left out of critical habitat designation; (3) populations of snails 
could well have simply been missed during recent surveys.
    Our Response: Because Newcomb's snail is small and somewhat 
cryptic, we acknowledge that there is some probability that new 
populations will be discovered. However, the process by which we 
analyzed current and historical distribution patterns and subsequently 
designated critical habitat was focused on determining and mapping 
those areas that are essential to the conservation of the species, 
based upon the best available scientific information. If undocumented 
populations are confirmed or additional populations are discovered in 
the future that lead us to reconsider critical habitat boundaries, we 
may revise the critical habitat designation if such action is supported 
by this new information and funding is available.
    3. Comment: Several peer reviewers indicated that biological and 
hydrological processes outside of the critical habitat boundaries could 
have impacts to the Newcomb's snail. More specifically, these comments 
were: (1) Indirect effects of habitat alteration, especially activities 
that may promote expansion of non-native species that could potentially 
prey on the snail should be considered; (2) ground water withdrawals 
could have a negative effect on habitat requirements of the snail, and 
a recent U.S. Geological Survey (USGS) survey report discussing ground 
water withdrawals should provide useful information; (3) water 
development at a site out of the designated critical habitat area could 
still have detrimental effects on the life-history requirements of the 
target species; and (4) a more detailed discussion and justification is 
needed for including only mid-elevation locations, upper elevational 
changes could jeopardize the mid-elevation habitats and associated 
proximal scale primary constituent elements; as a result, inclusion of 
upper elevational linkage is important for maintaining sites without 
present snail occupation.
    Our Response: We concur with the reviewers on the importance of 
these biological and hydrological processes for creating and 
maintaining habitat essential to the survival and conservation of the 
Newcomb's snail. We considered the importance of these processes, as 
well as the contribution of ground water in supporting stream 
ecosystems, when delineating the boundaries of critical habitat for 
this final designation We included the areas within and adjacent to the 
stream channels, springs, seeps and tributaries that provide for those 
biological and hydrological processes which are essential for the 
conservation of the Newcomb's snail.
    4. Comment: One peer reviewer noted the following: (1) Habitat 
requirements are limited to generalized observations and are 
speculative on what may eventually be essential for the recovery of the 
species; (2) habitat features that are essential to the conservation of 
the snail are so generalized that they can be applied to almost any of 
the native stream animals, i.e., they are essential to all native 
stream animals; (3) designation of such large areas does not identify 
the habitat features essential to the conservation and recovery of the 
species.
    Our Response: Both historical and current observations of Newcomb's 
snails in their natural habitats were used to infer a reasonable 
interpretation and description of the primary constituent elements 
required by the Newcomb's snail for its existence. Many, but not all, 
elements are shared by other aquatic organisms. The combination of the 
primary constituent elements for Newcomb's snail, and other hydrologic, 
elevational, and topographic characteristics that we evaluated, 
effectively narrowed the number of potential sites for consideration 
for critical habitat on Kauai to relatively few streams.
    5. Comment: Two of the peer reviewers noted that some of the 
predators described in the proposal as potential threats may not co-
occur with Newcomb's snail, and one specifically noted that predatory 
snails could extirpate small aggregations of Newcomb's snail in a very 
short time once the predator located them.
    Our Response: Newcomb's snails are in fact found sympatrically with 
the introduced predator species in question, although not at every 
location where the snails are found. The snail populations in Makaleha 
Stream, North Fork Wailua River, and the Hanalei River are most likely 
to co-occur with these predators such as the introduced swordtail 
Xiphophorous spp. and the frogs Rana spp., which prefer pool habitat. 
The populations found in Lumahai River and Kalalau Stream are less 
likely to encounter these predators because they are found in small 
tributaries, seeps and springs, or on protected rock surfaces under 
waterfalls. We note that a study on introduced rainbow trout diets in 
streams of the Kokee area of Kauai undertaken by the Bishop Museum 
(Englund et al. 2000) identified that Lymnaeid snails numerically made 
up the third largest dietary component of 80 trout whose stomach 
contents were analyzed, many of these Lymnaeids share similar life 
history and microhabitat preferences with the Newcomb's snail. In the 
report, the authors acknowledge that native populations of Lymnaeids 
could be affected by trout predation, but because the snails from the 
trout diet study were not identified to species, no definitive 
conclusions could be drawn. Terrestrial predators, such as rosey wolf 
snail (Euglandina rosea) and the introduced Sciomyzid marsh flies, are 
very widespread and have probably dispersed throughout the Newcomb's 
snail current and historic range. Therefore, despite the fact that not 
every predator listed as a potential threat co-occurs with the 
Newcomb's snail at every site, predation by introduced species is a 
concern in every critical habitat unit.
    6. Comment: The degree of genetic flow between populations can be 
reasonably assumed to be very low. Straight-line map distances are not 
related to the dispersal abilities of the snails. In addition, 
inclusion of scientifically based inferences would improve the proposal 
justification. It is reasonable to assume the Newcomb's snail is 
hermaphroditic with a potential of more than one generation per year.
    Our Response: It is reasonable to make the assumption that genetic 
flow between either sub-populations within a watershed or populations 
between watersheds occurs at a very low rate. In the Background section 
of this rule we report straight-line distances between several occupied 
sites along with the marked elevational changes of the ridgelines 
between the sites. By calling attention to the steep terrain, we 
illustrate the degree of physical (and resulting genetic) separation 
between the snails inhabiting these locations. It

[[Page 54038]]

is beyond the scope of this discussion to speculate on whether 
Newcomb's snail is dioecious (two sexes), or hermaphroditic (either 
concurrently or sequentially) or if the snail exhibits a semelparous 
(reproduce once then die) or other type of life history pattern, 
additional studies need to be conducted to answer these questions.
    7. Comment: Several comments questioned the utility of designating 
critical habitat for recovery of the Newcomb's snail. These comments 
were: (1) Designations will not lead to recovery of the species; (2) 
designation of large tracts of land or water will not ensure benefit or 
recovery to a threatened or endangered species; and (3) designation of 
critical habitat will not do anything to accomplish the desired purpose 
of saving the species.
    Our Response: Critical habitat designation is one of a number of 
conservation tools established in the Act that can play an important 
role in the recovery of a species. For a Federal action to adversely 
modify critical habitat, the action would have to adversely affect the 
critical habitat's constituent elements or their management in a manner 
likely to appreciably diminish or preclude the role of that habitat in 
the conservation of the species. Designation of critical habitat is a 
way to guide Federal agencies in evaluating their actions, in 
consultation with the Service, such that their actions do not hamper 
conservation of listed species. There also are educational or 
informational benefits to the designation of critical habitat. 
Education benefits include the notification of land owners, land 
managers, and the general public of the importance of protecting the 
habitat of these species and dissemination of information regarding 
their essential habitat requirements.
    8. Comment: How can the Service know an area is essential to the 
conservation of the species when the area does not currently support 
many, if any, individuals?
    Our Response: Determination of critical habitat areas essential to 
the conservation of Newcomb's snail is not dependent upon current 
population size at any one location. Our analysis used historical 
information as an indicator of past population distribution, and 
further considered the degree of threat to these locations due to the 
random occurrence of natural disasters such as hurricanes, drought, and 
catastrophic landslides. The ultimate goal of our analysis was to 
designate only areas that are required for the conservation of the 
snail despite the potential for local extirpations of one or more 
individual populations. Critical habitat designation resulted from the 
consideration of topographic and hydrologic features at individual 
sites in light of the threat of elimination of one or more entire 
populations.
    9. Comment: One commentor stated that Newcomb's snail was not found 
on a 1998 survey which included the area around Waipahee Stream on the 
Cornerstone Hawaii Holdings, LLC property. They were also unaware of 
any information that showed that the snail had been found to exist 
anywhere on the property or on lands adjacent to the property. They 
also stated that they were unaware of any information that the property 
was within either the current or historic range of Newcomb's snail. The 
commentor also stated that they were unaware of any attempts being made 
by the Service or any other governmental agency to enter the property 
to gather scientific data, and that there was no reason to believe that 
excluding the property from critical habitat designation would lead to 
the snail's extinction.
    Our Response: Our records indicate that Newcomb's snails were 
observed in springs and tributaries adjacent to Waipahee Stream 
historically (circa 1910) and again in 1994 by Service and State of 
Hawaii Department of Land and Natural Resources, Division of Aquatic 
Resources personnel. The 1998 wildlife survey report mentioned by the 
commenter was focused on terrestrial wildlife and was not an aquatic 
organism survey, therefore was not designed to evaluate the presence or 
absence of Newcomb's snails. Waipahee Stream is one of only six 
watersheds known with certainty to harbor extant populations of 
Newcomb's snails. This fact, along with the physiographic position of 
the Waipahee watershed on the island, indicates that the location is 
essential to the conservation of the Newcomb's snail. Service 
biologists will coordinate with the landowner to collect scientific 
data as time and resources allow.
    10. Comment: The North Fork Wailua River, Hanalei River, and 
Wainiha River are not essential to the conservation of the species.
    Our Response: The North Fork Wailua River and the Hanalei River are 
two of only six watersheds known with certainty to harbor current 
populations of Newcomb's snails. When evaluating the needs of a species 
known from only a few populations, this fact alone indicates that the 
areas should receive special consideration and may be essential to the 
species conservation. Our analysis, based upon the topographic and 
landscape-level features of the island, coupled with the probability of 
threat from natural disasters have led us to conclude that these sites 
are essential to the conservation of the species. The potential value 
of the Wainiha River watershed for the recovery of the Newcomb's snail 
is also high; however, our reevaluation of the critical habitat sub-
unit at that location led us to the conclusion that the sub-unit should 
be excluded based upon economic and other relevant impacts, consistent 
with section 4(b)(2) of the Act.
    11. Comment: Several commenters addressed the scientific basis for 
the critical habitat designations. These comments were: (1) The science 
must be better known before the Service can designate critical habitat; 
(2) critical habitat designation should be reconsidered until the 
scientific details are available; (3) the Service should revisit the 
Wailua River with an independent aquatic biologist to confirm Newcomb's 
snail findings; (4) the proposed designations are overly broad and not 
based on sound science; and (5) there was a lack of peer review of the 
data.
    Our Response: In accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, we used the best available information in 
designating critical habitat. Our analysis incorporated virtually all 
published and unpublished scientific studies on the Newcomb's snail, as 
well as field notes and other information such as photos, sketches, and 
maps produced by Service and State agency biologists and university 
researchers. Service biologists also examined museum collections and 
catalogs and corresponded with museum-affiliated researchers at the 
National Museum of Natural History (Smithsonian) and the British Museum 
of Natural History regarding early collections and locality information 
associated with the Newcomb's snail. During the development of the 
proposed designation and following its publication during the extended 
comment period, we solicited biological data and public participation 
in the rule-making process. In accordance with our policy on peer 
review published on July 1, 1994 (59 FR 34270), we solicited the expert 
opinions of appropriate and independent specialists regarding the 
proposed rule. We solicited comments from six biologists with expertise 
in the fields of malacology (the study of mollusks) and stream ecology 
of Hawaii. They provided scientific and technical peer review for the 
designation of critical habitat for the Newcomb's snail; all six 
responded with written

[[Page 54039]]

comments. Four of the six expressed clear support for the designation.
    The purpose of this peer review was to ensure that our designation 
methodology for Newcomb's snail critical habitat was based on 
scientifically sound data, assumptions, and analyses. The comments of 
all of the peer reviewers were taken into consideration in the 
development of this final designation. We are currently unable to 
conduct more detailed research, such as a population viability 
analysis, for the Newcomb's snail due to time and funding constraints. 
We are required under a court-approved settlement agreement to finalize 
this designation by August 10, 2002. We will continue to monitor the 
species and collect new information as time and resources allow. If 
supported by new information, we may revise the critical habitat 
designation in the future.
    12. Comment: Several comments addressed the designation of the 
North Fork Wailua River sub-unit citing the lack of specific 
information that designation of the sub-unit would lead to Newcomb's 
snail recovery. These comments were: (1) That it is premature to 
conclude the North Fork Wailua River has a significant snail population 
or that it would be a suitable place for rehabilitation of the species; 
(2) an investigation should be made as to why the population declined 
in the North Fork Wailua River and if the snails ever lived here in 
great numbers to evaluate whether any habitat alteration would make any 
difference; and (3) how can the North Fork Wailua River become a place 
of restoration for the snails when they are impacted by frequent 
floods, landslides, and hurricanes.
    Our Response: The North Fork Wailua River is one of only six 
watersheds known with certainty to harbor extant populations of 
Newcomb's snails. This fact alone indicates that the area is of 
considerable importance to conservation of the species. Anecdotal 
evidence indicates that of all snail populations observed, the 
population found in the North Fork Wailua River appears to be the most 
variable over time, perhaps due to localized stream channel topography 
which leads to frequent displacement of individuals due to recurring 
floods and resulting channel scour. However, only through a snail 
population monitoring program at this site can the suspected population 
variability be confirmed. Even if this is the case, the stream habitats 
occupied by Newcomb's snails frequently undergo considerable physical 
change due to the effects of floods and Newcomb's snail populations are 
expected to vary in response to these naturally occurring environmental 
events. The Newcomb's snails found in the North Fork of the Wailua 
River are located in the southwest extreme of the known range of the 
species, and considering the risk of catastrophic events occurring in 
one or more of the watersheds known to harbor Newcomb's snails, it is 
considered essential to the conservation of the species.
    13. Comment: Several comments contrasted hydrologic conditions 
upstream and downstream of the water diversion structure located in the 
North Fork Wailua River. These comments were: (1) downstream of the 
diversion in the North Fork Wailua River does not contain the primary 
constituent elements; and (2) critical habitat for North Fork Wailua 
River should exclude the stream reach and tributary area below the 
ditch intake and diversion and critical habitat should not include any 
area downstream of a line drawn perpendicular to the centerline of the 
stream at the upstream end of the pool formed by the diversion dam.
    Our Response: In response to our request for information regarding 
Newcomb's snail biology, and current or historical distribution, we 
obtained and analyzed new information that demonstrated complete 
dewatering of the reach below the water diversion structure located in 
the originally proposed critical habitat sub-unit on the North Fork 
Wailua River. Because a perennial instream flow of cool, clean water is 
considered to be an important primary constituent element for the 
Newcomb's snail, the dewatered reaches do not contain the primary 
constituent elements required and therefore do not meet the definition 
of critical habitat and are not essential for the conservation of the 
species. We modified the lower boundary of the sub-unit to only include 
the stream channel and adjacent area upstream of the diversion 
structure where stream flow is continuous. A similar modification was 
made to the Waipahee Stream sub-unit, based on the same rationale.
    14. Comment: One peer reviewer reported a population of Newcomb's 
snails in the Wainiha River Valley. This population is reported to be 
downstream of the hydropower diversion in a tributary spring and seep 
area, not in the main channel of the river. The observation of this 
population of snails was in the late 1980s. As a result, it was 
suggested that we extend the lower elevational boundary for the 
originally proposed Wainiha River sub-unit from 244 m elevation to the 
200 m elevation. Another commenter, who is affiliated with a university 
stream research institute, reported a population was observed in 
Kawaikini Falls in about 1997. The commenter recommended protecting the 
Kawaikini Falls population and the entire stream continuum down to the 
diversion weir, by extending the boundaries of the North Fork Wailua 
River sub-unit to include the entire stream from the point of diversion 
(approximately 326 m elevation) to the base of Mt. Waialeale/Mt. 
Kawaikini including all tributaries entering the main channel in the 
region.
    Our Response: The Service believes that larger stream systems such 
as the North Fork Wailua River and the central rivers of Kauai such as 
Wainiha, Lumahai and Hanalei may harbor additional populations of 
Newcomb's snails because of these watersheds' large size and numerous 
hydrologic features such as mid-channel bedrock areas and seeps and 
springs that could support habitat for snails and the Service 
recognizes that additional survey efforts are needed to determine with 
certainty the existence of Newcomb's snails in the majority of 
potential habitat on Kauai, especially historically occupied areas that 
have not been resurveyed for many years. However, as noted elsewhere in 
this rule, in determining critical habitat in occupied habitat, we 
relied on well-documented observations of snail populations from recent 
years. While the reports provided by the commenters are useful in 
focusing future survey efforts, no verified collections or other 
supporting information (specific location data or photographs) 
accompanied the reports of Newcomb's snail populations previously 
unknown to the Service. Moreover, the proposed critical habitat sub-
unit in the Wainiha River watershed was excluded from critical habitat 
designation as described in Exclusions Under 4(b)(2). The report of a 
sub-population in the upstream reaches of the North Fork Wailua River 
suggests that habitat conditions are adequate for Newcomb's snail in a 
variety of locations within that watershed; however, based on elevation 
and topography we believe the core area of suitable habitat to be 
demarcated by the critical habitat boundaries as presented in this 
rule.
    In addition, an important consideration in delineating critical 
habitat was to create an adequate geographical configuration of 
critical habitat units which would eliminate the threat of extinction 
caused by natural disaster. This was accomplished by identifying 
multiple critical habitat units in different regions of the island. The 
resulting geographic array includes watersheds immediately to the east 
and immediately to the west of the Wainiha River, and includes a sub-
unit in the

[[Page 54040]]

North Fork Wailua River Watershed approximately 3 km (1.9 mi) 
downstream of Kawaikini Falls. The two unoccupied units included in 
this rule, Sub-Unit I(b), Hanakoa Stream, and Sub-Unit I(c), Hanakapiai 
Stream are located in an area that is represented by only one occupied 
stream which would be inadequate to buffer against a natural disaster 
that occurred there.
    15. Comment: Some commenters suggested that critical habitat 
boundaries be expanded to include Hanapepe Stream, because of a 
reported historical observation of Newcomb's snails in that watershed, 
and they requested that we designate habitat in the southern part of 
the island as well as the north and northeast.
    Our Response: The critical habitat boundaries are based primarily 
upon the current distribution of Newcomb's snails, as documented by 
Service personnel and our natural resource and conservation partners in 
recent years. The degree to which historically occupied sites were 
considered was dependent upon the geographic location of the sites, the 
dates of last observation of the snails, and the ability of our staff 
to independently verify historical observations through review of 
historical records and examination of museum collections. We placed 
greater emphasis on more recent, well-documented historical 
observations that included site-specific locality information. Our 
correspondence with malacologists at the National Museum of Natural 
History did reveal a very early collection of Newcomb's snail from the 
Hanapepe watershed. The collection appears to have been made in about 
1840 by members of the the U.S. Exploring Expedition (the Wilkes 
Expedition), approximately 25 years prior to the species being 
described. Service biologists examined the locality information 
associated with the specimen label and determined that it is 
insufficient to adequately describe where in the watershed the 
collection was made. We are not aware of any other historical or recent 
additional surveys or collections in the Hanapepe watershed to confirm 
the existence of Newcomb's snail. The Service recognizes that this new 
information is important because it indicates that the historical range 
of Newcomb's snail included sites somewhere along the course of the 
Hanapepe River. However, the critical habitat boundaries were based on 
currently occupied sites, or on well-documented observations confirming 
sites that were occupied at least through the 1910s or 1920s, as shown 
by detailed museum records. Other critical habitat units were chosen to 
create an array of multiple discrete populations across the island to 
reduce the risk of extinction due to catastrophic natural events such 
as hurricanes and enhance recovery. Our conclusion is that eight sites 
located in three physiographic provinces of the island are sufficient 
to achieve these goals.
    16. Comment: Multiple commentors stated that the critical habitat 
designation should include all areas where Newcomb's snail formerly 
existed. Also, multiple commentors requested that unoccupied areas that 
are suitable for reintroduction of Newcomb's snail be designated 
critical habitat to reduce the risk of extinction.
    Our Response: Historical distribution was an important factor in 
evaluating critical habitat for the Newcomb's snail, and especially the 
locations where Newcomb's snail have not been recorded in recent 
surveys and could be locally extirpated. Our requirement for 
establishing critical habitat is to designate only those areas that are 
essential for the conservation of the species, and this was 
accomplished by designating critical habitat sub-units within the six 
known watersheds where Newcomb's snail are found and in two of the 
watersheds where they may have been extirpated in recent years. This 
approach provides an array of critical habitat sub-units in three 
quadrants of the island. This approach will reduce the extinction risk 
due to the probability that entire populations will be eliminated due 
to the random occurrence of a localized natural disaster such as a 
hurricane or major landslide.
    17. Comment: Other potential habitat may in time become essential 
to the survival of Newcomb's snail. Certain habitat types or 
geographical areas may be of greater importance to the species during 
different phases of its life history.
    Our Response: We agree. As new information about the biology and 
life history of Newcomb's snail becomes available, we may revise the 
critical habitat designation in the future if new information supports 
a change in the critical habitat designation and funding is available.
    18. Comment: Broad habitat-based conservation approaches to species 
recovery may be inappropriate for a small island State such as Hawaii.
    Our Response: We are directed to use the best available information 
in undertaking species listing and recovery actions, including the 
designation of critical habitat. With very few exceptions, the 
scientifically accepted approach for protecting threatened or 
endangered species, including Newcomb's snail, is to employ habitat-
based conservation strategies as a part of recovery planning and 
implementation. Establishing effective conservation measures on a small 
and isolated landmass such as Kauai requires conservation of habitat as 
well as control of other potential threats such as invasive species and 
introduced predators. Critical habitat designation is one mechanism by 
which potential changes to habitats resulting from federally funded or 
permitted projects can be reviewed.
    19. Comment: Two commentors suggested that the Service describe the 
critical habitat designations in ``ahupuaa'' terms, and that the 
Service should take a watershed approach.
    Our Response: The ahupuaa concept is that the basic management unit 
for natural resources, such as land and water, be demarcated roughly 
along watershed boundaries that extend from the mountains to the sea. 
This approach was used by ancient Hawaiians and is gaining renewed 
acceptance under current natural resources management schemes. By 
definition, critical habitat is only the area that is identified to be 
essential for the conservation of a species. In the case of Newcomb's 
snail, critical habitat units include distinct stream segments and 
portions of the adjacent associated riparian areas. We recommend that 
critical habitat unit boundaries be incorporated into larger landscape-
level natural resource planning and watershed management that employ 
the ahupuaa concept.
    20. Comment: Protecting critical habitat is essential not only for 
the recovery of this species, but also to protect the ecosystem on 
which Newcomb's snail relies for its long-term survival and recovery.
    Our Response: We agree, however our designation of critical habitat 
is limited to the areas of habitat we conclude are essential for the 
conservation of the Newcomb's snail. Larger-scale ecosystem protection 
efforts should be addressed through other means.
    21. Comment: Agricultural lands and areas supporting agricultural 
lands, including streams used for irrigation and hydropower generation, 
should be excluded from designation because the benefits of exclusion 
would far outweigh the benefits of designation, and exclusion would not 
result in the extinction of the species.
    Our Response: No agricultural lands are included in the designation 
of critical habitat for Newcomb's snail. Also, no operating water 
diversion structures that remove water from stream channels for 
agricultural use are included in the designation.

[[Page 54041]]

Agricultural areas and water diversions are located downstream of the 
critical habitat sub-units established by this rule. Since no Federal 
actions associated with agriculture and its supporting infrastructure, 
such as stream water used for irrigation, were identified within the 
designated critical habitat units, we did not determine if the benefits 
of excluding any area associated with agriculture would outweigh the 
benefits of designation.
    22. Comment: Critical habitat is going to prevent or very seriously 
impede any development of hydroelectric power.
    Our Response: There are currently seven hydropower plants operating 
on the island of Kauai. These plants range in size from 0.5 to 3.8 
megawatts and the latest was built in 1930. Since that time, while 
several power plants were proposed in the 1980s, none have been built 
and only one received all of the permits necessary to begin 
construction. The economic analysis also identified another potential 
project outside of critical habitat. This project, along with the one 
formerly permitted but not built are further discussed below and were 
covered in the economic analysis.
    Federal Energy Regulatory Commission (FERC) records indicate that 
they have accepted a preliminary permit application for a hydropower 
project on the South Fork of the Wailua River. This is the only 
hydropower development proposal in existence on Kauai at this time, and 
the planning for this project will not be affected by designation of 
critical habitat. We are not aware of any current plans for 
hydroelectric plants on the streams that are being designated as 
critical habitat.
    We are aware, however, of a plan that was proposed in the early 
1980s by Alexander and Baldwin (A&B). A&B planned for a second power 
plant in the Wainiha Valley, upstream from their current operating 
plant. Apparently, A&B secured all of the permits necessary at that 
time to construct the project but at the last minute the company 
decided to invest their funds in an alternative project (a coffee 
company). Since that time, all of the approvals and permits that were 
obtained have expired.
    Our economic analysis considered the feasibility of this project 
under current market conditions and concluded that the project is no 
longer feasible. The analysis also concluded that it was unlikely that 
any additional new hydropower projects would be considered and approved 
given existing environmental protection standards for the area, likely 
public opposition over stream diversions, and the resulting 
difficulties in obtaining approvals and permits. Furthermore, because 
the island has adequate electrical capacity for the foreseeable future, 
the energy price such a potential project would receive from Kauai 
Electric would likely be about seven cents per kWh, which would reflect 
avoided fuel costs but not capital costs. Consequently, the current 
market conditions make the feasibility of the previously planned 
project by A&B seem unlikely in today's climate.
    Furthermore, all sites designated as critical habitat for Newcomb's 
snail are located in the State Conservation District, a land use status 
which greatly restricts the range of possible economic activities that 
may take place on those lands. Considering the existing land use 
designation under State law, and that no hydropower development has 
occurred at any site on the island in many decades, the economic forces 
and existing environmental and cultural concerns make it very unlikely 
that new hydropower projects will be approved, regardless of the status 
of lands with regard to critical habitat designation. Even if a 
hydroelectric project is proposed in designated critical habitat, and a 
FERC permit is required, section 7 consultation would not substantially 
affect such a project unless it jeopardizes the continued existence of 
the species or results in adverse modification of critical habitat, and 
even then, we would try to propose reasonable and prudent alternatives 
consistent with the purpose of the project.
    23. Comment: How can the Service propose critical habitat or 
introduce snails in areas with water diversion when it appears likely 
that the snails will move within the stream?
    Our Response: There are two potential types of snail movements that 
may occur. One is over geologic or evolutionary time-scales (tens or 
hundreds of thousands of years) where Newcomb's snails may move within 
stream systems, and that these movements would result in colonization 
of new areas of suitable habitat over very long periods of time. The 
second potential type of movement may come from the unlikely times when 
snails are involuntarily dislodged and may float downstream. We have no 
information to either support or refute the premise that this snail 
movement results in new areas being colonized over shorter time periods 
(decades or centuries). For this reason, whether or not snails might 
move within a stream in the event of a translocation experiment cannot 
be ascertained. Water diversion systems including dams, ditches and 
tunnels are human-made and are not expected to contain the primary 
constituent elements for the Newcomb's snail, and therefore, these 
structures are explicitly excluded from critical habitat designation.
    24. Comment: Concern was expressed by two commenters about the 
potential for reintroduction or translocation of Newcomb's snail. These 
were: (1) that the Service apparently intends to spread Newcomb's 
snails into some streams where the snails are not known to currently 
exist; and (2) that the Service needs to provide additional information 
regarding the mechanism by which reintroduction of endangered or 
threatened species on privately owned lands would occur.
    Our Response: A recovery plan is in development that will specify a 
range of actions that could be implemented for recovery of the 
Newcomb's snail. Translocation of snails to sites where snails were 
found historically, or to areas exhibiting suitable habitat 
characteristics will likely be a potential action outlined in the 
recovery plan. However, a variety of considerations will be evaluated 
prior to implementing any recovery action, such as the likelihood of 
success of a translocation experiment and its contribution to 
conservation of the snail. The agreement of participating private 
landowners, State or local agencies would be essential. The Service 
does not have authority to access state or private property to 
translocate a species without approval of the landowner, and would work 
with any such landowners to develop a mutually agreeable legal 
framework for partnership. Possible mechanisms could include, for 
example, development of a safe harbor agreement or designating any 
translocated population as an experimental population under section 
10(j) of the Act. Federal funding may also be provided.
    25. Comment: One commentor expressed serious concern with the 
suggestion that translocation experiments may take place in the Wainiha 
watershed as part of a recovery planning and implementation effort for 
the Newcomb's snail.
    Our Response: As stated above, a recovery plan is in development 
that will specify a range of actions that could be implemented for 
recovery of the Newcomb's snail. Translocation of snails to sites where 
snails were found historically, including sites within the Wainiha 
watershed, or to other areas exhibiting suitable habitat 
characteristics, may be a potential action outlined in the recovery 
plan. Implementation of this or any other element of the recovery plan 
is not certain, and a variety of factors will be

[[Page 54042]]

evaluated prior to implementing any of the recovery actions under 
consideration. The Wainiha watershed is not included in this 
designation (see Exclusions Under 4(b)(2) below), and access for the 
purpose of reintroducing of snails into the Wainiha River or any other 
stream would require permission and cooperation of the landowner.
    26. Comment: Plans to translocate snails are troubling since 
populations may be genetically unique and movement between stream 
systems can be disastrous. The plan is premature and further 
information is necessary.
    Our Response: As explained above, a recovery plan is in development 
that will specify a range of actions that could be implemented for 
recovery of the Newcomb's snail. Prior to any translocation the effect 
upon the genetic structure of isolated sub-populations and the 
population as a whole will be evaluated in detail.

Issue 2. Policy and Regulations

    27. Comment: One commentor wanted to be assured that none of their 
Federal tax dollars would inadvertently be used to aid or abet 
extinction of any native flora or fauna.
    Our Response: Endangered Species Act section 7 consultations, which 
can be initiated by a Federal action within designated critical 
habitat, is a mechanism to assure that Federal actions do not 
jeopardize the continued existence of threatened or endangered species.
    28. Comment: Hawaiian endangered species do not do well when people 
have access to them. Whenever Hawaiian endangered species are impacted 
by human populations, their numbers go down. Public access to critical 
habitat is going to have to be restricted.
    Our Response: Undoubtedly, human activities have had a negative 
impact to many species in Hawaii. However, numerous threatened and 
endangered species are currently on the road to recovery through the 
direct intervention of humans. These include marine and terrestrial 
vertebrates, plants, and invertebrates. The designation of an area as 
critical habitat does not in itself restrict public access. The 
regulatory effect of critical habitat designation is limited to 
requiring consultation under section 7 of the Act for Federal actions. 
Since few, if any, Federal actions affect public access to the State 
and private lands designated as critical habitat for Newcomb's snail, 
it is unlikely that public access to these areas will be altered.
    29. Comment: When private landowners are affected by zoning 
regulations that are perceived as restrictive, voluntary cooperation by 
private landowners will cease.
    Our Response: We understand that there is the possibility of an 
unfortunate negative reaction from some private landowners for actions 
that the Service is mandated to undertake by Federal law. The Service 
strives to minimize the impacts to landowners through a variety of 
outreach and communication efforts. Economic and other relevant impacts 
of designation have been analyzed and considered in making this 
designation of critical habitat. Many threatened and endangered species 
occur on private lands and the Service recognizes the importance of 
conservation actions by private landowners. Cooperation from private 
landowners is an important element of Service conservation efforts, and 
the Service has had considerable success in developing partnerships 
with large and small landowners, government agencies, and non-
governmental organizations for conservation activities on Kauai, in the 
State of Hawaii, and throughout the nation.
    30. Comment: One commenter indicated that designation of critical 
habitat must accommodate traditional gathering rights of native 
Hawaiians as reflected in the State constitution.
    Our Response: Newcomb's snails are not known to be a resource used 
traditionally by native Hawaiians. The Service does not anticipate that 
take of Newcomb's snails for traditional and customary use will occur. 
However, because traditional gathering does not involve a Federal 
action, the exercise of traditional gathering rights of native 
Hawaiians for other aquatic or terrestrial resources is not affected by 
this rule.
    31. Comment: One commentor stated that excluding any areas from 
designation based on current management would violate 16 U.S.C. 
1533(a)(3), and further stated that conservation efforts do not alter 
the habitat's critical nature or the need to ensure its protection. 
Multiple commentors stated that areas already subject to conservation 
measures or that may be the subject of conservation agreements in the 
future should not be excluded from critical habitat.
    Our Response: Critical habitat is defined, in part, as areas on 
which are found the physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protections (16 U.S.C. 1532(5)). We believe that it 
is reasonable to interpret this provision as excluding areas which do 
not require special management or protection is already in place. This 
includes, for example, a legally operative plan/agreement that 
addresses the maintenance and improvement of the primary constituent 
elements required by the Newcomb's snail and which also provides 
certainty in management for the conservation of the species. A variety 
of specific criteria are used to evaluate whether adequate management 
and implementation of specified conservation actions are sufficient for 
lands to be excluded from critical habitat designation on this basis. 
While we recognize that some of the areas included within the critical 
habitat boundaries for the Newcomb's snail have some level of 
management, no management plans or documented conservation activities 
which specifically recognize and address the Newcomb's snail are in 
place or underway. Therefore, no lands were excluded on the basis of 
existing adequate management.
    32. Comment: The Service did not adequately address the takings of 
private property as a result of designating critical habitat for the 
Newcomb's snail. If the critical habitat proposal would require 
reducing water diversions from any stream, the Service should 
investigate whether that would take anyone's vested water rights. In 
addition, if the proposed designation of critical habitat precipitates 
conversion of agricultural land to conservation land that has no 
economically beneficial use, then the Federal and State governments 
will have taken private property.
    Our Response: We have assessed the takings implications of this 
rule in accordance with Executive Order 12630 and have concluded that 
this rule does not pose significant takings implications. Because no 
critical habitat sub-unit boundaries are located downstream of existing 
diversions, no requirements to reduce out-of-stream water use will 
arise as a result of this rule. Likewise, no land zoned for agriculture 
is included in the final rule, therefore no agriculture-zoned land 
could be rezoned for conservation as a result of this rule.

Issue 3. Economics

    33. Comment: One commentor stated that the draft economic analysis 
(DEA) fails to satisfy the requirement of section 4 of the Act.
    Our Response: We disagree. Section 4(b)(2) of the Act and 50 CFR 
424.19 require us to consider the economic impact, and any other 
relevant impact, of specifying any particular area as critical habitat. 
We published our proposed designation of critical habitat for the 
Newcomb's snail in the Federal Register on January 28, 2002 (67 FR 
3849). The draft economic analysis

[[Page 54043]]

(DEA) of the proposed critical habitat designation was made available 
for review and public comment during a 30-day public comment period 
beginning on March 29, 2002 (67 FR 15159). In the DEA, we performed a 
comprehensive review of all potential activities that may be impacted 
by the proposed critical habitat. Where possible we quantified the 
impacts of critical habitat designation, where this was not possible we 
qualitatively assessed the impacts. Based on the public comments 
received during the comment period, a final addendum to the economic 
analysis of critical habitat of the Newcomb's snail was drafted. The 
final addendum addresses the concerns raised through the comment period 
and takes into consideration new information. The draft economic 
analysis issued in March 2002 as modified by the addendum constitute 
the economic analysis for this final rule. Please refer to the Economic 
Analysis section of this final rule for a more detailed discussion of 
these analyses. Copies of both the economic analysis and the addendum 
are in the supporting record for this rulemaking and can be inspected 
by contacting the Pacific Islands Fish and Wildlife Office (refer to 
the ADDRESSES section of this rule).
    34. Comment: One commentor stated that the Service fails to 
adequately analyze the economic impact to small entities under the 
Regulatory Flexibility Act, and the Small Business Regulatory 
Enforcement Fairness Act. Another commentor stated that the cost to 
small entities will be substantial and devastating. A third commentor 
stated that three statements in the rule are erroneous: (1) We are 
certifying the rule will not have a significant effect on a small 
number of small entities; (2) we are certifying the proposed 
designation will not have a significant economic impact on a 
substantial number of small entities; (3) this proposed rule is not 
expected to significantly affect energy supplies.
    Our Response: Under the Regulatory Flexibility Act (RFA) (as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
No regulatory flexibility analysis is required if the head of an agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
    The economic analysis found that the only small entity that may be 
impacted by the designation of critical habitat is the Waipa 
Foundation. The Foundation is a small community-based corporation and 
is likely to be considered a small organization under the RFA/SBREFA 
definition. This would occur if the Waipa Foundation and Kamehameha 
Schools enters into an agreement with the Nature Conservancy of Hawaii 
(TNCH) to manage the Lumahai Valley for conservation and educational 
and cultural benefits. TNCH and the Waipa Foundation may seek funding 
from the Service to manage the valley, in which case the Service may 
conduct an internal consultation with a low level of complexity. The 
DEA states that the estimated cost of time and effort expended for a 
third-party applicant for a consultation with a low level of complexity 
is $1,400. Thus, the designation of critical habitat for the snail is 
not likely to have a significant economic impact on the Waipa 
Foundation or any other small entity.
    Because they are not considered small entities, Federal and State 
agencies were not included in the RFA/SBREFA analysis. Also, neither of 
the private land owners affected by this rule are considered small 
entities: the Kamehameha Schools is a very large educational trust and 
has extensive land holdings statewide; and Cornerstone Kauai Holdings, 
Inc. is not considered a small business based upon its revenues 
resulting from land subdivision and resale (using the U.S. Small 
Business Administration (SBA) definition of small business). A&B is 
also not considered to be a small business based on its revenue 
structure and the corresponding SBA definition of small businesses for 
their industry sector. TNCH is likely to be involved in section 7 
consultations on conservation projects that it undertakes, however TNCH 
is also a large organization that is dominant in the conservation and 
land management field in Kauai County.
    Existing energy supplies will not be impacted by the critical 
habitat designation. No hydroelectric facilities lie within any of the 
eight critical habitat sub-units as designated. The waters entrained 
into the North Wailua Ditch by the North Fork Wailua River diversion, 
which is located downstream of critical habitat sub-unit IIIc, are 
diverted into the Waiahi Stream watershed. A complex of water 
diversions and ditches from these and adjoining streams are used to 
operate the Upper and Lower Waiahi Power Plants, which are owned and 
operated by Kauai Electric. The lower boundary of the North Fork Wailua 
River critical habitat unit was modified, on the basis of Newcomb's 
snail habitat requirements, to exclude the North Wailua Ditch diversion 
structure.
    The State of Hawaii Department of Economic Development and Tourism 
(DBEDT) described the potential for new or expanded hydropower 
production capacity for Kauai. This agency reports that, because of 
existing protections and significant environmental concerns, the only 
location suitable for hydropower development is the Lower Wailua River, 
a location that would not be effected by the designation of critical 
habitat in this rule. As stated previously, if a hydroelectric project 
is proposed in designated critical habitat, and section 7 consultation 
results in finding such a project jeopardizes the continued existence 
of the species or results in adverse modification of critical habitat, 
the Service would try to propose reasonable and prudent alternatives 
consistent with the purpose of the Act that would allow the project to 
be completed.
    As a result, we are certifying that the final rule will not have a 
significant effect on a substantial number of small entities and the 
rule will not significantly affect energy supplies. We are basing our 
assertion on the information provided in the economic analysis that was 
prepared for the proposed rule and the addendum to this analysis that 
was prepared for the final rule, which incorporated new information 
that was provided during the public comment period.
    35. Comment: The DEA fails to consider economic impacts of listing 
and critical habitat that result through interaction with State law, 
specifically Hawaii's Endangered Species Act. New Mexico Cattlegrowers 
Association v. U.S. Fish and Wildlife Service requires consideration of 
the impact of listing as well as the impact of designating an area as 
critical habitat. Instead, the analysis is expressly limited to the 
impact of federal agency consultation under the jeopardy standard. 
However, since listing triggers listing under State law, the Service 
must consider the impact of take prohibitions under State law (and 
consequently federal law which prohibits destruction of plants in 
knowing violation of State law).
    Our Response: The Service is addressing the 10th Circuit's concern 
that we consider the economic impacts

[[Page 54044]]

of designation by addressing all of the economic impacts of critical 
habitat designation even if they are attributable co-extensively to the 
listing of the species. In particular, since the only regulatory effect 
of critical habitat is from applications of section 7, the Service 
considers the economic impacts of section 7 consultations related to 
critical habitat even if they are attributable co-extensively to the 
listed status of the species. In addition, we look at any indirect 
costs of critical habitat designation such as where critical habitat 
triggers the applicability of a State or local statute. However, where 
it is the listing of a species that prompts action at the State or 
local level, the impacts are not attributable to critical habitat 
designation and are not appropriately considered in the economic 
analysis of critical habitat designation. Take prohibitions under 
Hawaii law are purely attributable to a listing decision and do not co-
extensively occur because of critical habitat designations. There are 
no take prohibitions associated with critical habitat.
    36. Comment: The DEA fails to consider economic impacts of critical 
habitat that result through interaction with State law, specifically 
Hawaii's Land Use Law. Critical habitat could result in downzoning 
under State law. HRS Sec. 205-2(e) states that conservation districts 
shall include areas necessary for conserving endangered species. HRS 
195D-5.1 states that DLNR shall initiate amendments in order to include 
the habitat of rare species. Even if DLNR does not act, the Land Use 
Commission may initiate such changes, or they may be forced by citizen 
suits. Areas for endangered species are placed in the protected subzone 
with the most severe restrictions. While existing uses can be 
grandfathered in, downzoning will prevent landowners from being able to 
shift uses in the future, reduce market value, and make the land 
unmortgageable.
    Our Response: Economic impacts are not expected to occur as a 
result of the critical habitat designation due to land being 
redistricted from the state Agricultural, Rural, or Urban District to 
the Conservation District. All of the land designated as critical 
habitat for the Newcomb's snail is currently within the State 
Conservation District.
    37. Comment: The DEA fails to consider economic impacts of critical 
habitat that result through interaction with State law, specifically 
Hawaii's Environmental Impact Statement Law. HRS 343-5 applies to any 
use of conservation land, and a full Environmental Impact Statement is 
required if any of the significance criteria listed in HAR 11-200-12 
apply. One of these criteria is that an action is significant if it 
``substantially affects a rare, threatened or endangered species or its 
habitat.'' This will result in costly procedural requirements and 
delays. However, the DEA does not acknowledge that any impact on 
endangered species habitat will be deemed to be ``significant.''
    Our Response: Adverse impacts on development, including delays for 
additional studies and agency reviews, increased costs for 
environmental studies, increased risk of project denials, increased 
risk of costly mitigation measures, increased risk of litigation over 
approvals, etc., are not expected since, as discussed in the economic 
analysis, no development projects are likely to occur within the areas 
designated as critical habitat for Newcomb's snail. This reflects the 
facts that (1) the subject land is largely unsuitable for development 
due to the rugged mountain terrain, lack of access, and remote 
locations; and (2) existing land-use controls in the Conservation 
District severely limit development. None of the proposed critical 
habitat lies within the Special Management Areas designated by Kauai 
County under the Hawaii's Coastal Zone Management Program (HRS 205A).
    38. Comment: The DEA fails to consider economic impacts of critical 
habitat that result through interaction with State law, specifically 
the State Water Code. HRS 174C-2 states that ``adequate provision shall 
be made for protection of fish and wildlife. HRS 174C-71 instructs the 
Commission of Water Resource Management to establish an instream use 
protection program to protect fish and wildlife. There are water 
diversion systems in at least four of the proposed units, including two 
irrigation ditches presently in use and one that is presently unused. 
However, the DEA does not consider whether designation would trigger 
State law limits on water diversion, even if they do not involve 
federal consultations under the ESA. Excluding artificial irrigation 
structures does not eliminate the economic impacts. If any water 
diversions will likely be reduced due to critical habitat designation, 
these economic effects must be considered. In addition, since 
landowners may depend on water pumped from other watersheds, these 
effects can be far-reaching.
    Our Response: The areas designated as critical habitat for the 
Newcomb's snail were modified for biological reasons to only include 
stream channels upstream of operating water diversions (see explanation 
under Summary of Changes from the Proposed Rule). For this reason it is 
unlikely that the State would impose restrictions on existing stream 
diversions in order to restore stream flows. Since no current stream 
diversions or dewatered reaches downstream from the diversions remain 
in the critical habitat as modified we would not expect any loss of 
irrigation water to farmers and ranchers, or a related loss of existing 
and potential farm and ranch production. Concerns specific to Wainiha 
Valley no longer apply since critical habitat is no longer proposed for 
this area.
    Further, as discussed in the EA, no known plans exist for new 
stream diversions for the purpose of hydroelectric power production or 
irrigation withdrawals in the subject areas. Because of existing and 
projected market conditions, and the significant environmental and 
cultural concerns that arose in conjunction with previous hydropower 
development schemes that were ultimately abandoned, approvals for new 
stream diversions for new hydropower plants or irrigation withdrawals 
are unlikely. Therefore potential loss of alternative energy production 
capacity and, for some private lands, a potential loss in property 
values, is similarly unlikely.
    Instream uses protected by the State Water Code established in HRS 
174-C include a variety of uses including recreation, cultural uses and 
scenic values, in addition to support and propagation of aquatic life. 
The instream use protection program established by the Water Code and 
implemented by the Commission on Water Resource Management does not 
expand in scope within areas designed as critical habitat.
    39. Comment: One commentor stated that the DEA does not fully 
examine the indirect impacts on agriculture from designation. One 
commentor stated that the impact upon farmers who rely on irrigation 
water or working to obtain irrigation water must be addressed in the 
EA. One commentor stated that critical habitat designation and the 
additional restrictions it would place on the community will have a 
significant economic effect on water resources that directly support 
the agricultural industry.
    Our Response: Our economic analysis considered both the direct and 
indirect impacts that the rule could have on the agricultural industry 
and concluded that this industry would not be significantly impacted. 
First, we are not designating critical habitat on any agricultural 
lands. Consequently, we do not believe that the designation will have a 
direct impact on agricultural activities. The

[[Page 54045]]

economic analysis also considered whether the agriculture industry 
could be indirectly affected through changes in their irrigation system 
resulting from critical habitat designation. The analysis concluded 
that existing irrigation systems could not be affected because they lie 
outside and downstream of designated critical habitat. Furthermore, it 
is unlikely that future irrigation systems will be affected by this 
rule because there are no currently known plans for new stream 
diversions and even without the Snail critical habitat, development of 
new stream diversions in these areas is unlikely given current 
environmental concerns, likely public opposition to new stream 
diversions, and difficulty obtaining permits in today's socio-economic 
climate.
    The analysis also noted that as the sugar plantations shut down on 
Kauai, large volumes of water are freed for use by other agricultural 
activities. Replacement agricultural activities use significantly less 
water than sugarcane. Some of the former sugarcane lands have been 
replanted in diversified crops which generally use about half as much 
water per acre as sugarcane. However, most of the former sugarcane 
lands are now either lie fallow or are used for grazing cattle and are 
no longer irrigated. Thus, it does not appear likely that there will be 
an economic need for new diversions to support agricultural activities 
in the foreseeable future.
    40. Comment: One commentor was concerned that if water development 
is restricted due to critical habitat impacts, the additional burden 
and costs associated with affordable housing and the visitor industry 
will have a tremendous effect. One commentor stated that there will be 
a significant socio-economic impact on the community by restricting 
activities and access to public lands, future water resource 
developments may be restricted to certain areas and require additional 
costs which may be passed on to the users, and affordable housing is 
dependent on the future availability of water resources.
    Our Response: Increased restrictions on developing potable water 
resources, resulting in higher water costs and adverse impacts on 
affordable housing and the visitor industry are unlikely. Almost all 
potable water on Kauai is supplied from groundwater since these sources 
do not require expensive treatment. Existing and future drinking water 
sources are located downgradient of the areas designated as critical 
habitat for the Newcomb's snail. In addition, most of the critical 
habitat units are in areas that are far removed from where new wells 
are likely to be developed. Critical habitat designation for Newcomb's 
snail will have no adverse impact on groundwater recharge and will not 
reduce the sustainable yield of potable water from the aquifer.
    Restrictions on access to public lands resulting in socioeconomic 
costs are also unlikely. Designation of critical habitat would impose 
no restrictions on access to public lands. However, as noted elsewhere, 
hiking to these lands is difficult due to their remoteness; some of the 
units are accessible only by helicopter and are rarely visited. New 
obligations for how private landowners manage their lands are not 
expected, however the potential cost of land and stream management 
under voluntary conservation programs for the snail are addressed in 
the EA.
    41. Comment: One commentor stated that the cost of potential 
citizen suits preventing certain activities or requiring some sort of 
management in critical habitat was not discussed in the DEA. Another 
commentor stated that critical habitat designation will bring 
unnecessary and costly litigation. One commentor stated that proposed 
critical habitat could entail considerable cost to both the State and 
private landowners. One commentor stated that critical habitat 
designation could indirectly result in limitations or special 
management requirements being established on private lands. These costs 
should be considered. Costs of delays to projects while surveys, 
studies, and Service review are undertaken and all potential 
consequences of designation should be considered, not solely those with 
the direct jurisdiction of the Service.
    Our Response: Some landowners and managers are concerned that this 
critical habitat designation will directly or indirectly impose new 
obligations on them with regard to how they must manage their land, 
even if they do not propose a new project, land use, or activity. 
However, the Act does not obligate landowners to manage their land to 
protect critical habitat, nor would landowners and managers be 
obligated under the Act to participate in projects to recover a species 
for which critical habitat has been established.
    Adverse impacts on development, including delays for additional 
studies and agency reviews, increased costs for environmental studies, 
increased risk of project denials, increased risk of costly mitigation 
measures, increased risk of litigation over approvals, etc., are not 
expected since, as discussed in the EA, no development projects are 
likely to occur in the proposed critical habitat. This reflects the 
facts that the subject land is largely unsuitable for development due 
to the rugged mountain terrain, lack of access, and remote location; 
and that existing land-use controls in the Conservation District 
severely limit development. While it is conceivable that there may 
initially be an increase in subsequent lawsuits related to the critical 
habitat designation, it is not possible to predict their number, degree 
of complexity, or any other associated effect with project delays due 
to scant historical evidence for the Newcomb's snail.
    42. Comment: One commentor stated that the DEA has a lack of a 
thorough benefits analysis. It does not include the benefits of 
watershed protection and improvement, protection of other stream and 
riparian biota, and the value of the snail as an indicator of 
ecological health. Other multiple commentors stated that the DEA 
ignored the benefit of keeping other native species off the endangered 
species list, of maintaining water quality and quantity, of promoting 
ground water recharge, and of preventing siltation of the marine 
environment, thus protecting coral reefs. Another commentor noted that 
additional benefits of critical habitat include combating global 
warming, providing recreational opportunities, attracting ecotourism, 
and preserving Hawaii's natural heritage. The Service must use the 
tools available such as a University of Hawaii Secretariat for 
Conservation Biology study that estimated the value of ecosystem 
services, to determine the benefits of critical habitat.
    Our Response: There is little disagreement in the published 
economics literature that real social welfare benefits can result from 
the conservation and recovery of endangered and threatened species. 
Such benefits have also been ascribed to preservation of open space and 
biodiversity, both of which are associated with species conservation. 
Likewise, a regional economy can benefit from the preservation of 
healthy populations of endangered and threatened species, and the 
habitat on which these species depend. It is not feasible, however, to 
fully describe and accurately quantify these benefits in the specific 
context of the Newcomb's snail critical habitat. For example, most of 
the studies in the economics literature do not allow for the separation 
of the benefits of listing (including the Act's take provisions) from 
the benefits of critical habitat designation. The discussion presented 
in the DEA and in the Addendum provides examples of potential benefits, 
which derive primarily from the listing of the species, based on 
information obtained in the

[[Page 54046]]

course of developing the economic analysis. It is not intended to 
provide a complete analysis of the benefits that could result from 
section 7 of the Act in general, or of critical habitat designation in 
particular. In short, the Service believes that the benefits of 
critical habitat designation are best expressed in biological terms 
that can be weighed against the expected cost impacts of the 
rulemaking; our analysis under section 4(b)(2) of the Act focuses this 
comparison.
    Regarding other native aquatic species, the Service believes that 
five species of concern (four snails and one fish) and one candidate 
species (a damselfly) may occur within the critical habitat boundaries 
for the Newcomb's snail. As more is learned about these species (e.g., 
their populations and trends, ranges, threats to their survival, etc.), 
the Service may list one or more of them as threatened or endangered. 
As indicated in the economic analysis, the critical habitat designation 
and listing of the Newcomb's snail are expected to result in few or no 
modifications to projects or activities over the next ten years. 
Nevertheless, critical habitat designation may help to educate 
landowners and organizations about the locations of the Newcomb's snail 
and where to focus future conservation efforts, including efforts to 
control non-native predators. Thus, critical habitat designation may 
indirectly enhance the survival of other native aquatic species that 
share the same habitat as the Newcomb's snail. If the Service 
determines that one or more of these species does not need to be added 
to the threatened and endangered species list, the avoided cost (i.e., 
economic benefits) could be large. However, the economic value of these 
indirect benefits to other native aquatic species is not quantified 
because of a lack of information on: (1) The nature and extent of 
future conservation projects due to the Newcomb's snail listing and its 
critical habitat designation, or enhancements to other conservation 
projects due to the Newcomb's snail; (2) the resulting improvements in 
stream quality; (3) the nature and extent of the benefits to other 
native aquatic species (e.g., increases in their populations and 
ranges); (4) the reduced probability that one or more other species 
will be listed; (5) the avoided cost of the listing and designation of 
critical habitat; and (6) the economic value to society of enhanced 
survival of these species.
    In the case of islandwide beneficial impacts, such as water 
recharge, the proposed Newcomb's snail critical habitat comprises a 
comparatively small area (less than 3 percent) of the mountainous 
interior of Kauai. As indicated in the DEA, the critical habitat areas 
are not subject to development pressures or other significant changes 
because they are located in the upper headwater reaches of streams. 
Much of the critical habitat is located in areas of steep slopes, 
remote locations, and difficult access; some of the units are 
accessible only by helicopter and are rarely visited. Also, all of the 
units are in the State Conservation District which severely limits 
development, most commercial activities, and other changes in land use. 
Assuming no Newcomb's snail listing and no critical habitat 
designation, no significant changes are expected in watershed, 
riparian, or stream conditions. Even with the species listing and 
critical habitat designation along with related efforts to control 
threats to the Newcomb's snail, anticipated changes in game-mammal 
management of surrounding lands (the most liberal hunting is already 
allowed in these areas in order to reduce ungulate populations), and 
other related land and stream management are not expected and, no 
significant changes to the watershed, riparian, or stream conditions 
are expected. Thus, critical habitat designation for the Newcomb's 
snail is expected to result in few benefits related to increased 
groundwater recharge, stream water quality, reduced siltation of 
nearshore reefs and other marine resources, reduced global warming, 
increased recreational opportunities, increased ecotourism, etc.
    The 1999 analysis by University of Hawaii (UH) was, in fact, used 
in the DEA as a resource document for concepts, and for identifying 
documents that report the original research on certain subjects. 
However, the UH study has limited applicability for valuing the 
benefits of Newcomb's snail critical habitat designation for a number 
of reasons. First, the UH study had a different purpose, which was to 
estimate the total value of environmental benefits provided by the 
entire Koolau Mountains on the island of Oahu versus the value of the 
more limited benefits provided by the proposed Newcomb's snail critical 
habitat on the island of Kauai. Consistent with its purpose, the UH 
study provides no estimates of the changes in environmental conditions 
resulting from changes in land and stream management due to critical 
habitat designations. Furthermore, many of the assumptions and much of 
the analysis in the UH study are not transferable to the economic 
analysis for the Newcomb's snail critical habitat. For example, the 
value of water recharge in the UH study reflects projected water supply 
and demand conditions on Oahu, an island which is 9 percent larger than 
Kauai but has a population of more than 12 times that of Kauai. Also, 
the UH benefit analysis of reducing soil runoff is unique to three 
valleys that drain through partially channelized streams in urban areas 
into the man-made Ala Wai Canal. Since this canal was designed without 
adequate flushing from stream or ocean currents, it functions as an 
unintended settling basin and must undergo expensive dredging 
periodically. In addition, the recreational and ecotourism values 
provided in the UH study apply to areas that are accessible to most 
hikers, which is not the case with most of the Newcomb's snail critical 
habitat. As mentioned previously, the Newcomb's snail critical habitat 
units are located in the upper reaches of streams and rivers on Kauai, 
and the majority of these areas are rarely visited.
    43. Comment: One commentor stated that the DEA fails to evaluate 
the practical effect of critical habitat designation will have on 
Special Management Area permits administered by Kauai County as 
required by Hawaii's Coastal Zone Management Act. Because these permits 
will be harder to get, it will result in delays which will cause a 
decline in property values and may make it impossible to develop.
    Our Response: None of the critical habitat designated for the 
Newcomb's snail lies within the Special Management Areas designated by 
Kauai County under the Hawaii's Coastal Zone Management Program.
    44. Comment: The conclusion under E.O. 12866 that the rule will not 
have an annual economic effect of $100 million or more, or adversely 
affect in a material way any sector of the economy or State or local 
governments or communities, is flawed because it does not consider the 
major adverse impacts from secondary effects.
    Our Response: For the reasons explained in our EA, we do not 
believe that this rule, as designated, will have an annual economic 
effect of $100 million or more. However, pursuant to Executive Order 
(E.O.) 12866, Office of Management and Budget (OMB) determined that it 
raises novel legal or policy issues. Therefore, it is ``a significant 
regulatory action'' under E.O. 12866, and, as a result, it rule has 
undergone OMB review.
    Both the DEA and the EA addendum provide analysis of the indirect 
costs associated with designation of critical habitat for the Newcomb's 
snail in terms

[[Page 54047]]

of land management, loss in property values, and impacts to existing 
and future stream diversions. These indirect costs were considered and 
those costs that could be quantitatively estimated were addressed in 
the DEA and the EA addendum. Some potential costs were not estimated 
because the likelihood of actually incurring the cost is considered to 
be extremely remote. For a complete listing of all secondary effects 
considered and any resulting economic impacts, refer to the DEA and the 
EA addendum under section 3.d Other Costs.

Summary of Changes From the Proposed Rule

    Two critical habitat boundaries were modified due to new 
information received during the comment period. The downstream 
boundaries of Sub-Unit III(a) (Waipahee Stream) and Sub-Unit III(c) 
(North Fork Wailua River) were modified after our analysis of this new 
information.
    In both locations, at various times, existing diversion structures 
completely remove water from the stream to ditch systems. This diverted 
water flows into a ditch system and is then used for irrigation and 
hydropower production. These diversion structures were built in the 
early 1900s during the expansion of the sugar industry in the Hawaiian 
Islands. At that time, no structural modifications were incorporated 
into the design of dams and weirs to facilitate passage of aquatic 
organisms, nor did environmental considerations lead to the maintenance 
of stream flows in the reaches below the dams. To the contrary, these 
diversion structures were expressly designed to be as efficient as 
possible in capturing and diverting as much of the stream flow as 
possible, particularly during periods of moderate and low flow, when 
agricultural demand for water resources is high.
    The North Fork Wailua River sub-unit is located on State lands. A 
series of changes to agricultural water needs, ownership of plantation 
lands, and a transfer of ownership of the island's electrical power 
utility, have left long-term resolution of future water allocation and 
operation and maintenance of the ditch system in question. Despite some 
uncertainty with water use, State agencies charged with licensing the 
water withdrawals have committed to at least two private entities that 
this diversion will remain in place and continue to function much as it 
has historically. A rough, quantitative estimate and analysis of 
hydrologic characteristics of the diversion operation submitted to the 
Service by the current water users (Alton Miyamoto, V.P. and General 
Manager, Kauai Electric, in litt. 2002) demonstrated that the reach 
below the dam is dry approximately 25 percent of the time. Therefore, 
the area below the dam does not contain the primary constituent element 
of perennial flow and therefore is not critical habitat.
    The Waipahee sub-unit is located on private lands that have already 
undergone a transition from sugar cane to diversified crops and 
grazing. The landowner continues to divert water from the stream to 
maintain reservoirs on the property to support these activities, and in 
anticipation of unspecified future water needs. Anecdotal evidence 
indicates that the diversion removes all of the water from the stream 
during low flow periods at the Waipahee diversion.
    Because an ample instream flow of cool, clean water is considered 
to be one of the primary constituent elements for the Newcomb's snail, 
and the diversion structures in the proposed Waipahee and North Fork 
Wailua River sub-units have altered the hydrologic regimes of the 
reaches below the dams to the extent that no water flows past the dams 
during biologically significant periods of time, we conclude that the 
reaches below the diversion structures do not exhibit the primary 
constituent elements required by the Newcomb's snail and are therefore 
not essential for its conservation. In both cases, the lower elevation 
boundary of critical habitat was moved to a location just upstream of 
the diversion dam, where stream flow is continuous and subject only to 
natural fluctuation. This resulted in a reduction of 0.68 km (0.43 mi) 
of stream channel and 40 ha (99 ac) of total area from the final 
designation for the Waipahee Stream sub-unit and 0.59 km (0.37 mi) of 
stream channel and 28 ha (68 ac) of total area from the final 
designation for the North Fork Wailua River sub-unit.
    The proposed critical habitat designation in the Wainiha River was 
excluded based upon the reasons set out below (see Exclusions Under 
Section 4(b)(2) below). Removing the Wainiha sub-unit resulted in 
removing an additional 5.3 km (3.3 mi) and 229 ha (566 ac) from the 
final designation of critical habitat.

Economic Analysis

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.
    Following the publication of the proposed critical habitat 
designation, a draft EA was prepared to estimate the potential economic 
effects of the proposed designation. The draft EA was made available 
for public review on March 29, 2002 (67 FR 3849). We accepted comments 
on the draft EA until April 29, 2002. Additionally, we held a public 
hearing on the proposed designation and the draft EA on April 17, 2002, 
in Lihue, HI. Following the close of the comment period for the draft 
EA, a final addendum was completed which incorporated public comments 
on the draft EA and made any necessary modifications to the economic 
analysis. The economic analysis for this rule consists of the draft EA 
as modified by the Addendum to the EA.
    Our economic analysis evaluated the section 7 economic effects 
associated with the listing of the Newcomb's snail as a threatened 
species under the Act, as well as any potential effects of the critical 
habitat designation above and beyond those economic impacts associated 
with listing. To quantify the proportion of total potential economic 
impacts attributable to the critical habitat designation, the analysis 
evaluated a ``without critical habitat'' baseline and compared it to a 
``with critical habitat'' scenario. The ``without critical habitat'' 
baseline represented the current and expected economic activity prior 
to the critical habitat designation, including protections afforded the 
species under Federal and State laws, as well as other existing land-
use restrictions. The difference between the two scenarios measured the 
net change in economic activity attributable to the designation of 
critical habitat. The categories of potential costs considered in the 
analysis included the costs associated with: (1) Conducting section 7 
consultations associated with the listing or with the critical habitat, 
including technical assistance; (2) modifications to projects, 
activities, or land uses resulting from the section 7 consultations; 
(3) uncertainty and public perceptions resulting from the designation 
of critical habitat; and (4) potential offsetting beneficial costs 
associated with critical habitat including educational benefits. The 
majority of consultations resulting from the critical habitat 
designation for the Newcomb's snail are likely to address

[[Page 54048]]

conservation actions such as watershed restoration and ecosystem 
protection. While consultations related to future water management 
activities, such as hydropower and water diversion, are possible, they 
are considered unlikely for reasons discussed in the economic analysis.
    The addendum to the draft EA estimates that the designation may 
result in potential economic effects of $28,500 over a 10-year period, 
and concludes that economic impacts anticipated from the designation of 
critical habitat for the Newcomb's snail would not be significant. This 
is a reduction of $5,200 from the costs estimated in the original draft 
EA, and is due to the exclusion of one of the originally proposed 
critical habitat sub-units, and the modification of boundaries of two 
other sub-units. As described in the analyses, direct costs result from 
conservation projects and secondary costs result from investigations of 
the implications of critical habitat designation. A more detailed 
discussion of our economic analysis is contained in the draft EA and 
the Addendum. Both documents are included in the supporting 
documentation for this rule making and available for inspection at the 
Pacific Islands Fish and Wildlife Office (refer to ADDRESSES Section).
    No critical habitat sub-units proposed in the draft rule were 
excluded or modified due to economic impacts. However, as described 
above, section 4(b)(2) of the Act requires us to consider other 
relevant impacts, in addition to economic impacts, of designating 
critical habitat. A proposed critical habitat sub-unit located in the 
Wainiha River Valley was excluded from designation based upon the 
relevant issue that designation of critical habitat would have a 
negative effect on the voluntary landowner conservation activities in 
the Valley, both ongoing and in development. The proposed 566-acre sub-
unit is on private lands owned by Alexander and Baldwin, Inc. (A&B). 
A&B owns a 10,120-acre parcel that encompasses the large and remote 
central segment of the Wainiha River Valley.
    The proposed Wainiha sub-unit is not known to be occupied by 
Newcomb's snail, although there is a credible report of a population of 
snails observed downstream of the diversion dam in the late 1980s. The 
most likely conservation actions in the Wainiha River Valley for the 
Newcomb's snail would be experimental translocation to establish new 
populations of Newcomb's snail, and surveys to potentially locate 
undocumented populations in unsurveyed habitat. Both of these 
activities would require substantial voluntary cooperation by A&B. Long 
term conservation in the valley might also include development of a 
Safe Harbor Agreement or a rule under section 10(j) of the Act 
(described below), both of which would require considerable landowner 
support and participation.
(1) Benefits of Inclusion
    The benefits of inclusion of the Wainiha River Valley sub-unit 
within the area designated as critical habitat for the Newcomb's snail 
would result from the requirement under section 7 of the Act that 
Federal agencies consult with us to ensure that any proposed actions do 
not destroy or adversely modify critical habitat. Historically, no 
consultations have occurred for the Newcomb's snail because the species 
was listed recently and is only found in remote locations on non-
Federal lands where Federal actions are infrequent and therefore rarely 
trigger section 7 consultations.
    Since about 1910, a run-of-the-river hydropower facility has 
operated in the Wainiha watershed. Currently, this hydropower plant is 
operated by Kauai Coffee Co., a subsidiary of A&B. The water diversion 
dam for the hydropower facility is immediately downstream of the 
boundary of the proposed critical habitat sub-unit for Newcomb's snail. 
There are no firm plans for new or expanded hydropower in the near 
future, and neither our draft EA or Addendum found a high probability 
of such expansion given the State Conservation District zoning of the 
land, environmental and cultural concerns, and the resulting exhaustive 
permitting and licencing procedures required for hydropower 
development.
    Although we believe the likelihood of a consultation is remote, in 
the event that a hydropower development plan is actually proposed for 
this location, consultation requirements under section 7 of the Act 
would be triggered as a result of the permitting processes administered 
by the U.S. Army Corps of Engineers (ACOE) and, potentially, the 
Federal Energy Regulatory Commission (FERC). The benefit of critical 
habitat designation would ensure that any permits given by either the 
ACOE or FERC would not likely destroy or adversely modify any critical 
habitat. Without critical habitat designation in areas considered 
unoccupied by the Newcomb's snail, projects would not likely trigger 
consultation requirements under the Act.
    Another benefit is that the designation of critical habitat can 
serve to educate the public regarding the potential conservation value 
of an area, and may focus and contribute to conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for certain species. Both of these outcomes are important for the 
Newcomb's snail. Because little is know of this species' biology and 
distribution, virtually any information that reaches a wide audience 
about this species can be considered valuable. Likewise, any 
information about this species and its habitats that reaches other 
parties engaged in conservation activities would be considered 
valuable.
(2) Benefits of Exclusion
    The landowner and other interested parties stated that the 
designation of critical habitat as originally proposed could have a 
negative impact on future voluntary conservation efforts in Wainiha 
River Valley, including the reintroduction of Newcomb's snail. Through 
a voluntary agreement with the State of Hawaii Department of Land and 
Natural Resources Division of Forestry and Wildlife (DOFAW), A&B allows 
DOFAW to manage the Wainiha parcel for conservation purposes. 
Preservation of the parcel, in concert with the surrounding State lands 
(State-owned Halela Forest Reserve and the Alakai Wilderness Preserve), 
conserves watershed resources which in turn conserves habitat for 
Newcomb's snail. This management strategy is consistent with recovery 
of the species. While DOFAW restricts access to the parcel, they are 
not conducting management activities at this time. A&B has informed the 
Service that they are currently negotiating a voluntary conservation 
easement with TNCH to provide more active management of the valley for 
watershed protection. A&B has advised the Service that these 
negotiations, that will benefit Newcomb's snail by protecting its 
habitat, could be negatively impacted if critical habitat is designated 
for Newcomb's snail. Although the Service's draft EA did not find it 
likely, the landowners believe that critical habitat designation will 
result in State and County permits containing additional requirements 
and expense for protection of lands designated critical habitat.
    Approximately one third, or 12,141 ha (30,000 ac), of the land 
owned by A&B lies within the State Conservation District. A significant 
portion of lands under conservation zoning as well as other lands 
provide habitat for and support resources such as threatened and 
endangered species and migratory birds. A&B has a history of entering 
into conservation agreements with various

[[Page 54049]]

Federal and State agencies and non-governmental organizations on many 
of these lands. These arrangements take a variety of forms. They 
include partnership commitments ranging from simply allowing access to 
A&B-owned lands for government agency and non-governmental organization 
conservation partners to undertake surveys and site visits, to more 
extensive participation such as the provision of staff and funding for 
more active collaborative conservation partnerships. Ongoing examples 
of this include cave conservation actions undertaken by Kukuiula 
Develpment Co., an A&B subsidiary, to preserve cave habitat utilized by 
endangered cave fauna in the Koloa area of Kauai; and the active 
participation of the East Maui Irrigation Co., another A&B subsidiary, 
in the East Maui Watershed Partnership which is a collaborative multi-
party organization leading the conservation of land and water resources 
in the east Maui mountains. Thus, ongoing conservation partnerships 
with A&B have a proven conservation benefit for threatened and 
endangered species and other resources.
    We believe it is essential for the recovery of Newcomb's snail to 
build on continued conservation activities with a proven partner. 
Approximately 80 percent of imperiled species in the United States 
occur partly or solely on private lands where the Service has little 
management authority. In addition, recovery actions involving the 
reintroduction of listed species onto private lands requires the 
voluntary cooperation of the landowner. Therefore, ``a successful 
recovery program is highly dependent on developing working partnerships 
with a wide variety of entities, and the voluntary cooperation of 
thousands of non-Federal landowners and others is essential to 
accomplishing recovery for listed species'' (Crouse et al. 2002). 
Because the Federal government owns relatively little land in the State 
of Hawaii, and because large tracts of land suitable for conservation 
of threatened and endangered species is owned by private landowners, 
successful recovery of listed species in Hawaii is especially dependent 
upon working partnerships and the voluntary cooperation of non-Federal 
landowners. This is illustrated by the distribution of Newcomb's snail 
on Kauai: none of the locations known to be occupied by the snail are 
under Federal ownership, one site where snails are known to occur is on 
private lands, and one site where the snail was known from historical 
observations is privately owned (the Wainiha River Valley). The 
remaining occupied and previously occupied sites are on state-owned 
lands. Without the cooperation of these non-Federal landowners, neither 
surveys nor reintroduction of the Newcomb's snail can occur.
    Because the recovery plan for the Newcomb's snail is currently 
being drafted, specific strategies for recovery appropriate for the 
Wainiha River Valley are not yet in place. However, it is clear that 
recovery of the species require reproducing, self-sustaining 
populations of Newcomb's snails located in a geographic array across 
the landscape, with both population numbers and population locations of 
sufficient robustness to withstand periodic threats due to natural 
disaster or biological threats. Since the Newcomb's snail is considered 
to be extirpated from this area, and natural repopulation is likely not 
possible without human assistance, the establishment of a non-essential 
experimental population of Newcomb's snails under section 10(j) of the 
Act, as well as development of a Safe Harbor Agreement, will be 
considered in Newcomb's snail recovery planning for the Wainiha River 
Valley. Several issues will need to be addressed before a decision is 
made on how best to accomplish this goal, including, for example, the 
degree of geographic isolation of any translocated population and 
whether a translocated population would be considered to be essential. 
The apparent local extinctions of Newcomb's snails in three watersheds 
in the north and northwest part of its range (Hanakoa Stream, 
Hanakapiai Stream, and Wainiha River) indicate that active management 
of threats, and research into the feasibility of reintroductions, may 
have to occur in the near term. Therefore it is essential for us to 
maintain all possible options to achieve these goals.
    Section 10(j) of the Act enables us to designate certain 
populations of Federally listed species that are released into the wild 
as ``experimental.'' The circumstances under which this designation can 
be applied are: (1) The population is geographically separate from non-
experimental populations of the same species (e.g., the population is 
reintroduced outside the species' current range but within its probable 
historical range); and (2) we determine that the release will further 
the conservation of the species. Section 10(j) is designed to increase 
our flexibility in managing an experimental population by allowing us 
to treat the population as threatened, regardless of the species' 
status elsewhere in its range. Threatened status gives us more 
discretion in developing and implementing management programs and 
special regulations for a population and allows us to develop any 
regulations we consider necessary to provide for the conservation of a 
threatened species. In situations where we have experimental 
populations, certain section 9 prohibitions (e.g., harm, harass, 
capture) that apply to endangered and threatened species may no longer 
apply, and a special rule can be developed that contains the 
prohibitions and exceptions necessary and appropriate to conserve that 
species. This flexibility allows us to manage the experimental 
population in a manner that will ensure that current and future land, 
water, or air uses and activities will not be unnecessarily restricted 
and the population can be managed for recovery purposes.
    When we designate a population as experimental, section 10(j) of 
the Act requires that we determine whether that population is either 
essential or nonessential to the continued existence of the species, 
based on the best available information. Nonessential experimental 
populations located outside National Wildlife Refuge System or National 
Park System lands are treated, for the purposes of section 7 of the 
Act, as if they are proposed for listing. Thus, for nonessential 
experimental populations, only two provisions of section 7 would apply 
outside National Wildlife Refuge System and National Park System lands: 
section 7(a)(1), which requires all Federal agencies to use their 
authorities to conserve listed species, and section 7(a)(4), which 
requires Federal agencies to informally confer with the Service on 
actions that are likely to jeopardize the continued existence of a 
proposed species. Section 7(a)(2) of the Act, which requires Federal 
agencies to ensure that their activities are not likely to jeopardize 
the continued existence of a listed species, would not apply to the 
10(j) population except on National Wildlife Refuge System and National 
Park System lands. Experimental populations determined to be 
``essential'' to the survival of the species would remain subject to 
the consultation provisions of section 7(a)(2) of the Act.
    In order to establish an experimental population we must issue a 
proposed regulation and consider public comments on the proposed rule 
prior to publishing a final regulation. In addition, we must comply 
with the National Environmental Policy Act (NEPA). Also, our 
regulations require that, to the extent practicable, a regulation 
issued under section 10(j) of the Act represent an agreement between

[[Page 54050]]

the Service, the affected State and Federal agencies, and persons 
holding any interest in land that may be affected by the establishment 
of the experimental population (see 50 CFR 17.81(d)).
    The flexibility gained by establishment of a nonessential 
experimental population through section 10(j) would be of little value 
if there is a designation of critical habitat that overlaps it, as 
Federal agencies would still be required to consult with us on any 
actions that may affect the designated critical habitat. In effect, the 
flexibility gained from section 10(j) would be rendered useless by the 
designation of critical habitat. In fact, section 10(j)(2)(C)(ii)(B) of 
the Act states that critical habitat shall not be designated under the 
Act for any experimental population determined to be not essential to 
the continued existence of a species. Although our draft EA and 
Addendum conclude that the probability of a Federal action occurring in 
Wainiha Valley is remote, the decision not to designate critical 
habitat in this area retains all flexibility provided by section 10(j), 
if it were to occur.
    Both section 10(j) and Safe Harbor Agreements are meant to 
encourage state, local, and private cooperation through management 
flexibility. Critical habitat is often viewed negatively by landowners. 
It is important for recovery of this species that we have the support 
of A&B when we move towards taking specific recovery actions within the 
Wainiha River Valley. An important element in the recovery planning 
process for the Newcomb's snail is that the Service retain the 
flexibility in management options for reestablishing the species in 
areas outside of its current occupied range. The benefit of excluding 
this area from critical habitat is that we would retain this 
flexibility.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, the Service has 
determined that the benefits of excluding Wainiha River Valley as 
critical habitat for Newcomb's snail outweigh the benefits of including 
it as critical habitat. This conclusion is based on the following 
factors:
    1. The Wainiha River Valley is currently being managed on a 
voluntary and cooperative basis with the State of Hawaii to achieve 
important conservation goals, and A&B is negotiating a longer term 
agreement with TNC to manage the watershed for conservation. In the 
past, A&B has cooperated with the Service, the State, and other 
organizations to implement voluntary conservation activities on their 
lands that have resulted in tangible conservation benefits.
    2. Given the current conservation management regime in place for 
the Wainiha River Valley, and the likely future conservation management 
described above, the Service believes the overall benefits of including 
this unoccupied sub-unit as critical habitat are relatively small. The 
designation of critical habitat can serve to educate the general public 
as well as conservation organizations regarding the potential 
conservation value of an area, but this goal will be effectively 
accomplished through the identification of this area in the Newcomb's 
snail recovery plan (USFWS in prep.) and in the management agreements 
described above. Likewise, there will be little Federal regulatory 
benefit to the species because, as described in the economic analysis, 
this proposed critical habitat sub-unit is unlikely to be affected by 
Federal activities requiring section 7 consultation. The Service is 
unable to identify any other potential benefits associated with 
critical habitat for this proposed sub-unit.
    3. The proposed Wainiha River Valley critical habitat sub-unit is 
currently believed to be unoccupied by Newcomb's snail, and any future 
conservation efforts, such as translocation of snails to unoccupied 
habitat within the valley, will require the cooperation and good will 
of A&B. Also, the upper portions of the Valley owned by A&B include 
relatively pristine native forests. Preservation of these portions of 
the valley which require ongoing voluntary cooperation with 
governmental and private entities will protect the watershed and in 
turn the habitat for the snail.
    4. A&B and other members of the public have commented that the 
designation of critical habitat in Wainiha River Valley will likely 
have a negative impact on ongoing and future voluntary conservation 
efforts by A&B in the valley. The Service believes there is a 
reasonable likelihood that A&B will curtail their current behavior of 
participating in voluntary conservation efforts on their lands on 
Kauai.
    5. Critical habitat will also limit the management flexibility, 
including establishing nonessential experimental populations under 
section 10(j) of the Act or developing a Safe Harbor Agreement, needed 
to implement recovery actions and other conservation efforts for the 
Newcomb's snail in the Wainiha River Valley. If critical habitat is 
designated in this sub-unit we believe that existing and upcoming 
voluntary conservation programs, such as reintroduction, of Newcomb's 
snail into the Wainiha watershed will be impaired.
    In conclusion, we find that the designation of critical habitat in 
Wainiha River Valley would most likely have a net negative conservation 
effect on Newcomb's snail recovery and other conservation activities. 
As described above, the overall benefits to the species of a critical 
habitat designation for this sub-unit are relatively small. We believe 
there is a higher likelihood of beneficial conservation activities 
occurring in the Wainiha River Valley without designated critical 
habitat than there would be with designated critical habitat in this 
location. We reached this conclusion because the landowner will more 
likely continue and increase their ongoing voluntary conservation 
efforts in the valley, to the benefit of the Newcomb's snail. Because 
the ultimate purpose of critical habitat is to contribute to the 
conservation of listed species, the Service believes it is reasonable 
and necessary to exclude areas from critical habitat where such 
designation has a high likelihood of negatively impacting ongoing 
voluntary conservation activities, and, in this case, the negative 
impacts outweigh any discernable conservation benefits of designation. 
Therefore, on balance it is the Service's conclusion that the net 
benefits of excluding the Wainiha River Valley from critical habitat 
for the Newcomb's snail outweigh the benefits of including it.
(4) Exclusion of This Sub-Unit Will Not Cause Extinction of the Species
    The remaining eight critical habitat sub-units provide adequate 
habitat for the long term conservation of the species by providing six 
occupied sub-units and two unoccupied sub-units. These sub-units give 
protection from stochastic events and provide room for maintenance and 
expansion of the existing population. There is a much greater 
likelihood of undertaking conservation actions at this site to prevent 
extinction, such as translocation of snails to establish an additional 
population, without the Wainiha River Valley sub-unit being designated 
as critical habitat. Therefore, the exclusion of the proposed Wainiha 
River Valley sub-unit, which is not known to be occupied by the species 
at this time, will not cause the extinction of the Newcomb's snail.

[[Page 54051]]

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and has been reviewed by OMB, as OMB determined that 
this rule may raise novel legal or policy issues. As required by E.O. 
12866, we have provided a copy of the rule, which describes the need 
for this action and how the designation meets that need, and the 
economic analysis, which assess the costs and benefits of this critical 
habitat designation, to OMB for 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 Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA also amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that rules 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 substantial number of small entities. 
The following discussion explains the factual basis for this 
certification.
    Small entities include small organizations, such as independent 
non-profit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 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. A ``substantial number'' of small 
entities is more than 20 percent of those small entities affected by 
the regulation, out of the total universe of small entities in the 
industry or, if appropriate, industry segment. 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.
    The only regulatory effect of the designation of critical habitat 
is on 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 the Newcomb's snail. Federal 
agencies must also consult with us if their activities may affect 
designated critical habitat. 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 the 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 RFA, we are assuming that any future consultations in the 
area designated as critical habitat will be due to the critical habitat 
designation.
    Designation of critical habitat could also require reinitiation of 
consultation for ongoing Federal activities. However, since the 
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.
    None of the designation is on Federal lands. Six of the eight 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 sub-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.
    Two of the eight sub-units of the designation are on private land. 
On private lands, activities that lack Federal involvement would not be 
affected by the critical habitat designation. Few, if any, activities 
of an economic nature currently occur on the private lands in the area 
encompassed by this 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 remote and inaccessible, development of 
commercial or agricultural activities is very 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 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 designated as Newcomb's snail critical habitat are 
remote, no consultations due to ACOE permits are anticipated for 
activities such as road construction. Construction of new diversion 
structures in the stream segments designated as critical habitat,

[[Page 54052]]

or rehabilitation of the abandoned water diversion structures in the 
Hanalei critical habitat sub-unit, is unlikely because agricultural 
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.
    Furthermore, we have identified only four entities, of which one 
may be considered a small entity, that may be affected by the 
implementation of a critical habitat designation on private lands. The 
four entities that may be impacted by the critical habitat designation 
are The Nature Conservancy of Hawaii (TNCH), Kamehameha Schools, 
Cornerstone Hawaii Holdings, LLC and Waipa Foundation. Critical habitat 
may impact Kamehameha Schools and Cornerstone Hawaii Holdings, LLC in 
terms of a slight decrease in value of some land it owns in the 
Conservation District and possibly expenditures on services to 
investigate the implications of critical habitat. The RFA/SBREFA 
defines ``small organization'' as any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field (5 
U.S.C. 601). TNCH is a large organization that is dominant in the 
conservation and land management field in Kauai County. Thus, TNCH is 
not likely to be considered a small organization. Kamhameha Schools is 
a non-profit, private educational institution which owns a considerable 
amount of real estate in Hawaii and other states. It is the dominant 
private trust in Hawaii dedicated to education and thus is not a small 
organization. The U.S. Small Business Administration defines businesses 
in the land-subdivision and land-development industry as small if their 
annual sales are less than $6 million. According to this definition and 
the information we obtained for our economic analysis, Cornerstone 
Hawaii Holdings, LLC is not a small business. The only small entity 
that may be impacted by the designation of critical habitat is the 
Waipa Foundation. Our EA states that the Waipa Foundation could be 
impacted if Kamehameha Schools enters into an agreement with TNCH and 
the Waipa Foundation to manage the Lumahai Valley for conservation and 
educational and cultural benefits. TNCH and the Waipa Foundation may 
seek funding from the Service to manage the valley, in which case the 
Service may conduct an internal consultation with a low level of 
complexity. TNCH and the Waipa Foundation could be involved in the 
consultation process, but their involvement would not be mandatory. 
Most of the cost of the consultation is likely to be borne by TNCH and 
in addition, Kamehameha Schools and possibly other organizations are 
likely to provide funding to the Waipa Foundation to help cover some or 
all of the costs incurred during consultation. Therefore, the 
designation of critical habitat for the Newcomb's snail is not likely 
to have a significant economic impact on the Waipa Foundation or any 
other small entity.
    In summary, we have considered whether this 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 two 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 except for conservation activities.

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. 
While this has been designated as a significant regulatory action by 
OMB under E.O. 12866 for the reasons described above, it is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. No significant energy production, supply, and 
distribution facilities are included within designated critical 
habitat. Further, for the reasons described in the economic analysis, 
we do not believe that designation of critical habitat for Newcomb's 
snail will affect future energy production, in particular, hydropower 
development. 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 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 Federal agencies 
funding, permitting, or authorizing other activities must ensure that 
their actions will not adversely modify 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 evaluated 
the impact of designating areas where section 7 consultations would not 
have occurred but for the critical habitat designation and found the 
direct and indirect costs associated with critical habitat designation 
to be small in relation to any small governments potentially affected.
    (b) For the reasons described in the economic analysis and this 
final rule, this rule will not produce a Federal mandate on State, 
local, or tribal governments or the private sector of $100 million or 
greater in any year. The designation of critical habitat imposes no 
obligations on State or local governments. Therefore, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

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 takings 
implication assessment. The takings implications assessment concludes 
that this rule does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, this final 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 
the Newcomb's snail would have little incremental impact on State and 
local governments and their activities. The EA found that management of 
game hunting, conservation projects and natural disaster recovery 
projects may incur direct costs associated with section 7 consultations 
as a result of this designation. However, the designation 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 for the survival of the 
species are identified. This definition and identification may assist 
these local

[[Page 54053]]

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 meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. The 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 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 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 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.

Regulation Promulgation

    Accordingly, we 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     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Snails
 
 
                   *                  *                  *                  *                  *                  *                  *
Snail, Newcomb's.................  Erinna newcombi.....  U.S.A. (HI)........  Entire.............  T                       680     17.95(f)          N/A
 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    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. The primary constituent elements are: cool, clean, moderate-
to fast-flowing water in streams, springs, and seeps; their adjacent 
riparian areas and hydrogeologic features that capture and direct water 
flow to these spring and stream systems; a perennial flow of water 
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 human-made features and structures within the 
boundaries of the mapped units, such as dams, ditches, tunnels, flumes, 
and other human-made features that do not contain the primary 
constituent elements, are not included 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;

[[Page 54054]]

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] TR20AU02.000
    
    (5) Critical Habitat Unit II--Central Rivers--(i) Unit II(a): 
Lumahai River (492 ha; 1,216 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;

[[Page 54055]]

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;
    (ii) Unit II(b): Hanalei River (876 ha; 2,165 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.
    (iii) Map 2--Unit II--Central Rivers--follows:
    [GRAPHIC] [TIFF OMITTED] TR20AU02.001
    
    (6) Critical Habitat Unit III--Eastside Mountain Streams--(i) Unit 
III(a): Waipahee Stream (66 ha; 163 ac). The Waipahee Stream Newcomb's 
snail critical habitat location consists of all flowing surface waters 
within 78 boundary points with the following coordinates in UTM Zone 4 
with the units in meters using North American Datum of 1983 (NAD83): 
458921, 2447414; 458943, 2447424; 458998, 2447420; 459102, 2447444; 
459044,

[[Page 54056]]

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; 460055, 
2447576; 460261, 2447303; 460229, 2447182; 460178, 2446882; 460172, 
2446875; 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 (36 ha; 90 ac). The 
North Fork Wailua River Newcomb's snail critical habitat location 
consists of all flowing surface waters within 23 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; 451801, 2440139; 451748, 2440049; 451717, 2439976; 
451701, 2439841; 451455, 2439688; 451343, 2439745; 450968, 2440043; 
450840, 2440040.
    (iv) Map 3--Unit III--Eastside Mountain Streams follows:
    [GRAPHIC] [TIFF OMITTED] TR20AU02.002
    

    Dated: August 9, 2002.
David P. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-20696 Filed 8-19-02; 8:45 am]
BILLING CODE 4310-55-P