[Federal Register Volume 68, Number 68 (Wednesday, April 9, 2003)]
[Rules and Regulations]
[Pages 17430-17470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8180]



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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 Kauai Cave Wolf Spider and Kauai Cave Amphipod; Final 
Rule

  Federal Register / Vol. 68, No. 68 / Wednesday, April 9, 2003 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH01


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Kauai Cave Wolf Spider and Kauai Cave Amphipod

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 Kauai cave wolf spider (Adelocosa anops) and 
the Kauai cave amphipod (Spelaeorchestia koloana) pursuant to the 
Endangered Species Act of 1973, as amended (Act). The critical habitat 
designation consists of 14 units whose boundaries encompass an area of 
approximately 110 hectares (ha)(272 acres (ac)) on the island of Kauai, 
Hawaii. This critical habitat designation requires the Service to 
consult under section 7 of the Act with regard to actions carried out, 
funded, or authorized by a Federal agency. Section 4 of the Act 
requires us to consider economic and other relevant impacts when 
specifying any particular area as critical habitat. We solicited data 
and comments from the public on all aspects of the proposed rule, 
including data on economic and other impacts of the designation.

DATES: This rule becomes effective on May 9, 2003.

ADDRESSES: Comments and materials received, as well as supporting 
documentation, used in the preparation of this final rule will be 
available for public inspection, by appointment, during normal business 
hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300 
Ala Moana Blvd., Room 3-122, Box 50088, Honolulu, HI 96850-0001.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, Pacific 
Islands 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 a 
hot spot in the earth's crust located near the current southeastern 
coast of the island of Hawaii (Stearns 1985). Kauai is the oldest of 
the main islands, with most of its land mass being formed between 3.6 
and 5.6 million years ago (MYA) from a single, large shield volcano, 
now represented by the Alakai Plateau and adjacent ridges. Younger, 
secondary eruptions occurred over the eastern portion of the island as 
recently as the Pleistocene era (approximately 0.6 MYA). Due to the age 
of the island, the terrain is heavily eroded, with steep water-carved 
valleys and gulches characterizing the slopes of the Alakai Plateau and 
other isolated ridges. The Alakai Plateau is one of the wettest places 
on earth, receiving an average of 1.3 meters (m) (444 inches (in)) of 
rain annually (Juvik and Juvik 1998). Rain is delivered to the island 
by prevailing trade winds which come from the northeast. Southern and 
southwestern portions of the island lie in the rain shadow of the 
Alakai Plateau, ridges, or other uplands, and receive relatively little 
rain (NOAA 1990-1999).
    The Koloa District lies in the southeast corner of Kauai and 
includes the town of Koloa and the community and resort area of Poipu. 
The area is dry to mesic (moderate rainfall), receiving an average of 
107 to 223 centimeters (cm) (42 to 88 in) of rain annually. Although 
the Koloa District includes upland areas such as ridge lines derived 
from the Alakai Plateau and Haupu ridge, most human-occupied areas lie 
between sea level and about 183 m (600 feet (ft)) in elevation.
    The Koloa area is composed of the youngest rock on Kauai, the Koloa 
Volcanics (MacDonald et al. 1960; Langenheim and Clague 1987), with 
flows dating from between 0.6 and 1.4 million years. Younger, 
consolidated marine deposits and lithified sand dunes lie on top of 
some coastal portions of the older Koloa Volcanics. The great age and 
subsequent weathering that has occurred on Kauai has resulted in most 
lava tubes having been collapsed or filled with sediments (MacDonald et 
al. 1960; Howarth 1973; Berger et al. 1981; Howarth 1987b), relative to 
younger islands (e.g., Hawaii) where lava tubes are common features 
(Howarth 1983a). It is only in portions of the Koloa District, with its 
younger, cave-bearing rock, relative lack of developed soils, and 
minimal rainfall and subsequent sedimentation, that caves are known to 
be relatively common features on Kauai (Howarth 1981).

Kauai Cave Wolf Spider

    The Kauai cave wolf spider (Adelocosa anops) is a member of the 
wolf spider family (Lycosidae). Spiders in this family are 
characterized by a distinctive eye pattern, including two particularly 
large eyes located within the middle row of eight eyes (Foelix 1982). 
While wolf spiders are typically visual predators, the most conspicuous 
physical character of the Kauai cave spider is its complete lack of 
eyes. This character is unique among wolf spiders and, in part, 
provides justification for the recognition of a separate genus for this 
taxon (Gertsch 1973). A few species of wolf spider have reduced eyes, 
including another cave-adapted species on the island of Hawaii, but 
only in the Kauai cave wolf spider are the eyes entirely absent. Adults 
of the Kauai cave wolf spider are about 12.7 to 19.0 millimeters (mm) 
(0.5 to 0.75 in) in total body length with a reddish-brown carapace, 
pale to silvery abdomen, and beige to pale orange legs. The hind margin 
of each chelicera (biting jaw) bears three large teeth, two situated 
basally, and the third at the outer end of the chelicera. The tibiae 
(the fifth segment of the leg) of the two front pairs of legs have four 
pairs of ventral spines, and the tarsi (ultimate segments) and 
metatarsi (penultimate segments) of all legs bear unusually long, 
silky, and shiny trichobothria (sensory hairs) (Gertsch 1973).
    Dr. Frank Howarth, of the Bishop Museum, first discovered the Kauai 
cave wolf spider in Koloa in 1971, and it was formally described by 
Willis Gertsch of the Bishop Museum (Gertsch 1973). The Kauai cave wolf 
spider is a predator, and although blind, can detect the presence of 
potential food items through chemo-tactile sensory organs and actively 
stalks its prey (Howarth 1983a). Although predation has not been 
observed in the field, the spider probably feeds on the Kauai cave 
amphipod, other cave-inhabiting arthropods, and alien species of 
arthropods that enter the cave system. Compared to most wolf spiders, 
the reproductive capacity of the Kauai cave wolf spider is extremely 
low, with only 15 to 30 eggs produced in each egg sac (Wells et al. 
1983; Howarth 1991). Newly hatched spiderlings are unusually large for 
wolf spiders, and are carried on the back of the female for only a few 
days (Howarth 1991; Howarth and Mull 1992). Other species of wolf 
spider may have in excess of 100 offspring per clutch and the newly 
hatched spiderlings are relatively small (Foelix 1982; Howarth 1991; 
Howarth and Mull 1992).

Kauai Cave Amphipod

    The Kauai cave amphipod (Spelaeorchestia koloana) was discovered in 
some of the same caves as

[[Page 17431]]

the Kauai cave wolf spider in 1971 (Bousfield and Howarth 1976). 
Because of the unusual attributes of a highly reduced pincher-like 
condition of the first gnathopod (thoracic appendage) of the amphipod, 
and the second gnathopod being mitten-like in both sexes, this taxon is 
placed in its own unique genus (Spelaeorchestia) within the family 
Talitridae (Bousfield and Howarth 1976). This species is also 
distinctive in its lack of eye facets and pigmentation, and extremely 
elongate, spiny, post-cephalic appendages. Adult cave amphipods are 7 
to 10 mm (0.25 to 0.4 in) in length with a slender, laterally 
compressed body and a hyaline (nearly transparent) cuticle, giving it a 
shiny, translucent appearance. The second pair of antenna are slender 
and elongate, with the flagellum (slender outer part of the antenna) 
only slightly longer than the peduncle (narrow stalk attaching to the 
body). Peraeopods (abdominal walking legs) are very elongate, with 
slender, attenuated claws. All pleopods (swimming legs) are reduced, 
with branches vestigial or lacking. Uropods (tail-like appendages) 1 
and 2 have well-developed pre-peduncles, and brood plates in the mature 
female are vestigial or entirely absent (Bousfield and Howarth 1976).
    The Kauai cave amphipod is a detritivore and has been observed 
feeding on the roots of Pithecellobium dulce (Manila tamarind) and 
Ficus sp. (fig), rotting roots, sticks, branches, and other plant 
material washed into, or otherwise carried into, the caves, as well as 
the fecal material of other arthropods. In large cave passages, most 
individuals are found in association with roots or rotting plant 
debris. When disturbed, this cave amphipod typically moves slowly away 
rather than jumping like other amphipods. Nothing is known of the 
reproductive biology of this amphipod, but the vestigial brood plates 
of the female suggest they give birth to a small number of large 
offspring (Poulson and White 1969; Bousfield and Howarth 1976).

Cave Habitat

    Cave habitats have a high degree of zonation which plays a major 
role in the distribution of cave-dwelling organisms. Howarth and Stone 
(1990) recognize five distinct zones, not all of which are always 
present within any one cave. The first zone, the ``entrance zone,'' 
typically receives large amounts of solar radiation and is often 
vegetated with surface plants. Within the second zone, the ``twilight 
zone,'' ambient light levels decrease as one moves away from the 
entrance and photosynthesizing plants that may be present in the 
entrance decline. The third zone is referred to as the ``transition 
zone.'' The transition zone lacks light penetrance from the entrance, 
but other outside factors still greatly influence the cave habitat 
(e.g., ample air movement and daily temperature fluctuations). All of 
the above described zones (entrance, twilight, and transition) are 
typically influenced by surface conditions, daily cycles of warming and 
cooling, surface humidity, and a fair degree of air exchange occurring 
between these zones and surface habitats over relatively short periods 
of time (daily). The fourth cave zone, the ``dark zone,'' typically 
exhibits a sharp climatological change from the three previously 
described zones. The dark zone largely lacks daily air exchange with 
the surface and the three previously described zones. The relatively 
constant conditions encountered in the dark zone are often the result 
of a narrowing cave passage or low ceiling(s) that serve as physical 
barriers that restrict air exchange with other cave zones, or may be 
due to an up-slope orientation into a dead-end passage that traps warm, 
moist air. While the dark zone may undergo drastic changes in 
temperature and relative humidity, this more often is associated with 
seasonal rather than diurnal changes in air temperature. As a result of 
this, dark zones are seasonally stable in their micro-climatic 
conditions, remaining warm and humid during warm seasons. The final 
recognized cave zone is that of the ``stagnant'' zone (Howarth and 
Stone 1990). This zone lies deeper than the dark zone, receiving 
significantly less air exchange. As a consequence, the composition of 
gasses within this last zone is often largely controlled by the 
decomposition of organic matter and maintains high concentrations of 
carbon dioxide and low concentrations of oxygen. While considered 
inhospitable by human standards, field observations have indicated that 
obligate cave-dwelling species are highly tolerant of these conditions 
and many may, in fact, thrive in the stagnant air zone of caves 
(Howarth and Stone 1990).
    Cave habitats almost always contain small voids, cracks, and 
passages (mesocaverns) that cannot be accessed by researchers (Howarth 
1983b), but remain readily accessible (or preferred) by small 
troglobites (obligate cave-dwelling animals). Although such voids and 
cracks can occur in any zone and possess characteristics of each of the 
five zones, they frequently represent areas of reduced air flow and 
consequently are most similar to the dark and stagnant air zones. 
Passages and mesocaverns in limestone caves can form or be destroyed at 
almost anytime in the life of the cave, depending on the chemical 
characteristics of the rock and normal geologic processes. Limestone 
caves often become larger over time as acidic waters from the surface 
dissolve away the calcium carbonate bedrock. Since water flow enlarges 
and creates caves in limestone by solution, subterranean voids do not 
fill through erosion. If any do, the water quickly finds a different 
path and enlarges a new void. Limestone caves grow deeper as the water 
table sinks and the surface over the caves dissolves away. Limestone 
caves improve with age because, although individual voids and passages 
may be short-lived, limestone caves continuously reform so that habitat 
can remain suitable for very long time spans. Caves derived from lava 
tube systems are fundamentally different from limestone in that basalt 
is not as readily soluble. Hence, lava tube passages and mesocaverns do 
not typically dissolve away and become larger (formed), but are subject 
to filling with sediments (destroyed).
    The tendency for Hawaiian basalt to shrink and crack upon cooling 
results in younger lava flows having an abundance of mesocaverns 
throughout their structure that may serve as habitat or as corridors 
between habitats. However, the cave-building process typically stops 
some time after cave and crack formation, and is replaced by the cave-
filling processes as weathering and sedimentation begin filling in 
mesocaverns and passages. On younger islands, the abundance of 
mesocaverns may allow cave animals to move among and between larger, 
adjacent lava tubes (Berger et al. 1981; Howarth 1991). However, 
because these smaller voids become filled with erosional sediment in 
older flows like the Koloa Volcanics, and as a result of surface 
disturbance (Mueller-Dombois and Howarth 1981; Adam Asquith, Service, 
in litt., 1994a), it is less likely that the Kauai cave animals can 
readily move among separate lava tubes or other cave systems.
    Cave ecosystems are typically regarded as being food limited, and 
in most caves, the resident food-web communities require food input 
which is derived from surface systems based upon a photo-autotrophic 
(i.e., photosynthesizing plants) food base (Culver 1986). Nutrients may 
enter caves via subterranean streams or other surface runoff; as guano 
from bats, birds, rodents, or other cave visitors or residents; or from 
plant roots that penetrate the cave (Culver 1986). Of these methods, 
roots from surface plants

[[Page 17432]]

are the primary means by which Hawaiian caves receive nutrient input 
(Howarth 1973). Protection and restoration of surface plant communities 
is, therefore, an extremely important consideration for cave 
conservation in Hawaii, as it is elsewhere (Culver et al. 2000). 
Factors or activities that impact or modify surface vegetation over 
caves (e.g., fire, replacement of native or other perennial vegetation 
with grasses or some nonnative plants) can damage or destroy the 
underlying cave community.

Adaptations of Troglobitic Animals

    As discussed in the species descriptions of the Kauai cave wolf 
spider and cave amphipod, troglobites typically possess specialized 
anatomical characters that represent adaptations to life in the cave 
environment. Such anatomical adaptations include enlarged and/or 
elongate tactile-sensory appendages (e.g., legs or other appendages, 
antennae), and the lack of, or reduced, pigmentation and/or eyes (Barr 
1968). Less obvious adaptations are also present in the physiology of 
troglobites and this has the potential to restrict their distribution 
within various cave zones (Huppop 1985). Laboratory studies with 
Hawaiian crickets (Caconemobius spp.) were conducted that compared the 
abilities of closely related surface and cave-dwelling forms to cope 
with desiccation (Ahearn and Howarth 1982). Surface-dwelling species 
exhibited considerably lower evaporation/desiccation rates than did the 
troglobitic species, and in one case, the surface species became 
dehydrated at half the rate of its cave-inhabiting relative. This low 
desiccation threshold largely confines these troglobites to the high-
humidity environment of the deeper portions of caves, the dark and 
stagnant air zones. While such tests have not been conducted on the 
Kauai cave species, a logical assumption is that they have similar 
humidity tolerances, and this has been supported by field studies and 
observations conducted in the Kauai caves (see below). Similar 
adaptations in other troglobitic faunas (Vandel 1965; Barr 1968; Huppop 
1985) support the universality of these traits in troglobitic animals.
    Given the great vulnerability of troglobites to desiccation, 
adjacent mesocavern habitats will contain appropriate microclimate 
conditions and provide habitat or serve as refugia for troglobites when 
conditions in the main cave passages become drier or otherwise less 
accommodating. For example, during a previous survey of one cave of the 
Koloa area, the Kauai cave amphipod was not observed (Miura and Howarth 
1978). However, on a subsequent survey, the floor of a small, dead end 
passage was saturated with 40 liters (10 gallons) of water, and 24 
hours later amphipods had moved into this area, presumably from the 
surrounding mesocaverns (Howarth 1983a, 1983b). The foraging activities 
of both the Kauai cave wolf spider and the Kauai cave amphipod are 
restricted to dark, moist areas of large caverns and mesocaverns, and 
it is possible that the majority of their time is spent within such 
spaces.
    Both Howarth (1983a) and Huppop (1985) have postulated that 
troglobites may be adapted to cope with low levels of oxygen and/or 
elevated concentrations of carbon dioxide, similar to conditions that 
would be encountered in the stagnant air zone of caves. This ability 
has been substantiated from observations in known stagnant air zones 
(Howarth and Stone 1990), as well as under controlled laboratory 
experiments. Hadley et al. (1981) conducted experiments with Hawaiian 
wolf spiders, both troglobites (Lycosa howarthi) and a related surface-
dwelling species (Lycosa sp.). These researchers found the surface-
dwelling spider had a higher metabolic rate, requiring 2.5 times more 
oxygen than its cave-dwelling relative. The reduced need for oxygen 
would better allow these spiders to survive in stagnant air cave zones. 
Given the ability of at least some troglobites to cope with reduced 
oxygen and elevated carbon dioxide, as well as their ability to inhabit 
inaccessible mesocaverns, it is assured that many troglobites will be 
able to reside in areas not readily surveyed by biologists. Hence, cave 
habitats will extend well beyond those areas accessible by researchers 
(Howarth 1983a).

Species Distribution and Abundance

    The Kauai cave wolf spider and Kauai cave amphipod are generally 
restricted to cave dark and stagnant air zones, or other subterranean 
habitats such as cracks, voids, and other mesocaverns containing 
microclimate conditions similar to those zones. However, both the cave 
wolf spider and amphipod may be found in sub-optimal cave habitats 
(e.g., cave transition zone) when conditions are appropriate (e.g., 
elevated humidity during periods of increased rainfall). All of the 
caves where the cave amphipod has been located contain penetrating 
plant roots and/or other decomposing plant material, which serves as a 
food source for this detritivore. Plant material upon which the 
amphipods feed need not be from native plants, although nonnative toxic 
or indigestible plants may be inappropriate or damaging for amphipod 
foraging. The Kauai cave wolf spider can be found in caves where the 
cave amphipod does not occur, but other nonnative arthropods (e.g., 
cockroaches, wood lice, small spiders) can be used as food for this 
generalist predator.
    Prior to the publication of the proposed rule to designate critical 
habitat for the Kauai cave wolf spider (67 FR 14671, March 27, 2002), 
the spider had been observed in only five caves in the Koloa area since 
its discovery in 1971. Through mapping of one of the caves, the Service 
considers two of the caves originally believed to be separate to 
actually be one system with two entrances. Since 1996, Service 
biologists have conducted annual surveys of the caves, and starting in 
1998, we have conducted biannual monitoring visits to three of the 
known occupied caves. Observations recorded in these visits include a 
total count of animals within each cave, potential threats to the 
listed cave organisms or their habitat, and the cave's condition (e.g., 
human disturbance, presence of standing water). The following 
information is based on these monitoring visits.
    In two of the four known occupied caves, wolf spiders have been 
seen on only three occasions, but have been more often observed in two 
other caves. Of the two more frequently occupied caves, in only one of 
these wolf spiders have been encountered during every monitoring visit 
with 14 to 28 individuals observed (USFWS data from January 18, 1996 to 
November 20, 2002). The second cave contained a smaller number of wolf 
spiders when they were found there (one to four per monitoring visit). 
Since April 2000, no wolf spiders have been observed in this cave. The 
decline of wolf spiders in this cave has been matched with a 
corresponding increase in the number of resident brown violin spiders, 
an alien, web-building species that likely preys upon both the Kauai 
cave wolf spider and amphipod (A. Asquith, in litt. 1994b; David 
Hopper, Service, in litt. 1999). Although these data are not 
conclusive, the declining numbers of the Kauai cave wolf spider and 
their increased absence in the second of the regularly occupied caves 
warrants concern with regard to population persistence.
    Since the publication of the proposed rule, more surveys have been 
conducted and the spider has been verified to occur in two additional 
caves (Tom Shigemoto, Vice President, Alexander and Baldwin, pers. 
comm., 2002; Gordon Smith, Service, in litt. 2002), one of which was 
previously unknown

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and the other was known only to be occupied by amphipods. Therefore, 
the spider has verified occurrences in six caves.
    The Kauai cave amphipod has been recorded from six caves in the 
Koloa area but was only regularly encountered in only three of these 
caves. In one of these three caves, where the amphipod was found with 
the wolf spider, their numbers have ranged from 8 to 67 during the 
biannual monitoring visits. In another regularly occupied cave, 
amphipod numbers have increased steadily from 10 to 20 individuals per 
visit in pre-1998 counts to over 300 individuals during a visit in 
November 2000 (Service, unpub. data).
    In the three caves less frequently occupied by the amphipod, the 
lack of observations of the species is probably due to several factors. 
In one of these caves, relative humidity is often below 100 percent, 
which is a suboptimal condition for troglobites. Amphipods have been 
found in this cave when humidity conditions are optimal, such as after 
heavy rains which saturate the soil and increase the relative humidity 
in the dark zone. In a second cave, amphipods appear to be resident but 
were only observed during two visits that were conducted soon after the 
cave had been exposed by heavy machinery, and prior to the cave being 
re-closed for road construction (A. Asquith, in litt. 1999). The last 
of these three caves has been visited infrequently and amphipods have 
been observed during some, but not all, visits (Bousfield and Howarth 
1976; D. Hopper, in litt. 1998a; D. Hopper, in litt., 2000a).
    Since the publication of the proposed rule, the Service was 
notified of a seventh cave where the amphipod's occurrence was 
previously recorded (Bousfield and Howarth 1976). No additional 
information has been provided on this particular cave nor do we know 
the current status of the cave. Therefore, the amphipod has been known 
from seven caves.
    Despite the data obtained in our biannual monitoring counts, the 
quantities of animals reported do not represent sound population 
estimates. The methods needed to conduct non-damaging, mark-recapture 
studies for accurate estimates of population size have not been 
developed for these animals, and no attempt to conduct such studies 
have been undertaken.
    Cave systems may be separated by various physical barriers such as 
subterranean streams, or areas with developed soils that have filled in 
the mesocavern passages or habitats of these old caves (Mueller-Dombois 
and Howarth 1981). The degradation and loss of naturally occurring 
mesocavern habitats and corridors has likely been accelerated by 
development or other land uses that often require clearing of 
vegetation, blasting, and filling of trenches and construction sites. 
These activities, as well as modern agricultural practices, exacerbate 
the rates of sediment mobilization (Kirch 1982; Cuddihy and Stone 
1990), resulting in the filling of caves and mesocaverns (Howarth 1973; 
Mueller-Dombois and Howarth 1981; Burney et al. 2001).
    Because distinct species can evolve in adjacent lava tubes even 
when cave animals can move extensively through mesocaverns (Hoch and 
Howarth 1993), it is reasonable to consider the separate localities of 
these animals as different populations, even though intervening areas 
of potential habitat cannot be surveyed. Thus, we have currently 
verified a total of six spider populations and seven amphipod 
populations that are distributed throughout the Koloa district as 
follows: the Koloa Caves 1, 2, the newly discovered 
spider cave, and adjacent areas west of Waikomo Stream are considered 
to harbor three populations of the spider and two populations of the 
amphipod; the seaward Kiahuna Caves 267 and 276 
likely harbor two populations of the spider and one of the amphipod; 
the Kiahuna Cave 210 harbors a separate population each of the 
spider and amphipod; the Mahaulepu Cave harbors a separate population 
each of the cave amphipod and the spider (Service, unpublished data, 
1998-1999; G. Smith in litt. 2002); a small cave near the St. Raphael 
church harbors a population of the cave amphipod; and a small cave near 
the Koloa bypass road harbors a cave amphipod population.

Threats

    Small populations are also demographically vulnerable to extinction 
caused by random fluctuations in population size and sex ratio and to 
catastrophes such as hurricanes (Soule 1983; Gilpin and Soule 1986). In 
addition, the low reproductive potential of both cave species (less 
than five percent of their surface relatives) means that they require 
more time and space to recover from a disturbance than would similar 
animals living on the surface (F. Howarth, in litt. 2001).
    One of the major threats facing the Kauai cave wolf spider and the 
Kauai cave amphipod is the introduction of invasive alien species (F. 
Howarth, in litt. 2001). For example, an alien terrestrial nemertine 
worm (Argonemertes dendyi) from Australia was discovered in the 1980s 
on the island of Hawaii (Howarth and Moore 1983). This animal can live 
and reproduce in caves and presumably feed on any invertebrates, such 
as the Kauai cave wolf spider and the Kauai cave amphipod. The impact 
on cave fauna is not known at this time (Howarth and Moore 1983). If 
portions of the habitat are more or less isolated and protected, the 
chances are greater that any one threat would not affect all occupied 
caves at the same time and animals that survive may eventually re-
colonize their former habitat. This situation would also apply for 
other surface disturbances, such as oil spills, pollution, and 
pesticide application.
    Human impacts in the Koloa caves, and resulting impacts on the 
Kauai cave wolf spider and Kauai cave amphipod, are another concern. 
Caves are frequently sought out by curiosity seekers, and over-use of 
caves occurs readily due to their fragile nature (Howarth 1982; Culver 
1986). In addition, both natural and cultural features (e.g., human 
burials and associated artifacts) of caves are often damaged or 
destroyed by collectors or vandals (Howarth 1982; N. McMahon, Hawaii 
Dept. Historic Preservation, pers. comm., 2001). Unauthorized 
visitation and vandalism is such an issue in caves that the Cave 
Resources Protection Act (16 U.S.C. 4301 et seq.; 102 Stat. 4546) was 
passed with the main intent of protecting cave-associated natural and 
cultural resources. Unauthorized entry and vandalism of the Koloa caves 
has been documented (D. Hopper, in litt., 1998b, 2000a), and public 
interest in visiting caves is reflected in the publication of the 
location of two of these caves in a recent tourist guide (Doughty and 
Friedman 1998).
    Human visitation to caves, even when not intentionally destructive, 
often results in severe impacts to the resident troglobites or other 
cave inhabitants. For example, nicotine is a potent insecticide that is 
easily introduced into the cave environment through cigarette smoke or 
discarded cigarette butts. Given the confined space and poor air 
circulation in caves supporting suitable troglobite habitat, the 
effects of cigarette smoke are far more pronounced in caves (Howarth 
1982; Howarth and Stone 1993). The impacts of cigarette smoke are not 
restricted to the main cavern; the smoke will also impact mesocavern 
habitats, where its effects cannot be seen. Although less toxic than 
cigarette smoke, wood fire smoke may be equally damaging since far more 
smoke is produced and detrital food reserves may be burned. The use of 
cigarettes, as well as fire activity, have been documented

[[Page 17434]]

in the Koloa caves (D. Hopper, in litt., 1998b, 2000a).
    The narrow confines of most caves often result in focusing human 
travel and associated impacts to a small area, and increase the 
likelihood of troglobite mortality from unintentional trampling and the 
destruction or disturbance of food resources (e.g., roots, detrital 
matter). In addition, human use of caves frequently results in the 
importation of garbage, which encourages the invasion of caves by 
potential competitors and predators such as cockroaches (F. Howarth, 
Bishop Museum, pers. comm., 1994; A. Asquith, in litt., 1994a).
    The restricted area in which the Koloa cave animals occur is 
rapidly undergoing development (KBGM Peat Marwick 1993). The shallow 
cave habitat has been, and continues to be, degraded or destroyed 
through surface alterations such as the removal of perennial 
vegetation, soil fill, grading, paving, collapsing and filling of 
caves, diversion of waste water into subterranean voids and spaces, and 
other activities associated with development and agriculture.
    The Kauai cave wolf spider and Kauai cave amphipod are also 
increasingly at risk from predation and competition for space, water, 
and nutrients by introduced, nonnative animals (Howarth 1985, pers. 
comm., 1994; A. Asquith, in litt., 1994a, b; D. Hopper, in litt., 
1999), biological and chemical pest control activities associated with 
residential and golf course development (Hawaii Office of State 
Planning 1992); and an increased likelihood of extinction from 
naturally occurring events due to the small number of remaining 
individuals, populations, and their limited distribution.
    Due to the small number of known caves inhabited by these animals, 
we remain concerned that these threats may be exacerbated by the 
publication of the exact locations of individual caves. Since 
publication of the proposed listing rule for these animals in 1997 (62 
FR 64340), we have found evidence of increased entry and vandalism in 
these caves (D. Hopper, in litt. 1998b, 2000b). While direct and 
intentional threats to these species from human take and collection are 
not documented, the sensitive nature of these animals and their habitat 
to increased human presence makes increased human awareness of these 
caves a potential direct threat to the Kauai cave wolf spider and Kauai 
cave amphipod.

Previous Federal Action

    On June 16, 1978, we published in the Federal Register a proposal 
to list the Kauai cave wolf spider as an endangered species and the 
Kauai cave amphipod as threatened (43 FR 26084). That proposal was 
withdrawn on September 2, 1980 (45 FR 58171) as a result of a provision 
in the 1978 Amendments to the Endangered Species Act of 1973 that 
required withdrawal of all pending proposals that were not made final 
within 2 years of the proposal or within one year after passage of the 
Amendments, which ever period was longer. An initial comprehensive 
Notice of Review for invertebrate animals was published on May 22, 1984 
(49 FR 21664), in which the Kauai cave wolf spider and Kauai cave 
amphipod were treated as category 2 candidates for Federal listing. 
Category 2 taxa were those for which conclusive data on biological 
vulnerability and threats were not currently available to support 
proposed rules to list the species as threatened or endangered.
    We published an updated Notice of Review for animals on January 6, 
1989 (54 FR 554). In this notice, the Kauai cave wolf spider and Kauai 
cave amphipod were treated as category 1 candidates for Federal 
listing. Category 1 taxa were those for which we had on file 
substantial information on biological vulnerability and threats to 
support preparation of listing proposals. However, in the Notice of 
Review for all animal taxa published on November 21, 1991 (56 FR 
58804), the two Kauai cave arthropods were listed as category 2 
candidates. In the November 15, 1994, Notice of Review for all animal 
taxa (59 FR 58982), the two Kauai cave arthropods were again elevated 
to category 1 candidates. Upon publication of the February 28, 1996, 
Notice of Review (61 FR 7596), we ceased using candidate category 
designations and included the two cave arthropods as candidate species. 
Candidate species are those for which we have on file sufficient 
information on biological vulnerability and threats to support 
proposals to list the species as threatened or endangered. The two cave 
arthropods were included as candidate species in the September 19, 1997 
(62 FR 49398), Notice of Review.
    A proposed rule to list these two species as endangered was 
published on December 5, 1997 (62 FR 64340), and the final rule to list 
them was published on January 14, 2000 (65 FR 2348). Since that time, 
we have conducted conservation efforts for the Kauai cave wolf spider 
and Kauai cave amphipod through voluntary partnerships with two private 
landowners in the Koloa area.
    In the proposed listing rule, we indicated that designation of 
critical habitat for the Kauai cave wolf spider and Kauai cave amphipod 
was not prudent. Our concern was that publication of precise maps and 
descriptions of critical habitat in the Federal Register could increase 
human visitation to these highly sensitive cave habitats, which could 
lead to incidents of vandalism, destruction of habitat, and 
unintentional cases of take. Also, we believed that critical habitat 
designation would not provide any additional benefit to these species 
beyond that provided through listing as endangered.
    However, in the final listing rule, we determined that critical 
habitat designation was prudent as we did not find specific evidence of 
taking, vandalism, collection, or trade of these species or any other 
similarly situated species. Also, we found that there may also be some 
educational or informational benefit to designating critical habitat. 
Therefore, we found that the benefits of designating critical habitat 
for these two species outweighed the benefits of not designating 
critical habitat.
    On June 2, 2000, we were ordered by the U.S. District Court for the 
District of Hawaii (in Center for Biological Diversity v. Babbitt and 
Clark, Civ. No. 99-00603 (D. Haw.)) to publish the final critical 
habitat designation for both cave animals by February 1, 2002. The 
plaintiffs and the Service entered into a consent decree in a separate 
action agreeing to jointly seek an extension of this deadline (Center 
for Biological Diversity v. Norton, Civ. No. 01-2063 (D.D.C. October 2, 
2001)).
    On February 14, 2001, we contacted landowners on the island of 
Kauai, notifying them of our requirement to designate critical habitat 
for the Kauai cave wolf spider and Kauai cave amphipod. We included a 
copy of a fact sheet describing the two species and their habitat, and 
a map showing the presumed historic and current range (based on 
occupied habitat and the distribution of similar geology and soils) of 
one or both of these species.
    On January 30, 2002, the U.S. District Court in Hawaii approved a 
joint stipulation to modify the terms of the June 2 order to extend the 
deadline to August 10, 2002. Subsequently, the Service determined that 
an additional extension of time was needed to complete this designation 
process. On August 21, 2002, the U.S. District Court in Hawaii approved 
another joint stipulation extending the date for the final rule 
designating critical habitat for both cave animals to March 31, 2003.
    The proposed rule published March 27, 2002, proposed to designate 
four critical habitat units which collectively

[[Page 17435]]

amounted to approximately 1,697 ha (4,193 ac) (67 FR 14671). The public 
comment period closed on May 28, 2002. On November 15, 2002, we 
announced the availability of the draft economic analysis and reopened 
the comment period until December 16, 2002 (67 FR 69177).

Summary of Comments and Recommendations

    In the proposed rule published on March 27, 2002 (67 FR 14671), we 
requested that all interested parties submit written comments on the 
proposal. We also contacted all appropriate Federal, State, and local 
agencies, scientific organizations, and other interested parties and 
invited them to comment. We received no requests for a public hearing.
    We received individually written letters from 43 parties, including 
five designated peer reviewers. Approximately 417 additional letters 
were submitted as part of a mailing campaign that supported 
designation. Of the 43 commenters who were not part of the mailing 
campaign, 16 supported the proposed designation, 26 were opposed, and 1 
expressed neither support nor opposition. Of the 26 commenters who 
opposed the proposal, 17 commenters specifically opposed designation of 
critical habitat on lands they own or manage, and requested that these 
areas be excluded from critical habitat designation.
    We reviewed all comments received for substantive issues and new 
information regarding critical habitat for both cave animals. Similar 
comments were grouped into general issues and are addressed in the 
following summary.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited, in writing, the review of the proposed critical 
habitat designation from nine independent experts affiliated with 
academic and research organizations or natural resource conservation 
agencies. We also put in a request to Sustainable Ecosystems Institute. 
All of the individuals contacted are recognized leaders in the field of 
cave ecology and conservation, as demonstrated by a record of published 
peer reviewed results of past and current research in this field. Four 
parties responded with written reviews of the proposal, one provided a 
letter citing his inability to participate due to the lack of 
applicability to his state agency position, and the remaining four 
parties either verbally declined to participate due to workload or 
other constraints or simply did not respond.
    The four scientific review responses were generally positive and in 
support of the proposed designation on the basis of its technical 
merits. Reviewers generally recognized the limitations on the extent of 
specific knowledge regarding the cave species in terms of population 
sizes, population dynamics, and distribution of occupied habitat. 
However, a lack of knowledge is not unusual for troglobitic organisms 
that only occur in areas where humans rarely go and that may primarily 
inhabit mesocavern areas where humans are unable to enter at all. The 
reviewers were in agreement that the primary constituent elements were 
identified adequately. Three of the reviewers commented that additional 
information, particularly detailed mapping, was needed regarding human 
activities that may have eliminated one or more primary constituent 
elements from the landscape, information which presumably would allow 
some areas to be eliminated from consideration as critical habitat. 
Comments received from the peer reviewers are summarized in the 
following section and were considered in developing the final rule.

Issue 1: Biological Justification and Methodology

    (1) Comment: One scientific reviewer commented that it was 
difficult to justify inclusion of Units 2 and 3 on geological grounds 
alone, considering that evidence of historical or current occupation by 
the organisms was lacking. However, another reviewer stated that the 
proposed designation on the basis of geology alone was indeed adequate, 
and pointed out the ``plastic'' nature of the underlaying calcareous 
substrates of Unit 2 and 3 over geologic time. Another scientific 
reviewer did not feel that enough information was available to evaluate 
the adequacy of the large size of Unit 1a without more detailed maps of 
geology, cave locations, and past, present and future land use. Another 
commenter noted that the proposed designation does not provide enough 
connectivity between units, and recommended that there should be 
continuity between Unit 1a and Unit 1b and to accomplish this, all of 
Makahuena Point should be designated.
    Our Response: Unit 2 has not been included in the designation on 
geology alone. This unit lies only a short distance from a known 
occupied site and as mentioned by another reviewer was likely connected 
at an earlier time. Information provided during the comment period 
shows that the large size of appropriate habitat is likely to sustain 
the cave animals and is expected to provide the best type of habitat. 
In determining adequacy of size of critical habitat, we have reviewed 
the best scientific and commercial data available in making our final 
designation. Units 1b and 3 have not been included in the designation. 
A considerable amount of new information was provided to the Service 
regarding site-specific conditions on lands that had previously never 
been surveyed or had been incompletely surveyed. This includes new 
information regarding occupied and unoccupied caves, and technical 
information (e.g., drilling logs that include cross-section/
stratigraphy data of geologic core samples) regarding subsurface 
geology of surrounding areas. The total number of known occupied caves 
and caves with appropriate habitat has increased substantially, and 
some of the intervening areas between caves has been shown not to 
contain the primary constituent elements required to support adequate 
habitat for the species. The new information has resulted in a 
reformulation of the number of caves (and amount of above-ground area) 
considered to be essential to the conservation of the species. The new 
information has reduced, but not eliminated, the need for establishing 
critical habitat boundaries on the basis of the underlying geology of a 
given unit. Critical habitat boundaries have been modified to encompass 
surface areas above known caves and mesocave-bearing geologic features. 
These modifications and the rationale for the changes are described in 
detail in the section ``Summary of Changes from the Proposed Rule.''
    (2) Comment: One scientific reviewer stressed the importance of 
environmental requirements of obligate cave-dwelling species, noting 
that appropriate conditions (100 percent relative humidity) only occurs 
in larger, longer caves, and may be most commonly found in mesocavern 
spaces. Mesocavern areas may be limited in Koloa because of the 
geologic age of the lava flow series; however, where they occur they 
are important.
    Our Response: As the reviewer points out, a variety of data 
supports the existence and occupation of mesocavern habitats. This 
includes the typically low, but variable, numbers of organisms observed 
in cave surveys. Survey events that detect few individuals probably 
occur during conditions of reduced humidity whereby the organisms 
retreat into mesocaverns with suitable environmental conditions. Also, 
two known occupied caves that tend to exhibit drier conditions have 
been

[[Page 17436]]

surveyed numerous times with the wolf spider observed on only a few 
occasions. This indicates that, despite careful searches by trained 
observers, the organisms are able to move into areas of suitable 
habitat that are too small for humans to enter. We note that the ``type 
locality'' from where the initial specimens of the cave amphipod were 
collected for scientific description (the ``sand chamber'' of the 
Mahaulepu Sinkhole cave) appears to have a drier environmental regime 
than during initial biological surveys there in the 1970s. No amphipods 
have been seen in that chamber in recent years, likely due to this 
alteration of conditions. The Service agrees with the scientific 
reviewer that maintenance (and possibly enhancement) of suitable 
environmental conditions of caves and voids is an important 
consideration in conservation of the caves species.
    (3) Comment: Two scientific reviewers recommended that the size of 
the critical habitat areas should be sufficient to protect adequate 
population numbers such that, in the event of local extirpations of the 
species due to natural disaster or disease, recolonization of these 
areas can occur.
    Our Response: We agree, and we consider the issue of population 
dynamics central to the concept of conservation of the species. The 
cave species have characteristics that make estimates of population 
sizes and dispersal capabilities difficult. In addition, the species 
have naturally low reproductive potential. These characteristics 
highlight the importance of ensuring that the populations do not slip 
towards extinction due to demographic stochasticity (natural disaster, 
disease, invasive species interactions) or suffer from the effects of 
loss of genetic variability (inbreeding, genetic drift). We feel that 
our revised critical habitat boundaries, based upon the incorporation 
of new information regarding the number and locations of known occupied 
sites and sites highly likely to be occupied, encompass a wide 
distribution across the Koloa Basin, which will provide adequate 
refugia despite the possibility that unforeseen events may eliminate 
the entire population of a single cave or cave complex. These modified 
critical habitat boundaries are described in detail in the section 
``Summary of Changes from the Proposed Rule.''
    (4) Comment: The proposed critical habitat designation is based 
upon little specific data regarding the distribution of the cave 
invertebrates and the caves they inhabit; this has resulted in an 
overly broad ``blanket'' approach to the proposed critical habitat 
boundaries. A more reasonable approach would be to designate critical 
habitat around known population centers and known likely habitat.
    Our Response: The proposed critical habitat designation was 
developed using the best technical information available to the Service 
at the time of preparation of the proposed rule. The majority of the 
lands where these species are found is privately owned, which severely 
limits and may prohibit the ability of the Service to survey caves and 
analyze landforms exhibiting potential habitat in short timeframes. 
Through ongoing outreach efforts and development of a series of 
cooperative conservation programs with certain landowners, a reasonable 
amount of scientific information had accumulated over time, and it was 
this available information that was used in the development of the 
proposed critical habitat designation. In response to Service requests 
for additional relevant information, several parties, including 
landowners and land managers, undertook surveys of their lands to 
obtain and share new information with the Service. This information has 
increased the level of specific knowledge about the species in terms of 
distribution of occupied and unoccupied caves, locations of additional 
areas with geologic features likely to contain habitat, and areas that, 
because of natural processes or human-caused changes, do not contain 
the primary constituent elements adequate for support of the species. 
In particular, the number of individual caves where one or both of the 
species are found has increased from six to nine. This has greatly 
influenced the technical analysis leading to the ultimate conclusion of 
which areas are necessary for the conservation of the species. As 
described elsewhere, the identification of additional known occupied 
habitat has resulted in refocusing critical habitat boundaries in 
consideration of our better understanding of the cave species 
populations, their distribution, the effects of habitat fragmentation, 
protection of isolated populations, and potential for retaining areas 
of habitat connectivity.
    (5) Comment: A sand mining operation is located in Unit 2. 
Significant portions of this unit have been disturbed and should be 
excluded from designation.
    Our Response: The sand mining operation is not included in the 
designation of critical habitat. As described above, new information 
regarding the geology and modification of potential habitat due to 
human activities such as the sand-pit operation, agriculture, and past 
and current land use patterns, have resulted in modification of the 
boundaries of the proposed critical habitat. These modified critical 
habitat boundaries are described in detail in the section ``Summary of 
Changes from the Proposed Rule.''
    (6) Comment: One scientific reviewer noted that the concern 
regarding diseases and alien species invasions is warranted, but the 
reference to Bacillus thuringinensis (Bt) toxin as a potential threat 
is weak.
    Our Response: The threat of profound ecological disturbance, 
including species extinctions, due directly or indirectly to alien 
species introduction is a common theme in the conservation of virtually 
every native Hawaiian ecosystem. In addition to calling attention to 
this immediate threat, our use of the Bt example was to demonstrate: 
(1) That some disease and alien species threats are intentional 
``biocontrol'' introductions that could have unintended effects upon 
native ecosystems (this has occurred and continues to occur in Hawaii 
and elsewhere); and (2) the rationale behind protecting multiple, 
isolated portions of suitable occupied and unoccupied habitat in the 
event of a catastrophic event, such as a pesticide spill or other 
surface disturbance.
    (7) Comment: Based upon existing and new information, there appear 
to be four distinct populations of the cave invertebrates. They occur 
at: Kukuiula, Kiahuna, Bypass Road/Civil Defense caves, and the 
sinkhole area. Based upon other cave conservation efforts (including a 
proposed critical habitat designation for cave organisms in Texas by 
the Service), recovery goals can be achieved by protecting in 
perpetuity three discrete populations of organisms. Considering the 
cooperative conservation efforts of landowners at Kukuiula, Kiuahuna 
(for caves), and at the sinkhole (presently for archeological 
preservation), the requisite three faunal areas for each species has 
been identified, which is sufficient for species protection.
    Our Response: While the cave animals in Hawaii share some 
similarities with cave animals in Texas, it is inappropriate to assume 
recovery standards would be the same just because both occur in caves. 
Caves in Texas and caves in Hawaii are formed through different 
processes, have different food resources, and face different specific 
threats. Recovery standards need to be determined by evaluating 
individual species and their threats. Although there is no final 
recovery plan for either the Kauai cave amphipod or the Kauai cave wolf

[[Page 17437]]

spider, we do not at this time believe the three areas mentioned above 
adequately provide protection against catastrophic events. Therefore, a 
designation limited to these three areas would not adequately provide 
for the conservation of either species.

Issue 2: Legal and Regulatory Issues

    (8) Comment: The Service has misinterpreted the intent of the Act 
with exclusion of areas under 3(5)(A)(i) of the Act. If a specific area 
of cave invertebrate habitat is recognized to be critical to the extent 
that management is already taking place, the notion that such 
management renders designation unnecessary does not make sense. In 
fact, designation of these areas would seem more urgent.
    Our Response: While we have not excluded any areas from this rule 
because they are already sufficiently managed, we still believe this 
interpretation of the definition is reasonable. Pursuant to the 
definition of critical habitat in section 3 of the Act, the primary 
constituent elements as found in any area so designated must also 
require ``special management considerations or protections.''
    (9) Comment: Areas that are merely capable of supporting the 
species are proposed for designation, as opposed to areas that are 
essential for the conservation of the species.
    Our Response: Based on new information received during the public 
comment period we have refined the proposed designation. All areas 
designated as critical habitat are deemed essential to the conservation 
of the species. Areas designated provide for areas known to be occupied 
by the animals or provide for protection against catastrophic events by 
contributing to a wide distribution throughout the Koloa Basin.
    (10) Comment: The Service failed to consider the cascading impacts 
resulting from the State-led regulatory activities that must, by law, 
be implemented as a result of critical habitat designation. These 
include the broad interpretation of ``take'' under Hawaii's Endangered 
Species Act (HRS Ch. 195D); mandatory ``downzoning'' of private lands 
under Hawaii's Land Use Law (HRS Ch. 205); unreasonably frequent 
requirements for full environmental impact statements for minor actions 
under Hawaii's Environmental Impact Statement Law (HRS Ch. 343); 
unreasonable permit delays for county-regulated Special Management Area 
permits under Hawaii's Coastal Zone Management Law (HRS Ch. 205A); 
uncertainty of interpretation of the reach and extent of State 
regulatory authority under Hawaii's State Water Code (HRS Ch. 174C); 
and implications for water quality standards under Hawaii 
Administrative Rules Ch. 11-54, Water Quality Standards.
    Our Response: Possible costs resulting from interplay of the 
Federal Endangered Species Act and Hawaii State laws were discussed in 
sections 3 and 4 of the November 2002 Draft Economic Analysis of 
Proposed Critical Habitat Designation for the Kauai Cave Wolf Spider 
and the Kauai Cave Amphipod Island of Kauai, Hawaii (DEA) under direct 
and indirect costs as modified by the Addendum. They consider the 
economic impacts of section 7 consultations related to critical habitat 
even if they are attributable co-extensively to the listing status of 
the species. In addition, they examine any indirect costs of critical 
habitat designation, such as where critical habitat triggers the 
applicability of a State or local statute. The addendum to the DEA also 
fully considered this issue.
    (11) Comment: The proposal violates the ``commerce clause'' because 
the spider and the amphipod are not related to interstate commerce.
    Our Response: The Federal government has the authority under the 
Commerce Clause of the U.S. Constitution to protect these species, for 
the reasons given in Judge Wald's opinion and Judge Henderson's 
concurring opinion in Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 
1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). See also 
Gibbs v. Babbitt, No.99-1218 (4th Cir. 2000). The Home Builders case 
involved a challenge to application of ESA prohibitions to protect the 
listed Delhi Sands flower-loving fly. As with the species at issue 
here, the Delhi Sands flower-loving fly is endemic to only one State. 
Judge Wald held that application of the ESA to this fly was a proper 
exercise of Commerce Clause power because it prevented loss of 
biodiversity and destructive interstate competition.
    (12) Comment: The Service must take into consideration the 
completed economic analysis prior to designation of critical habitat. 
Currently, the proposed critical habitat boundaries are proposed prior 
to the completion of the economic analysis. This runs counter to the 
requirement for determination of prudency under the ESA.
    Our Response: We did not designate critical habitat before 
conducting an economic analysis. The DEA was published and made 
available for review on November 15, 2002 (67 FR 69177). The comment 
period on the proposed rule to designate critical habitat for these two 
species was extended until December 16, 2002, to allow interested and 
affected parties the opportunity to review the DEA in conjunction with 
the proposed critical habitat rule.
    The Service determines whether critical habitat designation is 
prudent according to regulations found at 50 CFR 424.12(a). In 
accordance with these regulations, critical habitat designation is not 
prudent only when one or both of the following two situations exist: 
(1) The species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species; or, (2) such designation would 
not be beneficial to the species. The economic analysis is generally 
conducted after critical habitat has been proposed in a given area, as 
set forth in regulations found at 50 CFR 424.19. If we find that 
economic or other impacts outweigh the benefit of designating critical 
habitat in a given area, that area will be excluded under section 
4(b)(2) of the Act.
    (13) Comment: Existing protections are adequate to conserve the 
species. The additional action of designating critical habitat is 
unnecessary.
    Our Response: We are required to designate critical habitat to the 
maximum extent prudent. Designation is not prudent only when the 
species is threatened by taking or other human activity and designation 
would increase that threat or designation would not be beneficial.
    (14) Comment: Because the DEA indicates that there will be 
substantial adverse impacts on small landowners, such as KG Kauai 
Development, LLC, there should be a Regulatory Flexibility Analysis 
performed on the designation of critical habitat.
    Our Response: Small landowners and other entities potentially 
impacted by the designation of critical habitat for the Kauai cave 
arthropods were identified and discussed in section 5 of the November 
2002 DEA and February 2003 addendum. As summarized in the addendum, 
there are no small entities, as defined under the Regulatory 
Flexibility Act (as amended by the Small Business Regulatory 
Enforcement Fairness Act) (RFA/SBREFA) that may be impacted by 
implementation of the section 7 provisions of the Act for the cave 
animals. Therefore, we concluded that the designation of critical 
habitat for the cave species is not likely to significantly impact a 
substantial number of small entities. The final determination is much 
smaller than that which was initially proposed, and the addendum 
discusses impacts to

[[Page 17438]]

landowners but also concludes that no small entities will be impacted.
    (15) Comment: In the context of Hawaii law, the designation 
constitutes taking as it results in the loss of value to the property.
    Our Response: To a property owner, the designation of critical 
habitat becomes important when viewed in the context of section 7 of 
the Act, which requires all Federal agencies to ensure, in consultation 
with the Service, that any action that these aagencies authorize, fund, 
or carry out is not likely to result in the destruction or adverse 
modification of designated critical habitat. If, after consultation, 
our biological opinion concludes that a proposed action is likely to 
result in the destruction or adverse modification of critical habitat, 
we are required to suggest reasonable and prudent alternatives to the 
action that would avoid the destruction or adverse modification of the 
critical habitat. If we cannot suggest acceptable reasonable and 
prudent alternatives, the agency (or the applicant) may apply for an 
exemption, in accordance with section 7(e) through (p) of the Act.
    The mere promulgation of a regulation, like the enactment of a 
statute, does not take private property unless the regulation on its 
face denies the property owners all economically beneficial or 
productive use of their land (Agins v. City of Tiburon, 447 U.S. 255, 
260-263 (1980); Hodel v. Virginia Surface Mining and Reclamation Ass'n, 
452 U.S. 264, 195 (1981); Lucas v. South Carolina Coastal Council, 505 
U.S. 1003, 1014 (1992)). The designation of critical habitat alone does 
not deny anyone economically viable use of their property. The Act does 
not automatically restrict all uses of critical habitat; it only 
imposes restrictions under section 7(a)(2) of the Act on Federal agency 
actions that may result in destruction or adverse modification of 
designated critical habitat. Furthermore, as discussed above, if a 
biological opinion concludes that a proposed action is likely to result 
in destruction or modification of critical habitat, we are required to 
suggest reasonable and prudent alternatives.
    (16) Comment: Several commenters requested an extension of the 
public comment period to enable more time for preparing and submitting 
comments to the Service. This request was made in part to enable the 
completion of scientific surveys of certain lands within proposed 
critical habitat and to allow more time to develop voluntary 
conservation agreements on some of these lands that might obviate the 
need for critical habitat.
    Our Response: The Service provided a total of 90 days of public 
comment following publication of the proposed critical habitat rule and 
draft economic analysis. The Service was unable to accomodate further 
requests for an extension of the public comment period due to the 
court-ordered deadline mandating completion of this final critical 
habitat rule. However, the Service would be happy to receive and review 
any new information, and if warranted will consider this information in 
possible future revisions of this rule (see 16 U.S.C. 1533(a)(3)(B)). 
In addition, interested parties may petition to revise a critical 
habitat designation based on new information (16 U.S.C. 1533(b)(3)(D).
    (17) Comment: The DEA lists economic impacts; however, there is no 
indication that the Service has identified appropriate critical habitat 
boundaries or modified the critical habitat boundaries in consideration 
of these economic impacts.
    Our Response: We considered the economic impacts that were analyzed 
and summarized in the DEA and final addendum, and no critical habitat 
units in the proposed rule were excluded or modified due to economic 
impacts (see section ``Analysis of Impacts Under Section 4(b)(2)''). 
However, several areas were excluded or modified because they lacked 
primary constituent elements, or were more degraded than other 
essential habitat areas, and therefore were not considered essential to 
the conservation of the species (see ``Summary of Changes from the 
Proposed Rule'' section).
    (18) Comment: The incremental impact of designating critical 
habitat, over and above the original listing, is that it creates a 
presumption that modification of the land will ``take'' members of the 
species. The Service is obliged to calculate the impact of deterring 
landowners' use of their lands. If any economic use of the land is 
prevented, the Service is liable to compensate the private landowner 
for losses.
    Our Response: Under federal law, while critical habitat may provide 
information to help a landowner identify where take through habitat 
modification may occur, the take prohibition applies whether or not 
critical habitat has actually been designated. The Act defines ``take'' 
to include ``harm.'' 16 U.S.C. 1532 (19). ``Harm is defined by 
regulation to include significant habitat modification or degradation 
where it actually kills or injures wildlife. 50 CFR 17.3. However, just 
because an action occurs in critical habitat would not demonstrate a 
take violation; the action must actually kill or injure the species. 
Take of a listed wildlife species may occur inside or outside of 
critical habitat if it causes death or injury to the species.
    (19) Comment: A cost benefit and economic analysis pursuant to 
Executive Order 12866 is required because the DEA indicates that there 
may be an annual effect on the economy of over $100 million per year.
    Our Response: While the DEA estimated potential costs greater than 
$100 million, this was based on the proposed critical habitat acreage 
of approximately 1,697 ha (4,193 ac). The final economic analysis 
evaluated the revised acreage of 110 ha (272 ac) and concluded that 
costs did not exceed $100 million.
    (20) Comment: Portions of Unit 2 and the eastern portion of Unit 1 
are planned but not permitted for major resort development; the 
southern portion of Unit 1 is planned but not permitted for subdivision 
into over 50 ``upscale'' houselots; a portion of Unit 3 is planned and 
permitted for a future limestone and basalt quarry; the area 
surrounding the old Koloa sugar mill will be expanded into an 
industrial area; several water wells are located in Unit 1 and 
additional water wells are expected. This development will create 
residential and employment opportunities for over a thousand island 
residents. In view of their economic importance, these areas should be 
excluded from consideration.
    Our Response: As indicated in the ``Summary of Changes from the 
Proposed Rule'' section, large portions of the proposed critical 
habitat Units 1 and 2 have been excluded in the final designation of 
critical habitat due to biological, rather than economic, 
considerations. Unit 3 has been completely removed from critical 
habitat designation for biological reasons, as well.
    (21) Comment: The Eric A. Knudsen Trust is seeking to subdivide or 
otherwise participate in the development of at least 741 lots/resorts 
units on 202 acres of trust-controlled lands [Tax Map Keys (TMKs): (4) 
2-8-015:082; (4) 2-8-013:01; (4) 2-8-014:01, 02, 03, 04, 19, 30 {in 
part{time} ; (4) 2-8-09:09; (4) 2-8-011:01, 18, 20, 35]. Because 
critical habitat designation may impact these plans, the trust asks 
that the lands be excluded from designation. Certain Eric A. Knudsen 
Trust lands may not be suitable as critical habitat because of prior 
urban and resort development [TMKs: (4) 2-8-01421, 26], and the trust 
asks that these lands be excluded from designation.

[[Page 17439]]

    Our Response: With the revised critical habitat boundaries, only 
two critical habitat units fall within the TMKs listed. Both units 
(unit 6 and 8) fall within TMK (4) 2-8-014:01. All other proposed areas 
were excluded from final critical habitat designation for biological 
reasons, as described in the ``Summary of Changes from the Proposed 
Rule'' section.
    (22) Comment: The DEA acknowledges that the proposed critical 
habitat boundaries will change with the final designation; however, the 
process by which final boundary determinations are made is not clear. 
The lack of definitive boundaries under consideration makes it 
impossible for anyone commenting on the economic impacts to be precise.
    Our Response: The proposed critical habitat units were described 
and depicted in the proposed rule (67 FR 14671), as were the methods 
and criteria used in determining the proposed areas. We have described 
our methods and criteria for designating final critical habitat 
boundaries within this final rule.
    (23) Comment: The DEA fails to distinguish potential costs due to 
designation from costs due to listing the cave animals as endangered. 
Nowhere does the draft provide any analysis of what impacts, if any, 
designating critical habitat for the cave animals would impose above 
and beyond those associated with the species' listing. Because the 
draft economic analysis does not distinguish between these costs, it 
cannot exclude proposed critical habitat from a final critical habitat 
designation pursuant to section 4(b)(2).
    Our Response: The court, as per New Mexico Cattlegrowers 
Association v. U.S. Fish and Wildlife Service, requires us to look at 
co-extensive costs (consideration of the impact of all section 7 
effects that could be a result of the designation, even if they are the 
same as those that arise from the listing). This is the approach the 
economic analysis and addendum take. The Service recognizes that if an 
area is excluded under 4(b)(2), not all of the economic impacts may be 
avoided.

Issue 3: Economic Issues

    (24) Comment: Elements of the economic analysis are based upon 
unsubstantiated and speculative development scenarios that greatly 
exceed foreseeable, sustainable growth for the Koloa/Po'ipu region as 
set by existing county zoning and State land use designations, as well 
as other legally-binding planning guidelines such as the Kaua'i County 
General Plan.
    Our Response: The resort/residential development planned in Units 2 
and 4 and the residential development planned in Unit 10 is consistent 
with the 2000 Kaua'i General Plan (General Plan), current State land 
use districts, and current county zoning. The resort/residential 
development planned in Units 6 and 8 requires minor modifications in 
the State land use districts and county zoning, but it is consistent 
with the General Plan. All of this development is likely to occur 
within the proposed critical habitat between 2003 and 2020 if no 
consideration is given to the indirect impacts of the intended 
designation.
    The commercial development planned in Unit 10 is not in the General 
Plan and is not included in the State Urban District. As mentioned in 
the Indirect Costs section of the Addendum, this development may not 
occur for reasons unrelated to the intended designation. However, since 
the General Plan is updated every 10 years or so, the commercial 
development may be added to the General Plan before 2020. The property 
values used in the Addendum reflect the fact that the development is 
not fully entitled, but that the land has development potential.
    Barring a hurricane or a major recession that disrupts tourism and 
resort/residential property sales, it is expected that, without the 
intended designation, all or nearly all of the planned development in 
the intended designation would occur by 2020.
    (25) Comment: Most development can proceed with reasonable project 
modifications that will reduce or eliminate damage to the cave 
ecosystems, therefore the economic impacts are greatly overstated. The 
economic analysis indicates that $1.9 billion of development may occur 
in the region and that project modifications would cost $61.6 million. 
This represents 3.2 percent of the cost of development, not an 
unreasonable amount considering these species and their habitats are 
highly endangered. Another commenter stated that direct costs of 
consultation must actually be divided by the profits from the sales, 
rentals, jobs, etc., produced by all the units of resort, residential, 
commercial and light industrial development which are likely to be 
built. Figured per saleable and rental unit and calculated over time, 
the cost is not likely to be as staggering as portrayed.
    Our Response: The estimates of direct and indirect costs in the 
Draft Economic Analysis of Proposed Critical Habitat Deisgnation for 
the Kaua'i Cave Wolf Spider and the Kaua'i Cave Amphipod, Island of 
Kaua'i, Hawai'i (DEA) were revised based on new information from the 
Service, resulting in a reduction in these estimates. For the larger 
projects affected by the intended designation, the revised figures 
represent a small percentage of the total development costs and 
profits.
    (26) Comment: Direct costs are summed with indirect costs to derive 
a total impact estimate. Yet, direct costs are associated with 
development put in place, while indirect costs are associated with 
development foregone. The benefits of the former should be offset 
against the costs of the latter, not summed. Also, direct cost 
estimates do not include multiplier effects of these expenditures, yet 
indirect costs do include multiplier effects. So we see the full impact 
of development foregone, but only partial impacts of development 
actually implemented.
    Our Response: Since the DEA was published, the direct costs and 
indirect costs have been modified to reflect new information gained 
since the publication of the DEA and based on the intended critical 
habitat designation. Direct costs include expenditures, on section 7 
consultations and project modifications for assumed development. 
Indirect costs include additional expenditures as well as lost income 
benefits associated with lost development. The direct and indirect 
costs are no longer summed; also, the direct costs are not benefits--
they do not offset indirect costs.
    Indirect costs that reflect the multiplier effects of lost 
development are no longer included in the analysis because they would 
be generated in any case; to the extent that development is displaced 
from the intended designation due to the implementation of section 7 
for the cave animals, that development would still be expected to occur 
but in another location of Koloa outside the critical habitat. This is 
now expected because of the smaller area intended for designation.
    (27) Comment: Total impact is based on a guess that between 25 
percent (low) and 50 percent (high) of all proposed development will 
not proceed due to habitat restrictions. [Sec 4.c] Also, Table VI-3 
indicates that the ``Low Projection'' actually assumes a 33 percent 
loss, not 25 percent as claimed in the text (pg. VI-57). Thus, the 
``Low'' impact should be 25 percent lower than reported, or about $330 
million in Net Present Value terms.
    Our Response: Due to the Service's intended modifications to the 
critical habitat designation, the cost estimates presented have been 
revised. In particular, the indirect impacts on remaining parcels are 
considered on a

[[Page 17440]]

parcel-by-parcel basis whereby the change in the likelihood of 
development, if any, associated with the intended designation is 
identified. The costs associated with these impacts are presented in 
the Indirect Costs section of the Addendum.
    (28) Comment: The State of Hawaii Department of Business, Economic 
Development and Tourism (DBEDT) population and tourism growth 
projections were used for this study. These estimates are higher than 
the 2000 Kaua`i's General Plan projections. DBEDT's projections are 
controversial and contested.
    Our Response: The DBEDT projections are presented in Table II-1 of 
the DEA, although both the DBEDT and General Plan projections are 
discussed in Chapter II of the DEA. The General Plan projections and 
information from developers are used to determine the amount of 
development that is planned in the intended critical habitat 
designation.
    While the DBEDT projections are used in comparisons of lost 
economic activity to projected island-wide economic activity in the 
DEA, neither the DBEDT projections nor the General Plan projections are 
directly used in the calculation of updated cost estimates presented in 
the Addendum.
    (29) Comment: It is erroneous to assume hotel and resort 
development displaced at Po`ipu is not likely to be replaced by 
equivalent projects elsewhere on Kauai. (V-57). In fact, there is 
island-wide competition for the resort market, and new areas such as 
Kapalawai have received Kauais General Plan resort designation. Also, 
visitor accommodations on Kauai are diversified with significant 
uncounted numbers of people staying in vacation rental homes, bed and 
breakfasts and camping outside of planned visitor destination areas. 
According to the Kauai General Plan analysis, the total number of 
resort and residential units already permitted, as opposed to those 
desired, is 5,836. (Appendices, Tables C and D). If the density 
allotted to Kukui`ula is cut in half, that total number is 4,036. 
Taking the HIGH number of baseline development (2,253, which includes 
not permitted units desired by Grove Farm), it appears that there must 
be 1,783 permitted units outside of the proposed critical habitat area. 
Future growth opportunities in Koloa, not requiring cave species 
mitigation construction, do exist in both the resort and residential 
categories. Growth opportunities in the Koloa area are not foreclosed 
by habitat designation.
    Our Response: As a result of the Service's intended modifications 
to critical habitat, the DEA's estimates of loss of resort/residential 
development in the Po`ipu area and reduction in the amount of 
islandwide development no longer reflect the impacts associated with 
the intended designation. As discussed in the Indirect Costs section of 
the Addendum, even if some of the development planned in critical 
habitat does not take place, it is assumed that other development 
projects in the Koloa/Po`ipu area will be able to be increased in 
density or area to satisfy unmet demand for residential or resort/
residential development.
    (30) Comment: The costs of public support of residential and 
tourism development is not adequately identified or calculated. These 
costs should be considered avoided costs for reductions in growth. 
Among the missing estimates for the taxpayers ``growth subsidies'' are 
the following: (1) Public expenditures for more schools or expansion of 
existing schools, including teachers, staff and administrators; for 
police, fire, ambulance, lifeguard personnel and equipment; solid 
waste; recycling; governmental administrative services; etc. Public 
subsidies of each unit of residential and of tourism development are 
substantial; (2) Most of these costs, as well as those for water, 
sewage, and roads (which the study states will not be affected by 
habitat designation and do require consultations etc.), are increased 
when development is sprawling rather than contiguous. Development of 
Maha`ulepu and the Sugar Mill area would leap beyond current developed 
areas; (3) Another avoided cost would be the cost to attain permits for 
projects and project design costs, etc. To get permits needed to 
develop, Grove Farm has previously estimated costs of over $5 million, 
higher than numbers in the study.
    Our Response: As discussed in the Indirect Costs section of the 
Addendum, a reduction in islandwide development attributable to the 
intended designation is no longer anticipated. Similarly, it is assumed 
there will be no impacts to the Maha`ulepu development since the areas 
planned for development are no longer in critical habitat. As such, any 
avoided public-support costs for reductions in development are not 
anticipated.
    (31) Comment: Table ES-1 appears to present both the low and high 
ends of the economic impacts estimated, implying that the low-end value 
reflects the likely least cost that critical habitat designation would 
impose. In fact, review of the DEA reveals that the ``low'' value 
represents the low end of the possible worst-case scenario, not the low 
end of all likely scenarios.
    Our Response: The impact estimates have been revised in the 
Addendum to include expected impacts for a number of possible scenarios 
and the Service's intended modifications to critical habitat. As such, 
the high and low estimates in Table Add-3 represent the range of 
reasonably foreseeable direct costs associated with section 7 
implementation for the cave animals and the indirect costs associated 
with the intended designation.
    (32) Comment: The DEA fails to recognize that the costs to 
investigate the implications of critical habitat are sunk costs 
associated with the designation process, not additional costs that 
final designations would impose. Any concerned party investigating the 
proposed designation of critical habitat on their lands have already 
hired their lawyers and consultants, and incurred the costs associated 
with figuring out the implications of designation on their lands. Even 
were the private landowners' lands ultimately excluded from the final 
critical habitat designation, the landowners would still not recoup 
those costs; the money has already been spent. These costs should not 
be included in the analysis of future potential costs from designation 
since they have already been incurred and were incurred regardless of 
the final designation decision.
    Our Response: For completeness, estimated expenditures by 
landowners to investigate the implications of the proposed critical 
habitat were included in the DEA and Addendum, even if the funds have 
already been expended and are not recoverable. In estimating costs, a 
distinction is not made between the designation process and the final 
designation.
    (33) Comment: Project modification costs are underestimated, 
particularly the cascading effect of project realignment with the 
purpose of avoiding critical habitat. Also, the costs of avoiding 
subsurface impacts to sewer lines, buried cables, etc., in addition to 
roads, is underestimated.
    Our Response: The project modification cost estimates take into 
account a variety of projects, locations, and contingencies, and are 
based on (1) discussions with the Service and construction contractors, 
and (2) an examination of the historical record of project 
modifications regarding the cave animals. The one historical case of a 
road realignment due to the cave animals involved the Koloa Bypass 
Road. In this case, the realignment was minor and was completed quickly 
at

[[Page 17441]]

relatively low cost. The Service indicates that if a realignment is too 
costly for a particular project, other alternatives are possible. These 
include using post-tension concrete to bridge caves and mesocaverns, or 
placing sewer lines and cables above ground. If none of these options 
is economically or technically feasible, the Service indicates that a 
portion of a cave could be sealed off and filled in, as long as 
precautions are taken to minimize the impact to any cave animals that 
may be present. The costs associated with these various scenarios are 
considered in the project modification cost calculations in the 
Addendum.
    In situations where development is displaced because of critical 
habitat, the cascading effect of project realignment is taken into 
account (e.g., a school planned for a location in critical habitat 
would be relocated to an area planned for residential development, 
thereby resulting in a loss of planned housing).
    (34) Comment: The DEA only partially considers the ``indirect 
impacts'' of critical habitat designation, and instead focuses on 
``direct impacts'' due primarily to consultations under section 7 of 
the Act. Due to precedent set by New Mexico Cattle Growers, the Service 
must fully consider both types of impacts, and the DEA must present a 
thorough analysis of these economic effects. Another commenter stated 
that the DEA overemphasizes the direct costs attributable to critical 
habitat designation, which are relatively minor, and ignores or omits 
many indirect impacts, such as: Impacts to housing supply, especially 
affordable housing required by State and local governments as permit 
conditions associated with development of ``market-priced'' housing, 
upscale housing, and resort development; impacts to public 
infrastructure such as schools, parks, and roads, and decreases in 
public revenues as a result of reduced economic activity; 
disproportionate impacts to specific ethnic groups, and other social 
impacts.
    Our Response: Both direct and indirect impacts are analyzed in 
Chapter VI and in the Addendum, and both are summarized in Table Add-2.
    Regarding affordable housing, schools, parks and roads, the 
developers are obligated to provide them regardless of critical 
habitat. But if they cannot build them in critical habitat, then they 
could be moved elsewhere within a project site, displacing market 
housing or other project components. This displacement was assumed in 
analyzing the economic impacts of the section 7 implementation for the 
cave animals.
    As discussed in the Indirect Costs section of the Addendum and in 
responses to other comments, a reduction in islandwide development 
attributable to the intended designation is no longer anticipated. As 
such, any changes in the public revenues associated with reduced 
economic activity are expected to be minimal.
    No disproportionate economic or social impacts on specific ethnic 
groups were identified.
    (35) Comment: The DEA acknowledges that some or all lands 
designated as critical habitat may be redistricted/rezoned at the State 
or county level to preclude further development, and the actual 
economic costs of redistricting could be very high ($1.54 billion to 
$3.1 billion). These estimates are mentioned in the text but not in the 
summaries of the economic impacts.
    Our Response: Due to the Service's intended modifications to 
critical habitat, economic impacts on the order of $1.54 billion to 
$3.1 billion are no longer anticipated. The Indirect Costs section of 
the Addendum considers the potential indirect impact of the intended 
designation on each parcel in the intended designation to determine an 
estimate of development impacts (including any associated with 
potential redistricting, as applicable).
    (36) Comment: The DEA does not account for investments and other 
expenditures already made on lands with the expectation that rezoning 
and redistricting will allow future development and hence a return on 
investment, nor does it account for the potential lost recapture of 
investment yields that may be foregone due to lost development 
potential for lands that have successfully been rezoned and permitted 
for development at a very high cost.
    Our Response: The Indirect Costs section of the Addendum presents 
an estimate of the loss in property values due to the cave animals 
listing and critical habitat designation. The property values used in 
the analysis reflect the current market value of the land, which 
consists of real returns from existing uses and improvements as well as 
any anticipated improvements or uses.
    (37) Comment: The DEA fails to consider the more restrictive 
Habitat Conservation Plan (HCP) guidelines under the Hawaii Endangered 
Species Law (HRS 195D-4, HRS 195D-21) which require that the State HCP 
permittee show a net benefit to the species. The DEA fails to analyze 
impacts due to the circumstance in which a landowner qualifies for a 
Federal HCP but is unable to obtain a State HCP.
    Our Response: None of the landowners and developers remaining in 
the intended designation are anticipated to seek an HCP as a result of 
critical habitat designation. Section 4 of the Addendum discusses the 
indirect impacts of the intended designation in greater detail.
    (38) Comment: The narrative exclusion of areas underlying currently 
developed areas such as buildings and driveways (``unmapped holes'') is 
too vague considering the cryptic nature of the organisms and their 
habitats. The DEA fails to fully consider the economic impacts of 
landowners costs to properly demarcate ``unmapped holes'' in the 
process of obtaining necessary permits for development projects.
    Our Response: The intended critical habitat designation contains 
few unmapped holes or developed areas. The costs to landowners to 
demarcate these sites is expected to be minimal.
    (39) Comment: The DEA does not take into account the loss of income 
by Jas W. Glover Ltd., the operators of the quarry. The DEA should use 
a figure of $31-35/ton for shipping of limestone to Kauai, not the $13 
to $16 per ton due to costs of wharfage fees loading and unloading 
costs, trucking, insurance, and other costs. In addition, the loss of 
quarry materials will have impacts throughout the construction industry 
on Kauai. Another commenter stated the siting of an additional quarry 
in the area is no longer necessary because market conditions have 
changed and products produced by the expanded quarry are not needed by 
the local economy. Another commenter stated that the operator of the 
quarry on Grove Farm lands (Jas W. Glover Ltd.) is a small entity, and 
it is woman-owned and Native Hawiian-owned. Because this firm is one of 
only two aggregate producers on the island the impacts to this economic 
sector should be considered under ``Impacts to Small Entities.''
    Our Response: The site planned for the future expansion of the 
limestone quarry is no longer included in the intended critical habitat 
designation, so the associated direct costs, indirect costs, and 
impacts to small entities attributable to the intended designation are 
zero.
    (40) Comment: The DEA incorrectly lists Kobayashi Group LLC as the 
owner of Kiahuna Golf Course and surrounding lands. The golf course 
(225.063 acres) is owned by Kiahuna Golf Club, LLC; the adjacent lands 
(95.412 acres) are owned by KG Kauai Development, LLC. These are 
distinct entities and not subsidiaries

[[Page 17442]]

of Kobayashi Group LLC, although there are common elements of ownership 
between various individuals. Kiahuna Golf Club, LLC, and KG Kau'i 
Development, LLC believe they qualify as small businesses. Because the 
DEA indicates that there will be substantial adverse impacts on small 
landowners such as KG Kaua'i Development, LLC and Kiahuna Golf Club, 
LLC there should be a Regulatory Flexibility Analysis performed on the 
designation of critical habitat.
    Our Response: The Addendum lists KG Kaua'i Development, LLC (KGKD) 
as the owner of the land that is planned for the Kiahuna Golf Village 
Expansion and the Kiahuna Golf Course Expansion. No impacts are 
anticipated for the continued operation of the existing Kiahuna Golf 
Course by Kiahuna Golf Club, LLC.
    RFA/SBREFA regulations state that the Small Business Administration 
(SBA) counts the receipts or employees of the business whose size is at 
issue and those of all its affiliates in determining the business' 
size. Businesses are affiliates of each other when one concern controls 
or has the power to control the other, or a third party or parties 
controls or has the power to control both. The SBA considers factors 
such as ownership, management, previous relationships with or ties to 
another business, and contractual relationships, in determining whether 
affiliation exists. Finally, RFA/SBREFA regulations state that a firm 
will not be treated as a separate business concern if a substantial 
portion of its assets and/or liabilities are the same as those of a 
predecessor entity. In such a case, the annual receipts and employees 
of the predecessor will be taken into account in determining size (13 
CFR part 121).
    KGKD states that it is affiliated with Kobayashi Group LLC through 
common ownership by certain individuals. In addition, KGKD was recently 
established by the Kobayashi Group LLC for the purpose of acquiring the 
properties surrounding the golf course. As such, Kobayashi may be 
considered a predecessor entity of KGKD. Due to its affiliation with 
Kobayashi Group LLC, KGKD is not considered separately in the RFA/
SBREFA analysis in the Addendum.
    (41) Comment: The level of effort to document and analyze the 
potential economic impacts resulting from critical habitat designation 
greatly exceeded the level of effort to document and analyze potential 
economic benefits due to designation, resulting in an unbalanced 
overestimation of detrimental economic impacts, and an unfair 
underestimation of economic benefits due to designation of critical 
habitat.
    Our Response: See response to comment 42 below.
    (42) Comment: The benefits of species protection are overstated and 
speculative. The DEA does not present the expected circumstances or 
timeline for delisting the species, nor is there a quantifiable 
estimate of the economic benefits of delisting. In addition, one 
commenter states the species themselves have no economic value; any 
estimate of economic benefit derived from not fully developing lands 
proposed for critical habitat are speculative and unquantifiable.
    Our Response: This responds to comments 41 and 42 above: Even 
though the material presented in the DEA and in the Addendum regarding 
benefits is not as extensive as the material on costs, this does not 
result in overestimated costs and underestimated benefits. The less 
extensive analysis of the benefits is due to (1) a lack of scientific 
studies on environmental and biological changes that would be 
attributable to the section 7 implementation for the cave animals, and 
(2) the lack of existing economic studies on the economic value of 
these changes. However, the Addendum presents an expanded discussion of 
benefits, including the estimated value of retaining land in open space 
due to critical habitat.
    The expected circumstances and the potential timeline of delisting 
the cave animals will be presented in the Service's final recovery plan 
for the cave animals. The DEA does discuss the reduced costs due to 
successful preservation and the existence value of the cave animals in 
the Benefits section of Chapter VI; however, these benefits are not 
quantified given the lack of information as described above.
    (43) Comment: Based on 6,000 acres of undeveloped land bounded by 
Haupu ridge, and using pro rata estimates of ecological values from a 
University of Hawaii study of the value of the Koolau Range on Oahu 
(http://www2.hawaii.edu/[sim]uhero/workingpaper/HawaiiEnviro 
Evaluation.pdf Environmental Valuation and the Hawaiian Economy, by 
Brooks Kaiser, Nancy Krause, and Jim Roumasset), the Koloa/Poipu 
viewscape is worth $29 million per year (at $0.23 per acre per 
household for Kauai's 21,000 households). Over 18 years (comparable to 
FWS estimates), this sums to $521 million. The annual stream of 
benefits from the conservation district is $10.1 million annually (at 
$1,690 per acre), summing to another $182.5 million on a comparable 
basis. The net present value of the undeveloped land is $456.9 million 
(at the UH lower estimate of $76,146 per acre). Degradation scenarios 
combining urban creep, invasive species, and human/animal disruption 
resulting in recharge loss could cost another $3.6 million annually (at 
$600 per acre), or a total of $65 million. That is only a start at 
estimating the ecological benefits and savings associated with 
preserving this undeveloped land, and we are at $1.225 billion already.
    Our Response: The suggested benefits analysis would yield 
inaccurate results for several reasons. First, the proposed critical 
habitat for the cave animals as described in the proposed rule covers 
4,193 acres. Since the publication of the proposed rule, the Service 
has identified several areas of the proposed critical habitat that it 
intends to remove for biological reasons, which would reduce the 
critical habitat to 272 acres. Basing the benefits analysis on 6,000 
acres would overstate the economic benefits attributable to the 
implementation of section 7 for the cave animals.
    Second, the commenter uses an incorrect value of open space. As 
stated in the University of Hawaii study, a recent survey found that 
Oahu residents are willing to pay $0.0023 per acre (0.23 cent per acre) 
for the preservation of open agricultural land on O'ahu. The 
commenter's use of $0.23 (23 cents) per acre overstates the benefits 
associated with open space by a factor of 100. The Benefits section of 
the Addendum uses the 0.23 cent per acre figure, corrected for (1) 
inflation; (2) the income levels on Kauai; and (3) the amount of 
existing open space on Kauai compared to Oahu. To calculate the value 
of additional open space, the corrected figure is then applied to the 
amount of land that may no longer be developed due to critical habitat.
    Third, the University of Hawa'i (UH) study on the Koolau Range on 
Oahu focuses on the economic benefits provided by a mountainous region 
covered by dense forests and many native Hawaiian plants. The proposed 
critical habitat is in a gradually sloping and relatively dry area that 
contains many nonnative plant species. Since the ecosystems of these 
two areas are vastly different, the ecosystem services provided by 
these areas will also be different. As such, the economic valuation of 
the ecosystem services provided by the Koolau Mountains is generally 
not transferrable to the proposed or intended 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 nine 
percent

[[Page 17443]]

larger than Kauai but has a population of more than twelve times that 
of Kauai. Furthermore, neither the proposed nor the intended 
designation is in an area of high rainfall. 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 manmade 
Ala Wai Canal. Since this canal was designed with inadequate flushing 
from stream or ocean currents, it functions as an unintended settling 
basin so must be dredged periodically. The proposed critical habitat 
drains into a portion of the ocean that has strong currents and 
adequate flushing. And unlike the Koolaus, none of the proposed 
critical habitat contains streams and aquatic life, and none of the 
units are suitable for hunting wild pigs.
    Finally, the commenter's summation of benefits to $1.225 billion is 
flawed due to double-counting. For example, the $1,690 per acre figure 
in the UH study includes the benefits of open space. So adding the 
estimated open space benefit of $521 million to the ecosystem services 
estimate of $182.5 million double-counts the benefits of open space. 
Similarly, the two per-acre figures taken from the UH study ($1,690 per 
acre and $76,146 per acre) are two different measures of the same 
ecosystem benefits. The first figure refers to the annual stream of 
benefits, while the second figure refers to the net present value. 
Multiplying both of these figures by 6,000 acres and adding them 
together clearly double-counts the ecosystem benefits.
    (44) Comment: Assigning an economic value to preservation of 
ecosystem functions that may result from the designation of critical 
habitat (such as groundwater recharge, protection of coastal marine 
waters and fisheries, and other ecosystem services) is now an 
acceptable method of economic analysis. The dollar value of these 
services is high. However, this analysis was done in a qualitative, 
narrative manner in the draft economic analysis. Why was it not done 
quantitatively?
    Our Response: Quantitative estimates of the economic benefits of 
the listed ecosystem services provided by critical habitat are not 
presented in the DEA or in the Addendum because studies estimating the 
change in the ecosystem associated with critical habitat designation 
and the value of that change are not available.
    However, such benefits are likely to be small. For example, the 
proposed critical habitat is near the coast in an area of low rainfall, 
and thus contributes little to groundwater recharge.
    The reduction of development and grazing in critical habitat could 
reduce soil runoff thereby protecting the coastal marine waters and 
fisheries off the south shore of Kauai. However, as mentioned in the 
DEA, this benefit is likely to be small because the affected marine 
ecosystem has already been altered by over 150 years of sugarcane 
cultivation in the area. Also, Koloa has an open coastline that is 
exposed to surf and strong ocean currents that continually flush the 
near-shore environment. Finally, any displaced development is likely to 
occur elsewhere in Koloa. Thus, the net environmental benefit to Kauai 
is likely to be small.
    Additional environmental benefits, such as the preservation of open 
space, changes to traffic congestion, and the promotion of native 
plants, are discussed in the Benefits section of Chapter VI in the DEA 
and in the Addendum.
    (45) Comment: There was no attempt to quantify the value of open 
space (parks, preserves, even golf courses) surrounding real estate. 
Such increased property values are acknowledged, but there was no 
attempt to estimate the corresponding increases in property values. 
Understanding of this principle is a large driver in the DMB 
Development Company's decision to halve the density of their joint 
project with A&B at Kukuiula.
    Our Response: The Indirect Costs section of the Addendum discusses 
the possibility that the land planned for development in certain 
critical habitat units will remain open as a result of the intended 
designation. If this land is managed as a park or preserve, it could 
increase the selling values of the home lots that are directly adjacent 
to critical habitat. An estimate of the number of homes or lots 
adjacent to the critical habitat units, as well as the potential 
increase in selling values, is discussed for critical habitat Units 2, 
6, and 8.
    (46) Comment: Development in the Koloa/Poipu area is already 
progressing at unsustainable levels, and future traffic, emergency 
services, and possibly water supply are sources of uncertainty. It is 
good that the critical habitat designation places additional mechanisms 
to undertake reasonable slow-growth planning for the region. Also, some 
tourists prefer less developed areas. The potential loss of revenues 
due to people seeking less overbuilt resort area would be conjectural, 
but no more so than the assumption that critical habitat designation 
for cave species will reduce the number of visitors to Kauai.
    Our Response: With the intended reduction in critical habitat, it 
is now assumed that any loss in development due to the intended 
designation will be replaced by development elsewhere in Koloa (see the 
Indirect Costs section of the Addendum). Thus, critical habitat 
designation for the cave animals, as intended by the Service, is 
expected to result in little or no change to future traffic, emergency 
services, water requirements, etc.
    (47) Comment: Portions of Unit 2 and the eastern portion of Unit 1 
are planned but not permitted for major resort development; the 
southern portion of Unit 1 is planned but not permitted for subdivision 
into over 50 ``upscale'' houselots; a portion of Unit 3 is planned and 
permitted for a future limestone and basalt quarry; the area 
surrounding the old Koloa sugar mill will be expanded into an 
industrial area; several water wells are located in Unit 1 and 
additional water wells are expected. This development will create 
residential and employment opportunities for over a thousand island 
residents.
    Our Response: Most of the development projects and associated water 
well projects mentioned by the commenter are no longer in the intended 
critical habitat designation.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on critical habitat, 
we have reevaluated our proposed designations and included several 
changes to the final designations of critical habitat. No specific 
information on habitat conditions or species occurrence was provided. 
At the time of the publication of the proposed rule, we were aware of 
only six known cave locations where the animals occurred and did not 
know the precise locations of other caves with suitable habitat. In 
addition, in the proposed rule, we acknowledged two theories with 
regard to intercave dispersal corridors (67 FR 14673 and 67 FR 14674). 
One theory is that very limited, if any dispersal was occurring between 
the cave systems, and the other that dispersal corridors needed to be 
protected if these species are to be conserved. Because of the limited 
verified occupied areas and the absence of other known suitable cave 
locations, we believed it necessary to include areas in the proposal 
that would provide for intercave dispersal corridors. In the absence of 
more specific data, we proposed those areas that were most likely to 
contain the primary constituent elements based on the best available 
information at the

[[Page 17444]]

time. In our request for peer review and public comments on the 
proposed rule, we asked for specific information on the number and/or 
distribution of both animals and what areas were essential for the 
conservation of the species.
    During the comment periods on the proposed rule, a significant 
amount of specific information was received on the presence or absence 
of primary constituent elements, verified occupied cave locations, and 
other locations of suitable caves. No additional information was 
provided on either the location or importance of intercave dispersal 
corridors. Although our peer review confirmed the importance of 
protecting caves and surrounding mesocaverns for local dispersal, there 
was no consensus or scientific clarity provided on intercave dispersal 
corridors.
    We only designate areas as final critical habitat if they contain 
the physical and biological features essential to the conservation of 
the species, and if unoccupied, they are essential to the conservation 
of the species. In the case of the intercave dispersal corridors, we 
suspect connectivity may be important, but we do not know where they 
are, to what degree they are used, or how to map these corridors to be 
consistent with the legal requirements in designating critical habitat. 
Therefore, we have not included such areas in the final rule.
    Based on a review of the public comments received on the proposed 
critical habitat, we have reevaluated our proposed designations and 
included several changes to the final designations of critical habitat. 
These changes include the following:
    (1) The final designation went from three proposed units 
encompassing an area of approximately 1,697 ha (4,193 ac) to 14 units 
encompassing a total of 110 ha (272 ac).
    (2) We received new information on the presence of the Kauai cave 
wolf spider in two caves in the Koloa region and updated their verified 
occurrence from four caves to six caves.
    (3) We received information indicating we missed a cave from which 
the Kauai cave amphipod was previously recorded and updated their 
verified occurrence from six caves to seven caves.
    (4) We received information from a survey conducted by Dr. Frank 
Howarth which identified areas required to maintain the persistence of 
both animals on Alexander and Baldwin property. The information 
contained numbers of caves discovered and the amount of areas 
surrounding them to incorporate sufficient protection and inclusion of 
mesocaverns connected to the caves. Areas not identified in Dr. 
Howarth's survey were excluded from the designation. This information 
also assisted us in refining the amount of needed habitat surrounding 
other caves.
    (5) We received substantial data from various parties such as 
drilling records, photographs, archeological surveys, and biological 
surveys indicating the lack of primary constituent elements in certain 
portions of proposed critical habitat. These data provided information 
as to the current depths of dirt, clay, and other soils. Soil deposits 
greater than a foot deep begin to degrade and fill the meoscaverns and 
caves necessary for the cave animals' survival and indicate a lack of 
the primary constituent elements, or at a minimum the primary 
constituent elements are likely to be severely degraded (Dr. F. 
Howarth, pers. comm., 2002). These areas have been removed from the 
designation.
    (6) We received additional information from Dr. Frank Howarth on 
areas of higher quality habitat with a high likelihood of containing 
occupied caves on Grove Farm property and a Civil Defense map 
indicating a large cave previously used as a fall-out shelter. These 
areas have been mapped and retained in the designation.
    (7) We received information from various parties on surveys done on 
their properties indicating the likelihood of suitable cave habitat. 
Areas found to have a low likelihood of suitability have been removed 
from the designation.
    (8) We made revisions to the unit boundaries based on information 
supplied by commenters, as well as information gained from field visits 
to some of the sites, that indicated that the primary constituent 
elements were not present in certain portions of the proposed unit, 
that certain changes in land use had occurred on lands within the 
proposed critical habitat that would preclude those areas from 
supporting the primary constituent elements, or that the areas may not 
be essential to the conservation of the species in question.
    This final critical habitat designation addresses the conservation 
of the species by protecting a number of discrete cave systems (i.e., 
eight caves occupied by one or both species and associated mesocaverns, 
six caves where occupancy status is unknown with associated 
mesocaverns, and three areas containing higher quality habitat likely 
to be occupied by one or both species) that represent a widely 
distributed pattern throughout the highest quality habitat in the Koloa 
Basin. Designating only the known occupied caves themselves would only 
provide extremely small areas with several of the caves in close 
proximity to one another. A designation such as this would leave the 
species vulnerable to extinction due to a single catastrophic event and 
therefore not provide for the conservation of the species. As 
previously discussed in this rule under ``Adaptations of troglobitic 
animals,'' given the great vulnerability of these species to 
desiccation, adjacent mesocavern habitats that contain appropriate 
microclimate conditions will provide habitat or serve as refugia for 
both animals when conditions in the main cave passages become drier or 
otherwise less accommodating. It is within these mesocaverns where it 
is likely that the majority of their time is spent. Therefore, 
designating surrounding mesocaverns incorporates the area where the 
majority of the animals are likely to occur and provides for refugia 
from fluctuating conditions in caves which makes them essential to the 
conservation of the species. The remaining areas designated where 
occupancy by either species has not been verified are essential to the 
conservation of the species for the following reasons. The areas 
chosen, are known to contain caves or mesocaverns where the animals are 
most likely to occur. The designated spatter cones are the type of 
volcanic formations that produce rock with mesocaverns and likely 
produce cave structures as well. If animals do no currently occupy 
these areas, if dispersal is occurring, it can allow for areas for the 
species to disperse into, and if dispersal is not occurring, it can 
allow for reintroduction. These areas are deemed essential to the 
conservation of the species because they provide for a widely 
distributed pattern throughout the highest quality habitat available in 
the Koloa Basin. This wide distribution will protect the species from 
extinction from a single catastrophic event and therefore is essential 
to the conservation of the species. If new and additional scientific 
information shows that these areas are not essential, the critical 
habitat designation can then be revised.
    Intervening areas between identified units of critical habitat may 
still be important to the recovery of the species although at this time 
we do not have information to identify them as essential to the 
conservation of the species. However, because either animal may be 
present at any given time in these intervening areas with suitable 
habitat, section 7 consultation requirements to ensure Federal actions 
are not likely to jeopardize the species and section 9 prohibitions, 
which preclude the

[[Page 17445]]

unauthorized taking of listed animals, may apply.
    Absent any scientific data on the issue of intercave dispersal 
corridors, we applied a basic conservation strategy that protects all 
of the known cave locations and surrounding mesocaverns and identified 
high quality habitat where the animals are most likely to be found in a 
pattern that maximizes distribution across the basin. This wide 
distribution of cave systems should provide for the long term 
conservation of these two species if they are adequately protected and 
managed by reducing the vulnerability to diseases and other 
catastrophic events.
    We are currently working on a draft recovery plan for the cave 
animals which will identify the need for genetic studies to determine 
the relationships between animals in verified occupied caves and 
continued study into ways to determine the importance and location of 
intercave dispersal corridors. In the event that new information is 
made available and indicates the necessity, we will consider amending 
the critical habitat designation.
    A brief summary of the modifications made to each unit is given 
below.

Former Unit 1 Waikomo--subunit 1a

    This unit has been redesignated into 13 separate units. All of 
Alexander and Baldwin property has been surveyed by Dr. Frank Howarth, 
the recognized expert on Hawaiian caves. Along with data that a 
significant portion of their land has been dynamited and therefore 
highly unlikely to contain the primary constituent elements, Dr. 
Howarth has indicated where the primary cave habitats are and the 
surrounding buffer area (61 m) (200 ft) necessary to maintain the 
species in this area. Units 1, 2, and 3 represent the areas identified 
by Dr. Howarth. All other areas surveyed either do not contain the 
primary constituent elements or are not believed to be necessary to the 
conservation of the species because they were not identified by Dr. 
Howarth as necessary to maintain the species in the area and have been 
removed from the designation.
    Areas above the Old Railroad Grade have been surveyed and the caves 
found to contain these animal species have been retained in the 
designation. Service biologists have mapped these caves.
    The southern cave found in this area is one of the caves where the 
spider's occurrence has been verified. This cave and a 61 m (200 ft) 
buffer area to capture the surrounding mesocaverns to provide for a 
protective area from the development that may occur outside the buffer 
area comprise Unit 4.
    The northern cave which occurs on the Kiahuna golf course has been 
gated, informational signs have been posted, and the area above the 
cave has been planted with native vegetation that is likely to provide 
food for the Kauai cave amphipod. This cave was mapped and a 30 m (100 
ft) buffer placed around to capture the mesocaverns surrounding the 
cave. The golf course has been fully developed, therefore an additional 
buffer to protect against additional development is not believed to be 
necessary. The cave located within the golf course and the buffer area 
comprise Unit 5.
    Additional information was provided indicating large soil deposits 
on the southern end of the property owned by Kiahuna Golf Club, LLC and 
KG Kauai Development LLC. In addition, archaeological information was 
provided indicating a large portion of the property was once used as 
fish ponds and terraced agricultural fields that were routinely left 
flooded. The use of land in this manner is likely to have caused a 
buildup of silt and other deposits that would either eliminate any 
primary constituent elements or degrade them. Therefore, these areas 
have been removed from the designation.
    Drilling information obtained near areas proposed on the south side 
of Poipu Road near Koloa Landing and Poipu Beach Park indicate large 
deposits of sand and therefore no appropriate primary constituent 
elements. It is unlikely that the three small areas proposed south of 
Poipu Road, which likely contain similar deposits, contain the primary 
constituent elements. In addition, drilling information provided just 
north of Poipu Road, next to Poipu Village Shopping Center indicate a 
settling basin where large deposits of silt, clay, and soil have 
accumulated, indicating a lack of primary constituent elements. These 
areas have been removed from the designation.
    Information obtained on the area north of the private road above 
Alexander and Baldwin property and east of Waikomo Stream indicates 
that far more homes and other structures have been built than 
previously believed. It is unlikely that primary constituent elements 
will be found in this area, and therefore it has been removed from the 
designation.
    Additional information provided by the Eric Knudsen Trust shows two 
caves located within their property. These caves were identified during 
an archeological survey. Because the caves have not been surveyed by 
anyone familiar with the Kauai cave animals, we do not know whether 
they are occupied by either species. However, given that many of the 
caves found in the same area contain the animals, if all the primary 
constituent elements are present, it is highly likely that the animals 
will be present in these caves. Therefore, the area mapped for these 
caves including a 61 m (200 ft) buffer around them to include 
surrounding mesocaverns and protection from potential development are 
included in this designation as Units 6 and 8. Other archaeological 
finds indicate an extensive irrigation system, and it is likely that 
the rest of Eric Knudsen Trust property was used as terraced 
agricultural land that would have been routinely flooded. The use of 
land in this manner is likely to have caused a buildup of silt and 
other deposits that would either eliminate any primary constituent 
elements or degrade them. These areas have been deemed not essential to 
the conservation of the species and removed from the designation.
    Unit 7 comprises an area that has not been surveyed recently, but 
the cave located on the property had a verified occurrence of the Kauai 
cave amphipod. The property is owned by the Roman Catholic Church, and 
no new information was provided on it. Since we did not have 
information on the exact location of the cave, we viewed satellite 
imagery and designated the area where the cave is most likely located. 
If new information on the exact location of the cave is gathered in the 
future, we will consider it in possible future revisions of this rule.
    The Koloa bypass cave which is now a park and has a verified 
occurrence of the Kauai cave amphipod has been retained in the 
designation as Unit 9. This cave is completely surrounded by previously 
disturbed areas. The area above the cave was planted with plants to 
provide food for the Kauai cave amphipod and the entrance sealed over 
to prevent human intrusion. This unit comprises the open field of the 
park, which incorporates the cave and mesocaverns surrounding the cave.
    Unit 10 includes the area containing the cave indicated on the 
civil defense map. The civil defense map does not outline the extent of 
the cave, but gives a general location. The entrance to the cave has 
also been sealed making it difficult to locate its exact location. This 
unit also includes the surrounding areas containing mesocaverns. In 
addition, further refinement was made by reviewing drilling records 
provided during the comment period. These records showed large deposits 
of clay

[[Page 17446]]

north of Mahaulepu Road, along Kaluahono Road, and below Waita 
Reservoir. These areas are unlikely to contain the primary constituent 
elements and have been removed from the designation.
    Site visits by Service biologists and Dr. Frank Howarth were made 
in the remaining areas of proposed Unit 1a. Units 11 and 12 represent 
Puu Wanawana and Puu Hunihuni, areas that are most likely to contain 
suitable cave habitat where animals are likely to be present. Both are 
spatter cones which are volcanic formations that are comprised of 
exposed barren rock that contain mesocaverns, limited soil deposits, 
and limited prior disturbance, and are likely to contain larger voids 
or caves. Information was provided by consultants hired by Grove Farm 
who were able to further investigate the area and have indicated it is 
the place most likely to be occupied by either species. Since we do not 
know of an exact cave location, the entire area of barren rock has been 
included in the designation. Areas surrounding the barren rock are less 
likely to contain the primary constituent elements and were deemed not 
essential to the conservation of either species. Puu Hi Reservoir is 
less likely to contain suitable habitat since these areas have a 
greater build up of soil and water does not seem to percolate through 
the rock, suggesting a lack of unfilled mesocaverns and caves (Dr. F. 
Howarth, pers. comm., 2002).
    Unit 13 incorporates the limestone cave with verified occurrences 
of the Kauai cave amphipod. A recent visit to the cave by Service 
biologist Gordon Smith, Dr. Frank Howarth, and Grove Farm consultants 
Dr. Steven Carothers and Kemble White verified the presence of the 
Kauai cave wolf spider in the cave (G. Smith in litt., 2002). This 
record is the first of the Kauai cave wolf spider occurring in 
limestone caves. Although the cave has been extensively surveyed, the 
remaining limestone bearing rock has not been surveyed. Dr. Howarth did 
look at the area near Makawehi and indicated that the area north of the 
limestone bench, outside of the conservation zoned area, was not likely 
to contain the primary constituent elements as little barren rock was 
seen and the soil layer appeared to be significant. Unit 13 
incorporates the limestone cave with verified occurrences of both the 
Kauai cave wolf spider and the Kauai cave amphipod as well as adjoining 
limestone bench area that is most likely to contain suitable habitat. 
All other surrounding areas were deemed not essential to the 
conservation of either species.

Former Unit 1 Waikomo--subunit 1b

    No new information specific to proposed Unit 1b was provided during 
the comment period. However, when this was evaluated in light of the 
information provided on the proposed rule, this unit was found to be of 
lower quality habitat due to its small size and greater isolation from 
occupied areas, and because of the identification of suitable caves and 
likely higher quality habitat in other areas, this unit was deemed not 
essential to the conservation of either species.

Former Unit 2--Haula

    Additional information was provided in and adjacent to Unit 2 in 
the form of survey information indicating a lack of primary constituent 
elements in parts of the unit. Areas less likely to contain the 
appropriate habitat were excluded and the remaining area is included in 
the designation. This unit lies only a short distance (approximately 
350 m (1,100 ft)) from Unit 13 which is occupied, and it was likely 
once connected to that unit in the geologic past (Pleistocene Era) by 
deposits that have since eroded away or have been covered by 
unconsolidated sediments. The large size of appropriate habitat in this 
area is most likely to be able to sustain a population of either the 
Kauai cave amphipod or the Kauai cave spider. Information provided by 
Grove Farm confirms a large drainage system that empties into the 
limestone formation expected to provide the best type of habitat for 
the cave animals. Inclusion of this area with Units 1 through 13 
provides a diverse geographic distribution that will increase the 
likelihood the species will survive stochastic or catastrophic impacts. 
This unit has been renamed Unit 14 of the designation and includes all 
the limestone bench area most likely to contain the primary constituent 
elements and therefore the animals themselves.

Former Unit 3--Puu Keke

    Drilling logs were provided around and in the proposed Unit 3 which 
showed a mixture of limestone, rock, dirt, and mud. Based on the number 
of areas elsewhere verified to be occupied or found to be highly likely 
to contain the animals, this area was deemed not essential to the 
conservation of either species.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and, (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation,'' as defined by the Act, 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. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``* * * the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' The 
relationship between a speciessurvival 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 a 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.
    In order to be included in a critical habitat designation, the 
habitat or its physical or biological features must first be 
``essential to the conservation of the species.'' Critical habitat 
designations identify, to the extent known, using the best scientific 
and commercial data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).

[[Page 17447]]

    Section 4 requires that we designate critical habitat for a 
species, to the extent such habitat is determinable, at the time of 
listing. When we designate critical habitat at the time of listing or 
under short court-ordered deadlines, we may not have sufficient 
information to identify all the areas essential for the conservation of 
the species or, alternatively, we may inadvertently include areas that 
later will be shown to be nonessential. Nevertheless, we are required 
to designate those areas we determine to be critical habitat, using the 
best information available to us.
    Our regulations state that ``The Secretary shall designate critical 
habitat outside the geographic areas presently occupied by the species 
only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from recovery plans, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, and biological assessments or 
other unpublished materials.
    It is important to clearly understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the Act's 7(a)(2) jeopardy 
standard and section 9 prohibitions, as determined on the basis of the 
best available information at the time of the action. We specifically 
anticipate that 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, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome. 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.

Methods

    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 Kauai cave wolf spider and the 
Kauai cave amphipod. This information included: peer-reviewed 
scientific publications, the final listing rule for the Kauai cave wolf 
spider and Kauai cave amphipod (65 FR 2348), the Hawaii Natural 
Heritage Program database, unpublished field data collected by Service 
biologists, and unpublished field notes and communications with other 
qualified biologists or experts, archeological surveys, drilling 
records, photographs, and published descriptions of the regional 
geology and soils (MacDonald et. al. 1960; Foote et. al. 1972), and the 
Recovery Outline for Two Cave Arthropods from Kauai, Hawaii (Service, 
2000).
    Section 3(5)(A)(ii) of the Act provides that areas outside the 
geographical area currently occupied by the species may meet the 
definition of critical habitat upon determination that they are 
essential for the conservation of these species. Although we do not 
know whether the entire area is currently occupied, to date all caves 
that have been surveyed within the Koloa basin that contain all of the 
primary constituent elements have contained the Kauai cave amphipod 
and/or cave wolf spider. Hence, where appropriate habitat occurs within 
the Koloa basin, we fully expect it will be occupied by one or both of 
these species. Surrounding areas of the known occupied caves that are 
comprised of cave-bearing rock also will likely contain occupied 
habitat.
    The final rule listing the Kauai cave wolf spider and Kauai cave 
amphipod stressed that these animals were at increasing risk from 
``predation and competition for space, water, and nutrients by 
introduced, alien animals; biological and chemical pesticide control 
activities associated with residential and golf course development; and 
an increased likelihood of extinction from naturally occurring events 
due to the small number of remaining individuals and populations and 
their limited distribution'' (65 FR 2348). Recovery may require 
augmentation or enhancement of suitable cave habitat and the 
surrounding mesocaverns.
    The primary goal of this critical habitat designation effort is to 
identify and designate a sufficient amount of suitable habitat to 
provide for the conservation of these two species. The Service has been 
challenged in this effort by the lack of scientific information on the 
distribution of the species and their suitable cave habitat within the 
Koloa basin, and a lack of understanding of the physical and genetic 
relationship between populations located in the various cave systems 
that are scattered throughout the basin.
    To address these questions, the Service requested and received 
information in response to the publication of the proposed critical 
habitat designation. This information, which is detailed in the Summary 
of Changes from the Proposed Rule, provided new data on the location of 
occupied cave systems and also indicated areas of relatively higher 
quality habitat that are more likely to be occupied by these species. 
This new information allowed us to refine an original proposal by more 
precisely identifying areas essential to the conservation of these 
species.
    However, there are still significant gaps in our current 
understanding of these species and their habitat needs, especially 
concerning the degree to which individual cave systems are or are not 
connected to one another. We did not receive any additional information 
as to the extent of the importance of intercave dispersal corridors or 
any information that would allow us to identify where these corridors 
are specifically located. Absent this information, we are unable to 
designate as critical habitat any areas that may provide connectivity 
between cave systems. First of all, we do not have data to show that 
such connectivity is occurring and if it is, to what extent and what 
importance does it play in the continued existence of the

[[Page 17448]]

species. Second, we are not able to precisely identify, map, and 
designate the underground corridors that would provide this 
connectivity.
    Therefore, this final critical habitat designation is based on what 
we are at this time able to identify as essential to the conservation 
of these two species: multiple cave systems (i.e., eight caves occupied 
by one or both species, six unknown occupied caves, their associated 
mesocaverns, and three areas containing higher quality habitat likely 
to contain one or more occupied caves) known to be occupied or that 
have relatively higher quality habitat and most likely to be occupied, 
and that are located in a wide distributional pattern within the basin. 
As discussed below, this approach of multiple populations that are 
distributed throughout the basin provides the best protections against 
extinction of the species due to catastrophic events as well as the 
highest likelihood of long-term conservation of these species.
    In determining critical habitat for these species, we started with 
lands within the region containing geologic and soil characters similar 
or identical to those of known, occupied, accessible caves. This area 
includes the Waikomo-Kalihi-Koloa soil association (Foote et al. 1972) 
where it overlays the Koloa Volcanic Series flows (MacDonald et al. 
1960). In addition, karst outcrops of calcified marine deposits are 
part of the same geologic deposits that contain the cave at Mahulepu 
that is occupied by the Kauai cave amphipod. Solution pockets and voids 
are abundant in this rock type and, like the cave at Mahulepu, lay on 
top of old, lava-tube-bearing pahoehoe flows.
    Within these areas, we designated sites where either the Kauai cave 
amphipod or the Kauai cave wolf spider have been verified as occurring. 
We set out the following buffers to capture the adjacent mesocaverns 
where the animals are likely to spend the majority of their time as 
previously discussed in this rule. In cases where development was not 
complete, whenever possible, a 61 meter (200 ft) buffer was included 
around caves. Information provided during the comment period showed 
that a previous archeological and biological cave survey was done 
(Hammatt et.al., 1978) that recommended a 30 meter (100 ft) buffer be 
placed around known caves. We believe that these buffers are essential 
to the conservation of the species because they reduce the 
vulnerability of the species to diseases and other catastrophic events 
by providing habitat that is most likely occupied, area for local 
intracave dispersal, as well as refugia from effects from disturbance 
that may take place in and around identified caves. We did not feel 
that with the additional known activities that may be occurring in the 
Koloa Basin, a 100 ft. buffer would be adequate to protect against 
impacts from adjacent development. Dr. Howarth's information on what he 
believed was a necessary buffer to maintain the existence of the 
species in a given area assisted us in refining what we believe to be 
an adequate buffer. In cases where development around the cave has been 
completed, a 30 meter (100 ft) buffer around caves was included. A 
smaller buffer zone was used for these areas which include habitat most 
likely occupied and allow for local intracave dispersal. Because all 
development and ground disturbance has already occurred in these areas, 
less refugia is needed and therefore a smaller buffer area was needed.
    For those areas where surveys showed they were highly likely to 
contain suitable habitat and the animals were likely to occur, we 
designated the entire area to be sure we would capture any caves and 
the surrounding mesocaverns. The addition of these areas is essential 
to the conservation of the species because they create a widely 
distributed pattern of protected areas across the best habitat 
throughout the Koloa basin. This wide distribution protects the species 
from a single catastrophic event and therefore is essential to the 
conservation of both species.
    Because a recovery plan has not been completed for either of these 
species, in making this determination, we looked to areas where the 
Kauai cave wolf spider and the Kauai cave amphipod have been verified 
and also included those areas that are highly likely to contain these 
animals. We looked for a distribution across geologically suitable 
habitat and conferred with the recognized expert on the necessary 
distribution of caves within the Koloa area to maintain both species 
(Dr. F. Howarth, pers. comm., 2002). This approach is consistent with 
the recovery outline for the Kauai cave wolf spider and the Kauai cave 
amphipod. If, after critical habitat for the Kauai cave wolf spider and 
the Kauai cave amphipod is designated, a final approved recovery plan 
for these animals calls for a different approach to the conservation of 
the Kauai cave wolf spider and the Kauai cave amphipod, we will 
consider amending the critical habitat designation.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12 in determining which areas to propose as critical 
habitat, we are required to consider those physical and biological 
features essential to the species' conservation 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, minerals and other nutritional or physiological 
requirements; cover or shelter; and habitats that are protected from 
disturbance and represent the historic geographical and ecological 
distributions of the species.
    The habitat requirements of the Kauai cave wolf spider and Kauai 
cave amphipod may differ slightly, as the wolf spider can feed on other 
arthropods that become trapped in caves or reside in caves 
facultatively. However, as observed elsewhere in Hawaii, the presence 
of a healthy, intact cave ecosystem, which includes roots or other 
sources of naturally occurring detritus and an associated detritivore 
or herbivore fauna, contains larger numbers of healthy troglobitic 
predators (A. Asquith, pers. comm., 2001). While native, troglobitic 
predators, detritivores, and herbivores may be present in caves lacking 
naturally occurring plant biomass, this situation represents an 
unhealthy cave ecosystem. Native troglobitic assemblages occurring in 
``sterile'' caves (those lacking roots or other sources of active 
nutrient input) probably represent declining populations that will be 
extirpated as the existing plant biomass is consumed unless efforts are 
made to enhance condititions.
    As with most troglobites, both the Kauai cave wolf spider and Kauai 
cave amphipod require dark or stagnant air zone habitats in caves. 
These zones typically have atmospheres with humidity at saturation 
levels (greater or equal to 100 percent), which is necessary to prevent 
desiccation and death of the troglobites.
    A sustainable food base, such as the roots of living perennial 
plants or other sources of detritus, is necessary to support a breeding 
population and for the long-term survival of the Kauai cave amphipod 
and other herbivorous or detritivorous troglobites. In turn, healthy 
populations of herbivores or detritivores will help ensure that co-
evolved predators, such as the Kauai cave wolf spider, will also 
persist as viable populations.
    There is little information on what, if any, species of food plants 
are preferred by the Kauai cave amphipod. Since the amphipod is 
regarded as a detritivore, there may be little or no food 
specialization by these animals.

[[Page 17449]]

However, plant species containing naturally occurring toxic compounds, 
such as tannins or alkaloids, might be of low food value, inhibit 
feeding, or result in the direct mortality of cave organisms. For this 
reason, plant species and their potential toxicity must be considered 
as well. Likely candidates for suitable plants would be native species 
like ohia (Metrosideros polymorpha), maiapilo (Capparis sandwichiana), 
and aalii (Dodonea viscosa).
    The primary constituent elements required by the Kauai cave wolf 
spider and the Kauai cave amphipod consist of the presence of 
subterranean spaces from 5 to 25 cm (0.2 in to 10 in) at the narrowest 
dimension (collectively termed ``mesocaverns''), or caves or passages 
(spaces greater than 25 cm (10 in)), dark and/or stagnant air zones 
that maintain microclimates with humidity at saturation levels, and the 
presence of roots from living, non-toxic plants such as, but not 
limited to, ohia (Metrosideros polymorpha), maiapilo (Capparis 
sandwichiana), and aalii (Dodonea viscosa) in these types of 
mesocaverns or caves.
    The areas designated as critical habitat for the Kauai cave wolf 
spider and the Kauai cave amphipod are designed to incorporate what is 
essential for their conservation. Habitat components that are essential 
for these two species include the primary biological needs of foraging, 
reproduction, intraspecific communication, intracave dispersal and 
intracave genetic exchange, or nonrestricted movement to appropriate 
microclimates in mesocaverns, and refugia from human-induced or other 
environmental threats. Caves and mesocaverns containing actively 
growing tree roots or other sources of detritus provide a food source 
for herbivorous or detritivorous troglobites, which in turn provide 
food for predators. Such caves will be necessary for the long-term 
persistence of viable populations of the endangered troglobites by 
providing areas for foraging and reproduction. Caves and or mesocaverns 
lacking food resources but containing appropriate microclimates may 
provide intracave corridors which facilitate movement and genetic 
exchange within populations. In addition, these areas may also provide 
refugia from areas impacted by human-induced or other environmental 
threats, such as when main cave passages become temporarily drier or 
otherwise less accomodating.

Criteria Used To Identify Critical Habitat

    We used several criteria to identify and select lands for 
designation as critical habitat. First, we selected critical habitat 
areas based on the verified distributions of the Kauai cave wolf spider 
and the Kauai cave amphipod (known occupied habitat). Then we included 
additional areas containing mesocaverns surrounding the known occupied 
caves to capture habitat likely to be occupied and to allow for 
refugia.
    The known occupied cave distribution is not sufficient to expect a 
reasonable probability of conservation of either species by protecting 
against threats including but not limited to, human intrusion, 
fluctuating humidity levels in caves, and loss through catastrophic 
events (e.g., hurricanes, oil spills and nonnative species 
introductions). Therefore, we looked to those areas where suitable 
habitat had been identified through survey work. This included both 
biological surveys and archeological surveys. The suitable caves 
identified, and their surrounding appropriate mesocavern areas, were 
included in this final designation.
    The inclusion of these identified caves, some of which were newly 
discovered, and their surrounding areas still did not provide for a 
wide enough distribution to protect against catastrophic events. 
Therefore, we looked to those areas within the Koloa basin where site 
visits indicated the presence of suitable habitat and therefore a high 
likelihood of the presence of the animals. We looked for areas with 
exposed barren basalt, proximity to the areas that were known to 
contain animals, soils less than a foot deep, native vegetation, and 
areas that had received the least known surface disturbance. These 
areas represent habitat likely to be occupied by one or both species 
and contain the greatest amount of intact mesocaverns with the required 
humidity levels necessary for the cave animals. These types of areas 
have been identified by Dr. Howarth as the ones most likely to be 
occupied by the Kauai cave amphipod and the Kauai cave wolf spider (Dr. 
F. Howarth, pers. comm., 2002).
    To provide for the conservation of both species, a sufficient 
amount of limestone habitat needs to be present to provide refugia in 
case of a catastrophic event for those animals known to be existing in 
limestone habitat. We looked to areas closest to the known occupied 
limestone cave, with exposed limestone bench and native vegetation, 
with little or no prior surface disturbance, and with soils less than a 
foot deep. These places are where intact mesocaverns and caves with 
appropriate humidity levels necessary exist therefore, these areas are 
the places most likely to be occupied.
    Areas within the appropriate geologic formations that have had long 
term or extensive surface disturbance, soil deposits greater than a 
foot deep, lack of native vegetation, or lack exposed barren basalt or 
limestone benches may still provide suitable habitat and animals may 
still occur there. However, it is more likely that the habitat will be 
relatively degraded, and thus the probability is lower that animals 
will be found there. However, if new information shows the discovery of 
additional caves and animals in the areas, and if warranted, we will 
consider this information in possible future revisions of this rule as 
time and available resources allow.
    For the purpose of this determination, critical habitat units have 
been described using Universal Transverse Mercator (UTM) North American 
Datum of 1983 (NAD83) coordinates using a scale of 1:85,000. Soil 
series was determined using information and maps from soil surveys 
(Foote et al. 1972). Geologic and soil features that appear to limit 
the distribution of cave and mesocavern habitats were determined using 
information and maps from MacDonald et al. (1960) and Foote et al. 
(1972).
    We were unable to map the critical habitat unit boundaries in 
sufficient detail to exclude all existing developed lands that do not 
contain the primary constituent elements. However, as specified in the 
final rule language, existing features and structures within the 
boundaries of the mapped units that have resulted in below-surface 
modification or alteration are excluded from critical habitat 
designation. Existing human-constructed structures and features, such 
as large buildings, homes, major roads, and other activities or 
projects that involve trenching, filling, and/or excavation, which 
likely resulted in loss or degradation of the primary constituent 
elements, are therefore not included within this critical habitat 
designation. Such human-constructed structures and features would 
include homes and buildings for which the underlying bedrock has been 
altered for their construction through incorporation of or connection 
to buried structural foundations, septic tanks, city sewage and 
drainage systems, or water and underground electrical supply corridors 
and conduits. Additional areas that are also excluded from critical 
habitat

[[Page 17450]]

include existing paved roads, quarries, and sewage treatment 
facilities. Included in critical habitat are areas that have been 
modified on the surface, but for which below-surface modifications have 
not altered the underlying bedrock and subterranean habitat. These land 
uses include but are not limited to agriculture (e.g., sugar cane, 
corn, coffee), range land, golf courses, county and city parks, 
unimproved roads, and undeveloped lands. These areas may lie adjacent 
to areas that have undergone extensive below-surface modification.

Critical Habitat Designation

    Lands designated as critical habitat provide at least one of the 
primary constituent elements needed by the Kauai cave wolf spider and 
Kauai cave amphipod, including, but not limited to, the presence of 
subterranean spaces from 5 to 25 cm (0.2 in to 10 in) at the narrowest 
dimension (collectively termed ``mesocaverns''), or caves or passages 
(spaces greater than 25 cm (10 in)), dark and/or stagnant air zones 
that maintain microclimates with humidity at saturation levels, and the 
presence of roots from living, non-toxic plants such as, but not 
limited to, ohia (Metrosideros polymorpha), maiapilo (Capparis 
sandwichiana), and aalii (Dodonea viscosa) in these types of 
mesocaverns or caves. As discussed previously in this rule under 
``Primary Constituent Elements,'' the presence of a healthy, intact 
cave ecosystem, includes roots or other sources of naturally occurring 
detritus. While native, troglobitic predators, detritivores, and 
herbivores may be present in caves lacking naturally occurring plant 
biomass, this situation represents an unhealthy cave ecosystem. Native 
troglobitic assemblages occurring in ``sterile'' caves (those lacking 
roots or other sources of active nutrient input) probably represent 
declining populations that will be extirpated as the existing plant 
biomass is consumed unless efforts are made to enhance condititions.
    Lands designated as critical habitat for the Kauai cave wolf spider 
and Kauai cave amphipod occur in 14 separate units. The approximate 
area encompassing the designation of critical habitat by land ownership 
is shown in Table 1.

       Table 1.--Approximate Designated Critical Habitat in Hectares (ha) (acres (ac)) by Land Ownership.
     [Area estimates reflect critical habitat unit boundaries, not the primary constituent elements within.]
----------------------------------------------------------------------------------------------------------------
                 Unit                         State/local                 Private                  Total
----------------------------------------------------------------------------------------------------------------
New Unit 01..........................  0 ha....................  <1 ha...................  <1 ha
                                       0 ac....................  1 ac....................  1 ac
New Unit 02..........................  0 ha....................  7 ha....................  7 ha
                                       0 ac....................  16 ac...................  16 ac
New Unit 03..........................  0 ha....................  6 ha....................  6 ha
                                       0 ac....................  16 ac...................  16 ac
New Unit 04..........................  0 ha....................  2 ha....................  2 ha
                                       0 ac....................  6 ac....................  6 ac
New Unit 05..........................  0 ha....................  <1 ha...................  <1 ha
                                       0 ac....................  2 ac....................  2 ac
New Unit 06..........................  0 ha....................  2 ha....................  2 ha
                                       0 ac....................  4 ac....................  4 ac
New Unit 07..........................  0 ha....................  3 ha....................  3 ha
                                       0 ac....................  9 ac....................  9 ac
New Unit 08..........................  <1 ha...................  2 ha....................  2 ha
                                       1 ac....................  6 ac....................  7 ac
New Unit 09..........................  1 ha....................  <1 ha...................  1 ha
                                       3 ac....................  <1 ac...................  4 ac
New Unit 10..........................  0 ha....................  14 ha...................  14 ha
                                       0 ac....................  35 ac...................  35 ac
New Unit 11..........................  0 ha....................  4 ha....................  4 ha
                                       0 ac....................  10 ac...................  10 ac
New Unit 12..........................  0 ha....................  6 ha....................  6 ha
                                       0 ac....................  16 ac...................  16 ac
New Unit 13..........................  0 ha....................  21 ha...................  21 ha
                                       0 ac....................  51 ac...................  51 ac
New Unit 14..........................  0 ha....................  39 ha...................  39 ha
                                       0 ac....................  96 ac...................  96 ac
                                      ---------------------------
    Total............................  1 ha....................  109 ha..................  110 ha
                                       4 ac....................  268 ac..................  272 ac
----------------------------------------------------------------------------------------------------------------

    Designated critical habitat includes land under private, county, 
and State ownership. Designated lands include areas known to be 
occupied by the Kauai cave wolf spider and the Kauai cave amphipod and 
include habitat with similar distribution of geologic and soil 
characteristics of known occupied habitat and that contain the most 
probable distribution of appropriate caves and mesocaverns. A brief 
description of each unit and reasons for including it as critical 
habitat are presented below.
    Unit 1: Unit 1 incorporates a newly found cave and associated 
mesocaverns with the verified occurrence of the Kauai cave wolf spider. 
It is one of only six caves with a verified occurrence of the spider. 
It is highly likely that given the spider's presence, the amphipod is 
likely to be found there when conditions are appropriate. This unit 
contains a minimum of two of the primary constituent elements essential 
to these species and which may require protection.
    Unit 2: Unit 2 incorporates four caves and surrounding mesocaverns 
with two of the caves having verified occurrences of both the Kauai 
cave wolf spider and the Kauai cave amphipod. This unit contains three 
of the primary constituent elements essential to these species and 
which may require protection.

[[Page 17451]]

    Unit 3: Unit 3 consists of a cave and surrounding mesocaverns with 
suitable habitat for both cave animals. It was identified by Dr. Frank 
Howarth, an expert in this field, as important to maintaining the 
presence of these animals in this area. This unit contains at minimum 
two of the primary constituent elements and is one of only three sites 
west of Waikomo Stream. This unit adds to a wide distribution across 
the Koloa Basin which will protect the species from extinction from a 
single catastrophic event and therefore is essential to the 
conservation of the species.
    Unit 4: Unit 4 consists of a cave with verified occurrences of both 
the amphipod and the spider and the surrounding mesocaverns. It is one 
of only six caves with a verified occurrence of the spider, and one of 
only seven verified occurrence of the amphipod. It contains at minimum 
two of the primary constituent elements, essential to the these species 
and which may require protection.
    Unit 5: Unit 5 consists of a cave with verified occurrences of both 
the amphipod and the spider mapped by the Service and the surrounding 
mesocaverns. It is one of only seven verified occurrences of the 
amphipod, and one of only six verified occurrences for the spider. This 
unit contains three of the primary constituent elements essential to 
these species and which may require protection.
    Unit 6: Unit 6 consists of a cave and surrounding mesocaverns 
identified in an archaeological survey and is likely to be occupied by 
one or both of the species. At this time, its occupancy status is 
unknown. This unit adds to the wide distribution across the Koloa Basin 
that will protect the species from extinction from a single 
catastrophic event and therefore is essential to the conservation of 
the species.
    Unit 7: Unit 7 consists of a cave with a verified occurrence of the 
amphipod and surrounding available mesocaverns. It is one of only seven 
verified occurrences of the amphipod. This unit contains at minimum two 
of the primary constituent elements essential to the conservation of 
the species.
    Unit 8: Unit 8 contains a lava tube identified through an 
archaelogical survey and the surrounding mesocaverns associated with 
the tube. It is an area that is most likely to harbor the animals and 
contains at least two of the primary constituent elements. This unit 
adds to the wide distribution across the Koloa Basin that will protect 
the species from extinction from a single catastrophic event and 
therefore is essential to the conservation of the species.
    Unit 9: Unit 9 consists of a cave with the verified occurrence of 
the cave amphipod and surrounding available mesocaverns. It is only one 
of seven verified occurrences of the amphipod. It contains three of the 
primary constituent elements considered essential to the conservation 
of both species.
    Unit 10: Unit 10 is located in the Koloa district, an area with 
cave-bearing rock containing an abundance of mesocaverns (small voids, 
cracks and passages). As previously discussed in the Background section 
of the rule, the Hawaiian basalt, found in this area, shrinks and 
cracks upon cooling creating the mesocaverns. In addition, this unit 
contains a cave that was used as a Civil Defense shelter. The entrance 
to the cave was sealed and has not been subsequently relocated. 
Therefore, the current occupancy status for these species is unknown. 
Although human use can detrimentally impact cave systems (see 
discussion under threats), they do not necessarily make the cave 
permanently unsuitable. For example, one of the cave systems included 
in critical habitat on Alexander and Baldwin (A&B) property (Unit 2) 
was also previously used as a civil defense shelter and is currently 
occupied by these species. Since the cave in Unit 10 was so large and 
long, it is unlikely that it has been completely filled in and the 
sealing of the entrance likely increased the humidity levels available 
in the cave. As discussed in the Cave Habitat section of the rule, cave 
systems for these species include one or more caves comprised of five 
zones (entrance, twilight, transition, dark and stagnant) and 
mesocaverns. While these mesocaverns can possess characteristics of 
each of the five zones, they frequently represent conditions of the 
stagnant zone. These mesocaverns are believed to provide refugia for 
these species when impacts make the caves uninhabitable for them. Unit 
10 is believed to contain at least three PCEs (cave, mesocaverns, and 
appropriate microclimate [i.e., high levels of humidity]). Information 
provided during the comment period (drilling records) show that the 
other areas surrounding Unit 10 have large deposits of clay or housing 
and other structures have been built in the area. The presence of clay 
and housing developments make it unlikely that additional areas 
adjacent to Unit 10 contain any remaining PCEs. Unit 10 is necessary to 
maintain continuity of the distribution of areas throughout the Koloa 
Basin making it essential to the conservation of the species.
    Unit 11: Unit 11 consists of habitat that has been identified as an 
area most likely to be occupied by one or both of the species. The area 
within Unit 11 contains barren exposed rock, minimal prior surface 
disturbance, and minimal soil deposits, all of which provide higher 
quality caves and mesocaverns. This unit adds to the wide distribution 
across the Koloa Basin that will protect the species from extinction 
from a single catastrophic event and therefore is essential to the 
conservation of the species.
    Unit 12: Unit 12 consists of habitat that has been identified as an 
area most likely to be occupied by one or both of the species. The area 
within Unit 12 contains barren exposed rock, minimal prior surface 
disturbance, and minimal soil deposits, all of which provide higher 
quality caves and mesocaverns. This unit adds to the wide distribution 
across the Koloa Basin that will protect the species from extinction 
from a single catastrophic event and therefore is essential to the 
conservation of the species.
    Unit 13: Unit 13 consists of the only known occupied limestone cave 
and surrounding mesocaverns. The cave is occupied by both arthropods 
and is one of only seven verified locations of the amphipod, and one of 
six verified locations of the spider. This unit contains three of the 
primary constituent elements considered essential to the conservation 
of both species.
    Unit 14: Unit 14 is composed of uplifted coral and algal reefs and 
consolidated calcareous deposits (MacDonald et al. 1960). Exposed 
basaltic flows are not believed to be present within this unit. This 
unit lies only a short distance (approximately 350 m (1,100 ft)) from 
Unit 13, which is occupied, and was likely once connected to that unit 
in the geologic past (Pleistocene Era) by deposits that have since 
eroded away or have been covered by unconsolidated sediments. It is not 
known if this unit is currently occupied by the Kauai cave wolf spider, 
Kauai cave amphipod, or other endemic troglobites.
    Recent visits to this unit have found that the area is composed of 
exposed calcareous deposits containing cracks and solution pockets, 
which are indicative of the presence of underlying cave and mesocavern 
habitats. While accessible caves have not been located, air-passages, 
holes, and fissures visible above ground strongly suggest the presence 
of underlying caves or mesocaverns. Critical habitat is designated in 
this unit because of the cave-bearing nature of the geology, and

[[Page 17452]]

because of the occurrence of occupied habitat in adjacent areas with 
similar geologic features. Because the types of voids that occur in 
these calcareous formations continuously reform, thereby providing 
suitable habitat for very long time spans, this area is essential to 
provide for population expansion and refuge from human and catastrophic 
environmental threats. This unit currently has minimal human presence 
in the area, and there are no known current plans for development. 
Inclusion of this area with Units 1 through 13 provides a diverse 
geographic distribution that will increase the likelihood the species 
will survive stochastic or catastrophic impacts and is therefore 
considered essential to the conservation of both species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Destruction 
or adverse modification occurs when a Federal action directly or 
indirectly alters critical habitat to the extent it appreciably 
diminishes the value of the critical habitat for the conservation of 
the species. Individuals, organizations, States, local governments, and 
other non-Federal entities are affected by the designation of critical 
habitat when their actions occur on Federal lands, require a Federal 
permit, license, or other authorization, or involve Federal funding.
    Section 7(a)(1) of the Act requires Federal agencies, including the 
Service, to use their authorities to carry out programs for the 
conservation of any species that is proposed or listed as endangered or 
threatened. Section 7(a)(4) of the Act requires Federal agencies 
(action agency) to confer with us on any action that is likely to 
jeopardize the continued existence of a species proposed for listing or 
result in destruction or adverse modification of proposed critical 
habitat. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402.
    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 or destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
Federal agency would ensure that the permitted actions do not destroy 
or adversely modify critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
formal 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 or 
adversely modify or destroy proposed critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
formal consultation that can be implemented in a manner consistent with 
the intended purpose of the action, that are consistent with the scope 
of the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the likelihood of 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.
    Activities on Federal lands that may affect the Kauai cave wolf 
spider or Kauai cave amphipod or their critical habitat will require 
section 7 consultation. Activities on private or State lands that may 
affect the species or their critical habitat and that require 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 (FEMA), or Natural Resources Conservation Service 
(NRCS)) will also continue to be subject to the section 7 consultation 
process. Federal actions not affecting listed species or critical 
habitat and actions on non-Federal lands that are not federally funded 
or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may adversely modify such 
habitat or that may be 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 
Kauai cave wolf spider and Kauai cave amphipod is appreciably reduced. 
We note that such activities also may jeopardize the continued 
existence of the species. Activities that may directly or indirectly 
adversely affect critical habitat for these cave animals include, but 
are not limited to:
    (1) Removing, thinning, or destroying perennial surface vegetation 
occurring directly above or adjacent to the cave or within the cave 
(roots) or mesocaverns (as defined in the primary constituent elements 
discussion), whether by burning, or by mechanical, chemical, or other 
means (e.g., wood cutting, grading, overgrazing, construction, road 
building, mining, herbicide application, etc.);
    (2) Activities within or outside of the cave or other mesocavern 
(i.e., all cave-bearing rock) that promotes prolonged soil-disturbance, 
resulting in the filling of caves, voids, and mesocaverns, with 
sediments or other materials, or alters airflow, and/or light 
penetration such that habitat microclimates are exposed to conditions 
of desiccation. These activities include, but are not limited to: 
Utilizing caves for the disposal of wastes or unwanted soil or rock, 
elevated and prolonged soil disturbance above or adjacent to cave-
bearing rock, closing existing cave openings, breeching existing caves 
(i.e., creating new openings), modifying the natural geomorphology of a 
cave interior, passage, or opening;
    (3) Appreciably decreasing habitat value or quality through 
indirect effects (e.g., introduction or promotion of potential 
predators, parasitoids, diseases, or disease vectors (e.g., nonnative 
arthropods), vertebrate or invertebrate food competitors, or invasive 
plant species), habitat fragmentation, overgrazing, water diversion or 
impoundment, groundwater pumping, inappropriately planned ground water 
disposal (e.g., diversion into potential habitat or prevention of 
natural water recharge into soils and rock above and adjacent to 
caves), or other activities that could

[[Page 17453]]

potentially alter water quality or quantity to an extent that 
vegetation structure is affected, cave humidity levels are reduced, 
habitat is flooded, or toxic materials (e.g., pesticides, fuel, 
solvents, or other household or industrial chemicals) are transported 
into habitat, and activities that increase the risk of fire within or 
outside habitats above the cave;
    (4) Application of pesticides, herbicides, insecticides, 
fungicides, or other such chemicals within, above, or adjacent to known 
habitat, that may directly or indirectly affect troglobitic organisms; 
and
    (5) Release of certain biological control organisms within or 
outside of the critical habitat area. Biological organisms include, but 
are not limited to: Predaceous or parasitoid vertebrates or 
invertebrates, fungi, bacteria, or other natural or bioengineered 
biocontrol organisms.
    Federal agencies already consult with us on activities in areas 
where the species may be affected by their projects to ensure that 
their actions do not jeopardize the continued existence of the species. 
These actions include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the ACOE under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Development on private or State lands requiring permits from 
other Federal agencies, such as the Department of Housing and Urban 
Development;
    (4) Construction of communication sites licensed by the Federal 
Communications Commission;
    (5) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities by Federal agencies;
    (6) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and.
    (7) Activities not previously mentioned that are funded or 
authorized by the U.S. Department of Agriculture (Forest Service, 
NRCS), Department of Defense, Department of Transportation, Department 
of Energy, Department of the Interior (U.S. Fish and Wildlife Service, 
U.S. Geological Survey, National Park Service), Department of Commerce 
(National Oceanic and Atmospheric Administration), ACOE, FEMA, 
Environmental Protection Agency, or any other Federal agency.
    If you have questions regarding whether specific activities would 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Pacific Islands Ecological Service's Field Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and plants, and inquiries about prohibitions and permits, 
should be directed to the Field Supervisor, Pacific Islands Ecological 
Service's Field Office.

Analysis of Impacts Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude an area from critical habitat when that 
exclusion will result in the extinction of the species concerned.

Economic Impacts

    Following the publication of the proposed critical habitat 
designation on March 27, 2002, a draft economic analysis was prepared 
to estimate the potential economic impact of the designation, in 
accordance with recent decisions in the N.M. Cattlegrowers Ass'n v. 
U.S. Fish and Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001). The DEA 
was made available for review on November 15, 2002 (67 FR 69177). We 
accepted comments on the DEA until the comment period closed on 
December 16, 2002.
    Following the close of the comment period on the draft economic 
analysis, a final addendum was completed, which incorporated public 
comments on the draft analysis and made other changes in the draft as 
necessary. In particular, the addendum focuses on the 272 acres and 
associated impacts that will be associated with the designation. The 
addendum to the draft economic analysis estimates that, over the next 
18 years, the designation may result in potential direct economic 
effects ranging from approximately $260,000 to $429,000. The reduction 
ranging from approximately $56.2 million to $61.8 million from the 
costs estimated in the original draft economic analysis is primarily 
due to the significant reduction of acreage in proposed Units 1a and 2, 
and the removal of proposed Units 1b and 3 in the final critical 
habitat designation for the cave animals. These changes reduce the 
total critical habitat acreage from approximately 4,193 acres to 272 
acres, a reduction of 3,921 acres or 94 percent. As described in the 
analysis, direct costs result from section 7 consultation, surveys, and 
project modifications associated with activities such as a county road 
(Koloa Bypass) widening project, and expansion of Kiahuna golf course.
    Our final economic analysis includes an evaluation of potential 
indirect costs associated with designation of critical habitat for the 
Kauai cave wolf spider and Kauai cave amphipod. Based on the final 
economic analysis, the indirect costs are associated with actual or 
perceived loss of development potential and are expressed in terms of a 
loss in property value. These values reflect: Landowner's development 
plans (if any); existing entitlements; the probability of obtaining 
remaining development approvals (State redistricting, General Plan 
designation by the county, county zoning, etc.); and existing 
infrastructure improvements. In some cases, the loss in property value 
is estimated directly based on adjustments to the appraised or assessed 
value of comparable land. In other cases, the loss is based on the 
discounted present value of future profits based on specific 
development plans. Since the property value of undeveloped land 
reflects the discounted value of future profits, the two approaches are 
equivalent in concept. The analysis of lost property values focuses 
only on the land in or around the critical habitat units, and 
anticipates no islandwide impacts on economic and population growth. 
The analysis anticipates that while development will not occur within 
some areas designated as critical habitat, other developments in the 
Koloa/Poipu area will increase in density or area to largely offset 
this loss, thereby resulting in a negligible change in island wide 
development. For affected properties, however, the total potential loss 
in property values that could be indirectly associated with the 
designation ranges from $4.5 million to $6.1 million. This range 
represents the high estimate of the potential loss in property values 
indirectly associated with the critical habitat designation, and may be 
offset by adjusting the project (e.g., density) to offset the loss of 
development within the critical habitat, or it may not be realized if 
the development within the critical habitat proceeds as proposed. 
Additional potential indirect costs are associated with the following: 
Contesting redistricting, State and county environmental review, and 
investigating the implications of the final designation. Other indirect 
costs identified in the draft economic analysis are no longer 
anticipated for the

[[Page 17454]]

designation of critical habitat because the affected areas have been 
excluded or reduced.
    A more detailed discussion of our economic analysis is contained in 
the addendum. It is available for inspection at the Pacific Islands 
Fish and Wildlife Office (see ADDRESSES section).
    No critical habitat units in the proposed rule were excluded or 
modified due to economic impacts because the expected cost of the 
designation (i.e. direct cost) is not significant. The indirect costs 
are speculative and represent a worst case scenario.
    As described above, section 4(b)(2) of the Act also requires us to 
consider other relevant impacts, in addition to economic impacts, of 
designating critical habitat. No critical habitat units were excluded 
or modified due to non-economic impacts.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government. This designation will not create 
inconsistencies with other agencies' actions or otherwise interfere 
with an action taken or planned by another agency. It will not 
materially affect entitlements, grants, user fees, loan programs, or 
the rights and obligations of their recipients. Finally, this 
designation will not raise novel legal or policy issues. Accordingly, 
OMB has not reviewed this final critical habitat designation.

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

    Under the Regulatory Flexibility Act (RFA), 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 that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the RFA 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.
    Federal courts and Congress have indicated that an RFA/SBREFA 
analysis should be limited to all impacts to entities directly subject 
to the requirements of the regulation (Service 2002). Directly 
regulated entities may laso be indirectly impacted and these indirect 
impacts should be considered. Therefore, entities not directly 
regulated by the listing or critical habitat designation are not 
considered in this section of the analysis.
    In today's rule, we are certifying that the designation of critical 
habitat for the Kauai cave amphipod and the Kauai cave wolf spider will 
not have a significant effect on a substantial number of small 
entities. The following discussion explains our rationale.
    Small entities include small organizations, such as independent 
non-profit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses. Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 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. The RFA/SBREFA defines ``small 
governmental jurisdiction'' as the government of a city, county, town, 
school district with a population of less than 50,000. By this 
definition, Federal government agencies are not small business under 
SBA guidelines and State agencies are not considered small governments 
under RFA. Kauai County is also not a small governmental jurisdiction 
because it has a population greater than 50,000. To determine if 
potential economic impacts to these small entities are significant, we 
consider the types of activities that might trigger regulatory impacts 
under this rule as well as the types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. In 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.
    Based on our final economic analysis, the primary projects and 
activities that could be affected by the critical habitat designation 
include Service conservation agreements, NRCS conservation programs, 
FHWA funding road projects, ACOE section 404 permits, Kauai County 
Department of Public Works (DPW) road project, and two private 
entities--Grove Farm partial funding of a survey for a conservation 
project and KG Kauai Development (KGKD)/Kobayashi Group LLC planned 
golf courses. For the purposes of the RFA/SBREFA, Federal agencies are 
not considered small governments. Accordingly, the Service, NRCS, FHWA, 
and ACOE are not considered small entities. As mentioned above, county 
agencies such as the DPW are not considered small entities. The primary 
business activity of Grove Farm is real estate asset management. The 
SBA defines a business in the real estate asset management industry as 
small if its annual sales are less than $1.5 million. According to this 
definition and 2000 sales information, Grove Farm is not a small 
business. KGKD is affiliated with Kobayashi Group, LLC (Kobayashi). 
Kobayashi's primary business activity is real estate asset management. 
The SBA defines a business in the real estate asset-management industry 
as small if its annual sales are less than $1.5 million. Kobayashi is a 
private business, and its annual sales figures are not listed in the 
Dun & Bradstreet database. However, the Kobayashi Group owns the 
following properties: two hotels in Waikiki, the Ocean Resort Hotel 
Waikiki (450 rooms), and the Queen Kapiolani Hotel (314 rooms); three 
golf courses; developable land in Koloa; and possibly other property. 
Rough estimates of the revenues generated from these properties suggest 
that annual revenues for the Kobayashi Group are at least $24 million 
[(764 rooms x 70 percent occupancy x $100 per room x 365 days) + (3 
golf courses x 30,000 rounds of golf per year x $50 per round) = $24 
million per year]. According to the RFA/SBREFA regulations, the SBA 
counts

[[Page 17455]]

the receipts of the business whose size is at issue and those of all 
its affiliates in determining the size of the business. Therefore, KGKD 
and Kobayashi are not small businesses.
    The Kauai cave wolf spider and the Kauai cave amphipod have only 
been listed since January 2000 and no consultations have occurred 
involving these species. As a result, the requirement to reinitiate 
consultations for ongoing projects will not affect a substantial number 
of small entities on Kauai.
    None of the designation is on Federal lands. On non-Federal lands, 
activities that lack Federal involvement would not be affected by the 
critical habitat designations. However, activities of an economic 
nature that are likely to occur on non-Federal lands in the area 
encompassed by these designations consist of housing or resort 
development that may require permits from the Department of Housing and 
Urban Development, small farms that may receive funding or require 
authorizations from the Department of Agriculture, or restoration 
projects sponsored by NRCS. In addition, consultation with the ACOE may 
occur if a permit is required for a project in Waikomo Stream that may 
negatively impact adjacent cave systems. Waikomo Stream runs between 
two known occupied cave systems and consultation may be required if the 
activities on the stream may affect the cave systems and the Kauai cave 
amphipod and Kauai cave wolf spider. However, we are not aware of a 
significant number of future activities that would require Federal 
funds, permits, or authorizations in the designated areas. Two to three 
small fruit and vegetable farmers may be impacted by the designation 
but these entities do not represent a substantial number of the total 
small entities in these industries. Therefore, we conclude that the 
rule would not affect a substantial number of small entities.
    Even where the requirements of section 7 might apply due to 
critical habitat, based on our experience with section 7 consultations 
for all listed species, virtually all projects-including those that, in 
their initial proposed form, would result in jeopardy or adverse 
modification determinations in section 7 consultations-can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation.
    For these reasons, we are certifying that the designation of 
critical habitat for the Kauai cave wolf spider and the Kauai cave 
amphipod will not have a significant economic impact on a substantial 
number of small entities. Therefore, a regulatory flexibility analysis 
is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation are described in 
the final addendum to the economic analysis. Based on the effects 
identified in this document, we believe that this rule will not have an 
effect on the economy of $100 million or more, will not cause a major 
increase in costs or prices for consumers, and will not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. Refer to the final addendum to 
the economic analysis for a discussion of the effects of this 
determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Although this rule is 
a significant regulatory action under Executive Order 12866, it is not 
expected to significantly affect energy production supply and 
distribution facilities because 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 
the Kauai cave amphipod and the Kauai cave wolf spider will affect 
future energy production. 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) For the reasons described in the final economic analysis, this 
rule will not produce a Federal mandate on State or local governments 
or the private sector of $100 million or greater in any year; that is, 
it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. Further, the designation of critical habitat 
imposes no direct obligations on State or local governments.
    (b) This rule will not ``significantly or uniquely'' affect small 
governments, so a Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorizations. Any such 
activities will require that the Federal agency ensure that the action 
will not adversely modify or destroy designated critical habitat.

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 Kauai cave wolf spider and the 
Kauai cave amphipod in a takings implication assessment. The takings 
implications assessment concludes that this final 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 Department of Interior policy, we requested 
information from appropriate State agencies in Hawaii.
    The designations may have some benefit to these governments, in 
that the areas essential to the conservation of these species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of the species are specifically identified. 
While this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning, rather than waiting for a 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 does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have designated critical 
habitat in accordance with the provisions of the 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 Kauai cave wolf spider and Kauai 
cave amphipod.

[[Page 17456]]

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

    This rule does not contain any information collection requirements 
for which OMB 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 valid OMB 
Control Number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment 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. We published a notice outlining our reason for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244). This 
determination 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 512 DM 2, we 
readily acknowledge our responsibility to communicate meaningfully with 
recognized Federal Tribes on a government-to-government basis. We have 
determined that there are no Tribal lands essential for the 
conservation of the Kauai cave wolf spider and Kauai cave amphipod. 
Therefore, designation of critical habitat for these species does not 
involve any Tribal lands.

References Cited

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

Author

    This rule was primarily prepared by the 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

0
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]

0
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 oherwise noted.


0
2. In Sec.  17.11(h), revise the entries for ``spider, Kauai cave 
wolf'' under ``ARACHNIDS'' and ``amphipod, Kauai cave'' under 
``CRUSTACEANS'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate
----------------------------------------------------                      population where
                                                       Historic range      endangered or       Status     When listed   Critical habitat   Special rules
          Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
           Arachnids
 
                                                                      * * * * * * *
Spider, Kauai cave wolf........  Adelocosa anops...  U.S.A. (HI).......  NA                 E                     676  17.95(g).........  NA
 
                                                                      * * * * * * *
          Crustaceans
 
                                                                      * * * * * * *
Amphipod, Kauai cave...........  Spelaeorchestia     U.S.A. (HI).......  NA                 E                     676  17.95(h).........  NA
                                  koloana.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95 by adding, in the same alphabetical order as these 
species occur in Sec.  17.11(h):
0
a. In paragraph (g), critical habitat for the Kauai cave wolf spider 
(Adelocosa anops); and
0
b. In paragraph (h), critical habitat for the Kauai cave amphipod 
(Spelaeorchestia koloana), as set forth below.


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (g) Arachnids.
* * * * *
Kauai cave wolf spider (Adelocosa anops).

    (1) Critical habitat units are depicted for the island of Kauai, 
Hawaii, on the maps below.
    (2) The primary constituent elements for the Kauai cave wolf spider 
are:
    (i) The presence of subterranean spaces from 5 mm to 25 cm (0.2 in 
to 10 in) at their narrowest point (collectively termed 
``mesocaverns'') and/or cave passages greater than 25 cm (10 
in);
    (ii) Dark and/or stagnant air zones that maintain relative humidity 
at saturation levels (=100 percent); and
    (iii) The presence in these types of mesocaverns or caves of roots 
from living, nontoxic plants such as, but not limited to, ohia 
(Metrosideros polymorpha), maiapilo (Capparis sandwichiana), and aalii 
(Dodonea viscosa).
    (3) All critical habitat areas contain one or more of the primary 
constituent elements for the Kauai cave wolf spider.
    (4)(i) Existing human-constructed features and structures within 
the boundaries of mapped units that involved trenching, filling, or 
excavation resulting in below-surface modification or alteration would 
not contain either of the primary constituent elements and are excluded 
from critical habitat designation. Such features and structures include 
but are not limited to:

[[Page 17457]]

Homes and buildings for which the underlying bedrock has been altered 
for their construction or through incorporation of or connection to 
buried structural foundations, septic tanks, city sewage and drainage 
systems, or water or underground electrical supply corridors; paved 
roads; and areas previously or currently used as a quarry.
    (ii) Areas that have been modified on the surface but without 
trenching, filling, or excavation resulting in below-surface 
modification or alteration are included in the critical habitat 
designation, even if they are adjacent to areas that have undergone 
below-surface modification.
    (5) Critical habitat units are described below. Coordinates in UTM 
Zone 4 with units in meters using North American Datum of 1983 (NAD83). 
The following map shows the general locations of the 14 critical 
habitat units designated on the island of Kauai.
    (i) Note: Map 1--Index map follows:
    [GRAPHIC] [TIFF OMITTED] TR09AP03.000
    
    (6) Unit 1--(<1 ha (1 ac)):
    (i) Unit 1 consists of the following 10 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters, using 
North American Datum of 1983 (NAD83): Start at 450554, 2420457; 450546, 
2420468; 450576, 2420510; 450586, 2420518; 450607, 2420516; 450624, 
2420502; 450625, 2420480; 450618, 2420452; 450600, 2420437; 450574, 
2420434; return to starting point.
    (ii) Note: Unit 1 is depicted on Map 2--Units 1, 2, 3, and 4--
below.
    (7) Unit 2--(7 ha (16 ac)):
    (i) Unit 2 consists of the following 16 boundary points with the 
following coordinates in UTM Zone 4, with the

[[Page 17458]]

units in meters, using North American Datum of 1983 (NAD83): Start at 
451483, 2420974; 451539, 2420991; 451583, 2421015; 451622, 2421014; 
451667, 2420984; 451677, 2420926; 451680, 2420869; 451705, 2420799; 
451622, 2420769; 451650, 2420664; 451488, 2420620; 451468, 2420624; 
451433, 2420642; 451470, 2420758; 451501, 2420801; 451510, 2420870; 
return to starting point.
    (ii) Note: Unit 2 is depicted on Map 2--Units 1, 2, 3, and 4--
below.
    (8) Unit 3--(6 ha (16 ac)):
    (i) Unit 3 consists of the following 14 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 450881, 2419947; 450879, 
2419981; 450855, 2420053; 450859, 2420089; 450903, 2420089; 451012, 
2420125; 451058, 2420191; 451138, 2420180; 451184, 2420119; 451159, 
2420048; 451194, 2420014; 451183, 2419982; 451136, 2419987; 451114, 
2419892; return to starting point.
    (ii) Note: Unit 3 is depicted on Map 2--Units 1, 2, 3, and 4--
below.
    (9) Unit 4--(2 ha (6 ac)):
    (i) Unit 4 consists of the following 33 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452087, 2419809; 452063, 
2419804; 452053, 2419805; 452040, 2419807; 452027, 2419811; 452007, 
2419824; 451994, 2419844; 451989, 2419867; 451994, 2419890; 452007, 
2419910; 452027, 2419923; 452045, 2419927; 452053, 2419932; 452076, 
2419936; 452082, 2419936; 452084, 2419936; 452090, 2419939; 452095, 
2419942; 452096, 2419943; 452118, 2419954; 452145, 2419960; 452168, 
2419955; 452188, 2419942; 452201, 2419922; 452206, 2419899; 452201, 
2419876; 452188, 2419856; 452172, 2419844; 452153, 2419835; 452132, 
2419822; 452123, 2419817; 452099, 2419812; 452093, 2419812; return to 
starting point.
    (ii) Note: Unit 4 is depicted on Map 2--Units 1, 2, 3, and 4--which 
follows:
[GRAPHIC] [TIFF OMITTED] TR09AP03.001

    (10) Unit 5--(1 ha (2 ac)):
    (i) Unit 5 consists of the following 35 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452493, 2420608; 452493, 
2420613; 452493, 2420616; 452496, 2420639; 452492, 2420652; 452491, 
2420660; 452492, 2420669; 452497, 2420683; 452498, 2420686; 452502, 
2420694; 452516, 2420711; 452518, 2420713;

[[Page 17459]]

452528, 2420720; 452540, 2420722; 452552, 2420720; 452561, 2420713; 
452568, 2420704; 452570, 2420692; 452568, 2420680; 452564, 2420673; 
452553, 2420660; 452556, 2420649; 452557, 2420641; 452557, 2420637; 
452554, 2420613; 452555, 2420611; 452555, 2420607; 452553, 2420595; 
452546, 2420585; 452536, 2420579; 452525, 2420576; 452513, 2420579; 
452503, 2420585; 452496, 2420595; 452494, 2420602; return to starting 
point.
    (ii) Unit 5 is depicted on Map 3--Units 5, 6, 7, and 8--below.
    (11) Unit 6--(2 ha (4 ac)):
    (i) Unit 6 consists of the following 21 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 453052, 2420607; 453065, 
2420616; 453078, 2420622; 453101, 2420626; 453126, 2420621; 453139, 
2420616; 453154, 2420606; 453164, 2420591; 453167, 2420579; 453169, 
2420551; 453165, 2420533; 453156, 2420517; 453141, 2420500; 453127, 
2420490; 453109, 2420486; 453078, 2420490; 453053, 2420505; 453042, 
2420522; 453034, 2420543; 453032, 2420559; 453036, 2420585; return to 
starting point.
    (ii) Unit 6 is depicted on Map 3--Units 5, 6, 7, and 8--below.
    (12) Unit 7--(3 ha (9 ac)):
    (i) Unit 7 consists of the following 7 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452623, 2421100; 452812, 
2421077; 452831, 2421041; 452816, 2421016; 452786, 2420896; 452590, 
2420946; 452608, 2421015; return to starting point.
    (ii) Unit 7 is depicted on Map 3--Units 5, 6, 7, and 8--below.
    (13) Unit 8--(2 ha (7 ac)):
    (i) Unit 8 consists of the following 33 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452763, 2421383; 452759, 
2421402; 452760, 2421421; 452767, 2421462; 452766, 2421477; 452768, 
2421497; 452771, 2421510; 452780, 2421523; 452812, 2421556; 452824, 
2421564; 452831, 2421567; 452848, 2421571; 452857, 2421571; 452875, 
2421567; 452890, 2421557; 452899, 2421542; 452904, 2421531; 452907, 
2421514; 452908, 2421497; 452904, 2421480; 452899, 2421471; 452902, 
2421454; 452900, 2421439; 452894, 2421422; 452891, 2421412; 452891, 
2421402; 452888, 2421385; 452880, 2421368; 452871, 2421355; 452844, 
2421338; 452822, 2421335; 452799, 2421339; 452778, 2421357; return to 
starting point.
    (ii) Unit 8 is depicted on Map 3--Units 5, 6, 7, and 8--which 
follows:
[GRAPHIC] [TIFF OMITTED] TR09AP03.002


[[Page 17460]]


    (14) Unit 9--(1 ha (4 ac)):
    (i) Unit 9 consists of the following 5 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452568, 2422604; 452577, 
2422610; 452696, 2422521; 452580, 2422429; 452537, 2422471; return to 
starting point.
    (ii) Note: Unit 9 is depicted on Map 4--Units 9 and 10--below.
    (15) Unit 10--(14 ha (35 ac)):
    (i) Unit 10 consists of the following 14 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452688, 2421988; 452834, 
2422427; 453145, 2422210; 453061, 2422147; 453053, 2422133; 453053, 
2422102; 453061, 2422078; 453074, 2422029; 453002, 2421944; 453015, 
2421922; 453022, 2421892; 452896, 2421910; 452733, 2421917; 452705, 
2421959; return to starting point.
    (ii) Note: Unit 10 is depicted on Map 4--Units 9 and 10--which 
follows:
[GRAPHIC] [TIFF OMITTED] TR09AP03.003

    (16) Unit 11--(4 ha (10 ac)):
    (i) Unit 11 consists of the following 17 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 453958, 2419773; 453976, 
2419766; 453999, 2419741; 454054, 2419702; 454068, 2419667; 454060, 
2419596; 454042, 2419553; 454005, 2419528; 453962, 2419521; 453894, 
2419545; 453872, 2419573; 453862, 2419600; 453852, 2419642; 453862, 
2419676; 453887, 2419718; 453912, 2419742; 453936, 2419768; return to 
starting point.
    (ii) Note: Unit 11 is depicted on Map 5--Units 11 and 12--below.
    (17) Unit 12 (6 ha (16 ac)):
    (i) Unit 12 consists of the following 21 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 454185, 2420229; 454242, 
2420243; 454326, 2420241; 454387, 2420207; 454420, 2420147; 454475, 
2420133; 454502, 2420080; 454474, 2420055; 454366, 2419954; 454341, 
2419944; 454321, 2419921; 454311, 2419895; 454286, 2419903; 454264, 
2419927; 454229, 2419962; 454208, 2419993; 454186, 2420038; 454169, 
2420058; 454145, 2420086; 454112, 2420103; 454120, 2420133; return to 
starting point.
    (ii) Note: Unit 12 is depicted on Map 5--Units 11 and 12--which 
follows:

[[Page 17461]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.004

    (18) Unit 13--(21 ha (52 ac)):
    (i) Unit 13 consists of the following 43 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 457108, 2420666; 457027, 
2420606; 456763, 2420391; 456727, 2419912; 456456, 2419772; 455868, 
2419764; 455633, 2419645; 455601, 2419531; 455389, 2419219; 455225, 
2419029; 455014, 2418947; 455014, 2419015; 454926, 2419043; 455027, 
2419064; 455102, 2419103; 455202, 2419192; 455255, 2419258; 455300, 
2419334; 455508, 2419515; 455586, 2419614; 455664, 2419674; 455767, 
2419730; 455859, 2419764; 455969, 2419780; 456212, 2419805; 456272, 
2419811; 456376, 2419831; 456451, 2419859; 456531, 2419900; 456583, 
2419935; 456627, 2419981; 456656, 2420036; 456682, 2420173; 456709, 
2420316; 456718, 2420343; 456704, 2420433; 456723, 2420583; 456747, 
2420580; 456771, 2420584; 456786, 2420569; 456848, 2420572; 456979, 
2420634; 457022, 2420649; return to starting point.
    (ii) Note: Unit 13 is depicted on Map 6--Unit 13--which follows:

[[Page 17462]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.005

    (19) Unit 14--(39 ha (96 ac)):
    (i) Unit 14 consists of the following 47 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Coastline. 457575, 2420977; 
457548, 2420981; 457598, 2421002; 457624, 2421039; 457624, 2421039; 
457624, 2421039; 457664, 2421105; 457715, 2421146; 457755, 2421170; 
457901, 2421204; 458025, 2421342; 458025, 2421367; 458078, 2421412; 
458078, 2421413; 458078, 2421413; 458184, 2421510; 458226, 2421607; 
458226, 2421607; 458226, 2421607; 458259, 2421727; 458308, 2421809; 
458371, 2421876; 458405, 2421905; 458237, 2422080; 458301, 2422271; 
458346, 2422339; 458686, 2422403; 458785, 2422371; 458932, 2422252; 
458997, 2422153; Coastline. 458706, 2421920; 458670, 2421988; 458662, 
2422059; 458688, 2422116; 458778, 2422112; 458809, 2422160; 458719, 
2422266; 458630, 2422266; 458556, 2422191; 458563, 2422061; 458479, 
2421989; 458500, 2421803.
    (ii) Note: Unit 14 is depicted on Map 7--Unit 14--which follows:

[[Page 17463]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.006

* * * * *
    (h) Crustaceans.
* * * * *
    Kauai cave amphipod (Spelaeorchestia koloana)

    (1) Critical habitat units are depicted for the island of Kauai, 
Hawaii, on the maps below.
    (2) The primary constituent elements for the Kauai cave amphipod 
are:
    (i) The presence of subterranean spaces from 5 mm to 25 cm (0.2 in 
to 10 in) at their narrowest point (collectively termed 
``mesocaverns'') and/or cave passages greater than 25 cm (10 
in);
    (ii) Dark and/or stagnant air zones that maintain relative humidity 
at saturation levels (=100 percent); and
    (iii) The presence in these types of mesocaverns or caves of roots 
from living, nontoxic plants such as, but not limited to, ohia 
(Metrosideros polymorpha), maiapilo (Capparis sandwichiana), and aalii 
(Dodonea viscosa).
    (3) All critical habitat areas contain one or more of the primary 
constituent elements for the Kauai cave amphipod.
    (4)(i) Existing human-constructed features and structures within 
the boundaries of mapped units that involved trenching, filling, or 
excavation resulting in below-surface modification or alteration would 
not contain either of the primary constituent elements and are excluded 
from critical habitat designation. Such features and structures include 
but are not limited to: Homes and buildings for which the underlying 
bedrock has been altered for their construction or through 
incorporation of or connection to buried structural foundations, septic 
tanks, city sewage and drainage systems, or water or underground 
electrical supply corridors; paved roads; and areas previously or 
currently used as a quarry.
    (ii) Areas that have been modified on the surface but without 
trenching, filling, or excavation resulting in below-surface 
modification or alteration are included in the critical habitat 
designation, even if they are adjacent to areas that have undergone 
below-surface modification.
    (5) Critical habitat units are described below. Coordinates in UTM 
Zone 4 with units in meters using North American Datum of 1983 (NAD83). 
The following map shows the general locations of the 14 critical 
habitat units designated on the island of Kauai.
    (i) Note: Map 1--Index map follows:

[[Page 17464]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.007

    (6) Unit 1--(<1 ha (1 ac)):
    (i) Unit 1 consists of the following 10 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters, using 
North American Datum of 1983 (NAD83): Start at 450554, 2420457; 450546, 
2420468; 450576, 2420510; 450586, 2420518; 450607, 2420516; 450624, 
2420502; 450625, 2420480; 450618, 2420452; 450600, 2420437; 450574, 
2420434; return to starting point.
    (ii) Note: Unit 1 is depicted on Map 2--Units 1, 2, 3, and 4--
below.
    (7) Unit 2--(7 ha (16 ac)):
    (i) Unit 2 consists of the following 16 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters, using 
North American Datum of 1983 (NAD83): Start at 451483, 2420974; 451539, 
2420991; 451583, 2421015; 451622, 2421014; 451667, 2420984; 451677, 
2420926; 451680, 2420869; 451705, 2420799; 451622, 2420769; 451650, 
2420664; 451488, 2420620; 451468, 2420624; 451433, 2420642; 451470, 
2420758; 451501, 2420801; 451510, 2420870; return to starting point.
    (ii) Note: Unit 2 is depicted on Map 2--Units 1, 2, 3, and 4--
below.
    (8) Unit 3--(6 ha (16 ac)):
    (i) Unit 3 consists of the following 14 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 450881, 2419947; 450879, 
2419981; 450855, 2420053; 450859, 2420089; 450903, 2420089; 451012, 
2420125; 451058, 2420191; 451138, 2420180; 451184, 2420119; 451159, 
2420048; 451194, 2420014; 451183, 2419982; 451136, 2419987; 451114, 
2419892; return to starting point.
    (ii) Note: Unit 3 is depicted on Map 2--Units 1, 2, 3, and 4--
below.

[[Page 17465]]

    (9) Unit 4--(2 ha (6 ac)):
    (i) Unit 4 consists of the following 33 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452087, 2419809; 452063, 
2419804; 452053, 2419805; 452040, 2419807; 452027, 2419811; 452007, 
2419824; 451994, 2419844; 451989, 2419867; 451994, 2419890; 452007, 
2419910; 452027, 2419923; 452045, 2419927; 452053, 2419932; 452076, 
2419936; 452082, 2419936; 452084, 2419936; 452090, 2419939; 452095, 
2419942; 452096, 2419943; 452118, 2419954; 452145, 2419960; 452168, 
2419955; 452188, 2419942; 452201, 2419922; 452206, 2419899; 452201, 
2419876; 452188, 2419856; 452172, 2419844; 452153, 2419835; 452132, 
2419822; 452123, 2419817; 452099, 2419812; 452093, 2419812; return to 
starting point.
    (ii) Note: Unit 4 is depicted on Map 2--Units 1, 2, 3, and 4--which 
follows:
[GRAPHIC] [TIFF OMITTED] TR09AP03.008

    (10) Unit 5--(1 ha (2 ac)):
    (i) Unit 5 consists of the following 35 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452493, 2420608; 452493, 
2420613; 452493, 2420616; 452496, 2420639; 452492, 2420652; 452491, 
2420660; 452492, 2420669; 452497, 2420683; 452498, 2420686; 452502, 
2420694; 452516, 2420711; 452518, 2420713; 452528, 2420720; 452540, 
2420722; 452552, 2420720; 452561, 2420713; 452568, 2420704; 452570, 
2420692; 452568, 2420680; 452564, 2420673; 452553, 2420660; 452556, 
2420649; 452557, 2420641; 452557, 2420637; 452554, 2420613; 452555, 
2420611; 452555, 2420607; 452553, 2420595; 452546, 2420585; 452536, 
2420579; 452525, 2420576; 452513, 2420579; 452503, 2420585; 452496, 
2420595; 452494, 2420602; return to starting point.
    (ii) Unit 5 is depicted on Map 3--Units 5, 6, 7, and 8--below.
    (11) Unit 6--(2 ha (4 ac)):
    (i) Unit 6 consists of the following 21 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 453052, 2420607; 453065, 
2420616; 453078, 2420622; 453101, 2420626; 453126, 2420621; 453139, 
2420616; 453154, 2420606; 453164, 2420591; 453167, 2420579; 453169, 
2420551; 453165, 2420533; 453156, 2420517; 453141, 2420500; 453127, 
2420490; 453109, 2420486; 453078, 2420490; 453053, 2420505; 453042, 
2420522;

[[Page 17466]]

453034, 2420543; 453032, 2420559; 453036, 2420585; return to starting 
point.
    (ii) Unit 6 is depicted on Map 3--Units 5, 6, 7, and 8--below.
    (12) Unit 7--(3 ha (9 ac)):
    (i) Unit 7 consists of the following 7 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452623, 2421100; 452812, 
2421077; 452831, 2421041; 452816, 2421016; 452786, 2420896; 452590, 
2420946; 452608, 2421015; return to starting point.
    (ii) Unit 7 is depicted on Map 3--Units 5, 6, 7, and 8--below.
    (13) Unit 8--(2 ha (7 ac)):
    (i) Unit 8 consists of the following 33 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452763, 2421383; 452759, 
2421402; 452760, 2421421; 452767, 2421462; 452766, 2421477; 452768, 
2421497; 452771, 2421510; 452780, 2421523; 452812, 2421556; 452824, 
2421564; 452831, 2421567; 452848, 2421571; 452857, 2421571; 452875, 
2421567; 452890, 2421557; 452899, 2421542; 452904, 2421531; 452907, 
2421514; 452908, 2421497; 452904, 2421480; 452899, 2421471; 452902, 
2421454; 452900, 2421439; 452894, 2421422; 452891, 2421412; 452891, 
2421402; 452888, 2421385; 452880, 2421368; 452871, 2421355; 452844, 
2421338; 452822, 2421335; 452799, 2421339; 452778, 2421357; return to 
starting point.
    (ii) Unit 8 is depicted on Map 3--Units 5, 6, 7, and 8--which 
follows:
[GRAPHIC] [TIFF OMITTED] TR09AP03.009

    (14) Unit 9--(1 ha (4 ac)):
    (i) Unit 9 consists of the following 5 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452568, 2422604; 452577, 
2422610; 452696, 2422521; 452580, 2422429; 452537, 2422471; return to 
starting point.
    (ii) Note: Unit 9 is depicted on Map 4--Units 9 and 10--below.
    (15) Unit 10--(14 ha (35 ac)):
    (i) Unit 10 consists of the following 14 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 452688, 2421988; 452834, 
2422427; 453145, 2422210; 453061, 2422147; 453053, 2422133; 453053, 
2422102; 453061, 2422078; 453074, 2422029; 453002, 2421944; 453015, 
2421922; 453022, 2421892; 452896, 2421910;

[[Page 17467]]

452733, 2421917; 452705, 2421959; return to starting point.
    (ii) Note: Unit 10 is depicted on Map 4--Units 9 and 10--which 
follows:
[GRAPHIC] [TIFF OMITTED] TR09AP03.010

    (16) Unit 11--(4 ha (10 ac)):
    (i) Unit 11 consists of the following 17 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 453958, 2419773; 453976, 
2419766; 453999, 2419741; 454054, 2419702; 454068, 2419667; 454060, 
2419596; 454042, 2419553; 454005, 2419528; 453962, 2419521; 453894, 
2419545; 453872, 2419573; 453862, 2419600; 453852, 2419642; 453862, 
2419676; 453887, 2419718; 453912, 2419742; 453936, 2419768; return to 
starting point.
    (ii) Note: Unit 11 is depicted on Map 5--Units 11 and 12--below.
    (17) Unit 12 (6 ha (16 ac)):
    (i) Unit 12 consists of the following 21 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 454185, 2420229; 454242, 
2420243; 454326, 2420241; 454387, 2420207; 454420, 2420147; 454475, 
2420133; 454502, 2420080; 454474, 2420055; 454366, 2419954; 454341, 
2419944; 454321, 2419921; 454311, 2419895; 454286, 2419903; 454264, 
2419927; 454229, 2419962; 454208, 2419993; 454186, 2420038; 454169, 
2420058; 454145, 2420086; 454112, 2420103; 454120, 2420133; return to 
starting point.
    (ii) Note: Unit 12 is depicted on Map 5--Units 11 and 12--which 
follows:

[[Page 17468]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.011

    (18) Unit 13--(21 ha (52 ac)):
    (i) Unit 13 consists of the following 43 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Start at 457108, 2420666; 457027, 
2420606; 456763, 2420391; 456727, 2419912; 456456, 2419772; 455868, 
2419764; 455633, 2419645; 455601, 2419531; 455389, 2419219; 455225, 
2419029; 455014, 2418947; 455014, 2419015; 454926, 2419043; 455027, 
2419064; 455102, 2419103; 455202, 2419192; 455255, 2419258; 455300, 
2419334; 455508, 2419515; 455586, 2419614; 455664, 2419674; 455767, 
2419730; 455859, 2419764; 455969, 2419780; 456212, 2419805; 456272, 
2419811; 456376, 2419831; 456451, 2419859; 456531, 2419900; 456583, 
2419935; 456627, 2419981; 456656, 2420036; 456682, 2420173; 456709, 
2420316; 456718, 2420343; 456704, 2420433; 456723, 2420583; 456747, 
2420580; 456771, 2420584; 456786, 2420569; 456848, 2420572; 456979, 
2420634; 457022, 2420649; return to starting point.
    (ii) Note: Unit 13 is depicted on Map 6--Unit 13--which follows:

[[Page 17469]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.012

    (19) Unit 14--(39 ha (96 ac)):
    (i) Unit 14 consists of the following 47 boundary points with the 
following coordinates in UTM Zone 4, with the units in meters using 
North American Datum of 1983 (NAD83): Coastline. 457575, 2420977; 
457548, 2420981; 457598, 2421002; 457624, 2421039; 457624, 2421039; 
457624, 2421039; 457664, 2421105; 457715, 2421146; 457755, 2421170; 
457901, 2421204; 458025, 2421342; 458025, 2421367; 458078, 2421412; 
458078, 2421413; 458078, 2421413; 458184, 2421510; 458226, 2421607; 
458226, 2421607; 458226, 2421607; 458259, 2421727; 458308, 2421809; 
458371, 2421876; 458405, 2421905; 458237, 2422080; 458301, 2422271; 
458346, 2422339; 458686, 2422403; 458785, 2422371; 458932, 2422252; 
458997, 2422153; Coastline. 458706, 2421920; 458670, 2421988; 458662, 
2422059; 458688, 2422116; 458778, 2422112; 458809, 2422160; 458719, 
2422266; 458630, 2422266; 458556, 2422191; 458563, 2422061; 458479, 
2421989; 458500, 2421803.
    (ii) Note: Unit 14 is depicted on Map 7--Unit 14--which follows:

[[Page 17470]]

[GRAPHIC] [TIFF OMITTED] TR09AP03.013


    Dated: March 27, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-8180 Filed 4-8-03; 8:45 am]
BILLING CODE 4310-55-P