[Federal Register Volume 71, Number 157 (Tuesday, August 15, 2006)]
[Proposed Rules]
[Pages 46994-47054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6840]
[[Page 46993]]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Proposed Designation of
Critical Habitat for 11 Species of Picture-Wing Flies From the Hawaiian
Islands; Proposed Rule
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 /
Proposed Rules
[[Page 46994]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU93
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for 11 Species of Picture-Wing Flies
From the Hawaiian Islands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for 11 species of Hawaiian picture-wing
flies (Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. substenoptera, and
D. tarphytrichia) pursuant to the Endangered Species Act of 1973, as
amended (Act). In total, approximately 18 acres (ac) (7.3 hectares
(ha)) fall within the boundaries of the proposed critical habitat
designation. The proposed critical habitat is located in four counties
(City and County of Honolulu, Hawaii, Maui, and Kauai) in Hawaii.
Critical habitat has not been proposed for D. neoclavisetae, a species
for which we determined critical habitat to be prudent, because the
specific areas and physical and biological features essential to its
conservation in the Puu Kukui Watershed Management Area are not in need
of special management considerations or protection. Therefore, we are
not proposing critical habitat for D. neoclavisetae because these
specific areas and features do not meet the definition of critical
habitat in the Act.
DATES: We will accept comments from all interested parties until
October 16, 2006. We must receive requests for public hearings, in
writing, at the address shown in the ADDRESSES section by September 29,
2006.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to Patrick
Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office,
U.S. Fish and Wildlife Service, 300 Ala Moana Boulevard, Room 3-122,
P.O. Box 50088, Honolulu, HI 96850.
2. You may hand-deliver written comments to our Office at the above
address.
3. You may send comments by electronic mail (e-mail) to [email protected]. Please see the Public Comments Solicited section below
for file format and other information about electronic filing.
4. You may fax your comments to 808/792-9581.
5. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the Pacific Islands Fish and Wildlife Office, U.S. Fish and
Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI
(telephone 808/792-9400; facsimile 808/792-9581).
FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor,
Pacific Islands Fish and Wildlife Office, (see ADDRESSES section)
(telephone 808/792-9400; facsimile 808/792-9581). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800/877-8339, 24 hours a day, 7
days a week.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether it is prudent to designate critical habitat.
(2) Specific information on the amount and distribution of
Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia habitat, and what
areas should be included in the designations that were occupied at the
time of listing that contain the features essential for the
conservation of the species and why, and what areas that were not
occupied at the time of listing that are essential to the conservation
of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities; and
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(6) We are requesting specific information from the public on
Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia and their habitat,
and which habitat or habitat components (i.e., physical and biological
features) are essential to the conservation of these 12 species and
why; and
(7) Whether the benefit of exclusion in any particular area will
outweigh the benefits of inclusion of that area from critical habitat
under Section 4(b)(2) of the Act.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit Internet comments to [email protected] in
ASCII file format and avoid the use of special characters or any form
of encryption. Please also include ``Attn: RIN 1018-AU93'' in your e-
mail subject header and your name and return address in the body of
your message. If you do not receive a confirmation from the system that
we have received your Internet message, contact us directly by calling
our Pacific Islands Fish and Wildlife Office at phone number 808/792-
9400. Please note that the Internet address [email protected] will
be closed out at the termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. We will make all comments available for public
inspection in their entirety. Comments and materials received, as well
as supporting documentation used in preparation of the proposal to
designate critical habitat, will be available for public inspection, by
appointment during normal business hours at the Pacific Islands Fish
and Wildlife Office (see ADDRESSES).
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of
[[Page 46995]]
critical habitat plays in protecting habitat of listed species,
however, is often misunderstood. As discussed in more detail below in
the discussion of exclusions under ESA section 4(b)(2), there are
significant limitations on the regulatory effect of designation under
ESA section 7(a)(2). In brief, (1) designation provides additional
protection to habitat only where there is a federal nexus; (2) the
protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would in
fact take place (in other words, other statutory or regulatory
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and
(3) designation of critical habitat triggers the prohibition of
destruction or adverse modification of that habitat, but it does not
require specific actions to restore or improve habitat.
Currently, only 475 species, or 36 percent of the 1,310 listed
species in the U.S. under the jurisdiction of the Service, have
designated critical habitat. We address the habitat needs of all 1,310
listed species through conservation mechanisms such as listing, section
7 consultations, the Section 4 recovery planning process, the Section 9
protective prohibitions of unauthorized take, Section 6 funding to the
States, the Section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
In considering exclusions of areas proposed for designation, we
evaluated the benefits of designation in light of Gifford Pinchot Task
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004).
In that case, the Ninth Circuit invalidated the Service's regulation
defining ``destruction or adverse modification of critical habitat.''
In response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This proposed critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this proposed designation. The Service will carefully manage future
consultations that analyze impacts to designated critical habitat,
particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a time frame that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, and is very
expensive, thus diverting resources from conservation actions that may
provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA). These costs, which are not
required for many other conservation actions, directly reduce the funds
available for direct and tangible conservation actions.
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the 11 species of Hawaiian picture-wing flies for which
we are proposing to designate critical habitat, refer to the final
listing rule for the 12 species picture-wing flies published in the
Federal Register on May 9, 2006 (71 FR 26835--pages 26835-26852). For
reasons explains later in this document, we are not proposing critical
habitat for one of the listed species' Drosophila neoclavisetae.
Previous Federal Actions
For more information on previous Federal actions concerning the 11
species of Hawaiian picture-wing flies, refer to the Determination of
Status for 12 Species of Picture-Wing Flies from the Hawaiian Islands,
published in the Federal Register on May 9, 2006 (71 FR 26835). In
accordance with an amended settlement agreement approved by the United
States District Court for the District of Hawaii on August 31, 2005
(CBD v. Allen, CV-05-274-HA), the Service published in the May 9, 2006,
Federal Register, a determination that designation of critical habitat
for the 12 species of Hawaiian picture-wing flies, pursuant to the
Act's sections 4(b)(6)(A) and (C), is prudent. Since critical habitat
is prudent, the settlement stipulates that we must submit, for
publication in the Federal Register, a proposed critical habitat
designation for the listed species for which critical habitat is
prudent on or by September 15, 2006, and a final critical habitat
determination by April 17, 2007.
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Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed in
accordance with the provisions of section 4 of the Act, upon a
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
to bring species to the point at which the protection under the Act
measures is no longer necessary. Such methods and procedures include,
but are not limited to, all activities associated with scientific
resources management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management or protection. (As discussed below, such areas may also be
excluded from critical habitat pursuant to section 4(b)(2).)
Accordingly, when the best available scientific data do not demonstrate
that the conservation needs of the species require additional areas, we
will not designate critical habitat in areas outside the geographical
area occupied by the species at the time of listing. An area currently
occupied by the species but was not known to be occupied at the time of
listing will likely, but not always, be essential to the conservation
of the species and, therefore, typically included in the critical
habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists to the
extent consistent with the Act and with the use of the best scientific
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include the recovery plan for the
species, if there is one, articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion or personal knowledge. All information is
used in accordance with the provisions of Section 515 of the Treasury
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be appropriate for conservation
actions implemented under section 7(a)(1) of the Act and subject to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas that contain the features that are
essential to the conservation of Drosophila aglaia, D. differens, D.
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D.
neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia.
We have reviewed the available information that pertains to the
habitat requirements for these species and evaluated all known
occurrence locations using data from numerous sources. The following
geospatial, tabular data sets were used in proposing critical habitat:
occurrence data for all 12 species (K. Kaneshiro 2005a--pages 1-16);
vegetation mapping data for the Hawaiian Islands (GAP Data--Hawaiian
Islands 2005); color mosaic 1:19,000 scale digital aerial photographs
for the Hawaiian Islands (dated April to May 2005); and 1:24,000 scale
digital raster graphics of USGS topographic quadrangles. Land ownership
was determined from geospatial data sets associated with parcel data
from Oahu County (2006); Hawaii County (2005); Kauai County (2005); and
Maui County (2004).
We reviewed a variety of peer-reviewed and non-peer-reviewed
articles for this proposal, which included background information on
the species' biology (e.g., Montgomery 1975--pages 83, 94, 96-98, and
100; Foote and Carson 1995--pages 1-4; Kaneshiro and Kaneshiro 1995--
pages 1-47), plant ecology and biology (e.g., Wagner et al. 1999--pages
45, 52-53, 971, 1,314-1,315, and 1,351-1,352), and ecology of the
Hawaiian Islands and the areas considered (e.g., Smith 1985--pages 227-
233; Stone 1985--pages 251-253, 256, and 260-263; Cuddihy and Stone
1990--pages 59-66, 73-76, and 88-94). Additional information
[[Page 46997]]
available included the final rule listing the plant species Urera
kaalae as endangered (Service 1995--pages 81-83; 56 FR 55770, October
29, 1991,--page 55779); the final listing rule for these species (71 FR
26835, May 9, 2006,--pages 26835-26852); unpublished reports by The
Nature Conservancy of Hawaii (TNCH); and aerial photographs and
satellite imagery of the Hawaiian Islands.
Additional information was obtained through personal communications
with scientists and land managers familiar with the species and
habitats. Contributing individuals included Dr. Ken Kaneshiro (Director
of the University of Hawaii at Manoa's Center for Conservation and
Research Training Program; Dr. David Foote, research entomologist for
the U.S. Geological Survey, Biological Resources Discipline; Dr. Steve
Montgomery, Bishop Museum Research Associate; other staff from Bishop
Museum; landowners; and staff from the Hawaii State Department of Land
and Natural Resources, TNCH, and the U.S. Department of the Army (U.S.
Army).
Specific information from these sources included estimates of
historic and current distribution, abundance, and territory sizes for
the 12 species, as well as data on resources and habitat requirements.
A recovery plan for this group of species has not been completed.
As presented in the final listing rule (71 FR 26835; May 9, 2006),
below is the specific information concerning the distribution and host-
plants for each of the 11 species for which we are proposing critical
habitat. This information is directly relevant to the primary
constituent elements and thus repeated below. Each species of Hawaiian
picture-wing fly described in this document is found only on a single
island, and the larvae of each are dependant upon only a single or a
few related species of plants (summarized in Table 1).
Critical habitat has not been proposed for D. neoclavisetae, a
species for which we determined critical habitat to be prudent,
because, the specific areas and physical and biological features
essential to its conservation in the Puu Kukui Watershed Management
Area are not in need of special management considerations or
protection. Therefore, we are not proposing critical habitat for D.
neoclavisetae because these specific areas and features does not meet
the definition of critical habitat in the Act.
Table 1.--Distribution of 12 Hawaiian Picture-Wing Flies by Island, General Habitat Type, and Primary Host
Plant(s).
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General habitat
Species Island Elevation range type Primary host plants
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Oahu Species
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Drosophila aglaia.............. Oahu............. 1,700 to 2,900 ft Mesic forest..... Urera glabra.
(520-885 m).
D. hemipeza ................... Oahu............. 1,500 to 2,900 ft Mesic forest..... Cyanea sp., Lobelia
(460 to 885 m). sp., & Urera kaalae
(E).
D. montgomeryi................. Oahu............. 1,900 to 2,900 ft Mesic forest..... Urera kaalae (E).
(580-885 m).
D. obatai...................... Oahu............. 1,500 to 2,500 ft Dry to mesic Pleomele aurea &
(460-760 m). forest. Pleomele forbesii.
D. substenoptera............... Oahu............. 1,300 to 4,000 ft Wet forest....... Cheirodendron sp. &
(395 to 1,220 m). Tetraplasandra sp.
D. tarphytrichia............... Oahu............. 1,300 to 4,000 ft Mesic forest..... Charpentiera sp.
(395 to 1,220 m).
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Hawaii (Big Island) Species
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D. heteroneura................. BI............... 3,400 to 6,000 ft Mesic to wet Cheirodendron sp.,
(1,035 to 1,830 forest. Clermontia sp., and
m). Delissea sp.
D. mulli....................... BI............... 3,150 to 3,250 ft Wet forest....... Pritchardia
(960-990 m). beccariana.
D. ochrobasis.................. BI............... 3,400 to 5,400 ft Mesic to wet Clermontia sp.,
(1,035 to 1,645 forest. Marattia sp., &
m). Myrsine sp.
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Molokai, Kauai, and Maui Species
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D. differens................... Molokai.......... 3,650 to 4,500 ft Wet forest....... Clermontia sp.
(1,115 to 1,370
m).
D. musaphilia.................. Kauai............ 3,000 to 3,700 ft Mesic forest..... Acacia koa.
(915-1,130 m).
D. neoclavisetae............... Maui............. 3,500 to 4,500 ft Wet forest....... Cyanea sp.
(1,070 to 1,370
m).
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Oahu Species
Drosophila aglaia
Drosophila aglaia is historically known from five localities in the
Waianae Mountains of Oahu between 1,700 and 2,900 feet (ft) (520 to 885
meters (m)) above sea level. Drosophila aglaia is restricted to the
natural distribution of its host plant, Urera glabra (family
Urticaceae), which is a small shrub-like endemic tree. The larvae of D.
aglaia develop in the decomposing bark and stem of U. glabra. This
plant does not form large stands, but is infrequently scattered
throughout slopes and valley bottoms in mesic and wet forest habitat on
Oahu.
Drosophila hemipeza
Drosophila hemipeza is restricted to the island of Oahu where it is
historically known from seven localities between 1,500 and 2,900 ft
(460 to 885 m) above sea-level (not including the Pupukea site of
discovery which is considered an extripated population). Montgomery
(1975--page 96)
[[Page 46998]]
determined that D. hemipeza larvae feed within decomposing portions of
several different mesic forest plants. The larvae inhabit the
decomposing bark of Urera kaalae (family Urticaceae), a federally-
endangered plant (Service 1995--pages 81-83; 56 FR 55770--page 55779)
that grows on slopes and in gulches of diverse mesic forest. In 2004,
only 41 individuals of U. kaalae were known to remain in the wild
(Service 2004--page 9). In 2005, TNCH outplanted many seedlings of this
species within several locations within D. hemipeza's historic range
(TNCH 2005--page 6). The larvae also feed within the decomposing stems
of Lobelia sp. (family Campanulaceae) and the decomposing bark and
stems of Cyanea sp. (family Campanulaceae) in mesic forest habitat
(Kaneshiro and Kaneshiro 1995--page 17; Science Panel 2005--page 16).
Drosophila montgomeryi
Drosophila montgomeryi is historically known from three localities
in the Waianae Mountains on western Oahu between 1,900 and 2,900 ft
(580 to 885 m) above sea level. Montgomery (1975--page 97) reported
that the larvae of this species feed within the decaying bark of Urera
kaalae, a federally-endangered plant (Service 1995--pages 81-83; 56 FR
55770--page 55779) that grows on slopes and in gulches of diverse mesic
forest (Wagner et al. 1999--pages 1,314-1,315). In 2004, only 41
individuals of U. kaalae were known to remain in the wild (Service
2004--page 9). In 2005, TNCH outplanted many seedlings of this species
within several locations within D. montgomeryi's historic range (TNCH
2005--page 6).
Drosophila obatai
Drosophila obatai is historically known from two localities between
1,500 and 2,500 ft (460 to 760 m) above sea level on the island of
Oahu. Drosophila obatai larvae feed within decomposing portions of
Pleomele forbesii (family Agavaceae), a candidate for Federal listing
(70 FR 24870--page 24883) (Kaneshiro and Kaneshiro 1995--page 27;
Montgomery 1975--page 98). These host plants grow on slopes in dry
forest and diverse mesic forest, and occur singly or in small clusters,
rarely forming large stands (Wagner et al. 1999--pages 1,351-1,352).
Drosophila substenoptera
Drosophila substenoptera is historically known from seven
localities in both the Koolau and Waianae Mountains on the island of
Oahu at elevations between 1,300 and 4,000 ft (395 to 1,220 m) above
sea level. Montgomery (1975--page 100) determined that D. substenoptera
larvae inhabit only the decomposing bark of Cheirodendron sp. trees
(family Araliaceae) and Tetraplasandra sp. trees (family Araliaceae) in
localized patches of wet forest habitat.
Drosophila tarphytrichia
Drosophila tarphytrichia was historically known from both the
Koolau and the Waianae Mountains between 1,900 and 2,900 ft (580 to 885
m) above sea level on the island of Oahu. Drosophila tarphytrichia is
now apparently extirpated from the Koolau range where it was originally
discovered near Manoa Falls, and is presently known from four
localities in the Waianae Mountains (Kaneshiro and Kaneshiro 1995; HBMP
2005; K. Kaneshiro 2005a). The larvae of D. tarphytrichia feed only
within the decomposing portions of the stems and branches of
Charpentiera obovata trees (family Amaranthaceae) in mesic forest
habitat (Montgomery 1975--page 100).
Hawaii (Big Island) Species
Drosophila heteroneura
Drosophila heteroneura has been the most intensely studied of the
12 species discussed in this proposed rule (Kaneshiro and Kaneshiro
1995--page 19). This species is restricted to the island of Hawaii
where, historically, it was known to be relatively widely distributed
between 3,400 and 6,000 ft (1,035 to 1,830 m) above sea level.
Drosophila heteroneura has been recorded from 24 localities on 4 of the
island's 5 volcanoes (Hualalai, Mauna Kea, Mauna Loa, and Kilauea) in 5
different montane environments (K. Kaneshiro 2005a--pages 4-8).
Drosophila heteroneura larvae primarily inhabit the decomposing bark
and stems of Clermontia sp. (family Campanulaceae), including C.
clermontioides, and Delissea sp. (family Campanulaceae), but it is also
known to feed within decomposing portions of Cheirodendron sp. (family
Araliaceae) in open mesic and wet forest habitat (Kaneshiro and
Kaneshiro 1995--page 19).
Drosophila mulli
Drosophila mulli is restricted to the island of Hawaii and is
historically known from two locations between 3,150 and 3,250 ft (960
to 990 m) above sea level. Adult flies are found only on the leaf
undersides of the endemic fan palm, Pritchardia beccariana (family
Arecaceae), which is the only known association of a Drosophila species
with a native Hawaiian palm species. The larval feeding site on the
plant remains unknown because attempts to rear this species from
decaying parts of P. beccariana have thus far been unsuccessful (W.P.
Mull, Biologist, pers. comm. 1994--page 1; Science Panel 2005--page
21).
Drosophila ochrobasis
Historically, Drosophila ochrobasis was relatively widely
distributed between 3,400 and 5,400 ft (1,035 to 1,645 m) above sea
level on the island of Hawaii. Drosophila ochrobasis has been recorded
from 10 localities on 4 of the island's 5 volcanoes (Hualalai, Mauna
Kea, Mauna Loa, and the Kohala mountains). The larvae of this species
have been reported to use the decomposing portions of three different
host plant groups--Myrsine sp. (family Myrsinaceae), Clermontia sp.
(family Campanulaceae), and Marattia sp. (family Marattiaceae)
(Montgomery 1975--page 98; Kaneshiro and Kaneshiro 1995--page 29).
Kauai Species
Drosophila musaphilia
Drosophila musaphilia is historically known from only four sites,
one at 1,900 ft (579 m) above sea level, and three sites between 2,600
and 3,700 ft (790 to 1,130 m) above sea level on the island of Kauai.
Montgomery (1975--page 97) determined that the host plant for D.
musaphilia is Acacia koa. The females lay their eggs upon, and the
larvae develop in, the moldy slime flux (seep) that occasionally
appears on certain trees with injured plant tissue and seeping sap.
Understanding the full range of D. musaphilia is difficult because its
host plant, Acacia koa, is fairly common and stable within, and
surrounding, its known range on Kauai; however, the frequency of
suitable slime fluxes occurring on the host plant appears to be much
more restricted and temporally unpredictable (Science Panel 2005--pages
23-24).
Maui Species
Drosophila neoclavisetae
Two populations of Drosophila neoclavisetae were found historically
along the Puu Kukui Trail within montane wet ohia forests on State land
in West Maui. One habitat site was found in 1969 at 4,500 ft (1,370 m)
and the other in 1975 at 3,500 ft (1,070 m) above sea level (Kaneshiro
and Kaneshiro 1995--page 26; K. Kaneshiro 2005a--page 11). The host
plant of D. neoclavisetae has not yet been confirmed, although it is
likely associated with Cyanea sp. (family
[[Page 46999]]
Campanulaceae). Because both collections of this species occurred
within a small patch of Cyanea sp. and many other species in the D.
adiastola species group use species in this genus and other plants in
the family Campanulaceae, researchers believe the Cyanea sp. found at
Puu Kukui is likely the correct host plant for D. neoclavisetae
(Science Panel 2005--pages 19-20; Kaneshiro and Kaneshiro 1995--page
26).
Molokai Species
Drosophila differens
Drosophila differens is historically known from three sites on
private land between 3,650 and 4,500 ft (1,115 to 1,370 m) above sea
level, within montane wet ohia forest (K. Kaneshiro 2005a--page 2) on
the island of Molokai. Montgomery (1975--page 83) found that D.
differens larvae inhabit the bark and stems of Clermontia sp. (family
Campanulaceae) in wet rainforest habitat (Kaneshiro and Kaneshiro
1995--page 16).
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 consider those physical and biological features (primary
constituent elements (PCEs)) that are essential to the conservation of
the species, and within areas occupied by the species at the time of
listing, that may require special management considerations and
protection. These include, but are not limited to space for individual
and population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, and rearing (or development)
of offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The specific primary constituent elements required for these 12
picture-wing flies are derived from the biological needs of these
species as described in the listing rule, published in the Federal
Register on May 9, 2006 (71 FR 26835--pages 26835-26840), with specific
requirements described below.
Space for Individual and Population Growth and Normal Behavior
The general life cycle of Hawaiian Drosophilidae is typical of that
of most flies: after mating, females lay eggs from which larvae
(immature stage) hatch; as larvae grow, they molt (shed their skin)
through three successive stages (instars); when fully grown, the larvae
change into pupae (a transitional form) in which they metamorphose and
emerge as adults.
Breeding for all 11 species of flies included in this proposal
generally occurs year-round, but egg laying and larval development
increase following the rainy season as the availability of decaying
matter, which the flies feed on, increases in response to the heavy
rains (K. Kaneshiro 2005b--pages 1-2). In general, Drosophila lay
between 50 and 200 eggs in a single clutch. Eggs develop into adults in
about a month, and adults generally become sexually mature 1 month
later. Adults generally live for 1 to 2 months.
It is unknown how much space is needed for these flies to engage in
courtship and territorial displays and mating activities. Adult
behavior may be disrupted or modified by less than ideal conditions
such as decreased forest cover or loss of suitable food material (K.
Kaneshiro 2005b--pages 1-2). Additionally, adult behavior may be
disrupted and the flies themselves may be susceptible to the preying
activities of nonnative hymenoptera including yellow jacket wasps and
ants (Kaneshiro and Kaneshiro 1995--pages 41-42). The larvae generally
pupate within the soil located below their host plant material, and it
is presumed that they require relatively undisturbed and unmodified
soil conditions to complete this stage before reaching adulthood
(Science Panel 2005--page 5). Lastly, it is well-known that these and
most picture-wing flies are susceptible to even slight temperature
increases, an issue that may be exacerbated by loss of suitable forest
cover (K. Kaneshiro 2005b--pages 1-2).
Food
Each species of Hawaiian picture-wing fly described in this
document is found only on a single island, and the larvae of each are
dependent upon only a single or a few related species of plants
(summarized in Table 1). The adult flies feed on a variety of
decomposing plant matter. The water or moisture requirements for all 12
of these species is unknown; however, during drier seasons or during
times of drought, it is expected that available adult and larval stage
food material in the form of decaying plant matter may decrease (K.
Kaneshiro 2005b--pages 1-2).
Primary Constituent Elements for Drosophila aglaia, D. differens, D.
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D.
neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia
Pursuant to our regulations, we are required to identify the known
physical and biological features (PCEs) essential to the conservation
of Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia. All areas proposed
as critical habitat for these species are based on documented
occurrences within these species' historic geographic range, and
contain sufficient PCEs to support at least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
the following PCEs for Drosophila aglaia, D. differens, D. hemipeza, D.
heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae,
D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia.
Oahu Species
The PCEs for Drosophila aglaia are:
(1) Dry to mesic, lowland, Diospyros sp., ohia and koa forest; and
(2) The larval host plant Urera glabra.
The PCEs for Drosophila hemipeza are:
(1) Dry to mesic, lowland, ohia and koa forest; and
(2) The larval host plants Cyanea angustifolia, C. calycina, C.
grimesiana ssp. grimesiana, C. grimesiana ssp. obatae, C. membranacea,
C. pinnatifida, C. sessifolia, C. superba ssp. superba, Lobelia
hypoleuca, L. hiihauensis, L. yuccoides, and Urera kaalae.
The PCEs for Drosophila montgomeryi are:
(1) Dry to mesic, lowland, diverse ohia and koa forest; and
(2) The larval host plant Urera kaalae.
The PCEs for Drosophila obatai are:
(1) Dry to mesic, lowland, ohia and koa forest; and
(2) The larval host plant Pleomele forbesii.
The PCEs for Drosophila substenoptera are:
(1) Mesic to wet, lowland to montane, ohia and koa forest; and
(2) The larval host plants Cheirodendron platyphyllum ssp.
platyphyllum, C. trigynum ssp.
[[Page 47000]]
trigynum, Tetraplasandra kavaiensis, and T. oahuensis.
The PCEs for Drosophila tarphytrichia are:
(1) Dry to mesic, lowland, ohia and koa forest; and
(2) The larval host plant Charpentiera obovata.
Hawaii (Big Island) Species
The PCEs for Drosophila heteroneura are:
(1) Mesic to wet, montane, ohia and koa forest; and
(2) The larval host plants Cheirodendron trigynum ssp. trigynum, C.
clermontioides, C. hawaiiensis, C. kohalae, C. lindseyana, C. montis-
loa, C. paviflora, C. peleana, and C. pyrularia.
The PCEs for Drosophila mulli are:
(1) Wet, montane, ohia forest; and
(2) The larval host plant Pritchardia beccariana.
The PCEs for Drosophila ochrobasis are:
(1) Mesic to wet, montane, ohia, koa, and Cheirodendron sp. forest;
and
(2) The larval host plants Clermontia calophylla, C.
clermontioides, C. drepanomorpha, C. hawaiiensis, C. kohalae, C.
lindseyana, C. montis-loa, C. parviflora, C. peleana, C. pyrularia, C.
waimeae, Myrsine lessertiana, and M. sandwicensis.
Kauai Species
The PCEs for Drosophila musaphilia are:
(1) Mesic, montane, ohia and koa forest; and
(2) The larval host plant Acacia koa.
Maui Species
The PCEs for Drosophila neoclavisetae are:
(1) Wet, montane, ohia forest; and
(2) The larval host plants Cyanea kunthiana and C. macrostegia ssp.
macrostegia.
Molokai Species
The PCEs for Drosophila differens are:
(1) Wet, montane, ohia forest; and
(2) The larval host plants Clermontia arborescens ssp. waihiae, C.
granidiflora ssp. munroi, C. oblongifolia ssp. brevipes, and C.
pallida.
This proposed designation is for the conservation of PCEs necessary
to support the life history functions which were the basis for the
proposal. Each of the areas proposed in this rule have been determined
to contain sufficient PCEs to provide for one or more of the life
history functions of the Drosophila aglaia, D. differens, D. hemipeza,
D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia. In some cases, the
PCEs exist as a result of ongoing Federal actions. As a result, ongoing
Federal actions at the time of designation will be included in the
baseline in any consultation conducted subsequent to this designation.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific data available in determining areas that contain the
features that are essential to the conservation of Drosophila aglaia,
D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D.
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia. We are proposing to designate critical habitat on lands
with documented occurrences and that contain the primary constituent
elements for these 11 Hawaiian picture-wing flies. The primary dataset
we used to document observations of these 11 picture-wing flies spans
the years 1965 to 1999 (K. Kaneshiro 2005a--pages 1-16). Additional
data were obtained from individuals familiar with particular species
and locations, and other sources of information as described above in
the Methods section. Many sites were surveyed infrequently or have not
been surveyed in a long time while others have relatively complete
records from 1966 to 1999. We selected areas based on sites surveyed
since 1971 that were occupied during the date of the last survey (or
within 1 year of that last occupied survey date) and were identified as
``occupied.'' Surveys locate adult flies, but adult flies are relative
generalists and do not have the specific habitat requirements of the
larval stage, which typically require a specific species (in some
cases, several species or genera) of host plants for successful
development. Though the primary constituent elements of the proposed
critical habitat focus on these host plants, we use known adult
locations as the starting center point for each critical habitat unit
and include a surrounding area measuring 1 acre (0.405 ha) in size
consisting of the features essential to the conservation species.
While there has been considerable survey work conducted for
Hawaiian picture-wing flies overall, some areas where these 11 species
are found have not been surveyed in many years. We decided to propose
critical habitat by relying on the results of the most recent surveys
conducted since 1971. If that survey located adult flies of the
particular species, we identified that site as occupied; if no adult
flies of the species were found, we identified that site as not
occupied. Because of the time that has passed since some of these
surveys were conducted, it is possible that some of the sites we are
considering as unoccupied (and so not included in the proposed critical
habitat) have since been re-occupied by the species. However, we
believe that the most recent survey results are the best information
available to determine if a site is occupied.
When determining proposed critical habitat boundaries, we made
every effort to avoid including within the boundaries of the map
contained within this proposed rule, developed areas such as buildings,
paved areas, and other structures that lack PCEs for Drosophila aglaia,
D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D.
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia. The scale of the maps prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed areas. Any such structures and the land
under them inadvertently left inside critical habitat boundaries shown
on the maps of this proposed rule are excluded by text in this proposed
rule and are not proposed for designation as critical habitat.
Therefore, Federal actions limited to these areas would not trigger
section 7 consultation, unless they affect the species or primary
constituent elements in adjacent critical habitat.
We are proposing to designate critical habitat on lands that we
have determined are occupied by the 11 species at the time of listing
and contain sufficient primary constituent elements to support life
history functions essential for the conservation of the species.
Twenty-two units are proposed based on sufficient PCEs being
present to support life processes for Drosophila aglaia, D. differens,
D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia,
D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia. Some
units contained all PCEs and supported multiple life processes. Some
segments contained only a portion of the PCEs necessary to support the
particular use of that habitat for Drosophila aglaia, D. differens, D.
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D.
obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia.
Special Management Considerations or Protections
When designating critical habitat, we determine whether areas
occupied at the time of listing and containing the primary constituent
elements may
[[Page 47001]]
require special management considerations or protections.
Nonnative plants and animals pose the greatest threats to these 11
picture-wing flies. In order to alleviate and reverse the ongoing
degradation and loss of habitat caused by feral ungulates and invasive
nonnative plants, active management or control of nonnative species is
necessary for the conservation of all populations of the 11 picture-
wing flies (Kaneshiro and Kaneshiro 1995--pages 37-38). Without active
management or control, native habitat containing the features that are
essential for the conservation of the 11 picture-wing flies is degraded
and/or destroyed. In addition, habitat degradation and destruction as a
result of fire and predation by nonnative insects, such as the western
yellow-jacket wasp (Vespula pennsylvanica) and several species of ants,
pose significant threats to many populations of the 12 picture-wing
flies.
All of the proposed critical habitat units for the 11 picture wing
flies may require special management to address feral ungulates,
invasive nonnative plants, and yellow-jacket wasps. In addition, the
units in dry or mesic habitats may also require special management to
address fire and ants. These threats are discussed below.
Feral Ungulates
Feral ungulates have devastated native vegetation in many areas of
the Hawaiian Islands (Cuddihy and Stone 1990--pages 60-66). Because the
endemic Hawaiian flora evolved without the presence of browsing and
grazing ungulates, many plant groups have lost their adaptive defenses
such as spines, thorns, stinging hairs, and defensive chemicals
(University of Hawaii Department of Geography 1998--page 138). Pigs
(Sus scrofa), goats (Capra hircus), and cattle (Bos taurus) disturb the
soil, and readily eat native plants, including the native host plants
for 1 or more of the 11 picture-wing flies, as well as distribute
nonnative plant seeds that can alter the ecosystem. In addition,
browsing and grazing by feral ungulates in steep and remote terrain
causes severe erosion of whole watersheds due to foraging and trampling
behaviors (Cuddihy and Stone 1990--pages 60-64 and 66).
Feral Pigs (Sus scrofa)
Feral pigs threaten all populations of the 11 picture-wing flies.
Feral pigs are found from dry coastal grasslands through rain forests
and into the subalpine zone on all of the main Hawaiian Islands
(Cuddihy and Stone 1990--pages 64-65). An increase in pig densities and
expansion of their distribution has caused widespread damage to native
vegetation (Cuddihy and Stone 1990--pages 64-65). Feral pigs create
open areas within forest habitat by digging up, eating, and trampling
native species (Stone 1985--pages 262-263). These open areas become
fertile ground for nonnative plant seeds spread through their excrement
and by transport in their hair (Stone 1985--pages 262-263). In
nitrogen-poor soils, feral pig excrement increases nutrient
availability, enhancing establishment of nonnative weeds that are more
adapted to richer soils than are native plants (Cuddihy and Stone
1990--pages 64-65). In this manner, largely nonnative forests replace
native forest habitat (Cuddihy and Stone 1990--pages 64-65).
Foote and Carson (1995--pages 2-4) found that pig exclosures on the
island of Hawaii supported significantly higher relative frequencies of
picture-wing flies compared to other native and nonnative Drosophila
species (7 percent of all observations outside of the exclosure and 18
percent of all observations inside the exclosure) and their native host
plants. Loope et al. (1991--pages 9-10 and 19) showed that excluding
pigs from a montane bog on northeastern Haleakala, Maui, resulted in an
increase in native plant cover from 6 to 95 percent after 6 years of
protection.
Feral Goats (Capra hircus)
Feral goats threaten populations of the picture-wing flies on Oahu
(Drosophila aglaia), Hawaii (D. heteroneura), and Kauai (D.
musaphilia). Feral goats occupy a wide variety of habitats on Kauai,
Oahu, Molokai, Maui, and Hawaii, from lowland dry forests to montane
grasslands where they consume native vegetation, trample roots and
seedlings, accelerate erosion, and promote invasion of nonnative plants
(van Riper and van Riper 1982--pages 34-35; Stone 1985--page 261). On
Oahu, goat populations are increasing and spreading in the dry upper
slopes of the Waianae Mountains, becoming an even greater threat to the
native habitat (K. Kawelo, U.S. Army Environmental Division, pers.
comm. 2005--page 1).
Feral Cattle (Bos taurus)
Feral cattle threaten populations of Drosophila heteroneura on the
island of Hawaii. Large-scale ranching of cattle began in the 19th
century on the islands of Kauai, Oahu, Maui, and Hawaii (Cuddihy and
Stone 1990--pages 59-62). Large ranches, tens of thousands of acres in
size, still exist on the islands of Maui and Hawaii (Cuddihy and Stone
1990--pages 59-62). In addition, cattle grazing continues in several
lowland regions in the northern portion of the Waianae Mountains of
Oahu. Degradation of native forests used for ranching activities is
evident. Feral cattle occupy a wide variety of habitats from lowland
dry forests to montane grasslands, where they consume native
vegetation, trample roots and seedlings, accelerate erosion, and
promote the invasion of nonnative plants (van Riper and van Riper
1982--page 36; Stone 1985--pages 256 and 260).
Nonnative Plants
The invasion of nonnative plants contributes to the degradation of
native forests and the host plants of picture-wing flies (Kaneshiro and
Kaneshiro 1995--pages 38-39; Wagner et al. 1999--pages 52-53 and 971;
Science Panel 2005--page 28), and threatens all populations of the 11
picture-wing flies. Some nonnative plants form dense stands, thickets,
or mats that shade or out-compete native plants. Nonnative vines cause
damage or death to native trees by overloading branches, causing
breakage, or by forming a dense canopy cover, intercepting sunlight and
shading out native plants below. Nonnative grasses burn readily and
often grow at the border of forests, and carry fire into areas with
woody native plants (Smith 1985--pages 228-229; Cuddihy and Stone
1990--pages 88-94). The nonnative grasses are more fire-adapted and can
spread prolifically after a fire, ultimately creating a stand of
nonnative grasses where native forest once existed. Some nonnative
plant species produce chemicals that inhibit the growth of other plant
species (Smith 1985--page 228; Wagner et al. 1999--page 971).
Fire
Fire threatens habitat of the Hawaiian picture-wing flies in dry to
mesic grassland, shrubland, and forests on the islands of Kauai
(Drosophila musaphilia), Oahu (D. aglaia, D. hemipeza, D. mongomeryi,
D. obatai, and D. tarphytrichia), and Hawaii (D. heteroneura). Dry and
mesic regions in Hawaii have been altered in the past 200 years by an
increase in fire frequency, a condition to which the native flora is
not adapted. The invasion of fire-adapted alien plants, facilitated by
ungulate disturbance, has contributed to wildfire frequency. This
change in fire regime has reduced the amount of forest cover for native
species (Hughes et al.1991--page 743; Blackmore and Vitousek 2000--page
625) and resulted in an intensification of feral ungulate herbivory in
the remaining native forest areas. Habitat damaged or destroyed by fire
is more likely to be revegetated by
[[Page 47002]]
nonnative plants that cannot be used as host plants by these picture-
wing flies (Kaneshiro and Kaneshiro 1995--page 47).
Nonnative Predatory Species
Nonnative arthropods pose a serious threat to Hawaii's native
Drosophila, both through direct predation or parasitism as well as
competition for food or space (Howarth and Medeiros 1989--pages 82-83;
Howarth and Ramsay 1991--pages 80-83; Kaneshiro and Kaneshiro 1995--
pages 40-45 and 47; Staples and Cowie 2001--pages 41, 54-57). Due to
their large colony sizes and systematic foraging habits, species of
social Hymenoptera (ants and some wasps) and parasitic wasps pose the
greatest threat to the Hawaiian picture-wing flies (Carson 1982--page
1, 1986--page 7; Gambino et al. 1987--pages 169-170; Kaneshiro and
Kaneshiro 1995--pages 40-45 and 47).
Ants
Ants are believed to threaten populations of picture-wing flies in
mesic areas on Oahu (Drosophila aglaia, D. hemipeza, D. mongomeryi, D.
obatai, and D. tarphytrichia) and Hawaii (D. heteroneura). At least 44
species of ants are known to be established on the Hawaiian Islands
(Hawaii Ecosystems at Risk Project (HEAR) database 2005--page 2) and 4
particularly aggressive ant species have severely affected the native
insect fauna (Zimmerman 1948--page 173; HEAR database 2005--page 4).
Ants are not a natural component of Hawaii's arthropod fauna, and
native species evolved in the absence of predation pressure from ants.
Ants can be particularly destructive predators because of their high
densities, recruitment behavior, aggressiveness, and broad range of
diet (Reimer 1993--pages 14-15, 17). The threat to picture-wing flies
is amplified by the fact that most ant species have winged reproductive
adults (Borror 1989--pages 737-738) and can quickly establish new
colonies, spreading throughout suitable habitats (Staples and Cowie
2001--pages 55-57). These attributes and the lack of native species'
defenses to ants allow some ant species to destroy isolated prey
populations (Nafus 1993--page 151). Hawaiian picture-wing flies pupate
in the ground where they are exposed to predation by ants. Newly
emerging adults have been observed with ants attached to their legs
(Kaneshiro and Kaneshiro 1995--page 43).
Western Yellow-jacket Wasp
An aggressive race of the western yellow-jacket wasp became
established in the State of Hawaii in 1978, and this species is now
abundant between 1,969 and 3,445 ft (600 and 1,050 m) in elevation
(Gambino et al. 1990-page 1,088). On Maui, yellow-jackets have been
observed carrying and feeding upon recently captured adult Hawaiian
Drosophila (Kaneshiro and Kaneshiro 1995--page 41). While there is no
documentation that conclusively ties the decrease in picture-wing fly
observations at historical sites with the establishment of yellow-
jacket wasps within their habitats, the concurrent arrival of wasps and
decline of picture-wing fly observations for all 11 picture-wing flies
on all islands (Kauai, Oahu, Maui, Molokai, and Hawaii) suggests that
the wasps may have played a significant role in the decline of some
picture-wing fly populations (Carson 1982--page 1, 1986--page 7; Foote
and Carson 1995--page 3; Kaneshiro and Kaneshiro 1999; Science Panel
2005--page 28).
Proposed Critical Habitat Designation
Critical habitat has not been proposed for D. neoclavisetae, a
species for which we determined critical habitat to be prudent,
because, the specific areas and physical and biological features
essential to its conservation in the Puu Kukui Watershed Management
Area are not in need of special management considerations or
protection. Therefore, we are not proposing critical habitat for D.
neoclavisetae because these specific areas and features does not meet
the definition of critical habitat in the Act.
We are proposing 22 units as critical habitat for Drosophila
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D.
mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and
D. tarphytrichia. In total, approximately 18 acres (ac) (7.3 hectares
(ha)) fall within the boundaries of the proposed critical habitat
designation. The critical habitat areas described below constitute our
best assessment at this time of areas determined to be occupied at the
time of listing, contain the primary constituent elements, and that may
require special management. The areas proposed as critical habitat are:
(1) Island of Oahu: Drosophila aglaia--Unit 1--Palikea; Drosophila
hemipeza--Unit 1--Makaha Valley East; Drosophila hemipeza--Unit 2--
Palikea; Drosophila montgomeryi--Unit 1--Kaluaa Gulch; Drosophila
montgomeryi--Unit 2--Palikea; Drosophila obatai--Unit 1--Wailupe;
Drosophila substenoptera--Unit 1--Mt. Kaala; Drosophila tarphytrichia--
Unit 1--Kaluaa Gulch; Drosophila tarphytrichia--Unit 2--Palikea;
(2) Hawaii (Big Island): Drosophila heteroneura--Unit 1--Kau Forest
Reserve; Drosophila heteroneura--Unit 2--Pauahi; Drosophila
heteroneura--Unit 3--Waiea; Drosophila heteroneura--Unit 4--Waihaka
Gulch; Drosophila heteroneura--Unit 5--Gaspar's Dairy; Drosophila
heteroneura--Unit 6--Kipuka at 4,900 ft; Drosophila heteroneura--Unit
7--Pit Crater; Drosophila mulli--Unit 1--Olaa Forest; Drosophila
mulli--Unit 2--Waiakea Forest; Drosophila ochrobasis--Unit 1--Kipuka
14; Drosophila ochrobasis--Unit 2--Kohala Mountains;
(3) Island of Kauai: Drosophila musaphilia--Unit 1--Waimea Canyon
Road at 2,600 ft;
(4) Island of Molokai: Drosophila differens--Unit 1--Puu Kolekole.
The areas identified as containing the features essential to the
conservation of the 11 Hawaiian picture-wing flies for which we are
proposing critical habitat includes a variety of undeveloped, forested
areas that are used for larval stage development and adult fly stage
foraging. Areas that meet the definition of critical habitat, but are
proposed for exclusion pursuant to section 4(b)(2) include TNCH's
Kamakou Preserve on Molokai (Drosophila differens) and lands owned by
Kamehameha Schools on the island of Hawaii (D. heteroneura). Proposed
critical habitat includes land under State, City and County, and
private ownership, with excluded Federal lands being managed by the
Department of the Interior. The approximate area and land ownership
within each unit are shown in Table 2.
[[Page 47003]]
Table 2.--Critical Habitat Units Proposed for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia
----------------------------------------------------------------------------------------------------------------
Proposed critical habitat unit Land ownership Acres/hectares Proposed action
----------------------------------------------------------------------------------------------------------------
OAHU
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia--Unit 1--Palikea *.... James Campbell Estate..... 1 ac (.405 ha) Proposed.
Drosophila hemipeza--Unit 1--Makaha City & County of Honolulu. 1 ac (.405 ha) Proposed.
Valley East.
Drosophila hemipeza--Unit 2--Palikea *.. James Campbell Estate..... 1 ac (.405 ha) Proposed.
Drosophila montgomeryi--Unit 1--Kaluaa James Campbell Estate..... 1 ac (.405 ha) Proposed.
Gulch **.
Drosophila montgomeryi--Unit 2--Palikea James Campbell Estate..... 1 ac (.405 ha) Proposed.
*.
Drosophila obatai--Unit 1--Wailupe...... State..................... 1 ac (.405 ha) Proposed.
Drosophila substenoptera--Unit 1--Mt. State..................... 1 ac (.405 ha) Proposed.
Kaala.
Drosophila tarphytrichia--Unit 1--Kaluaa James Campbell Estate..... 1 ac (.405 ha) Proposed.
Gulch **.
Drosophila tarphytrichia--Unit 2-- James Campbell Estate..... 1 ac (.405 ha) Proposed.
Palikea *.
----------------------------------------------------------------------------------------------------------------
HAWAII (Big Island)
----------------------------------------------------------------------------------------------------------------
Drosophila heteroneura--Unit 1--Kau State..................... 1 ac (.405 ha) Proposed.
Forest Reserve.
Drosophila heteroneura--Unit 2--Pauahi.. Koa Road LLC.............. 1 ac (.405 ha) Proposed.
Drosophila heteroneura--Unit 3--Waiea... State..................... 1 ac (.405 ha) Proposed.
Drosophila heteroneura--Unit 4--Waihaka State..................... 1 ac (.405 ha) Proposed.
Gulch.
Drosophila heteroneura--Unit 5--Gaspar's Kamehameha Schools........ 1 ac (.405 ha) Proposed for exclusion
Dairy. under 4(b)2.
Drosophila heteroneura--Unit 6--Kipuka Kamehameha Schools........ 1 ac (.405 ha) Proposed for exclusion
at 4,900 ft. under 4(b)2.
Drosophila heteroneura--Unit 7--Pit Kamehameha Schools........ 1 ac (.405 ha) Proposed for exclusion
Crater. under 4(b)2.
Drosophila mulli--Unit 1--Olaa Forest... State..................... 1 ac (.405 ha) Proposed.
Drosophila mulli--Unit 2--Waiakea Forest State..................... 1 ac (.405 ha) Proposed.
Drosophila ochrobasis--Unit 1--Kipuka 14 State..................... 1 ac (.405 ha) Proposed.
Drosophila ochrobasis--Unit 2--Kohala State..................... 1 ac (.405 ha) Proposed.
Mountains.
----------------------------------------------------------------------------------------------------------------
KAUAI
----------------------------------------------------------------------------------------------------------------
Drosophila musaphilia--Unit 1--Waimea State..................... 1 ac (.405 ha) Proposed.
Canyon Road at 2,600 ft.
----------------------------------------------------------------------------------------------------------------
MOLOKAI
----------------------------------------------------------------------------------------------------------------
Drosophila differens--Unit 1--Puu Molokai Ranch Ltd......... 1 ac (.405 ha) Proposed for exclusion
Kolekole. under 4(b)2 .
Total............................... .......................... 18 ac (7.3 ha) 22 units.
----------------------------------------------------------------------------------------------------------------
Several units overlap and, therefore, the proposed designation totals 18 acres:
* The units at Palikea for D. aglaia, D. hemipeza, D. montgomeryi, and D. tarphytrichia overlap each other.
** The units at Kaluaa Gulch for D. montgomeryi and D. tarphytrichia overlap each other.
All of the proposed critical habitat units for 11 of the 12
Hawaiian picture-wing flies were occupied by the species at the time of
listing. We present brief descriptions of all units, and reasons why
they meet the definition of critical habitat for Drosophila aglaia, D.
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D.
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia, below. All of the critical habitat units are 1 acre
(0.405 ha) in size. For each of the units, threats to PCEs that may
require special management considerations or protections are described
above in the Special Management Considerations or Protections section.
Oahu Species
Drosophila aglaia
Drosophila aglaia--Unit 1--Palikea consists of lowland, mesic, koa,
and ohia forest within the southern Waianae Mountains of Oahu. This
unit was occupied by the species at the time of listing according to
the most recent survey data (K. Kaneshiro 2005a--pages 1-2). This unit
contains sufficient PCEs to support at least one of the species' life
functions. Located at an elevation of 2,840 ft (865 m), the unit is
entirely owned by the James Campbell Estate, and is part of a larger
area called the Honouliuli Preserve, administered and managed by TNCH.
Drosophila hemipeza
Drosophila hemipeza--Unit 1--Makaha Valley East consists of
lowland, mesic, koa, and ohia forest within the southern Waianae
Mountains of Oahu. This unit was occupied by the species at the time of
listing according to the most recent survey data (K. Kaneshiro 2005a--
pages 2-4). This unit contains sufficient PCEs to support at least one
of the species' life functions. Located at an elevation of 2,780 ft
(850 m), the unit is entirely owned by the City and County of Honolulu,
and is adjacent to and north of the State-owned Waianae Kai Forest
Reserve.
Drosophila hemipeza--Unit 2--Palikea consists of lowland, mesic,
koa, and ohia forest within the southern Waianae Mountains of Oahu.
This unit was occupied by the species at the time of listing according
to the most recent survey data (K. Kaneshiro 2005a--page 3). This unit
contains sufficient PCEs to support at least one of the species' life
functions. Located at an elevation of 2,840 ft (865 m), the unit is
entirely owned by the James Campbell Estate, and is part of a larger
area called the
[[Page 47004]]
Honouliuli Preserve, administered and managed by TNCH.
Drosophila montgomeryi
Drosophila montgomeryi--Unit 1--Kaluaa Gulch consists of diverse,
mesic forest within the southern Waianae Mountains of Oahu. This unit
was occupied by the species at the time of listing according to the
most recent survey data (K. Kaneshiro 2005a). This unit contains
sufficient PCEs to support at least one of the species' life functions.
Located at an elevation of 1,940 ft (590 m), the unit is entirely owned
by the James Campbell Estate, and is part of a larger area called the
Honouliuli Preserve, administered and managed by TNCH.
Drosophila montgomeryi--Unit 2--Palikea consists of lowland, mesic,
koa, and ohia forest within the southern Waianae Mountains of Oahu.
This unit was occupied by the species at the time of listing according
to the most recent survey data (K. Kaneshiro 2005a--page 8-9). This
unit contains sufficient PCEs to support at least one of the species'
life functions. Located at an elevation of 2,840 ft (865 m), the unit
is entirely owned by the James Campbell Estate, and is part of a larger
area called the Honouliuli Preserve, administered and managed by TNCH.
Drosophila obatai
Drosophila obatai--Unit 1--Wailupe consists of lowland, mesic, koa,
and ohia forest within the southeastern Koolau Mountains of Oahu. This
unit was occupied by the species at the time of listing according to
the most recent survey data (K. Kaneshiro 2005a--page 12). This unit
contains sufficient PCEs to support at least one of the species' life
functions. Located at an elevation of 1,560 ft (475 m), the unit occurs
on State-owned lands and is part of a Forest Reserve administered and
managed by the State.
Drosophila substenoptera
Drosophila substenoptera--Unit 1--Mt. Kaala consists of montane,
wet, ohia forest within the northern Waianae Mountains of Oahu. This
unit was occupied by the species at the time of listing according to
the most recent survey data (K. Kaneshiro 2005a--page 14). This unit
contains sufficient PCEs to support at least one of the species' life
functions. Located at an elevation of 3,900 ft (1,190 m), the unit
occurs on State-owned lands and is part of a Forest Reserve
administered and managed by the State.
Drosophila tarphytrichia
Drosophila tarphytrichia--Unit 1--Kaluaa Gulch consists of diverse,
mesic forest within the southern Waianae Mountains of Oahu. This unit
was occupied by the species at the time of listing according to the
most recent survey data (K. Kaneshiro 2005a). This unit contains
sufficient PCEs to support at least one of the species' life functions.
Located at an elevation of 1,940 ft (590 m), the unit occurs on lands
owned by the James Campbell Estate, and is part of a larger area called
the Honouliuli Preserve, administered and managed by TNCH.
Drosophila tarphytrichia--Unit 2--Palikea consists of lowland,
mesic, koa, and ohia forest within the southern Waianae Mountains of
Oahu. This unit was occupied by the species at the time of listing
according to the most recent survey data (K. Kaneshiro 2005a--page 15).
This unit contains sufficient PCEs to support at least one of the
species' life functions. Located at an elevation of 2,840 ft (865 m),
the unit occurs on lands owned by the James Campbell Estate, and is
part of a larger area called the Honouliuli Preserve, administered and
managed by TNCH.
Hawaii (Big Island) Species
Drosophila heteroneura
Drosophila heteroneura--Unit 1--Kau Forest Reserve consists of
montane, wet, closed and open ohia forest, and is located on the
southern flank of Mauna Loa on the island of Hawaii. This unit was
occupied by the species at the time of listing according to the most
recent survey data (K. Kaneshiro 2005a--page 5). This unit contains
sufficient PCEs to support at least one of the species' life functions.
Located at an elevation of 5,380 ft (1,640 m), the unit occurs on
State-owned lands and is part of a Forest Reserve administered and
managed by the State.
Drosophila heteroneura--Unit 2--Pauahi consists of montane, mesic,
open koa and ohia forest, and is located on the western flank of Mauna
Loa on the island of Hawaii. This unit was occupied by the species at
the time of listing according to the most recent survey data (K.
Kaneshiro 2005a--pages 7-8). This unit contains sufficient PCEs to
support at least one of the species' life functions. The unit is
located on privately-owned lands at an elevation of 4,395 ft (1,340 m).
Drosophila heteroneura--Unit 3--Waiea consists of montane, mesic,
closed koa and ohia forest, and is located on the western flank of
Mauna Loa on the island of Hawaii. This unit was occupied by the
species at the time of listing according to the most recent survey data
(K. Kaneshiro 2005a--page 8). This unit contains sufficient PCEs to
support at least one of the species' life functions. The unit is
located on State-owned lands at an elevation of 5,400 (1,645 m).
Drosophila heteroneura--Unit 4--Waihaka Gulch consists of montane,
wet, closed and open koa and ohia forest, and is located on the
southern flank of Mauna Loa on the island of Hawaii. This unit was
occupied by the species at the time of listing according to the most
recent survey data (K. Kaneshiro 2005a--page 8). This unit contains
sufficient PCEs to support at least one of the species' life functions.
Located at an elevation of 4,200 ft (1,280 m), the unit occurs on
State-owned lands and is part of a Forest Reserve administered and
managed by the State.
Drosophila heteroneura--Unit 5--Gaspar's Dairy consists of montane,
mesic, open koa and ohia forest with mixed grass species, and is
located on the western flank of Mauna Loa on the island of Hawaii. This
unit was occupied by the species at the time of listing according to
the most recent survey data (K. Kaneshiro 2005a--page 4). This unit
contains sufficient PCEs to support at least one of the species' life
functions. The unit is located on privately-owned lands at an elevation
of 4,430 ft (1,350 m).
We are proposing to exclude this unit under section 4(b)(2) of the
Act. Although the unit is being proposed for exclusion from final
critical habitat designation, it still contributes to the conservation
of the species.
Drosophila heteroneura--Unit 6--Kipuka at 4,900 ft consists of
montane, mesic, open koa and ohia forest with mixed grass species, and
is located on the western flank of Mauna Loa on the island of Hawaii.
This unit was occupied by the species at the time of listing according
to the most recent survey data (K. Kaneshiro 2005a--page 6). This unit
contains sufficient PCEs to support at least one of the species' life
functions. The unit is located on privately-owned lands at an elevation
of 4,975 ft (1,515 m).
We are proposing to exclude this unit under section 4(b)(2) of the
Act. Although the unit is being proposed for exclusion from final
critical habitat designation, it still contributes to the conservation
of the species.
Drosophila heteroneura--Unit 7--Pit Crater consists of montane,
mesic, open ohia forest with mixed grass species, and is located on the
western flank of Hualalai and south of the Kaupulehu Lava Flow on the
island of Hawaii. This unit was occupied by the species at the
[[Page 47005]]
time of listing according to the most recent survey data (K. Kaneshiro
2005a--page 8). This unit contains sufficient PCEs to support at least
one of the species' life functions. The unit is located on privately-
owned lands at an elevation of 3,580 ft (1,090 m).
We are proposing to exclude this unit under section 4(b)(2) of the
Act. Although the unit is being proposed for exclusion from final
critical habitat designation, it still contributes to the conservation
of the species.
Drosophila mulli
Drosophila mulli--Unit 1--Olaa Forest consists of montane, wet,
open and closed ohia forest and is located to the northeast of Kilauea
Caldera on the southeastern flank of Mauna Loa on the island of Hawaii.
This unit was occupied by the species at the time of listing according
to the most recent survey data (K. Kaneshiro 2005a--page 10). This unit
contains sufficient PCEs to support at least one of the species' life
functions. Located at an elevation of 3,210 ft (980 m), the unit occurs
on State-owned lands and is part of the Olaa Forest Reserve
administered and managed by the State.
Drosophila mulli--Unit 2--Waiakea Forest consists of montane, wet,
open and closed ohia forest, and is located to the northeast of Kilauea
Caldera on the southeastern flank of Mauna Loa on the island of Hawaii.
This unit was occupied by the species at the time of listing (K.
Kaneshiro 2005a--page 10). This unit contains sufficient PCEs to
support at least one of the species' life functions. Located at an
elevation of 3,190 ft (970 m), the unit occurs on State-owned lands and
is part of the Waiakea Forest Reserve administered and managed by the
State.
Drosophila ochrobasis
Drosophila ochrobasis--Unit 1--Kipuka 14 consists of montane, wet,
open and closed ohia forest with native shrubs, and is located within
the saddle road area on the north eastern flank of Mauna Loa on the
island of Hawaii. This unit was occupied by the species at the time of
listing (K. Kaneshiro 2005a--pages 12-13). This unit contains
sufficient PCEs to support at least one of the species' life functions.
Located at an elevation of 5,110 ft (1,560 m), the unit occurs on
State-owned lands and is part of a Forest Reserve administered and
managed by the State.
Drosophila ochrobasis--Unit 2--Kohala Mountains consists of
montane, wet, open and closed ohia forest with native shrubs and mixed
grass species, and is located on the southeastern flank of the Kohala
Mountains on the island of Hawaii. This unit was occupied by the
species at the time of listing (K. Kaneshiro 2005a--page 12). This unit
contains sufficient PCEs to support at least one of the species' life
functions. Located at an elevation of 3,860 ft (1,165 m), the unit
occurs on State-owned lands and is part of a Forest Reserve
administered and managed by the State.
Kauai Species
Drosophila musaphilia
Drosophila musaphilia--Unit 1--Waimea Canyon Road at 2,600 ft
consists of lowland, mesic koa and ohia forest, and is located along
the Waimea Canyon Road within the Waimea Canyon State Park on the
island of Kauai. This unit was occupied by the species at the time of
listing (K. Kaneshiro 2005a--page 11). This unit contains sufficient
PCEs to support at least one of the species' life functions. Located at
an elevation of 2,600 ft (2,545 m), the unit occurs on State-owned
lands administered and managed by the Hawaii Division of State Parks.
Molokai Species
Drosophila differens
Drosophila differens--Unit 1--Puu Kolekole consists of montane,
wet, ohia forest within the Eastern Molokai Mountains on the island of
Molokai. This unit was occupied by the species at the time of listing
(K. Kaneshiro 2005a--page 2). This unit contains sufficient PCEs to
support at least one of the species' life functions. Located at an
elevation of 3,950 ft (1,200 m), the unit occurs on privately-owned
lands that are part of a larger area called the Kamakou Preserve,
managed and administered by TNCH.
We are proposing to exclude this area under section 4(b)(2) of the
Act. Although the unit is being proposed for exclusion from final
critical habitat designation, it still contributes to the conservation
of the species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. A recent
decision by the 9th Circuit Court of Appeals invalidated our regulatory
definition of `adverse modification' (see Gifford Pinchot Task Force v.
U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and
Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434,
442F (5th Cir 2001)). Pursuant to the Director's memo of August 2004,
destruction or adverse modification is determined on the basis of
whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain the
current ability for the primary constituent elements to be functionally
established) to serve the intended conservation role for the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once a proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report, while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act
[[Page 47006]]
requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of such a species or to destroy or adversely modify its critical
habitat. If a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency (action agency) must
enter into consultation with us. As a result of this consultation, the
Service may issue: (1) A concurrence letter for Federal actions that
may affect, but are not likely to adversely affect, listed species or
critical habitat; or (2) a biological opinion for Federal actions that
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may request reinitiation of consultation with us on actions
for which formal consultation has been completed, if those actions may
affect subsequently listed species or designated critical habitat or
adversely modify or destroy proposed critical habitat.
Federal activities that may affect the 12 species of Hawaiian
picture-wing flies or designated critical habitat for the 11 species
addressed herein will require section 7 consultation under the Act.
Activities on State, Tribal, local or private lands requiring a Federal
permit (such as a permit from the Corps under section 404 of the Clean
Water Act or a permit under section 10(a)(1)(B) of the Act from the
Service) or involving some other Federal action (such as funding from
the Federal Highway Administration, Federal Aviation Administration, or
the Federal Emergency Management Agency) will also be subject to the
section 7 consultation process. Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local or
private lands that are not federally-funded, authorized, or permitted,
do not require section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Eleven Species of Hawaiian Picture-
wing Flies and Their Critical Habitat
Jeopardy Standard
Prior to and following designation of critical habitat, the Service
will apply an analytical framework for Drosophila aglaia, D. differens,
D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia,
D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia jeopardy analyses that relies heavily areas identified as
occupied in this rule and the listing rule. The jeopardy analysis is
focused not only on these populations but also on the habitat
conditions necessary to support them.
The jeopardy analysis would likely express the survival and
recovery needs of the 11 species of Hawaiian picture-wing flies in a
qualitative fashion without making distinctions between what is
necessary for survival and what is necessary for recovery. Generally,
if a proposed Federal action is incompatible with the viability of the
affected population(s), to such an extent that the continued existence
of the species is jeopardized, a jeopardy finding would be considered.
Adverse Modification Standard
The analytical framework described in the Director's December 9,
2004, memorandum would be used to complete section 7(a)(2) analyses for
Federal actions affecting Drosophila aglaia, D. differens, D. hemipeza,
D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia critical habitat.
The key factor related to the adverse modification determination would
be whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain the
current ability for the primary constituent elements to be functionally
established) to serve the intended conservation role for the species.
Generally, the conservation role of the 11 picture-wing flies' critical
habitat units would be to support the populations identified in this
rule.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs as described in the Director's memo of
August, 2004. Activities that, when carried out, funded, or authorized
by a Federal agency, may affect critical habitat and therefore result
in consultation for Drosophila aglaia, D. differens, D. hemipeza, D.
heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia include, but are not
limited to:
(1) Activities including, but not limited to: overgrazing;
maintenance of feral ungulates; clearing or cutting of native live
trees and shrubs, whether by burning or mechanical, chemical, or other
means (e.g., woodcutting, bulldozing, construction, road building,
mining, herbicide application); introducing or enabling the spread of
nonnative species (e.g., nonnative plant species that may compete with
native host plants, or nonnative arthropod pests that prey upon native
host plants); and taking actions that pose a risk of fire.
(2) Construction where a permit under section 404 of the Clean
Water Act would be required by the U.S. Army Corps of Engineers.
Construction in wetlands, where a 404 permit would be required, could
affect the habitat of Drosophila heteroneura.
(3) Recreational activities that appreciably degrade vegetation.
(4) Introducing or encouraging the spread of nonnative plant
species into critical habitat units.
(5) The purposeful release or augmentation of any dipteran predator
or parasitoid.
We consider all of the units proposed as critical habitat, as well
as those that have been proposed for exclusion or not included, to
contain features essential to the conservation of the 11 picture-wing
flies. All units are within the geographic
[[Page 47007]]
range of each of the species, all were occupied by the 11 species at
the time of listing (based on observations made within the last 35
years), and are likely to be used by the 11 species of picture-wing
flies. Federal agencies already consult with us on activities in areas
currently occupied by the 12 picture-wing flies, or if the species may
be affected by the action, to ensure that their actions do not
jeopardize the continued existence of the 12 picture-wing flies.
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of
the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographical area occupied by the species on which are
found those physical and biological features (i) essential to the
conservation of the species, and (ii) which may require special
management considerations or protection. Therefore, areas within the
geographical area occupied by the species that do not contain the
features essential to the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographical
area occupied by the species that require no special management or
protection also are not, by definition, critical habitat. Thus, for
example, areas that do not need special management may not need
protection if there is lack of pressure for change, such as areas too
remote for anthropogenic disturbance.
There are multiple ways to provide management for species habitat.
Statutory and regulatory frameworks that exist at a local level can
provide such protection and management, as can lack of pressure for
change, such as areas too remote for anthropogenic disturbance.
Finally, State, local, or private management plans as well as
management under Federal agencies jurisdictions can provide protection
and management to avoid the need for designation of critical habitat.
When we consider a plan to determine its adequacy in protecting
habitat, we consider whether the plan, as a whole will provide the same
level of protection that designation of critical habitat would provide.
The plan need not lead to exactly the same result as a designation in
every individual application, as long as the protection it provides is
equivalent, overall. In making this determination, we examine whether
the plan provides management or protection of the PCEs that is at least
equivalent to that provided by a critical habitat designation, and
whether there is a reasonable expectation that the management or
protection actions will continue into the foreseeable future. Each
review is particular to the species and the plan, and some plans may be
adequate for some species and inadequate for others.
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude an area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the Secretary is afforded broad discretion and the
Congressional record is clear that in making a determination under
section 4(b)(2) the Secretary has discretion as to which factors to
consider and how much weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If an
exclusion is contemplated, then we must determine whether excluding the
area would result in the extinction of the species. In the following
sections, we address a number of general issues that are relevant to
the exclusions we considered. In addition, the Service is conducting an
economic analysis of the impacts of the proposed critical habitat
designation and related factors, which will be made available for
public review and comment. Based on public comment on that document,
the proposed designation, and the information in the final economic
analysis, additional areas beyond those identified in this assessment
may be excluded from critical habitat by the Secretary under the
provisions of section 4(b)(2) of the Act. This is provided for in the
Act, and in our implementing regulations at 50 CFR 424.19. Pursuant to
50 CFR 424.19, we must propose an area as critical habitat prior to
making an exclusion of that area pursuant to section 4(b)(2) of the Act
from the final critical habitat designation to receive public comment.
We have therefore included these units or portions thereof in the
regulation portion of this proposed critical habitat rule.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995) and at least 80 percent of endangered or threatened species occur
either partially or solely on private lands (Crouse et al. 2002--page
720). Stein et al. (1995--page 3) found that only about 12 percent of
listed species were found almost exclusively on Federal lands (i.e.,
90-100 percent of their known occurrences restricted to Federal lands)
and that 50 percent of federally listed species are not known to occur
on Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-federal landowners
(Wilcove and Chen 1998--page 1,407; Crouse et al. 2002--page 720; James
2002--page 270). Building partnerships and promoting voluntary
cooperation of landowners is essential to understanding the status of
species on non-federal lands and is necessary to implement recovery
actions such as reintroducing listed species, habitat restoration, and
habitat protection.
Many non-Federal landowners derive satisfaction in contributing to
endangered species recovery. The Service promotes these private-sector
efforts through the Four Cs philosophy--conservation through
communication, consultation, and cooperation. This philosophy is
evident in Service programs such as Habitat Conservation Plans (HCPs),
Safe Harbors, Candidate Conservation Agreements (CCAs), Candidate
Conservation Agreements with Assurances (CCAAs), and conservation
challenge cost-share grants. Many private landowners, however, are wary
of the possible consequences of encouraging endangered species to their
property, and there is mounting evidence that some regulatory actions
by the Federal Government, while well-intentioned and required by law,
can under certain circumstances have unintended negative consequences
for the conservation of species on private lands (Wilcove et al. 1996--
pages 2 and 5; Bean 2002--pages 409, 412, 414-415, and 419-420; Conner
and Mathews 2002--page 2; James 2002--page 270;
[[Page 47008]]
Koch 2002--pages 508-510). Many landowners fear a decline in their
property value due to real or perceived restrictions on land-use
options where threatened or endangered species are found. Consequently,
harboring endangered species is viewed by many landowners as a
liability, resulting in anti-conservation incentives because
maintaining habitats that harbor endangered species represents a risk
to future economic opportunities (Main et al. 1999--pages 1,263-1,265).
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7 of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands.
According to some researchers, the designation of critical habitat on
private lands significantly reduces the likelihood that landowners will
support and carry out conservation actions (Main et al. 1999--pages
1,263-1,265; Bean 2002--pages 409, 412, 414-415, and 419-420). The
magnitude of this negative outcome is greatly amplified in situations
where active management measures (e.g., reintroduction, fire
management, control of invasive species) are necessary for species
conservation (Bean 2002--pages 414 and 419-420).
The Service believes that the judicious use of excluding specific
areas of non-federally owned lands from critical habitat designations
can contribute to species recovery and provide a superior level of
conservation than critical habitat alone. For example, less than 17
percent of Hawaii is federally owned, but the State is home to more
than 24 percent of all federally listed species, most of which will not
recover without State and private landowner cooperation. On the island
of Lanai, Castle and Cooke Resorts, LLC, which owns 99 percent of the
island, entered into a conservation agreement with the Service. The
conservation agreement provides conservation benefits to target species
through management actions that remove threats (e.g., axis deer,
mouflon sheep, rats, invasive nonnative plants) from the Lanaihale and
East Lanai Regions. Specific management actions include fire control
measures, nursery propagation of native flora (including the target
species) and planting of such flora. These actions will significantly
improve the habitat for all currently occurring species. Due to the low
likelihood of a Federal nexus on the island we believe that the
benefits of excluding the lands covered by the MOA exceeded the
benefits of including them. As stated in the final critical habitat
rule for endangered plants on the Island of Lanai:
On Lanai, simply preventing ``harmful activities'' will not slow
the extinction of listed plant species. Where consistent with the
discretion provided by the Act, the Service believes it is necessary
to implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources and that remove
or reduce disincentives to conservation. While the impact of
providing these incentives may be modest in economic terms, they can
be significant in terms of conservation benefits that can stem from
the cooperation of the landowner. The continued participation of
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and
Watershed Partnership and other voluntary conservation agreements
will greatly enhance the Service's ability to further the recovery
of these endangered plants.
Conservation through communication, consultation, and cooperation
is the foundation for developing the tools of conservation. These tools
include conservation grants, funding for Partners for Fish and Wildlife
Program, the Coastal Program, and cooperative-conservation challenge
cost-share grants. Our Private Stewardship Grant program and Landowner
Incentive Program provide assistance to private land owners in their
voluntary efforts to protect threatened, imperiled, and endangered
species, including the development and implementation of HCPs.
Conservation agreements with non-Federal landowners, contractual
conservation agreements, easements, and stakeholder-negotiated State
regulations enhance species conservation by extending species
protections beyond those available through section 7 consultations. In
the past decade we have encouraged non-Federal landowners to enter into
conservation agreements, based on a view that we can achieve greater
species conservation on non-Federal land through such partnerships than
we can through coercive methods (61 FR 63854, December 2, 1996--page
63856).
Maui Land and Pineapple Co., Ltd.
Maui Pineapple Company's Puu Kukui Watershed Management Area, Located
in the West Maui Mountains
Lands within Maui Land and Pineapple Company's (ML&P's) Puu Kukui
Watershed Management Area (WMA), located in the West Maui Mountains,
are occupied habitat and have the features essential for the
conservation of Drosophila neoclavisetae. In a September 2002 letter to
the Service, the Puu Kukui Watershed Supervisor stated that since 1988
ML&P has proactively managed Puu Kukui Watershed and is currently in
their second, 6-year contract with the State of Hawaii's NAP program to
preserve the native biodiversity of their conservation lands. They are
also receiving funding from the Service to survey for rare plants on
their lands and build feral ungulate control fences for the protection
of listed and other native plants, including the host plants for D.
neoclavisetae. In other words, ML&P has a history of funding and
conducting proactive conservation efforts in Puu Kukui that provide a
benefit for D. neoclavisetae; they are enrolled in the State's NAP
program; and they receive funding from the Service to support their
conservation efforts. Therefore, we have determined that the private
land within Puu Kukui WMA does not meet the definition of critical
habitat under section 3(5)(A) of the Act as discussed below, and,
therefore, are not proposing critical habitat for Drosophila
neoclavisetae on ML&P land.
At just over 3,483 ha (8,600 ac), the Puu Kukui WMA is the largest
privately owned preserve in the State. In 1993, the Puu Kukui WMA
became the first private landowner participant in the NAP program. In
the NAP program, Puu Kukui WMA staff are pursuing four management
programs stipulated in their Long Range Management Plan with an
emphasis on reducing nonnative species that immediately threaten the
management area (Maui Pineapple Company 1999--pages 2-21). There is a
reasonable expectation, based on ML&P's management efforts to date,
that the management programs currently implemented in Puu Kukui WMA and
described below will continue into the foreseeable future.
The primary management goals within Puu Kukui WMA are to (1)
eliminate ungulate activity in all Puu Kukui management units; (2)
reduce the range of habitat-modifying weeds and prevent introduction of
nonnative plants; (3) reduce the negative impacts of nonnative
invertebrates and small animals; (4) monitor and track biological and
physical resources in the watershed in order to improve management
understanding of the watershed's resources; and (5) prevent the
extinction of rare species within the watershed. Implementation of the
specific management actions (described below) addresses the threats to
Drosophila neoclavisetae and the features essential for its
conservation from feral ungulates
[[Page 47009]]
and nonnative plants and, thus, removes the need for special management
and protection.
Specific management actions to address feral ungulates include the
construction of fences surrounding 10 management units and removal of
ungulates within the Puu Kukui WMA. The nonnative plant control program
within Puu Kukui WMA focuses on habitat-modifying weeds, prioritizing
them according to the degree of threat to native ecosystems, and
preventing the introduction of new weeds. The weed control program
includes mapping and monitoring along established transects and manual/
mechanical control. Biological control of Clidemia hirta was attempted
by releasing Antiblemma acclinalis moth larvae. Natural resource
monitoring and research address the need to track biological and
physical resources of the Puu Kukui WMA and evaluate changes to these
resources in order to guide management programs. Vegetation is
monitored through permanent photo points, nonnative species are
monitored along permanent transects, and rare, endemic, and indigenous
species are monitored. Additionally, logistical and other support for
approved research projects, interagency cooperative agreements, and
remote survey trips within the watershed is provided.
For these reasons, Puu Kukui WMA meets the three criteria for
determining that an area is not in need of special management or
protections as discussed above. Therefore, we have determined that the
private land within Puu Kukui WMA does not meet the definition of
critical habitat pursuant to 3(5)(A) in the Act, and we are not
proposing this land as critical habitat. Should the status of this
reserve change, for example by non-renewal of a partnership agreement
or termination of NAP funding, we will reconsider whether it then meets
the definition of critical habitat. If so, we have the authority to
propose to amend critical habitat to include such area at that time (50
CFR 424.12(g)).
In summary, we believe that the habitat within Puu Kukui WMA is
being adequately protected and managed for the conservation of the
listed Drosophila neoclavisetae, including all of its known sites and
features that are essential to its conservation that occur within this
area, and is not in need of special management considerations or
protection. Therefore, we have determined that this specific area does
not meet the definition of critical habitat pursuant to the Act, and
we, therefore, do not propose this specific area as critical habitat
for D. neoclavisetae.
Hakalau Forest National Wildlife Refuge, Kona Forest Unit, Island of
Hawaii
Lands within the U.S. Fish and Wildlife Service's Kona Forest Unit
of the Hakalau Forest National Wildlife Refuge are occupied habitat and
have the necessary features that are essential for the conservation of
Drosophila heteroneura. The Kona Forest Unit of Hakalau Forest National
Wildlife Refuge was established in 1997 to protect endangered forest
birds and their habitat. Management actions for this refuge unit are
outlined in our Conceptual Management Plan (Service 1997a--pages ii-
iii) and in our Wildland Fire Management Plan (Service 1997b--pages 2-
3). The Conceptual Management Plan for the Kona unit describes planned
management activities (Service 1997a--pages 10-13) for the area
including listed species recovery; monitoring; habitat management;
maintenance of biodiversity; alien plant control; feral ungulate
control; and wildfire management, all of which will benefit Drosophila
heteroneura and its host plants. The Hakalau Wildland Fire Management
Plan, details the Services wildfire management objectives, strategy,
responsibilities, and consultation protocol (Service 1997b--pages 11-
20), all of which will benefit D. heteroneura and its host plants.
The Hakalau Refuge has received 1.1 million dollars in Fiscal Year
2006 to enclose a large portion of the Kona Refuge unit. This project
will involve the construction of approximately 17 miles of fencing
designed to exclude pigs, sheep, and cattle. Pigs and cattle are
currently the most serious ungulate threats to this area and the
construction of this large enclosure will remove the primary threats to
D. heteroneura's host plant habitat and associated ecosystem. An
environmental assessment is currently being prepared for this project
and we expect that construction will commence sometime in late 2006 or
early 2007 (Richard Wass, Service--Refuges Division, pers. comm. 2006).
Additionally, the Kona Refuge unit has been identified as a high
priority area for recovery of the Hawaiian crow. Accordingly, we are
committed to protecting and managing this area to the best of our
ability as future funding allows. Many of the planned management
activities for the Hawaiian crow such as rat control will also benefit
the host plant habitat of D. heteroneura (Gina Shultz, Service--
Ecological Services, pers. comm. 2006). We have, therefore, determined
that this refuge land does not meet the definition of critical habitat
under section 3(5)(A) of the Act, and, therefore, are not proposing
critical habitat on the Kona Forest Unit of the Hakalau Forest National
Wildlife Refuge.
Hawaii Volcanoes National Park, Island of Hawaii
Lands within Hawaii Volcanoes National Park (HAVO) are occupied
habitat and have the necessary features that are essential for the
conservation of Drosophila heteroneura. Hawaii Volcanoes National Park
was established in 1916 to preserve the significant resources that
reflect Hawaii's geological, biological, and cultural heritage. In
recognition of its outstanding values, the park has been designated an
International Biosphere Reserve and a World Heritage Site. Management
actions for the biological resources of this park are outlined in
natural resources management plans and fire management plans (HAVO
1974--page i, 2002--pages 11-14, 2004--pages 2-6). The natural
resources plan broadly describes ongoing management activities within
the park including the reestablishment of key plant ecosystem
components of the area; the exclusion and removal of pigs and goats;
research on rat control; localized rat control and prevention; and the
control of numerous nonnative weed species, all of which benefit D.
heteroneura and its host plants (HAVO 1974--pages 2-6, 8-14, and 16-
17). The fire management plan details wildfire management objectives
and planned wildfire control within the park including the use of fire
to rehabilitate areas infested with non-native grass species infested
areas, all of which will benefit D. heteroneura once implemented (HAVO
2004--pages 11-14). Within the area containing the Thurston Lava Tube
population of D. heteroneura, the Park Service currently excludes pigs
and targets for removal certain invasive weed species including
Hedychium gardnerianum (Kahili ginger), Psidium cattleianum (strawberry
guava), Morella faya (faya tree), and Rubus ellipticus (Himalayan
raspberry) (Rhonda Loh, HAVO, pers. comm. 2006). Because the Park
Service is addressing these primary threats to D. heteroneura's host
plant habitat in this area, we have therefore, determined that this
national park land does not meet the definition of critical habitat
under section 3(5)(A) of the Act, and, therefore, are not proposing
critical habitat in Hawaii Volcanoes National Park.
[[Page 47010]]
General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process
The most direct, and potentially largest, regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation pursuant to section 7 of the Act to
ensure that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
applies only where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat. Second, it limits only destruction
or adverse modification of critical habitat. By its nature, the
prohibition on adverse modification is designed to ensure those areas
that contain the physical and biological features essential to the
conservation of the species or unoccupied areas that are essential to
the conservation of the species are not eroded to the point that the
unit does not perform its intended function. Critical habitat
designation alone, however, does not require specific steps to improve
habitat conditions.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation would be initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. Mandatory
reasonable and prudent alternatives to the proposed Federal action
would only be issued when the biological opinion results in a jeopardy
or adverse modification conclusion.
We believe the conservation achieved through implementing habitat
conservation plans (HCPs) or other habitat management plans can be
greater than would be achieved through multiple site-by-site, project-
by-project, section 7 consultations involving consideration of critical
habitat. Management plans commit resources to implement long-term
management and protection to particular habitat for at least one and
possibly other listed or sensitive species. Section 7 consultations
only commit Federal agencies to prevent adverse modification to
critical habitat caused by the particular project, and they are not
committed to provide conservation or long-term benefits to areas not
affected by the proposed project. Thus, any HCP or management plan
which considers enhancement as the management standard will provide as
much or more benefit than a consultation for critical habitat
designation conducted under the standards required by the Ninth Circuit
in the Gifford Pinchot decision.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat in that it provides the framework for the
consultation process.
Educational Benefits of Critical Habitat
A benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. ochrobasis, D.
substenoptera, and D. tarphytrichia. In general the educational benefit
of a critical habitat designation always exists, although in some cases
it may be redundant with other educational effects. For example, HCPs
have significant public input and may largely duplicate the educational
benefit of a critical habitat designation. This benefit is closely
related to a second, more indirect benefit: that designation of
critical habitat would inform State agencies and local governments
about areas that could be conserved under State laws or local
ordinances.
However, we believe that there would be little additional
informational benefit gained from the designation of critical habitat
for the exclusions we are making in this rule because these areas have
been identified and managed by the landowners as having habitat
containing the features essential to the conservation of the species.
Consequently, we believe that the informational benefits are already
provided even though these areas are not designated as critical
habitat. Additionally, the purpose normally served by the designation
of informing State agencies and local governments about areas which
would benefit from protection and enhancement of habitat for the 11
picture-wing flies is already well established among State and local
governments and Federal agencies. State and local governments and
Federal agencies have existing knowledge in those areas that we are
proposing to exclude from the final designation of critical habitat on
the basis of other existing habitat management protections.
The Service is conducting an economic analysis of the impacts of
the proposed critical habitat designation and related factors, which
will be available for public review and comment. Based on public
comment on that document, the proposed designation itself, and the
information in the final economic analysis, additional areas beyond
those identified in this assessment may be excluded from critical
habitat by the Secretary under the provisions of section 4(b)(2) of the
Act. This is provided for in the Act, and in our implementing
regulations at 50 CFR 424.19.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat.
We are considering excluding The Nature Conservancy of Hawaii's
Kamakou Preserve on Molokai and lands owned by Kamehameha Schools on
the island of Hawaii from the final designation of critical habitat
because we believe that they are appropriate for exclusion pursuant to
the ``other relevant factor'' provisions of section 4(b)(2). We
specifically solicit comment, however, on the inclusion or exclusion of
such areas.
The Nature Conservancy of Hawaii (TNCH)
The Nature Conservancy of Hawaii's Kamakou Preserve is occupied by
Drosophila differens and contains the necessary features essential to
the conservation of the species. Special management considerations and
protections for this area include active management such as nonnative
species removal and ungulate fencings. Failure to implement these
active management measures, all of which require voluntary landowner
support and participation, virtually assures the extinction of this
species. Many of these types of
[[Page 47011]]
conservation actions in the areas of Molokai are carried out as part of
TNCH's participation with landowner incentive based programs and by the
landowner's own initiative. These conservation activities, which are
described in more detail below, require substantial voluntary
cooperation by TNCH and other cooperating landowners and local
residents.
The following evaluation describes our reasoning in considering
that the benefits of excluding the lands outweigh the benefits of
including them, and that the exclusion will not result in the
extinction of the species. The Service paid particular attention to the
following issues: (1) To what extent a critical habitat designation
would confer regulatory conservation benefits on this species; (2) to
what extent the designation would educate members of the public such
that conservation efforts would be noticeably enhanced; and (3) whether
a critical habitat designation would have a positive, neutral, or
negative impact on voluntary conservation efforts on this privately
owned TNCH land, as well as other non-Federal lands on Molokai that
could contribute to the recovery of the species. If a critical habitat
designation reduces the likelihood that voluntary conservation
activities will be carried out on Molokai, and at the same time fails
to confer a counter-balancing positive regulatory or educational
benefit to the species, then the benefits of excluding such areas from
critical habitat outweigh the benefits of including them. Although the
results of this type of evaluation will vary significantly depending on
the landowners, geographic areas, and species involved, we believe the
TNCH lands on Molokai merit this evaluation.
(1) Benefits of Inclusion
The primary direct benefit of inclusion of TNCH's Kamakou Preserve
as critical habitat would result from the requirement under section 7
of the Act that Federal agencies consult with us to ensure that any
proposed Federal actions do not destroy or adversely modify critical
habitat. The benefit of a critical habitat designation would ensure
that any actions authorized, funded, or carried out by a Federal agency
would not likely destroy or adversely modify any critical habitat.
Without critical habitat, some site-specific projects might not trigger
consultation requirements under the Act in areas where species are not
currently present; in contrast, Federal actions in areas occupied by
listed species would still require consultation under section 7 of the
Act. However, these lands are already occupied habitat for Drosophila
differens. Therefore, any Federal activities that may affect these
areas will in all likelihood require section 7 consultation.
In the last 10 years, we have conducted 45 informal and 12 formal
consultations under section 7 on the entire island of Molokai. None of
these consultations involved this TNCH land. As a result of the low
level of previous Federal activity on these TNCH lands, and after
considering the future Federal activities that might occur on these
lands, it is the Service's opinion that there is likely to be a low
number of future Federal activities that would negatively affect the
species' PCEs on TNCH lands. The land is in permanent conservation
status and is not expected to be developed. Section 7 consultations are
expected to be limited to projects involving Federal funding for
conservation activities to improve the PCEs for this species, rather
than negatively impact these features. The possibility of such activity
cannot be ruled out entirely, but it can best be described as having a
low likelihood of occurrence. Therefore, we anticipate little
additional regulatory benefits from including this preserve in critical
habitat beyond what is already provided by the existing section 7 nexus
for habitat areas occupied by the listed species.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas that
are occupied by the species and contain the necessary features
essential to the conservation of the species. Information provided to a
wide audience of the public, including other parties engaged in
conservation activities, about Drosophila differens and the features
that are essential to its conservation identified on TNCH lands on
Molokai could have a positive conservation benefit. While we believe
this educational outcome is important for the conservation of this
species, we believe it has already been achieved through the existing
management, education, and public outreach efforts carried out by TNCH
and their conservation partners. TNCH has a well-developed public
outreach infrastructure that includes magazines, newsletters, and well-
publicized public events on Molokai and other areas throughout Hawaii.
These and other media provide the education benefits provided in this
proposed rule and the conservation importance of this Molokai reserve
and its conservation value for D. differens. A designation of critical
habitat would add little to this effort and would simply affirm what is
already known and widely accepted by Hawaii's conservationists, public
agencies, and much of the general public concerning the conservation
value of these lands.
The following discussion about this preserve demonstrates that the
public is already aware of the importance of this area for the
conservation of this picture-wing fly. Drosophila differens is reported
from TNCH's Kamakou Preserve, which is located in the East Molokai
Mountains. Kamakou Preserve was established by a grant of a perpetual
conservation easement from the private landowner to TNCH. This preserve
is included in the State's Natural Area Partnership (NAP) program,
which provides matching funds for the management of private lands that
have been permanently dedicated to conservation (TNCH1998a--pages 1-10,
1998b--pages 1-12).
Under the NAP program, the State of Hawaii provides matching funds
on a two-to-one basis for management of private lands dedicated to
conservation. In order to qualify for this program, the land must be
dedicated in perpetuity through transfer of fee title or a conservation
easement to the State or a cooperating entity. The land must be managed
by the cooperating entity or a qualified landowner according to a
detailed management plan approved by the Board of Land and Natural
Resources. Once approved, the 6-year partnership agreement between the
State and the managing entity is automatically renewed each year so
that there are always six years remaining in the term, although the
management plan is updated and funding amounts are reauthorized by the
board at least every six years. By April 1 of any year, the managing
partner may notify the State that it does not intend to renew the
agreement; however, in such case, the partnership agreement remains in
effect for the balance of the existing 6-year term, and the
conservation easement remains in full effect in perpetuity.
The conservation easement may be revoked by the landowner only if
State funding is terminated without the concurrence of the landowner
and cooperating entity. Prior to terminating funding, the State must
conduct one or more public hearings. The NAP program is funded through
real estate conveyance taxes, which are placed in a Natural Area
Reserve Fund. Participants in the NAP program must provide annual
reports to the Hawaii Department of Land and Natural
[[Page 47012]]
Resources (DLNR), and DLNR makes annual inspections of the work in the
reserve areas (See Haw. Rev. Stat. Secs. 195-1-195-11 and Hawaii
Administrative Rules Secs. 13-210). Management programs within Kamakou
preserve are documented in long-range management plans and yearly
operational plans. These plans detail management measures that protect,
restore, and enhance the native species and their habitats within the
preserve and in adjacent areas (TNCH 1998a--pages 1-10, 1998b--pages 1-
12). These management measures address the factors that led to the
listing of this species, including control of nonnative species of
ungulates, rodents, weeds, and fire control. In addition, habitat
restoration and monitoring are also included in these plans.
Kamakou Preserve
The primary management goals within Kamakou Preserve are to prevent
degradation of native forest by reducing feral ungulate damage,
suppressing wildfires, and improving or maintaining the integrity of
native ecosystems in selected areas of the preserve by reducing the
effects of nonnative plants. Kamakou Preserve provides occupied habitat
for one population of D. differens. Specific management actions to
address feral ungulate impacts include the construction of fences,
including strategic fencing (fences placed in proximity to natural
barriers such as cliffs); staff hunting; and implementation of
organized hunting through the Molokai Hunters Working Group. By
monitoring ungulate activity within the preserve, the staff are able to
direct hunters to problem areas (areas of high feral ungulate
densities), thereby increasing hunting success. If increased hunting
pressure does not reduce feral ungulate activity in the preserve, the
preserve staff will work with the hunting group to identify and
implement alternative methods for their control (TNCH 1998a--pages 1-
2).
The nonnative plant control program within Kamakou Preserve focuses
on habitat-modifying nonnative plants (weeds) and prioritizes their
control according to the degree of threat to native ecosystems. A weed
priority list has been compiled for the preserve, and control and
monitoring of the highest priority species are ongoing. Weeds are
controlled manually, chemically, or through a combination of both
techniques. Preventive measures (prevention protocol to keep weeds out)
are required by all who enter the preserve. This protocol includes such
things as brushing footgear before entering the preserve to remove
seeds of nonnative plants. In addition, the preserve staff are actively
promoting awareness of detrimental nonnative plants in Hawaii and their
impacts to native ecosystems in the local communities on Molokai
through public education at schools, fairs, and displays at the
airport.
Wildfire pre-suppression and response plans are coordinated with
the Maui County Fire Department and the DOFAW Maui District Forester.
The Kamakou Wildfire Management Plan is reviewed annually with the fire
department and updated as necessary (TNCH 1998b--pages 4-5). In the
event of fires in areas bordering the preserve, staff from Kamakou
assists with fire suppression in concert with Hawaii Department of
Forestry and Wildlife (DOFAW) staff. Natural resource monitoring and
research address the need to track the biological and physical
resources of the preserve and evaluate changes in these resources to
guide management programs. Vegetation is monitored throughout the
preserve to document long-term ecological changes; rare plant species
are monitored to assess population status; and, following fires on the
boundaries or within the preserve, burned areas are assessed for
ingress of weeds and recovery of native plants. In addition, the
preserve staff provides logistical support to scientists and others who
are conducting research within the preserve.
In addition, TNCH, DOFAW, the Service, and other Federal agencies
including the National Park Service, and neighboring landowners of East
Molokai's watershed areas have formed a partnership (East Molokai
Watershed Partnership) through a memorandum of understanding to ensure
the protection of over 22,000 ac (8,903 ha) of land on the island.
While the partnership is still in its infancy, the members have agreed,
in principle, to participate in cooperative management activities
within the East Molokai watershed because they believe that effective
management is best achieved through the coordinated actions of all
major landowners in the watershed.
In sum, the Service believes that a critical habitat designation
for Drosophila differens on TNCH lands on Molokai would provide a
relatively low level of additional regulatory conservation benefit to
the fly species and its PCEs beyond what is already provided by
existing section 7 consultation requirements due to the physical
presence of this species. Any minimal regulatory conservation benefits
would accrue through the benefit associated with additional section 7
consultation associated with critical habitat. Based on a review of
past consultations and consideration of the likely future activities in
this specific area, there is little Federal activity expected to occur
on this privately owned land that would trigger section 7 consultation.
The Service also believes that a critical habitat designation provides
little additional educational benefits since the conservation value is
already well known by the landowner, the State, Federal agencies,
private organizations, and the general public.
(2) Benefits of Exclusion
Proactive voluntary conservation efforts are necessary to prevent
the extinction and promote the recovery of this listed species of
picture-wing fly on Molokai (Shogren et al. 1999--page 1,260, Wilcove
and Chen 1998--page 1,407, Wilcove et al. 1998--page 614).
Consideration of this concern is especially important in areas where
species have been extirpated and their recovery requires access and
permission for reintroduction efforts (Bean 2002--page 414; Wilcove et
al. 1998--page 614). As described earlier, TNCH has a history of
entering into conservation agreements with various Federal and State
agencies and other private organizations on their lands. The Nature
Conservancy's mission is to preserve the plants, animals and natural
communities that represent the diversity of life on Earth by protecting
the lands and waters they need to survive. The Service believes that D.
differens will benefit substantially from TNCH's voluntary management
actions due to a reduction in ungulate browsing and habitat conversion,
a reduction in competition with nonnative weeds, and a reduction in
risk of fire. The conservation benefits of critical habitat are
primarily regulatory or prohibitive in nature. But on Molokai, simply
preventing ``harmful activities'' will not slow the extinction of
listed plant species (Bean 2002--pages 409, 412, 414-415, and 419-420).
Where consistent with the discretion provided by the Act, the
Service believes it is necessary to implement policies that provide
positive incentives to private landowners to voluntarily conserve
natural resources and that remove or reduce disincentives to
conservation (Wilcove et al. 1998--page 614). Thus, we believe it is
essential for the recovery of this species to build on continued
conservation activities such as these with a proven partner, and to
provide positive incentives for other private landowners on Molokai who
might be considering implementing voluntary conservation activities but
[[Page 47013]]
have concerns about incurring incidental regulatory or economic
impacts.
Approximately 80 percent of the habitat of one-half of all
imperiled species in the United States occurs partly or solely on
private lands where the Service has little management authority
(Wilcove et al. 1996--page 2). In addition, recovery actions involving
the reintroduction of listed species onto private lands require the
voluntary cooperation of the landowner (Bean 2002--pages 409, 412, 414-
415, and 419-420; James 2002--page 270; Knight 1999--page 224; Main et
al. 1999--page 1,264; Norton 2000--pages 1,221-1,222; Shogren et al.
1999--page 1,260; Wilcove et al. 1998--page 614). Therefore, ``a
successful recovery program is highly dependent on developing working
partnerships with a wide variety of entities, and the voluntary
cooperation of thousands of non-Federal landowners and others is
essential to accomplishing recovery for listed species'' (Crouse et al.
2002--page 720). Because the Federal Government owns relatively little
land on Molokai, and because large tracts of land suitable for
conservation of threatened and endangered species are mostly owned by
private landowners, successful recovery of listed species on Molokai is
especially dependent upon working partnerships and the voluntary
cooperation of non-Federal landowners.
Another benefit of excluding this area from the critical habitat
designation includes relieving additional regulatory burden and costs
associated with the preparation of portions of section 7 consultation
documents related to critical habitat. While the cost of adding these
additional sections to assessments and consultations is relatively
minor, there could be delays which can generate real costs to some
project proponents. However, because critical habitat in this case is
only proposed for occupied areas already subject to section 7
consultation and jeopardy analysis, we anticipate this reduction would
be minimal.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, we have determined that the
benefits of excluding TNCH's Kamakou Preserve from the final
designation of critical habitat outweigh the benefits of including it
as critical habitat for Drosophila differens. This conclusion is based
on the following factors:
(a) In the past, TNCH has cooperated with Federal and State
agencies, and private organizations to implement on their lands
voluntary conservation activities that have resulted in tangible
conservation benefits.
(b) Simple regulation of ``harmful activities'' is not sufficient
to conserve this species. Landowner cooperation and support is required
to prevent the extinction and promote the recovery of Drosophila
differens on Molokai due to the need to implement proactive
conservation actions such as ungulate management, weed control, and
fire suppression. Future conservation efforts, such as control of
nonnative species, will require the cooperation of TNCH and other non-
Federal landowners on Molokai. Exclusion of TNCH land from this
critical habitat designation will help the Service maintain and improve
this partnership by formally recognizing the positive contributions of
TNCH to recovery of D. differens, and by streamlining or reducing
unnecessary regulatory oversight.
(c) Given the current partnership agreements between TNCH and many
organizations, the Service believes the additional regulatory and
educational benefits of including this land as critical habitat are
relatively small. The designation of critical habitat can serve to
educate the general public as well as conservation organizations
regarding the potential conservation value of an area, but this goal is
already being accomplished through the identification of this area in
the management plans described above. Likewise, there will be little
additional Federal regulatory benefit to the species because (i) there
is a low likelihood that this area will be negatively affected to any
significant degree by Federal activities requiring section 7
consultation, and (ii) this area is already occupied by the listed
species and a section 7 nexus already exists. The Service is unable to
identify any other potential benefits associated with critical habitat
for this TNCH preserve.
(d) It is well documented that publicly owned lands and lands owned
by conservation organizations such as TNCH, alone, are too small and
poorly distributed to provide for the conservation of most listed
species (Bean 2002--pages 409, 412, 414-415, and 419-420; Crouse et al.
2002--page 720). Excluding this TNCH land from critical habitat may, by
way of example, provide positive incentives to other non-Federal
landowners on Molokai who own lands that could contribute to listed
species recovery if voluntary conservation measures on these lands are
implemented (Norton 2000--pages 1,221-1,222; Main et al. 1999--page
1,263; Shogren et al. 1999--page 1,260; Wilcove and Chen 1998--page
1,407). As resources and nondiscretionary workload allow, the Service
will consider future revisions or amendments to this proposed critical
habitat rule if landowners affected by this rule develop conservation
programs or partnerships such that the Service can find the benefits of
exclusion outweigh the benefits of inclusion.
In conclusion, we find that the exclusion of critical habitat on
TNCH's Kamakou Preserve from the final designation of critical habitat
of Drosophila differens, would most likely have a net positive
conservation effect on the recovery and conservation of the species and
the features essential to its conservation when compared to the
positive conservation effects of a critical habitat designation. As
described above, the overall benefits to this species of a critical
habitat designation for this TNCH area is relatively small. In
contrast, we believe that this exclusion will enhance our existing
partnership with TNCH, and it will set a positive example and provide
positive incentives to other non-Federal landowners who may be
considering implementing voluntary conservation activities on their
lands. We conclude there is a higher likelihood of beneficial
conservation activities occurring in this and other areas of Molokai
without designated critical habitat than there would be with designated
critical habitat in this TNCH preserve and, therefore, we are proposing
to exclude these lands from the final designation of critical habitat
for D. differens.
(4) Exclusion of This Unit Will Not Cause Extinction of the Species
If this proposed exclusion is made final in our final critical
habitat designation, no specific areas will be designated as critical
habitat for Drosophila differens. In considering whether or not
exclusion of this preserve might result in the extinction of Drosophila
differens the Service first considered the impacts to this species. It
is the Service's conclusion that the TNCH's mission and management
plans will provide as much or more net conservation benefits as would
be provided if this preserve was designated as critical habitat. These
management plans, which are described above, will provide tangible
proactive conservation benefits that will reduce the likelihood of
extinction for D. differens in this area of Molokai and increase the
likelihood of its recovery. Extinction for this species as a
consequence of this exclusion is unlikely because there are no known
threats in these preserves due to any current or reasonably anticipated
Federal actions that might be regulated under section 7 of the Act.
Further, this
[[Page 47014]]
area is already occupied by D. differens and thereby receives benefits
from the section 7 protections of the Act, should such an unlikely
Federal threat actually materialize. The exclusion of this preserve
from the final designation of critical habitat will not increase the
risk of extinction to this species, and it may increase the likelihood
this species will recover by encouraging other landowners to implement
voluntary conservation activities as TNCH has done.
In sum, the Service finds that the benefits of excluding TNCH's
Kamakou Preserve from critical habitat outweighs the benefits of
including the area, and the proposed exclusion will not result in the
extinction of the species because there are no known threats in these
preserves due to any current or anticipated Federal actions.
Kamehameha Schools
Lands owned by Kamehameha Schools are within three proposed units
(Drosophila heteroneura--Unit 5--Gaspar's Dairy, D. heteroneura--Unit
6--Kipuka at 4,900', and D. heteroneura--Unit 7--Pit Crater) and are
occupied habitat with the features essential to the conservation of
Drosophila heteroneura. Active management such as fire control,
nonnative species removal, and ungulate fencing within these three
units will benefit D. heteroneura. Failure to implement these active
management measures, all of which require voluntary landowner support
and participation, virtually assures the extirpation of D. heteroneura
from these areas. Many of these types of conservation actions on the
island of Hawaii are carried out as part of Kamehameha School's
participation with landowner incentive based programs and by actions
taken on the landowner's initiative. These activities, which are
described in more detail below, require substantial voluntary
cooperation by Kamehameha Schools and other cooperating landowners and
local residents.
The following analysis describes the likely conservation benefits
of a critical habitat designation compared to the conservation benefits
without critical habitat designation. We paid particular attention to
the following issues: To what extent a critical habitat designation
would confer regulatory conservation benefits on this species; to what
extent the designation would educate members of the public such that
conservation efforts would be enhanced; and whether a critical habitat
designation would have a positive, neutral, or negative impact on
voluntary conservation efforts on this privately owned land as well as
other non-Federal lands on the island of Hawaii that could contribute
to recovery. If a critical habitat designation reduces the likelihood
that voluntary conservation activities will be carried out on the
island of Hawaii, and at the same time, fails to confer a
counterbalancing positive regulatory or educational benefit to the
species, then the benefits of excluding such areas from critical
habitat outweigh the benefits of including them. Although the results
of this type of evaluation will vary significantly depending on the
landowners, geographic areas, and the species involved, we believe the
Kamehameha Schools lands on the island of Hawaii merit this evaluation.
(1) Benefits of Inclusion
Critical habitat is proposed for Drosophila heteroneura in three
units (see above) on lands owned by Kamehameha Schools. The primary
direct benefit of inclusion of Kamehameha Schools' lands as critical
habitat would result from the requirement under section 7 of the Act
that Federal agencies consult with us to ensure that any proposed
Federal actions do not destroy or adversely modify critical habitat.
The benefit of a critical habitat designation would ensure that any
actions funded by or permits issued by a Federal agency would not
likely destroy or adversely modify any critical habitat. Without
critical habitat, some site-specific projects might not trigger
consultation requirements under the Act in areas where the species is
not currently present; in contrast, Federal actions in areas occupied
by listed species would still require consultation under section 7 of
the Act. However, these lands are already occupied habitat for D.
heteroneura. Therefore, any Federal activities that may affect these
areas will in all likelihood require section 7 consultation.
Historically, we have conducted no formal or informal consultations
under section 7 on the island of Hawaii on these three areas owned by
Kamehameha Schools. Each of these three areas are part of a larger
parcel owned by Kamehameha Schools and on which are reported other
listed species (both plants and animals). As a result of the low level
of previous Federal activity on these Kamehameha Schools lands, and
after considering that the likely future Federal activities that might
occur on these lands would be minimal and associated with Federal
funding for conservation activities, it is our opinion that there is
likely to be a low number of future Federal activities that would
negatively affect D. heteroneura habitat on Kamehameha Schools lands.
Therefore, we anticipate little additional regulatory benefit from
including the Kamehameha Schools lands in critical habitat beyond what
is already provided for by the existing section 7 nexus for habitat
areas occupied by the listed species.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas that
are occupied by the species and contain the necessary features
essential to the conservation of the species. Information provided to a
wide audience of the public, including other parties engaged in
conservation activities, about Drosophila heteroneura and the features
that are essential to its conservation and identified on Kamehameha
Schools lands on the island of Hawaii could have a positive
conservation benefit. While we believe this educational outcome is
important for the conservation of this species, we believe it has
already been achieved through existing management, education, and
public outreach efforts carried out by Kamehameha Schools.
(2) Benefits of Exclusion
Proactive voluntary conservation efforts are necessary to prevent
the extinction and promote the recovery of Drosophila heteroneura on
the island of Hawaii (Shogren et al. 1991--page 1,260; Wilcove and Chen
1998--page 1,407; Wilcove et al. 1998--page 614). Consideration of this
concern is especially important in areas where the species has been
extirpated and its recovery may require access and permission for
reintroduction efforts (Bean 2002--page 414; Wilcove et al. 1998--page
614). For example, D. heteroneura has been extirpated from many of its
historical locations, including on other Kamehameha Schools lands, and
reestablishment is likely not possible without human assistance and
landowner cooperation.
Kamehameha Schools are involved in several important voluntary
conservation agreements and are currently carrying out some management
activities which contribute to the conservation of this species. They
have developed two programs that demonstrate their conservation
commitments, Aina Ulu and Malama Aina. The Aina Ulu program implements
land-based education programs, whereas Malama Aina
[[Page 47015]]
delivers focused stewardship of natural resources. Malama Aina has been
focused in two distinct areas, Keauhou in Kau District and North-South
Kona, with a budget commitment in 2002 of $1,000,000, not including
staff expenses.
Kamehameha Schools North-South Kona natural resource conservation
efforts focus on three distinct areas: Honaunau Forest and Honaunau
Uka, Kaupulehu Kauila Lama Forest and Kaupulehu Uka, and Pulehua. One
proposed unit (Drosophila heteroneura--Unit 5--Gaspar's Dairy) is
located in the Honaunau Forest and Honaunau Uka area while a second
proposed unit (D. heteroneura--Unit 7--Pit Crater) is located in the
Kaupulehu Kauila Lama Forest and Kaupulehu Uka area. Kamehameha Schools
started a weed control program in 2002 in Honaunau Forest and Honaunau
Uka. In both the Forest and Uka areas, they will continue the weed
control program, along with a timber certification program to write
certifiable plans and complete inventories. In the Honaunau Uka area,
they will construct an ungulate exclosure fence and issue a contract
for a botanical survey. Funds allocated for the implementation of these
projects total $52,500 to Honaunau Forest and $29,500 to Honaunau Uka.
Conservation activities in the Aina Ulu program at Kaupulehu Kauila
Lama Forest include an intern program, an outreach coordinator,
multimedia curriculum development, small mammal and weed control. Funds
allocated for these projects total $70,700.
Malama Aina projects at Kaupulehu Uka include timber certification,
large mammal and weed control, ungulate exclosure fencing, inventory,
monitoring and data analysis of conservation actions and road
maintenance. Funds allocated for those projects total $101,000.
Partners include Hawaii Forest Industry Association, the Service,
DOFAW, local residents, PIA Sports Properties (lessee), U.S. Forest
Service, National Tropical Botanical Garden (lessee), and Honokaa High
School.
A third proposed unit (Drosophila heteroneura--Unit 6--Kipuka at
4,900 ft) is located near Puu Lehua, an area that is under development
for protection and restoration of 6,000 ac (2,428 ha) of native forest
habitat through fencing and feral ungulate control. Future additional
management actions that are planned in this area include additional
fencing, control and removal of nonnative species, fire prevention, and
reintroduction of rare and listed species (Hawaiian Silversword
Foundation 2006--page 1).
As described earlier, Kamehameha Schools has a history of entering
into conservation agreements with various Federal and State agencies
and private organizations on biologically important portions of their
lands. These arrangements have taken a variety of forms. They include
partnership commitments such as the Dryland Forest Working Group which
provides assistance in managing the Kaupulehu Kauila Lama Forest and
Kaupulehu Uka area. Drosophila heteroneura will benefit substantially
from their voluntary management actions because of a reduction in
ungulate browsing and habitat conversion, a reduction in competition
with nonnative weeds, and a reduction in risk of fire.
The conservation benefits of critical habitat are primarily
regulatory or prohibitive in nature. But on the island of Hawaii,
simply preventing ``harmful activities'' will not slow the extinction
of listed species including Drosophila heteroneura. Where consistent
with the discretion provided by the Act, we believe it is necessary to
implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources, and that remove
or reduce disincentives to conservation (Michael 2001--pages 34 and 36-
37). Thus, we believe it is essential for the recovery of D.
heteroneura to build on continued conservation activities, such as
these with a proven partner, and to provide incentives for other
private landowners on the island of Hawaii who might be considering
implementing voluntary conservation activities but have concerns about
incurring incidental regulatory or economic impacts.
Approximately 80 percent of imperiled species in the United States
occur partly or solely on private lands where the Service has little
management authority (Wilcove et al. 1996 page 2). In addition,
recovery actions involving the reintroduction of listed species onto
private lands require the voluntary cooperation of the landowner (Bean
2002--page 414; James 2002--page 270; Knight 1999--page 224; Main et
al. 1999--page 1,263; Norton 2000--pages 1,221-1,222; Shogren et al.
1999--page 1,260; Wilcove et al. 1998--page 614). Therefore, ``a
successful recovery program is highly dependent on developing working
partnerships with a wide variety of entities, and the voluntary
cooperation of thousands of non-Federal landowners and others is
essential to accomplishing recovery for listed species'' (Crouse et al.
2002--page 720).
Because large tracts of land suitable for conservation of
threatened and endangered species are mostly owned by private
landowners, successful recovery of listed species on the island of
Hawaii is especially dependent upon working partnerships and the
voluntary cooperation of private landowners.
Another benefit of excluding these areas from the critical habitat
designation includes relieving additional regulatory burden and costs
associated with the preparation of portions of section 7 consultation
documents related to critical habitat. While the cost of adding these
additional sections to assessments and consultations is relatively
minor, there could be delays which can generate real costs to some
project proponents. However, because critical habitat in this case is
only proposed for occupied areas already subject to section 7
consultation and jeopardy analysis, we anticipate that this reduction
would be minimal.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, we have determined that the
benefits of excluding lands owned by Kamehameha Schools from the final
designation of critical habitat for Drosophila heteroneura outweigh the
benefits of including them as critical habitat. This conclusion is
based on the following factors:
(a) In the past, Kamehameha Schools has cooperated with Federal and
State agencies, and private organizations to implement on their lands
voluntary conservation activities that have resulted in tangible
conservation benefits.
(b) Simple regulation of ``harmful activities'' is not sufficient
to conserve these species. Landowner cooperation and support is
required to prevent the extinction and promote the recovery of all of
the listed species on this island, because of the need to implement
proactive conservation actions such as ungulate management, weed
control, and fire suppression. This need for landowner cooperation is
especially acute because the three proposed units (Gaspar's Dairy, Pit
Crater, and Kipuka at 4,900 ft) are occupied by Drosophila heteroneura.
In addition, many previously occupied D. heteroneura habitat sites on
other Kamehameha Schools lands remain unoccupied by this species.
Future conservation efforts, such as translocation of this species back
into unoccupied habitat on these lands, will require the cooperation of
Kamehameha Schools. Exclusion of Kamehameha Schools lands from the
final designation of critical habitat will
[[Page 47016]]
help the Service maintain and improve this partnership by formally
recognizing the positive contributions of Kamehameha Schools to rare
species recovery, and by streamlining or reducing unnecessary
oversight.
(c) Given the current partnership agreements between Kamehameha
Schools and many other organizations, we believe the benefits of
including Kamehameha Schools lands as critical habitat are relatively
small. The designation of critical habitat can serve to educate the
general public as well as conservation organizations regarding the
potential conservation value of an area, but this goal is already being
accomplished through the identification of this area in the management
agreements described above. Likewise, there will be little Federal
regulatory benefit to the species because: (i) There is a low
likelihood that these three proposed critical habitat units will be
negatively affected to any significant degree by Federal activities
requiring section 7 consultation, and (ii) these areas are already
occupied by the species and a section 7 nexus already exists. We are
unable to identify any other potential benefits associated with
critical habitat for these proposed units.
(d) We believe it is necessary to establish positive working
relationships with representatives of the Native Hawaiian community.
This approach of excluding critical habitat and entering into a
mutually agreeable conservation partnership strengthens this
relationship and should lead to conservation benefits beyond the
boundaries of Kamehameha Schools land. It is an important long-term
conservation goal of the Service to work cooperatively with the Native
Hawaiian community to help recover Hawaii's endangered species. This
partnership with Kamehameha Schools is an important step toward this
goal.
(e) It is well documented that publicly owned lands and lands owned
by private organizations alone are too small and poorly distributed to
provide for the conservation of most listed species (Bean 2002--pages
409, 412, 414-415, and 419-420; Crouse et al. 2002--page 720).
Excluding these Kamehameha Schools lands from critical habitat may, by
way of example, provide positive social, legal, and economic incentives
to other non-Federal landowners on the island of Hawaii who own lands
that could contribute to listed species recovery if voluntary
conservation measures on these lands are implemented (Norton 2000--
pages 1,221-1,222; Main et al. 1999--page 1,263; Shogren et al. 1999--
page 1,260; Wilcove and Chen 1998--page 1,407).
In conclusion, we find that the exclusion of lands owned by
Kamehameha Schools from the final designation of critical habitat would
most likely have a net positive conservation effect on the recovery and
conservation of Drosophila heteroneura when compared to the positive
conservation effects of a critical habitat designation. As described
above, the overall benefits to this species of a critical habitat
designation on Kamehameha Schools lands are relatively small. In
contrast, we believe this exclusion will enhance our existing
partnership with Kamehameha Schools, and it will set a positive example
and provide positive incentives to other non-Federal landowners who may
be considering implementing voluntary conservation activities on their
lands. We conclude there is a greater likelihood of beneficial
conservation activities occurring in these and other areas of the
island of Hawaii without designated critical habitat than there would
be with designated critical habitat on these Kamehameha Schools lands.
(4) Exclusion of This Unit Will Not Cause Extinction of the Species
In considering whether or not exclusion of Kamehameha Schools lands
from the final designation of critical habitat for Drosophila
heteroneura, we first considered the impacts to the species. The
agreements described above will provide tangible proactive conservation
benefits that will reduce the likelihood of extinction for the species
in these areas of the island of Hawaii and increase the likelihood of
its recovery. Extinction of this species as a consequence of this
proposed exclusion is unlikely because there are no known threats in
the proposed units due to any current or reasonably anticipated Federal
actions that might be regulated under section 7 of the Act. Further,
these areas are already occupied by the species and thereby benefit
from the section 7 protections of the Act, should such an unlikely
Federal threat actually materialize.
The exclusion of these Kamehameha Schools lands will not increase
the risk of extinction to the species, and it may increase the
likelihood the species will recover by encouraging other landowners to
implement voluntary conservation activities as Kamehameha Schools has
done. In addition, critical habitat is being proposed on other areas of
the island of Hawaii for this species (Kau Forest, Pauahi, Waiea, and
Waihaka Gulch units) within its historical range. In sum, the above
analysis concludes that the proposed exclusion of Kamehameha Schools
lands from the final designation of critical habitat on the island of
Hawaii will have a net beneficial impact with little risk of negative
impacts. Therefore, the exclusion of the Kamehameha Schools lands will
not cause extinction and should in fact improve the chances of recovery
for Drosophila heteroneura.
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for 11 species of Hawaiian picture-wing flies is being prepared. We
will announce the availability of the draft economic analysis as soon
as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://www.fws.gov/pacificislands, or by contacting the Pacific Islands Fish and Wildlife
Office directly (see ADDRESSES section).
Peer Review
In accordance with the December 16, 2004, Office of Management and
Budget's ``Final Information Quality Bulletin for Peer Review,'' we
will obtain comments from at least three independent scientific
reviewers regarding the scientific data and interpretations contained
in this proposed rule. The purpose of such review is to ensure that our
critical habitat decision is based on scientifically sound data,
assumptions, and analyses. We have posted our proposed peer review plan
on our Web site at http://www.fws.gov/midwest/Science/. Public comments
on our peer review were obtained through May 26, 2006, after which we
finalized our peer review plan and selected peer reviewers. We will
provide those reviewers with copies of this proposal as well as the
data used in the proposal. Peer reviewer comments that are received
during the public comment period will be considered as we make our
final decision on this proposal, and substantive peer reviewer comments
will be specifically discussed in the final rule.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register.
[[Page 47017]]
Such requests must be made in writing and be addressed to the Field
Supervisor at the address in the ADDRESSES section above.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical language or jargon that interferes with its clarity? (3) Does
the format of the proposed rule (grouping and order of the sections,
use of headings, paragraphing, and so forth) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into more
(but shorter) sections? (5) Is the description of the rule in the
SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the proposed rule? What else could we do to make this
proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240. You also may e-mail your comments to this address:
[email protected].
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule. We
are preparing a draft economic analysis of this proposed action, which
will be available for public comment, to determine the economic
consequences of designating the specific area as critical habitat. This
economic analysis also will be used to determine compliance with
Executive Order 12866, Regulatory Flexibility Act, Small Business
Regulatory Enforcement Fairness Act, and Executive Order 12630.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Since the determination of critical habitat is a
statutory requirement pursuant to the Act, we must then evaluate
alternative regulatory approaches, where feasible, when promulgating a
designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are listed
above in the section on Section 7 Consultation. The availability of the
draft economic analysis will be announced in the Federal Register and
in local newspapers so that it is available for public review and
comments. The draft economic analysis can be obtained from the Internet
Web site at http://www.fws.gov/pacificislands or by contacting the
Pacific Islands Fish and Wildlife Office directly (see ADDRESSES
section).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA
and Executive Order 12866. This draft economic analysis will provide
the required factual basis for the RFA finding. Upon completion of the
draft economic analysis, the Service will publish a notice of
availability of the draft economic analysis of the proposed designation
and reopen the public comment period for the proposed designation. The
Service will include with the notice of availability, as appropriate,
an initial regulatory flexibility analysis or a certification that the
rule will not have a significant economic impact on a substantial
number of small entities accompanied by the factual basis for that
determination. The Service has concluded that deferring the RFA finding
until completion of the draft economic analysis is necessary to meet
the purposes and requirements of the RFA. Deferring the RFA finding in
this manner will ensure that the Service makes a sufficiently informed
determination based on adequate economic information and provides the
necessary opportunity for public comment.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for 11 species of
Hawaiian picture-wing flies is a significant regulatory action under
Executive Order 12866 in that it may raise novel legal and policy
issues, however, and it is not expected to significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation,
[[Page 47018]]
statute or regulation that would impose an enforceable duty upon State,
local, tribal governments, or the private sector and includes both
``Federal intergovernmental mandates'' and ``Federal private sector
mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. The lands being proposed for critical habitat
designation are owned by the State of Hawaii or private citizens. None
of these entities fit the definition of ``small governmental
jurisdiction.'' As such, a Small Government Agency Plan is not
required. We will, however, further evaluate this issue as we conduct
our economic analysis and as appropriate, review and revise this
assessment as warranted.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in Hawaii. The designation of critical habitat in areas
currently occupied by the 11 species of picture-wing flies may affect
Federal actions and would have little incremental impact on State and
local governments and their activities. The designation may have some
benefit to these governments in that the areas that contain the
features essential to the conservation of the species are more clearly
defined, and the primary constituent elements of the habitat necessary
to the conservation of the species are specifically identified. Thus it
may assist these local governments in long-range planning (rather than
waiting for case-by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Endangered Species Act. This
proposed rule uses standard property descriptions and identifies the
primary constituent elements within the proposed areas to assist the
public in understanding the habitat needs of the 11 species of Hawaiian
picture-wing flies.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's requirement at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a Government-to-Government basis. We are not proposing to
designate critical habitat for these species on Tribal lands as defined
in the above documents. Additionally, the proposed designation does not
contain any lands that we have identified as impacting Tribal trust
resources.
References Cited
A complete list of all references cited in this rule is available
upon request from the Field Supervisor, Pacific Islands Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The author of this document is the staff of the Fish and Wildlife
Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
[[Page 47019]]
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Drosophila aglaia, D.
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D.
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia'' under ``INSECTS'' in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects
* * * * * * *
Fly, Hawaiian picture-wing....... Drosophila aglaia... U.S.A. (HI)........ NA................. E 756 17.95(h) NA
Fly, Hawaiian picture-wing....... Drosophila differens U.S.A. (HI)........ NA................. E 756 17.95(h) NA
Fly, Hawaiian picture-wing....... Drosophila hemipeza. U.S.A. (HI)........ NA................. E 756 17.95(h) NA
Fly, Hawaiian picture-wing....... Drosophila U.S.A. (HI)........ NA................. E 756 17.95(h) NA
heteroneura.
Fly, Hawaiian picture-wing....... Drosophila U.S.A. (HI)........ NA................. E 756 17.95(h) NA
montgomeryi.
Fly, Hawaiian picture-wing....... Drosophila mulli.... U.S.A. (HI)........ NA................. T 756 17.95(h) NA
Fly, Hawaiian picture-wing....... Drosophila U.S.A. (HI)........ NA................. E 756 17.95(h) NA
musaphilia.
* * * * * * *
Fly, Hawaiian picture-wing....... Drosophila obatai... U.S.A. (HI)........ NA................. E 756 17.95(h) NA
Fly, Hawaiian picture-wing....... Drosophila U.S.A. (HI)........ NA................. E 756 17.95(h) NA
ochrobasis.
Fly, Hawaiian picture-wing....... Drosophila U.S.A. (HI)........ NA................. E 756 17.95(h) NA
substenoptera.
Fly, Hawaiian picture-wing....... Drosophila U.S.A. (HI)........ NA................. E 756 17.95(h) NA
tarphytrichia.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(i), by adding critical habitat for
``Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. ochrobasis, D.
substenoptera, and D. tarphytrichia'' in the same alphabetical order in
which these species appear in the table in Sec. 17.11(h) under
``INSECTS'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
* * * * *
Drosophila aglaia
(1) Critical habitat units are depicted for County of Honolulu,
Oahu, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Dry to mesic, lowland, Diospyros sp., ohia and koa forest; and
(ii) The larval host plant Urera glabra.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: Map 1 (index map of critical habitat units for Drosophila
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D.
mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and
D. tarphytrichia) follows:
BILLING CODE 4310-55-P
[[Page 47020]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.000
(6) Drosophila aglaia--Unit 1--Palikea, City and County of
Honolulu, Island of Oahu, Hawaii.
(i) Drosophila aglaia--Unit 1--Palikea: 593273, 2367958; 593273,
2368022; 593337, 2368022; 593337, 2367958.
(ii) Note: Map 2 of Drosophila aglaia--Unit 1--Palikea follows:
[[Page 47021]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.001
[[Page 47022]]
Drosophila differens
(1) Critical habitat is depicted for County of Maui, island of
Molokai, Hawaii, on the map below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Wet, montane, ohia forest; and
(ii) The larval host plants Clermontia arborescens ssp. waihiae, C.
granidiflora ssp. munroi, C. oblongifolia ssp. brevipes, and C.
pallida.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) The critical habitat unit is described below. Coordinates are
in Universal Transverse Mercator (UTM) Zone 4 with units in meters
using North American Datum of 1983 (NAD83).
(5) Note: For an index map of the critical habitat unit for
Drosophila differens and 10 other Hawaiian picture-wing fly species,
see paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila differens--Unit 1--Puu Kolekole, Maui County, Island
of Molokai, Hawaii.
(i) Drosophila differens--Unit 1--Puu Kolekole: 718406, 2335494;
718406, 2335558; 718470, 2335558; 718470, 2335494.
(ii) Note: Map 1 of Drosophila differens--Unit 1--Puu Kolekole
follows:
[[Page 47023]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.002
[[Page 47024]]
Drosophila hemipeza
(1) Critical habitat units are depicted for County of Honolulu,
Oahu, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Dry to mesic, lowland, ohia and koa forest; and
(ii) The larval host plants Cyanea angustifolia, C. calycina, C.
grimesiana ssp. grimesiana, C. grimesiana ssp. obatae, C. membranacea,
C. pinnatifida, C. sessifolia, C. superba ssp. superba, Lobelia
hypoleuca, L. hiihauensis, L. yuccoides, and Urera kaalae.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
hemipeza and 10 other Hawaiian picture-wing fly species, see paragraph
(5) of the critical habitat entry for D. aglaia.
(6) Drosophila hemipeza--Unit 1--Makaha Valley East, City and
County of Honolulu, Island of Oahu, Hawaii.
(i) Drosophila hemipeza--Unit 1--Makaha Valley East: 587461,
2377992; 587461, 2378055; 587524, 2378055; 587524, 2377992.
(ii) Note: Map 1 of Drosophila hemipeza--Unit 1-Makaha Valley East
follows:
[[Page 47025]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.003
(7) Drosophila hemipeza--Unit 2--Palikea, City and County of
Honolulu, Island of Oahu, Hawaii.
(i) Drosophila hemipeza--Unit 2--Palikea: 593273, 2367958; 593273,
2368022; 593337, 2368022; 593337, 2367958.
(ii) Note: Map 2 of Drosophila hemipeza--Unit 2--Palikea follows:
[[Page 47026]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.004
[[Page 47027]]
Drosophila heteroneura
(1) Critical habitat units are depicted for County of Hawaii,
island of Hawaii, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Mesic to wet, montane, ohia and koa forest; and
(ii) The larval host plants Cheirodendron trigynum ssp. trigynum,
C. clermontioides, C. hawaiiensis, C. kohalae, C. lindseyana, C.
montis-loa, C. paviflora, C. peleana, and C. pyrularia.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are depicted for County of Hawaii,
island of Hawaii, Hawaii, on the maps below.
(5) Note: For an index map of critical habitat units for Drosophila
heteroneura and 10 other Hawaiian picture-wing fly species, see
paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila heteroneura--Unit 1--Kau Forest Reserve, Hawaii
County, Island of Hawaii, Hawaii.
(i) Drosophila heteroneura--Unit 1--Kau Forest Reserve: 858986,
2130883; 858986, 2130947; 859050, 2130947; 859050, 2130883.
(ii) Note: Map 1 of Drosophila heteroneura--Unit 1--Kau Forest
Reserve follows:
[[Page 47028]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.005
(7) Drosophila heteroneura--Unit 2--Pauahi, Hawaii County, Island
of Hawaii, Hawaii.
(i) Drosophila heteroneura--Unit 2--Pauahi: 833211, 2159779;
833211, 2159843; 833275, 2159843; 833275, 2159779.
(ii) Note: Map 2 of Drosophila heteroneura--Unit 2--Pauahi follows:
[[Page 47029]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.006
(8) Drosophila heteroneura--Unit 3--Waiea, Hawaii County, Island of
Hawaii, Hawaii.
(i) Drosophila heteroneura--Unit 3--Waiea: 836184, 2144180; 836184,
2144244; 836248, 2144244; 836248, 2144180.
(ii) Note: Map 3 of Drosophila heteroneura--Unit 3--Waiea follows:
[[Page 47030]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.007
(9) Drosophila heteroneura--Unit 4--Waihaka Gulch, Hawaii County,
Island of Hawaii, Hawaii.
(i) Drosophila heteroneura--Unit 4--Waihaka Gulch: 868655, 2138565;
868655, 2138629; 868718, 2138629; 868718, 2138565.
(ii) Note: Map 4 of Drosophila heteroneura--Unit 4--Waihaka Gulch
follows:
[[Page 47031]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.008
(10) Drosophila heteroneura--Unit 5--Gaspar's Dairy, Hawaii County,
Island of Hawaii, Hawaii.
(i) Drosophila heteroneura--Unit 5--Gaspar's Dairy: 833811,
2157064; 833811, 2157128; 833875, 2157128; 833875, 2157064.
(ii) Note: Map 5 of Drosophila heteroneura--Unit 5--Gaspar's Dairy
follows:
[[Page 47032]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.009
(11) Drosophila heteroneura--Unit 6--Kipuka at 4,900 ft, Hawaii
County, Island of Hawaii, Hawaii.
(i) Drosophila heteroneura--Unit 6--Kipuka at 4,900 ft: 835692,
2166366; 835692, 2166430; 835756, 2166430; 835756, 2166366.
(ii) Note: Map 6 of Drosophila heteroneura--Unit 6--Kipuka at 4,900
ft follows:
[[Page 47033]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.010
(12) Drosophila heteroneura--Unit 7--Pit Crater, Hawaii County,
Island of Hawaii, Hawaii.
(i) -- heteroneura--Unit 7--Pit Crater: 820293, 2185168; 820293,
2185232; 820357, 2185232; 820357, 2185168.
(ii) Note: Map 7 of Drosophila heteroneura--Unit 7--Pit Crater
follows:
[[Page 47034]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.011
(13) Drosophila heteroneura--Kona Refuge, Hawaii County, Island of
Hawaii, Hawaii, was considered but not proposed for critical habitat.
Note: Map 8 of Drosophila heteroneura--Kona Refuge follows:
[[Page 47035]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.012
(14) Drosophila heteroneura--Thurston Lava Tube, Hawaii County,
Island of Hawaii, Hawaii, was considered but not proposed for critical
habitat. Note: Map 9 of Drosophila heteroneura--Thurston Lava Tube
follows:
[[Page 47036]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.013
[[Page 47037]]
Drosophila montgomeryi
(1) Critical habitat units are depicted for County of Honolulu,
Oahu, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Dry to mesic, lowland, diverse ohia and koa forest; and
(ii) The larval host plant Urera kaalae.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
montgomeryi and 10 other Hawaiian picture-wing fly species, see
paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila montgomeryi--Unit 1--Kaluaa Gulch, City and County
of Honolulu, Island of Oahu, Hawaii.
(i) Drosophila montgomeryi--Unit 1--Kaluaa Gulch: 593285, 2373778;
593285, 2373842; 593348, 2373842; 593348, 2373778.
(ii) Note: Map 1 of Drosophila montgomeryi--Unit 1--Kaluaa Gulch
follows:
[[Page 47038]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.014
(7) Drosophila montgomeryi--Unit 2--Palikea, City and County of
Honolulu, Island of Oahu, Hawaii.
(i) Drosophila montgomeryi--Unit 2--Palikea: 593273, 2367958;
593273, 2368022; 593337, 2368022; 593337, 2367958.
(ii) Note: Map 2 of Drosophila montgomeryi--Unit 2--Palikea
follows:
[[Page 47039]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.015
[[Page 47040]]
Drosophila mulli
(1) Critical habitat units are depicted for County of Hawaii,
island of Hawaii, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Wet, montane, ohia forest; and
(ii) The larval host plant Pritchardia beccariana.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
mulli and 10 other Hawaiian picture-wing fly species, see paragraph (5)
of the critical habitat entry for D. aglaia.
(6) Drosophila mulli--Unit 1--Olaa Forest, Hawaii County, Island of
Hawaii, Hawaii.
(i) Drosophila mulli--Unit 1--Olaa Forest: 898368, 2155813; 898368,
2155877; 898432, 2155877; 898432, 2155813.
(ii) Note: Map 1 of Drosophila mulli--Unit 1--Olaa Forest follows:
[[Page 47041]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.016
(7) Drosophila mulli--Unit 2--Waiakea Forest, Hawaii County, Island
of Hawaii, Hawaii.
(i) Drosophila mulli--Unit 2--Waiakea Forest: 896950, 218903;
896950, 2168967; 897014, 2168967; 897014, 2168903.
(ii) Note: Map 2 of Drosophila mulli--Unit 2--Waiakea Forest
follows:
[[Page 47042]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.017
[[Page 47043]]
Drosophila Musaphilia
(1) Critical habitat is depicted for County of Kauai, Kauai,
Hawaii, on the map below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Mesic, montane, ohia and koa forest; and
(ii) The larval host plant Acacia koa.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) The critical habitat unit is described below. Coordinates are
in Universal Transverse Mercator (UTM) Zone 4 with units in meters
using North American Datum of 1983 (NAD83).
(5) Note: For an index map of the critical habitat units for
Drosophila musaphilia and 10 other Hawaiian picture-wing fly species,
see paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila musaphilia--Unit 1--Waimea Canyon Road at 2600 ft,
Kauai County, Island of Kauai, Hawaii.
(i) Drosophila musaphilia--Unit 1--Waimea Canyon Road at 2600 ft:
431443, 2437498; 431443, 2437561; 431506, 2437561; 431506, 2437498.
(ii) Note: Map 1 of Drosophila musaphilia--Unit 1--Waimea Canyon
Road at 2,600 ft follows:
[[Page 47044]]
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[[Page 47045]]
Drosophila obatai
(1) Critical habitat is depicted for County of Honolulu, Oahu,
Hawaii, on the map below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Dry to mesic, lowland, ohia and koa forest; and
(ii) The larval host plant Pleomele forbesii.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) The critical habitat unit is described below. Coordinates are
in Universal Transverse Mercator (UTM) Zone 4 with units in meters
using North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
obatai and 10 other Hawaiian picture-wing fly species, see paragraph
(5) of the critical habitat entry for D. aglaia.
(6) Drosophila obatai--Unit 1--Wailupe, City and County of
Honolulu, Island of Oahu, Hawaii.
(i) Drosophila obatai--Unit 1--Wailupe: 628839, 2358049; 628839,
2358112; 628903, 2358112; 628903, 2358049.
(ii) Note: Map 1 of Drosophila obatai--Unit 1--Wailupe follows:
[[Page 47046]]
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[[Page 47047]]
Drosophila ochrobasis
(1) Critical habitat units are depicted for County of Hawaii,
island of Hawaii, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Mesic to wet, montane, ohia, koa, and Cheirodendron sp. forest;
and
(ii) The larval host plants Clermontia calophylla, C.
clermontioides, C. drepanomorpha, C. hawaiiensis, C. kohalae, C.
lindseyana, C. montis-loa, C. parviflora, C. peleana, C. pyrularia, C.
waimeae, Myrsine lessertiana, and M. sandwicensis.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
ochrobasis and 10 other Hawaiian picture-wing fly species, see
paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila ochrobasis--Unit 1--Kipuka 14, Hawaii County, Island
of Hawaii, Hawaii.
(i) Drosophila ochrobasis--Unit 1--Kipuka 14: 884116, 2178983;
884116, 2179047; 884180, 2179047; 884180, 2178983.
(ii) Note: Map 1 of Drosophila ochrobasis--Unit 1--Kipuka 14
follows:
[[Page 47048]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.020
(7) Drosophila ochrobasis--Unit 2--Kohala Mountains, Hawaii County,
Island of Hawaii, Hawaii.
(i) Drosophila ochrobasis--Unit 2--Kohala Mountains: 848294,
2222646; 848294, 2222710; 848358, 2222710; 848358, 2222646.
(ii) Note: Map 2 of Drosophila ochrobasis--Unit 2--Kohala Mountains
follows:
[[Page 47049]]
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[[Page 47050]]
Drosophila substenoptera
(1) Critical habitat is depicted for County of Honolulu, Oahu,
Hawaii, on the map below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Mesic to wet, lowland to montane, ohia and koa forest; and
(ii) The larval host plants Cheirodendron platyphyllum ssp.
platyphyllum, C. trigynum ssp. trigynum, Tetraplasandra kavaiensis, and
T. oahuensis.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat is described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
substenoptera and 10 other Hawaiian picture-wing fly species, see
paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila substenoptera--Unit 1--Mt. Kaala, City and County of
Honolulu, Island of Oahu, Hawaii.
(i) Drosophila substenoptera--Unit 1--Mt. Kaala: 588297, 2378026;
588297, 2378090; 588361, 2378090; 588361, 2378026.
(ii) Note: Map 1 of Drosophila substenoptera--Unit 1--Mt. Kaala
follows:
[[Page 47051]]
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[[Page 47052]]
Drosophila tarphytrichia
(1) Critical habitat units are depicted for County of Honolulu,
Oahu, Hawaii, on the maps below.
(2) The primary constituent elements of critical habitat are the
habitat components that provide:
(i) Dry to mesic, lowland, ohia and koa forest; and
(ii) The larval host plant Charpentiera obovata.
(3) Critical habitat does not include man-made structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
Universal Transverse Mercator (UTM) Zone 4 with units in meters using
North American Datum of 1983 (NAD83).
(5) Note: For an index map of critical habitat units for Drosophila
tarphytrichia and 10 other Hawaiian picture-wing fly species, see
paragraph (5) of the critical habitat entry for D. aglaia.
(6) Drosophila tarphytrichia--Unit 1--Kaluaa Gulch, City and County
of Honolulu, Island of Oahu, Hawaii.
(i) Drosophila tarphytrichia--Unit 1--Kaluaa Gulch: 593285,
2373778; 593285, 2373842; 593348, 2373842; 593348, 2373778.
(ii) Note: Map 1 of Drosophila tarphytrichia--Unit 1--Kaluaa Gulch
follows:
[[Page 47053]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.023
(7) Drosophila tarphytrichia--Unit 2--Palikea, City and County of
Honolulu, Island of Oahu, Hawaii.
(i) Drosophila tarphytrichia--Unit 2--Palikea: 593273, 2367958;
593273, 2368022; 593337, 2368022; 593337, 2367958.
(ii) Note: Map 2 of Drosophila tarphytrichia--Unit 2--Palikea
follows:
[[Page 47054]]
[GRAPHIC] [TIFF OMITTED] TP15AU06.024
* * * * *
Dated: July 24, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-6840 Filed 8-14-06; 8:45 am]
BILLING CODE 4310-55-C