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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 26, 2000 (Volume 65, Number 17)]
[Rules and Regulations]
[Page 4162-4169]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja00-16]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE27

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
the Newcomb's snail (Erinna newcombi) to be a threatened species under
the authority of the Endangered Species Act of 1973, as amended (Act).
This freshwater snail is restricted to the Hawaiian Island of Kauai.
The distribution of this snail has greatly decreased from the known
historic distribution, and the existing populations are presently
limited to restricted habitats within six perennial streams on State
land. The six known populations of Newcomb's snail and its habitat are
currently threatened by predation by a non native predatory snail, two
species of non native marsh flies, a non native fish, and two species
of non native frogs. These populations are also subject to an increased
likelihood of extirpation from naturally occurring events, including
natural disasters such as hurricanes and landslides. This final rule
implements the Federal protection provisions provided by the Act for
Newcomb's snail.

EFFECTIVE DATE: This rule takes effect February 25, 2000.

ADDRESSES: The complete file for this rule is available for
inspection, by appointment, during normal business hours at the Pacific
Islands Ecoregion, U.S. Fish and Wildlife Service, 300 Ala Moana
Boulevard, Room 3-122, Box 50088, Honolulu, HI 96850.

FOR FURTHER INFORMATION CONTACT: Robert Smith, Pacific Islands
Manager, Pacific Islands Ecoregion (see ADDRESSES section) (808/541-
2749; facsimile: 808/541-2756).

SUPPLEMENTARY INFORMATION:

Background

The Hawaiian archipelago comprises eight main islands (Niihau,
Kauai, Oahu, Molokai, Lanai, Kahoolawe, Maui, and Hawaii) and their
offshore islets, plus the shoals and atolls of the Northwest Hawaiian
Islands. The main islands and the northwestern chain were formed
sequentially by basaltic lava that emerged from a crustal hot spot
currently located near the southeast coast of the island of Hawaii
(Stearns 1985). Hawaii is the youngest island in the chain and is
characterized by gently sloping shield volcanoes and currently active
lava flows. Volcanoes on the other islands are either dormant or
extinct. Ongoing erosion has formed steep-walled valleys with well
developed soils and stream systems throughout the chain. Kauai, the
oldest and most northwesterly of the main islands, is characterized by
high rainfall, deep valleys, numerous perennial streams, and luxuriant
vegetation.
Four species of Lymnaeidae snails are native to Hawaii (Morrison
1968 and Hubendick 1952). Three of these species are found on two or
more of the eight main islands. The fourth species, Newcomb's snail, is
restricted to the island of Kauai. Newcomb's snail is unique among the
Hawaiian lymnaeids in that the slender, tapering shape typically
associated with the shells of lymnaeids has been completely lost. The
result is a smooth, black shell formed by a single, oval whorl, 6
millimeters (mm) (0.25 inches (in.)) long and 3 mm (0.12 in.) wide. A
similar shell shape is found in a Japanese lymnaeid (Burch 1968), but
Burch's study of chromosome number shows that Newcomb's snail has
evolutionary ties to the rest of the Hawaiian lymnaeids, all of which
are derived from North American ancestors (Patterson and Burch 1978).
This parallel evolution of similar shell

[[Page 4163]]

morphology in Japan and Hawaii from two distinct lineages of lymnaeid
snails is of particular scientific interest.
At the present time, there is no generally accepted nomenclature
for the genera of Hawaiian lymnaeids, although each of these snail
species, including Newcomb's snail, is recognized as a well defined
species. Newcomb's snail was originally described as Erinna newcombi in
1855 by H. and A. Adams (Hubendick 1952). Hubendick (1952) did not feel
that the distinctive shell form (described above) and reduced
structures of the nervous system of Newcomb's snail warranted a
monotypic genus. In fact, Hubendick included all Hawaiian lymnaeids in
the genus Lymnaea. Morrison (1968) opposed Hubendick, and argued that
the distinctive shell characters of Newcomb's snail supported the
generic name Erinna. Burch (1968), Patterson and Burch (1978), Taylor
(1988), and Cowie et al. (1995) all followed Morrison and referred to
Newcomb's snail as Erinna newcombi. This scientific name is currently
accepted for Newcomb's snail.
Newcomb's snail is an obligate freshwater species. While the
details of its ecology are not well known, Newcomb's snail probably has
a life history similar to other members of the family. These snails
generally feed on algae and vegetation growing on submerged rocks. Eggs
are attached to submerged rocks or vegetation, and there are no
dispersing larval stages; the entire life cycle is tied to the stream
system in which the adults live (Baker 1911). Dispersal of Newcomb's
snail among stream systems is probably very infrequent due to their
obligate freshwater habitat requirements. Historic dispersal probably
relied on long-term erosional events that captured adjacent stream
systems. This life history differs greatly from the freshwater Hawaiian
neritid snails (Neritina spp.), which have marine larvae that colonize
streams following a period of oceanic dispersal (Kinzie 1990). Larvae
of these neritid snails can likely disperse across the oceanic expanses
that separate the Hawaiian Islands and colonize streams on any or all
of these islands. This dispersal capacity is not available to Newcomb's
snail.
The specific habitat requirements of Newcomb's snail include fast
flowing perennial streams with stable overhanging rocks, springs, rock
seeps, and waterfalls (Michael Kido, University of Hawaii, in litt.
1994; Stephen Miller, U.S. Fish and Wildlife Service (Service), pers.
obs. 1994; Polhemus et al. (1992); Burch 1968; Hubendick 1952). Surveys
of main stream channels of many of the perennial streams of Kauai
indicate that Newcomb's snail is rarely found in these main channels
(Adam Asquith, Service, pers. obs. 1994; Don Heacock, State of Hawaii,
Department of Land and Natural Resources, in litt. 1995; M. Kido, in
litt. 1994, 1995; S. Miller, pers. obs. 1994a, b; Timbol 1983). The
limited occurrence of this snail in main stream channels may be due to
scouring by sediment, rocks, and boulders that are moved downstream
during heavy rains. Consequently, available suitable habitat is
generally associated with small feeder streams, seeps, and waterfalls.
The present known range of Newcomb's snail is limited to six stream
systems. Each stream supports a single population of Newcomb's snail
(A. Asquith, pers. obs. 1994; M. Kido, in litt. 1994; S. Miller, pers.
obs. 1994a, b; Hubendick 1952). These populations are located in the
Hanalei River, Kalalau Stream, the Lumahai River, the North Fork of the
Wailua River, Makaleha Stream, and Waipahee Stream. Makaleha and
Waipahee Streams both flow into Kapaa Stream. The populations fall into
two groups; populations first observed prior to 1925 and populations
observed since 1993. Five populations were identified prior to 1925.
Three of these populations (Wainiha, Hanakapiai, and Hanakoa) no longer
exist. Of the two remaining pre-1925 populations, one (Waipahee) is
small and the other (Kalalau) is relatively large (see below). These
data indicate that the number of populations of Newcomb's snail has
been greatly reduced since 1925, perhaps by as much as 60 percent.
Since 1990, surveys of at least 46 streams, tributaries and springs
on Kauai have located 4 previously unknown populations of Newcomb's
snail (A. Asquith, pers. obs. 1994; D. Heacock, in litt. 1995; M. Kido,
in litt. 1994, 1995; S. Miller, pers. obs. 1994a, b; Timbol 1983).
Three of these populations are small (see below), and the fourth
population has been described as large.
No historic information is available on the population sizes of
Newcomb's snail. However, recent reports indicate that two of the six
known populations of Newcomb's snail are relatively large, the Kalalau
and Lumahai populations. The high density of individuals in the Kalalau
population may be indicative of an undisturbed natural condition. The
estimated maximum density at the base of the upper permanent waterfall,
including the area behind the falling water, is approximately 800
snails/square meter (m\2\) (75 snails/square foot (ft \2\)) (S. Miller,
pers. obs. 1994b). The total area occupied by these snails could not be
accurately evaluated due to the extreme vertical orientation of the
waterfall. Little information on specific size or area is currently
available for the population of Newcomb's snail from the Lumahai River,
although this population has been reported to be large (M. Kido, in
litt. 1995).
The population in Makaleha Stream is divided into two
subpopulations. One subpopulation is estimated at 30 snails/m\2\ (2 to
3 snails/ft \2\) distributed over 2 to 3 m\2\ (21 to 32 ft2 \2\) (M.
Kido, in litt. 1994). This is considerably smaller than the previously
described population in Kalalau Stream. The reasons for differences in
these two populations are not known with certainty, but may be due to
the presence or absence of non native predators and the deliberate use
by humans of one species of organism to feed on lymnaeid snails. The
subpopulation that occupies Makaleha Springs covers approximately 20 to
30 m\2\ (212 to 318 ft \2\) (S. Miller, pers. obs. 1994a). Snail
densities at this site are difficult to estimate but may be as high as
20 to 30 snails/m\2\ (1 to 3 snails/ft \2\) (S. Miller, pers. obs.
1994a).
The sizes of the three other populations of Newcomb's snail have
been characterized as small. The population in the Waipahee Stream is
estimated to cover 5 to 10 m\2\ (53 to 106 ft \2\) with a density of
approximately 50 to 80 snails/m\2\ (4 to 8 snails/ft \2\) (A. Asquith,
pers. obs. 1994). The population of Newcomb's snail in the Hanalei
River is divided into four subpopulations (M. Kido, in litt. 1994,
1995). One subpopulation has approximately 10 to 20 snails/m\2\ (1 to 2
snails/ft \1\) and occupies 2 to 3 m\2\ (21 to 32 ft \2\) (M. Kido, in
litt. 1994). A second subpopulation supports approximately 25 snails.
The two remaining subpopulations are reported to be small with very few
snails (M. Kido, in litt. 1995). The population found in the North Fork
of the Wailua River, is best described as short-lived.
Based on these data, we estimate that the six known populations of
Newcomb's snail have a total of approximately 6,000 to 7,000
individuals. The great majority of these snails, perhaps over 90
percent, are located in the two populations at Kalalau and Lumahai.

Previous Federal Action

The February 28, 1996, Federal Register Notice of Review of Plant
and Animal Taxa that are Candidates for Listing as Endangered or
Threatened Species (61 FR 7596) included Newcomb's snail as a candidate
species. Candidates are those species for which

[[Page 4164]]

we have on file sufficient information on biological vulnerability and
threat(s) to support issuance of a proposed rule to list, but issuance
of the proposed rule is precluded by other higher priority listing
actions. We published a proposed rule on July 21, 1997 (62 FR 38953),
to list this species as threatened.
Based on all available information including comments received in
response to the proposal (see Comments and Recommendations Section of
this final rule), we have now determined Newcomb's snail to be
threatened. The processing of this final rule conforms with our Listing
Priority Guidance published in the Federal Register on October 22, 1999
(64 FR 57114). The guidance clarifies the order in which we will
process rulemakings. Highest priority is processing emergency listing
rules for any species determined to face a significant and imminent
risk to its well being (Priority 1). Second priority (Priority 2) is
processing final determinations on proposed additions to the lists of
endangered and threatened wildlife and plants. Third priority is
processing new proposals to add species to the lists. The processing of
administrative petition findings (petitions filed under section 4 of
the Act) is the fourth priority. The processing of critical habitat
determinations (prudency and determinability decisions) and proposed or
final designations of critical habitat will no longer be subject to
prioritization under Listing Priority Guidance. This final rule is a
Priority 2 action. We have updated this rule to reflect any changes in
information concerning distribution, status and threats since the
publication of the proposed rule.

Summary of Comments and Recommendations

In the July 21, 1997, proposed rule (62 FR 38953) and associated
notifications, we requested interested parties to submit factual
reports or information that might contribute to a final determination.
The comment period was reopened and extended until December 15, 1997,
to accommodate a request for a public hearing (62 FR 60676). We sent
announcements of the proposed rule and notice of public hearings to
appropriate Federal and State agencies, county governments, scientific
organizations, and other interested parties and requested comments. We
also published announcements of the proposed rule in the Honolulu Star-
Bulletin, Honolulu Advertiser (Oahu), and the Garden Island (Kauai) on
August 8, 1997. We held a public hearing on December 3, 1997, in Lihue,
Kauai, Hawaii. We accepted comments on the proposed rule until the
extended comment period closed.
We received a total of 10 written comments on the proposed rule, 6
by mail and 4 at the public hearing. One Federal agency commented but
neither supported nor opposed the proposal. Four Hawaii State agencies
provided comments, two that supported the proposal, and two that were
neutral. One Kauai County agency indicated support for our efforts in
the identification of species habitat areas and in maintaining a census
of species but was concerned that the development or maintenance of
current or future water resources could be unnecessarily restricted by
listing of the Newcomb's snail. The proposal was supported by one
individual, one conservation organization and one scientific museum,
and opposed by one nonprofit legal foundation. In addition, three
commentors expressed support for the designation of critical habitat.
In accordance with our peer review policy promulgated July 1, 1994
(59 FR 34270), we solicited the expert opinions of three appropriate
and independent specialists regarding pertinent scientific or
commercial data and assumptions relating to the taxonomy, population
models, and supportive biological and ecological information for the
Newcomb's snail. The purpose of such review is to ensure listing
decisions are based on scientifically sound data, assumptions, and
analysis, including input of appropriate experts and specialists. We
received from these experts written comments that provided additional
information on numbers of populations and individuals, distribution,
and editorial changes. We incorporated peer review comments into this
final rule as appropriate.
A public hearing was requested by Hawaii's Department of Land and
Natural Resources (DLNR). The hearing was held at the Outrigger Kauai
Beach Hotel in Lihue, Kauai on December 3, 1997, with 13 attendees.
Nine oral statements and four written comments were received during the
hearing, and, with one exception, all commentors supported the listing.
In addition, five commentors expressed support for the designation of
critical habitat.
We considered all comments, including oral testimony presented at
the public hearing, and also the comments from the peer reviewers who
responded to our request to review the proposed rule. We grouped
comments of a similar nature by issue and summarized as follows:
Issue 1: Critical habitat should be designated.
Response: This issue is addressed under the ``Critical Habitat''
section of this final rule.
Issue 2: Current or future water resources development or
maintenance could be unnecessarily restricted by listing of the
Newcomb's snail.
Response: Section 4(b)(1)(A) of the Act requires us to make listing
decisions solely on the basis of the best scientific and commercial
data available, without regard to economics or other similar impacts.
The legislative history of this statutory provision makes clear that
economic impacts may not be considered in determining whether a species
should be listed as endangered or threatened: ``The addition of the
word ``solely'' is intended to remove from the process of the listing
or delisting of species any factor not related to the biological status
of the species. The committee strongly believes that economic
considerations have no relevance to determinations regarding the status
of species * * *'' (H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 19,
(1982). Therefore, we have not considered the impacts of listing on
economic development in making this listing determination.
Issue 3: Listing of Newcomb's snail is premature at this time
because further research is needed to provide information on how best
to protect it.
Response: We believe that listing of Newcomb's snail is warranted
at this time due to the factors addressed under the ``Summary of
Factors Affecting the Species'' section of this final rule. The
requirement that section 4 listing determinations be based on the
``best'' scientific and commercial data available requires us to
consider the best information available at the time of the listing
decision. Therefore, the threats facing the species and its habitat,
the limited range, and relatively small population size are good
indicators that this species warrants listing. Additional information,
that may be needed to determine how best to protect the species, may be
developed and used in the recovery planning process.
Issue 4: There are significant water resource and habitat-related
questions that should be evaluated prior to imposing blanket
restrictions on development in habitat areas.
Response: Again, it is not appropriate to consider impacts on
economic development in making a determination to list a species (see
response to Issue 2). Further, implementing the Act would not
necessarily result in blanket land use restrictions. Under section 7 of
the Act, Federal actions including funding,

[[Page 4165]]

licensing, and permitting that may affect the species will require
consultation between the Federal action agency and us to insure the
Federal action is not likely to jeopardize the continued existence of
Newcomb's snail. Section 9 of the Act prohibits persons from ``taking''
listed species. Taking is defined to include significant habitat
modification where it actually kills or injures the listed species.
However, these provisions do not amount to ``blanket'' prohibitions on
development. Section 10 of the Act provides for the issuance of permits
for the incidental take of listed species resulting from otherwise
lawful activities when sufficient protection for the species is
provided.
Issue 5: One respondent asserted that listing this species would
exceed the scope of the Federal commerce power under the Commerce
Clause of Article I, section 8 of the U.S. Constitution.
Our Response: The Federal Government has the authority under the
Commerce Clause of the U.S. Constitution to protect this species, for
the reasons given in Judge Wald's opinion and Judge Henderson's
concurring opinion in National Association of Home Builders v. Babbitt,
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998).
That case involved a challenge to application of the Act's prohibitions
to protect the listed Delhi Sands flower-loving fly (Rhaphiomidas
terminatus abdominalis). As with Newcomb's snail, the Delhi Sands
flower-loving fly is endemic to only one State. Judge Wald held that
application of the Act's prohibition against taking of endangered
species to this fly was a proper exercise of Commerce Clause power to
regulate: (1) Use of channels of interstate commerce; and (2)
Activities substantially affecting interstate commerce, because it
prevented loss of biodiversity and destructive interstate competition.
Judge Henderson upheld protection of the fly because doing so prevents
harm to the ecosystem upon which interstate commerce depends, and
because doing so regulates commercial development that is part of
interstate commerce.

Peer Review

The Service routinely has solicited comments from parties
interested in, and knowledgeable of, species that have been proposed
for listing as threatened or endangered species. The July 1, 1994, Peer
Review Policy (59 CFR 34270) established the formal requirement that a
minimum of three independent peer reviewers be solicited to review the
Service's listing decisions. During the July 21, 1997, to December 15,
1997, comment period, the Service solicited the expert opinions of
three biologists having recognized expertise in malacology and/or
conservation biology to review the proposed rule. The Service received
comments from all three reviewers within the comment period. All
concurred with the Service on factors relating to the taxonomy,
population models, and biological and ecological information.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, we have determined that Newcomb's snail should be classified
as a threatened species. We followed procedures found at section
4(a)(1) of the Act and regulations (50 CFR part 424) implementing the
listing provisions of the Act. A species may be determined to be an
endangered or threatened species due to one or more of the five factors
described in section 4(a)(1). These factors and their application to
Newcomb's snail (Erinna newcombi) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Although modification of habitat
is not an immediate threat, water development and diversion projects
have been proposed within Newcomb's snail habitat in the past. For
example, in 1994, a proposed water development project at Makaleha
Springs (State of Hawaii 1994) threatened to destroy the population of
Newcomb's snail at this site. This project was ultimately rejected by
the State of Hawaii, Commission on Water Resource Management. However,
the County of Kauai, Department of Water can submit a new application
for future development of the water resources at Makaleha Springs.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization is not known to be a factor
affecting Newcomb's snail at the present time.
C. Disease or predation. Predation by the non native rosy glandina
snail (Euglandina rosea) is a serious threat to the survival of
Newcomb's snail. This predatory snail was introduced into Hawaii in
1955 (Funasaki et al. 1988), and has established populations throughout
the main islands. The rosy glandina feeds on snails and slugs, and
field studies have established that it will readily feed on native
snails found in Hawaii (Hadfield et al. 1993). Furthermore, Kinzie
(1992) demonstrated that the rosy glandina snail can fully submerge
itself under water and feed on aquatic snails such as the Newcomb's
snail. The rosy glandina has been observed on wet, algae-covered rocks
of the Makaleha Springs Stream very near individuals of Newcomb's snail
(S. Miller, pers. obs. 1994a), and is believed to prey on them. The
rosy glandina snail has caused the extinction of many populations and
species of native snails throughout the Pacific islands (Hadfield et
al. 1993; Miller 1993; Hopper and Smith 1992; Murray et al. 1988;
Tillier and Clarke 1983), and represents a significant threat to the
survival of Newcomb's snail.
Predation on the eggs and adults of native Hawaiian lymnaeid snails
by two non native species of Sciomyzidae flies also represents a
significant threat to the survival of Newcomb's snail. Two species of
marsh flies (Sepedomerus macropus and Sepedon aenescens) that feed on
lymnaeid snails (Davis 1960) were introduced into Hawaii in 1958 and
1966, respectively, as biological control agents for a non native
lymnaeid snail, Fossaria viridis (Funasaki et al. 1988). Fossaria
viridis was targeted for biocontrol because it is an intermediate host
of the cattle liver fluke (Fasciola gigantica) (Alicata 1938; Alicata
and Swanson 1937). These authors misidentified Fossaria viridis as
Fossaria ollula, as discussed in Morrison (1968). The non-native
lymnaeid and the two biocontrol flies occur on Kauai as well as on
other islands in Hawaii (Funasaki et al. 1988; Davis and Chong 1969;
Davis 1960; Hubendick 1952). One of the marsh fly species has been
observed at a site (Hanakoa Stream) where Newcomb's snail was
historically recorded but is no longer present (S. Miller, pers. obs.
1994b). Another marsh fly was observed near the waterfall of a Kauai
stream that had many dead lymnaeids in the waterfall plunge pool (S.
Miller, pers. obs. 1994b). These biocontrol agents represent a
significant threat to Newcomb's snail and other native lymnaeid snails.
Predation by several introduced aquatic species is also a possible
threat to populations of Newcomb's snail (D. Heacock, in litt. 1997).
These non native aquatic species include the green swordtail
(Xyphophorus helleri), a fish introduced in 1922 for mosquito control;
and two accidental introductions, the American bullfrog (Rana
catesbiana), which was first recorded in 1867, and the wrinkled frog
(Rana rugosa), which was first recorded in 1896 (State of Hawaii 1995).
D. The inadequacy of existing regulatory mechanisms. Newcomb's
snail is not currently listed as an endangered or threatened species in

[[Page 4166]]

Hawaii. When this rule becomes effective and the species is listed
under the Act, the State of Hawaii Endangered Species Act (HRS, sect.
195D-4(a)) will automatically be invoked. The State statute reads ``Any
species of aquatic life, wildlife, or land plant that has been
determined to be an endangered species pursuant to the [Federal]
Endangered Species Act shall be deemed to be an endangered species
under the provisions of this chapter and any indigenous species of
aquatic life, wildlife, or land plant that has been determined to be a
threatened species pursuant to the [Federal] Endangered Species Act
shall be deemed to be a threatened species pursuant under the
provisions of this chapter.'' Further, the State may enter into
agreements with Federal agencies to administer and manage any area
required for the conservation, management, enhancement, or protection
of endangered species (HRS, sect. 195D-5(c)). Funds for these
activities could be made available under section 6 of the Federal Act
(State Cooperative Agreements). However, without listing, none of these
provisions would apply to Newcomb's snail.
Furthermore, current State and Federal regulatory mechanisms are
inadequate to protect the species. All six of the known extant
populations of Newcomb's snail occur in streams in conservation areas
that are managed by the State of Hawaii primarily for watershed
protection, including uses such as public drinking water, and cultural
and agricultural activities. In 1987, the State of Hawaii established a
Commission on Water Resource Management (CWRM) which, among other
things, was responsible for issuing stream alteration permits for
activities, such as water diversion and channelization, that impact
Hawaii's streams and springs (State of Hawaii 1993). Since 1987, the
State assumed control over all water in the State. Therefore, a State
of Hawaii water permit is required for all aquatic activities such as
withdrawal of water for public consumption, agricultural purposes
(i.e., irrigation), and stream modifications (channelization and
realignment).
Protection of the streams in which Newcomb's snail occurs is
inadequate under the existing State permitting process because it lacks
requirements for the protection and conservation of sensitive aquatic
biota. In 1992, the Hawaii State legislature passed a resolution that
called for the CWRM to finalize, adopt, and implement a stream
protection system, and in 1993, the CWRM appointed the Stream
Protection and Management Task Force (Sierra Club Legal Defense Fund
1994). The task force made a series of recommendations on the
information that should be included in stream permit applications and
the types of activities that might be allowed in streams. In addition,
the task force recommended for several streams, including some of the
Kauai streams in which Newcomb's snail occurs, ``heritage'' status,
which would have provided them with additional protection. The task
force recommendations have not been adopted.
Under section 404 of the Clean Water Act, the U.S. Army Corps of
Engineers (Corps) regulates the discharge of fill material into waters
of the United States (33 CFR parts 320-330). Waters of the United
States include navigable waters and other waters, their headwaters
(streams with an average annual flow of less than 5 cubic feet per
second), and wetlands. Section 404 regulations require that applicants
obtain a permit for projects that involve the discharge of fill
material into waters of the United States. Projects may qualify for
authorization under several nationwide permits if the project falls
below certain thresholds, such as affecting less than 1.2 hectares (ha)
(3 acres (ac)) or less than 152 linear m (500 linear ft) of stream bed.
Projects meeting the criteria for a nationwide permit are normally
permitted with minimal environmental review by the Corps. However, if
any listed species might be affected or is in the vicinity of the
project, a prospective permittee may not begin work under the
nationwide permit until the Corps satisfies the requirements of the
Act. No activity is authorized by any nationwide permit if that
activity is likely to jeopardize the continued existence of any listed
species (see 33 CFR 330.4(f)).
Individual permits are required for the discharge of fill material
into wetlands above the thresholds established by the nationwide
permits. The review process for the issuance of individual permits is
more rigorous than for nationwide permits. Unlike nationwide permits,
individual permit applications require alternative analysis and an
assessment of cumulative wetland impacts is required for and there is a
30-day public review period. Resulting permits may include special
conditions that require the avoidance or mitigation of environmental
impacts. If a listed species is affected, the Corps must consult with
us under section 7 of the Act.
Most of the Newcomb's snail populations are fairly small, and the
habitat they occupy tends to be small seeps covering less than 1.2 ha
(3 ac). Projects that may potentially impact this species could be
permitted under the nationwide permit process with limited
environmental review or notification because they generally fall under
the nationwide permit thresholds. No other federally protected species
found within the same or adjacent habitat would invoke a formal
environmental review. Unless this species is listed, requiring the
Corps to comply with section 7 of the Act, entire populations of the
Newcomb's snail, or portions thereof, could conceivably be eliminated
if fill material were discharged into the streams and seeps they
occupy.
Federal regulations for the introductions of biocontrol agents have
not adequately protected Newcomb's snail in the past. As a result,
several non-native aquatic species and two non native fly species,
which may be the most serious present threats to the Newcomb's snail's
continued existence, were purposefully introduced by the State of
Hawaii's Department of Agriculture or other agricultural agencies
(Funasaki et al. 1988). Currently, our Pacific Islands Office reviews
proposals to release biocontrol agents by the Hawaii State Department
of Agriculture for potential effects on listed species. However, since
post-release biology and host range are difficult to predict from
laboratory studies (Gonzalez and Gilstrap 1992; Roderick 1992), the
release or augmentation of non native species may pose threats to
Newcomb's snail in the future.
E. Other natural or manmade factors affecting its continued
existence. Because of the small, isolated nature of occurrences of
Newcomb's snail, and the few individuals present in most of them, this
species is also more susceptible to random events that may affect its
continued existence. As indicated above, the six known populations of
Newcomb's snail cover very small areas in settings that may be
subjected to extreme effects associated with exceptionally heavy
rainfall or hurricanes. Hurricanes struck the island of Kauai in 1983
and 1992. Rainfall associated with hurricanes can wash out streams
(Polhemus 1993) and create landslides that can alter stream flow (Jones
et al. 1984). Events such as these could destroy the habitat of
Newcomb's snail or physically displace individuals into areas where
they cannot survive.
Reduced stream flow due to water development projects, droughts, or
other natural or human causes may have several potential negative
effects on the ability of Newcomb's snail to complete its life cycle.
Loss of water could reduce

[[Page 4167]]

or eliminate the habitat of Newcomb's snail and possibly lead to
increased intraspecific competition or desiccation and death. Reduced
water flow could also lead to increased predation by non native
predators. Low flows may allow marsh flies or the rosy glandina snail
easier access to individual snails that are otherwise protected by the
force of water movement. Droughts are not uncommon in the Hawaiian
Islands. Between 1860 and 1986 the island of Kauai was affected by 33
droughts, 20 of which significantly affected the available water supply
on the island (Giambelluca et al. 1991). The development of water
resources also is a continuing issue. These projects divert water from
streams, springs and aquifers that may otherwise maintain habitats for
Newcomb's snail.
Intentional or accidental introductions of snail predators
constitute a significant threat to Newcomb's snail. The State of Hawaii
continues to carry out an active program of introductions of biological
control agents. These organisms are primarily introduced to control
agricultural pests, and their impacts on native species have only
recently been considered in evaluating release programs. The marsh
flies and the rosy glandina snail are examples of biological control
agents that were introduced to Hawaii without adequate assessment of
their impact on Newcomb's snail or other native Hawaiian species.
Finally, the combined effects of numerous factors can degrade
stream ecosystems, leading to a decline in snail population size and an
increase in the likelihood of extinction from naturally occurring or
human caused events.
We have carefully assessed the best scientific and commercial
information regarding the past, present, and future threats faced by
this species in determining to make this rule final. Based on this
evaluation, the preferred action is to list the Newcomb's snail (Erinna
newcombi) as threatened. All populations are threatened or potentially
threatened by predation by non native snails, flies, frogs, and fish;
habitat destruction or modification from water development or diversion
projects; habitat destruction or displacement of individuals by stream
wash outs from heavy rainfall or landslides that can alter stream flow;
and inadequate existing regulatory mechanisms. Currently, the 6
populations support 6,000 to 7,000 individuals but historical
information indicates that the number of populations has been greatly
reduced since 1925, perhaps by as much as 60 percent. Perhaps over 90
percent of the individuals are located in only two populations. The
small sizes of four of the six populations and limited distribution
make these populations vulnerable to extinction from reduced
reproductive vigor or from random environmental events. Because this
species is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range, this species fits the definition of threatened as defined in the
Act. Therefore, the determination of threatened status for Newcomb's
snail is warranted.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) Essential to the conservation
of the species and (II) That may require special management
considerations or protection and; (ii) Specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.
In the proposed rule, we indicated that designation of critical
habitat was not prudent for Erinna newcombi because of a concern that
publication of precise maps and descriptions of critical habitat in the
Federal Register could increase the vulnerability of this species to
incidents of collection and vandalism. We also indicated that
designation of critical habitat was not prudent because we believed it
would not provide any additional benefit beyond that provided through
listing as endangered.
In the last few years, a series of court decisions have overturned
Service determinations regarding a variety of species that designation
of critical habitat would not be prudent (e.g., Natural Resources
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d
1280 (D. Hawaii 1998)). Based on the standards applied in those
judicial opinions, we have reexamined the question of whether critical
habitat for Erinna newcombi would be prudent.
Due the small number of populations, Erinna newcombi is vulnerable
to unrestricted collection, vandalism, or other disturbance. We remain
concerned that these threats might be exacerbated by the publication of
critical habitat maps and further dissemination of locational
information. However, we have examined the evidence available for
Erinna newcombi and have not found specific evidence of taking,
vandalism, collection, or trade of this species or any similarly
situated species. Consequently, consistent with applicable regulations
(50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the
identification of critical habitat will increase the degree of threat
to this species of taking or other human activity.
In the absence of a finding that critical habitat would increase
threats to a species, if there are any benefits to critical habitat
designation, then a prudent finding is warranted. In the case of this
species, there may be some benefits to designation of critical habitat.
The primary regulatory effect of critical habitat is the section 7
requirement that Federal agencies refrain from taking any action that
destroys or adversely modifies critical habitat. While a critical
habitat designation for habitat currently occupied by this species
would not be likely to change the section 7 consultation outcome
because an action that destroys or adversely modifies such critical
habitat would also be likely to result in jeopardy to the species,
there may be instances where section 7 consultation would be triggered
only if critical habitat is designated. Examples could include
unoccupied habitat or occupied habitat that may become unoccupied in
the future. There may also be some educational or informational
benefits to designating critical habitat. Therefore, we find that
critical habitat is prudent for Erinna newcombi.
The Final Listing Priority Guidance for FY 2000 (64 FR 57114)
states, the processing of critical habitat determinations (prudency and
determinability decisions) and proposed or final designations of
critical habitat will no longer be subject to prioritization under the
Listing Priority Guidance. Critical habitat determinations, which were
previously included in final listing rules published in the Federal
Register, may now be processed separately, in which case stand-alone
critical habitat determinations will be published as notices in the
Federal Register. We will undertake critical habitat determinations and
designations during FY 2000 as allowed by our funding allocation for
that year. As explained in detail in the Listing Priority Guidance, our
listing budget is currently insufficient to allow us to immediately

[[Page 4168]]

complete all of the listing actions required by the Act. Deferral of
the critical habitat designation for Erinna newcombi will allow us to
concentrate our limited resources on higher priority critical habitat
and other listing actions, while allowing us to put in place
protections needed for the conservation of Erinna newcombi without
further delay.
We plan to employ a priority system for deciding which outstanding
critical habitat designations should be addressed first. We will focus
our efforts on those designations that will provide the most
conservation benefit, taking into consideration the efficacy of
critical habitat designation in addressing the threats to the species,
and the magnitude and immediacy of those threats. We will develop a
proposal to designate critical habitat for the Erinna newcombi as soon
as feasible, considering our workload priorities.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against taking and harm are
discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified in 50 CFR part 402.
Section 7(a)(4) requires Federal agencies to confer informally 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. If a species is subsequently listed, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of a listed 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 must
enter into formal consultation with us.
Federal agency actions that may require conference and/or
consultation as described in the preceding paragraph include the Corps
authorization of projects such as the construction of drainage
diversions, roads, bridges, and dredging projects subject to section
404 of the Clean Water Act (33 U.S.C. 1344 et seq.) and section 10 of
the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.), U.S.
Environmental Protection Agency authorization of discharges under the
National Pollutant Discharge Elimination System, and projects funded by
U.S. Housing and Urban Development or Natural Resource Conservation
Service funded projects.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all threatened
wildlife. The prohibitions, codified at 50 CFR 17.31, in part, make it
illegal for any person subject to the jurisdiction of the United States
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect; or to attempt any of these), import or export,
transport in interstate or foreign commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any listed species. It is also illegal to possess, sell, deliver,
carry, transport, or ship any such wildlife that has been taken
illegally. Certain exceptions apply to agents of the Service and State
conservation agencies.
The Act and 50 CFR 17.32 also provide for the issuance of permits
to carry out otherwise prohibited activities involving threatened
animal species under certain circumstances. Such permits are available
for scientific purposes, to enhance the propagation or survival of the
species, and/or for incidental take in connection with otherwise lawful
activities. For threatened species, you may also obtain permits for
zoological exhibition, educational purposes, or special purposes
consistent with the purposes of the Act.
As published in the Federal Register on July 1, 1994 (59 FR 34272),
our policy is to identify to the maximum extent practicable at the time
a species is listed those activities that would or would not constitute
a violation of section 9 of the Act. The intent of this policy is to
increase public awareness of the effects of the listing on proposed and
ongoing activities within a species' range. We believe that, based on
the best available information, the following activities will not
result in a violation of section 9, provided these activities are
carried out in accordance with existing regulations and permit
requirements:
(1) Scientific or recreational activities within the main channel
of streams that support populations of Newcomb's snail, but exclusive
of the specific sites known to support populations of this snail;
(2) Activities authorized, funded, or carried out by Federal
agencies (if the species were found on Federal lands), (e.g., grazing
management, agricultural conversions, wetland and riparian habitat
modification, flood and erosion control, residential development,
recreational trail development, road construction, hazardous material
containment and cleanup activities, prescribed burns, pesticide/
herbicide application, pipelines or utility lines crossing suitable
habitat) when such activity is conducted in accordance with any
reasonable and prudent measures given by the Service in a consultation
conducted under section 7 of the Act;
Potential activities involving Newcomb's snail that we believe will
likely be considered a violation of section 9 include, but are not
limited to, the following:
(1) Release, diversion, or withdrawal of water that results in
displacement, disruption of breeding or feeding, or death of individual
snails;
(2) Actions that lead to the destruction or alteration of the
occupied habitat of Newcomb's snail (e.g., in-stream dredging, rock
removal, channelization, discharge of fill material, actions that
result in siltation of the habitat, and diversion of ground water flow
required to maintain the habitat).
(3) Introduction of species that are predators or competitors of
aquatic snails, especially non native snails in the family Lymnaeidae
and the closely related family Physidae.
(4) Interstate and foreign commerce (commerce across State lines
and international boundaries) and import/export (as discussed earlier
in this section).
You should direct questions regarding whether specific activities
will constitute a violation of section 9 of the Act to the Manager of
the Pacific Islands Ecoregion (see ADDRESSES section). Requests for
copies of the regulations regarding listed wildlife and inquiries about
prohibitions and permits may be addressed to the U.S. Fish and Wildlife
Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,
Oregon 97232-4181 (503/231-6241; facsimile 503/231-6243).

[[Page 4169]]

Hawaii State Law

As previously stated, Federal listing will automatically invoke
listing under the State's endangered species act. State law prohibits
taking of listed wildlife and plants in the State and encourages
conservation of such species by State agencies and triggers other State
regulations to protect the species (HRS, sect. 195AD-4 and 5).

National Environmental Policy Act

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any information collection requirements
for which Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An
information collection related to the rule pertaining to permits for
endangered and threatened species has OMB approval and is assigned
clearance number 1018-0094. For additional information concerning
permits and associated requirements for threatened species, see 50 CFR
17.32.

References Cited

A complete list of all references cited in this rule, as well as
other references, is available upon request from the Pacific Islands
Ecoregion office (see ADDRESSES section).

Authors

The primary authors of this final rule are Dr. Steve Miller and
Christa Russell, with contributions from Christine Willis, at telephone
808/541-3441 or facsimile 808/541-3470 (see ADDRESSES section). Recent
data on the distribution of Newcomb's snail was contributed by Dr. Adam
Asquith, US Fish and Wildlife Service, Pacific Islands Ecoregion.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, we amend, part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:

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

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Snails

* * * * * * *
Snail, Newcomb's................. Erinna newcombi..... U.S.A. (HI)........ NA................. T 680 NA NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: December 31, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-1828 Filed 1-25-00; 8:45 am]
BILLING CODE 4310-55-P

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

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