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

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

[Federal Register: January 28, 2002 (Volume 67, Number 18)]
[Proposed Rules]
[Page 3849-3867]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja02-17]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH95

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

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 3850]]

recently as the Pleistocene epoch, approximately 0.6 million years ago.
Due to the age and climate of the island, Kauai is heavily eroded, with
numerous steep, water-carved valleys and gulches.
The prevailing northeasterly trade winds are typically laden with
moisture in the central Pacific latitudes where Kauai is located.
Substantial precipitation is brought to the windward and interior
portions of the island as a result of uplift and cooling of the warm,
moist surface airmass as it flows over the steep topography of the
island. The high elevation areas in the vicinity of the Alakai Plateau
such as Mt. Waialeale (1,600 meters (m), 5,248 feet (ft)), are among
the rainiest places on earth, receiving an average of 11.3 m (444
inches (in)) of precipitation annually (Juvik and Juvik 1998). This
large volume of rainwater flows to perennial and intermittent streams
and wetlands, and infiltrates into the island's aquifers. The west and
southwest coastal areas of the island lie in the rain shadow of the
Alakai Plateau and interior uplands, and these areas receive
considerably less rain.
Kauai has at least 61 streams that are considered perennial, and a
similarly large number of intermittent streams (Hawaii Stream
Assessment (HSA) 1990). The Hanalei River, for example, is 27 km (17
mi) in length and is the largest stream system in the State by volume,
with a long-term mean discharge of 216 cubic feet per second (34-year
average calculated from 1964 to 1997). The headwaters of the Hanalei
River are near the summit of Mt. Waialeale and the river flows towards
Hanalei Bay on the island's north shore. The basalts that form the bulk
of the main Hawaiian islands are porous and permeable, which
facilitates infiltration and storage of groundwater. A lens-shaped body
of groundwater (the basal lens) exists within these porous basalts at
lower elevations. In some areas, the basal lens is partially confined
by lower-permeability coastal alluvial and calcareous deposits
(``caprock''). Recent groundwater investigations in the southern Lihue
basin indicate that permeabilities of both the basalt and the younger
rock from secondary eruptions are low, which allows the basal
groundwater lens to thicken and thereby reach greater elevations than
on the other Hawaiian islands (Izuka and Gingerich 1998). This causes
basal groundwater to enter and support stream and spring flow up to
relatively high elevations. Because the basal lens groundwater reserve
is very large in size, streams, springs, and rock seeps (rheocrenes)
fed by basal groundwater exhibit highly permanent, stable flows. In
addition to the basal lens, smaller, perched groundwater systems form
at higher-elevations above dense geologic features of low permeability
such as those formed by layers of ash. Groundwater bodies may also form
within higher elevation geologic formations as a result of confinement
by dikes, which are vertical sheets of low-permeability rock that cut
through more permeable basalt in some places. Groundwater bodies that
form behind these perched and dike-confined aquifers contribute water
to streams and springs at higher elevations, although these aquifers
are smaller in volume than basal systems and their contribution to
surface water would be expected to be reduced during prolonged drought
(MacDonald et al. 1960).
Human-caused modifications to surface and ground water systems on
Kauai and throughout Hawaii have profoundly altered natural hydrologic
regimes. Plantation irrigation systems, built to support the
cultivation of sugar cane over a century ago, transfer large volumes of
water out of natural watercourses and into extensive systems of
ditches, tunnels, flumes, reservoirs, and ultimately to fields.
Historically, stream water diversion structures were typically built to
be highly efficient in their ability to entrain water. These dams
usually divert all flowing stream water at moderate to low flows,
leaving the stream channel below the dam dry. At least one third of all
Kauai's streams are significantly dewatered for agricultural and
industrial water supplies (HSA 1990); in 1994, a total of 224.17
million gallons per day (mgd) was used island-wide for irrigation, and
93.72 mgd was used for generation of hydroelectric power (Wilcox 1996).
Four species of Lymnaeidae snails are native to Hawaii (Morrison
1968, Hubendick 1952). Three of these species are found on two or more
of the eight main islands. The fourth species, Newcomb's snail, is
restricted to the island of Kauai. Newcomb's snail is unique among the
Hawaiian lymnaeids in that the shell spire typically associated with
lymnaeids has been substantially reduced. The result is a smooth, black
shell formed by a single, oval whorl, 6 millimeters (mm) (0.25 in.)
long and 3 mm (0.12 in.) wide. A similar shell shape is found in a
Japanese lymnaeid (Burch 1968), but Burch's study of chromosome number
shows that Newcomb's snail has evolutionary ties to the rest of the
Hawaiian lymnaeids, all of which are derived from North American
ancestors (Patterson and Burch 1978). This parallel evolution of
similar shell morphology in Japan and Hawaii from two distinct lineages
of lymnaeid snails is of particular scientific interest.
At the present time, there is no generally accepted nomenclature
for the genera of Hawaiian lymnaeids, although each of these snail
species, including Newcomb's snail, is recognized as a well-defined
species. Newcomb's snail was originally described as Erinna newcombi in
1855 by H. & A. Adams (see Hubendick 1952). Hubendick (1952) did not
feel that the distinctive shell form (described above) and reduced
structures of the nervous system of Newcomb's snail warranted a
monotypic genus. In fact, Hubendick included all Hawaiian lymnaeids in
the genus Lymnaea. Morrison (1968) contradicted Hubendick, and argued
that the distinctive shell characters of Newcomb's snail supported the
generic name Erinna. Burch (1968), Patterson and Burch (1978), Taylor
(1988), and Cowie et al. (1995) all followed Morrison and referred to
Newcomb's snail as Erinna newcombi. This is the currently accepted
scientific name for Newcomb's snail.
The Newcomb's snail is restricted to freshwater. While the details
of its ecology are not well known, Newcomb's snail probably has a life
history similar to other members of the family. These snails generally
feed on algae and vegetation growing on submerged rocks. Eggs are
attached to submerged rocks or vegetation and there are no widely
dispersing larval stages; the entire life cycle is tied to the stream
system in which the adults live (Baker 1911). Very little is known
about the biological or environmental factors that affect population
size in Newcomb's snails. Important factors may include annual, multi-
year or decadal changes in streams flows, severe-weather high-flow
channel-scouring events, or periods of severe or prolonged drought.
Dispersal of the snails in both upstream and downstream directions
within a stream system probably plays an important function in gene
flow and in colonizing or recolonizing suitable habitat, especially
microhabitat that is protected from channel scour. Dispersal of
Newcomb's snail between stream systems is likely very infrequent due to
their freshwater habitat requirements, and historic dispersal probably
relied on long-term erosional events that captured adjacent stream
systems. It should be noted that this life history differs greatly from
the freshwater Hawaiian neritid snails (Neritina spp.), which have
marine larvae that colonize streams following a period of oceanic
dispersal (Kinzie 1990). It is likely that larvae of these neritid
snails can disperse across

[[Page 3851]]

the oceanic expanses that separate the Hawaiian Islands and colonize
streams on any or all of these islands. This dispersal capacity is not
available to the Newcomb's snail.
Based on past and recent field observations, the specific habitat
requirements of the Newcomb's snail include fast-flowing perennial
streams and associated springs, seeps, and vertical-to-overhanging
waterfalls (Stephen Miller, U.S. Fish and Wildlife Service in litt.
1994a, 1994b; Polhemus et al. 1992; Burch 1968; and Hubendick 1952).
Surveys of main stream channels of many of the perennial streams of
Kauai indicate that the Newcomb's snail is found only in protected
areas within main stream channels (Michael Kido, University of Hawaii,
in litt. 1994). The limited occurrence of this snail in main stream
channels is likely due to periodic channel scouring by sediment, rocks,
and boulders that are moved downstream during runoff events due to the
frequent heavy rains. Consequently, suitable habitat is generally
associated with overhanging waterfalls located in the main channel of
perennial streams supported by stable groundwater input, or with small,
spring-fed tributaries. Another common element among the sites
harboring snail populations is that the water source appears to be
consistent and permanent, even during severe drought.
Five populations of Newcomb's snail were identified prior to 1925.
These include populations from sites located in Waipahee Stream (a
tributary to Kealia Stream), Wainiha River, Hanakapiai Stream, Hanakoa
Stream, and Kalalau Stream. Three of these populations (Wainiha River,
Hanakapiai Stream, and Hanakoa Stream) are now thought to be
extirpated. Of the two remaining pre-1925 populations, one (Waipahee
Stream) is small and the other (Kalalau Stream) is relatively large
(see below). Since about 1993, surveys of approximately 50 sites
located along numerous streams and their associated tributaries and
springs on Kauai have located four previously unknown populations of
Newcomb's snail (M. Kido, in litt. 1994). The current known range of
Newcomb's snail is limited to very small sites located within six
stream systems in north- and east-facing drainages on Kauai. They are:
Kalalau Stream; Lumahai River; Hanalei River (four subpopulations);
Waipahee Stream (a tributary to Kealia Stream); two subpopulations in
Makaleha Stream (a tributary to Kapaa Stream); and the North Fork
Wailua River.
No historic information is available on the population size of
Newcomb's snail. However, recent reports indicate that two of the six
known populations of Newcomb's snail are relatively large: the Kalalau
Stream and Lumahai River populations. The Kalalau Stream population is
found in the northeastern fork of Kalalau Stream on two permanent
waterfalls and in the stream reach between the waterfalls. The high
density of individuals in this population may be indicative of an
undisturbed natural condition. The estimated maximum density at the
base of the upper waterfall, including the area behind the falling
water, is approximately 800 snails/square meter (m\2\) (75 snails/
square foot (ft\2\)) (S. Miller, in litt. 1994b). The total area
occupied by these snails could not be accurately evaluated due to the
extreme vertical orientation of the waterfall. Habitat used by these
snails may be limited to the lower section of the waterfall that
receives a high amount of spray from the falling water. Little
information on specific size or area is currently available for the
population of Newcomb's snail from the Lumahai River, although this
population has been reported to be large (M. Kido, in litt. 1995a).
The population in Makaleha Stream is divided into two
subpopulations. The subpopulation at the waterfall that forms the head
of the main channel of Makaleha Stream is estimated at 30 snails/m\2\
(2 to 3 snails/ft\2\) distributed over 2 to 3 m\2\ (21 to 32 ft\2\) (M.
Kido, in litt. 1994; M. Kido, pers. comm. 1995b). This is considerably
smaller than the population in Kalalau Stream described above. The
reasons for differences in these two populations are not known with
certainty, but may be due to the presence or absence of non-native
predators and biocontrol agents that feed on lymnaeid snails. The
subpopulation that occupies Makaleha Springs (which forms a series of
very small tributaries to Makaleha Stream) covers approximately 20 to
30 m\2\ (212 to 318 ft\2\) (S. Miller, in litt. 1994a). Snail densities
at this site are difficult to estimate but may be as high as 20 to 30
snails/m\2\ (1 to 3 snails/ft\2\) (S. Miller, in litt. 1994a).
The sizes of three other populations of Newcomb's snail have been
characterized as small. The population in the Waipahee tributary of
Kealia Stream is estimated to cover 5 to 10 m\2\ (53 to 106 ft\2\) with
a density of approximately 50 to 80 snails/m\2\ (4 to 8 snails/ft\2\)
(Adam Asquith, U.S. Fish and Wildlife Service, in litt. 1994). The
population of Newcomb's snail in the Hanalei River is divided into four
subpopulations in the upper reach of this river (M. Kido, in litt.
1994, 1995a). One subpopulation has approximately 10 to 20 snails/m\2\
(1 to 2 snails/ft\2\) and occupies 2 to 3 m\2\ (21 to 32 ft\2\) (M.
Kido, in litt. 1994). A second subpopulation supports approximately 25
snails. The two remaining subpopulations in the Hanalei River are
reported to be small with very few snails (M. Kido, in litt. 1995a).
The population found in the upper reaches of the North Fork of the
Wailua River just upstream of a concrete agricultural water diversion
intake, appears to vary over time but was made up of just a few
scattered individuals during surveys in 1996 and 1997 (M. Kido, pers.
comm. 1995b; M. Kido, pers. comm. 2000).
Based on these data, we estimate that the six known populations of
Newcomb's snail have a total of approximately 6,000 to 7,000
individuals. The great majority of these snails, perhaps over 90
percent, are located in the populations found in Kalalau Stream and the
Lumahai River.

Previous Federal Action

The February 28, 1996, Federal Register Notice of Review of Plant
and Animal Taxa That Are Candidates for Listing as Endangered or
Threatened Species (61 FR 7596) included Newcomb's snail as a candidate
species. Candidates are those species for which we have on file
sufficient information on biological vulnerability and threats to
support issuance of a proposed rule to list, but issuance of the
proposed rule is precluded by other higher priority listing actions. We
published a proposed rule on July 21, 1997 (62 FR 38953), to list this
species as threatened. On January 26, 2000 (65 FR 4162), we published a
final rule determining Newcomb's snail to be a threatened species.
In the final listing rule we determined that designation of
critical habitat for the Newcomb's snail would be prudent because such
a designation could benefit the species beyond listing as threatened by
extending protection under section 7 of the Act to currently unoccupied
habitat and by providing informational and educational benefits.
Despite the prudency determination, we also indicated that we were not
able to develop a proposed critical habitat designation for the
Newcomb's snail at that time due to budgetary and workload constraints.
However, on June 2, 2000, the U.S. Fish and Wildlife Service was
ordered by U.S. District Court (Conservation Council for Hawaii vs.
Bruce Babbitt and Jamie Rappaport Clark, Civil No. 99-00603 SCM/BMK) to
publish the critical habitat designation for Newcomb's snail by
February 1, 2002. The plaintiffs and the Service have entered into a
consent decree

[[Page 3852]]

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

Critical Habitat

Critical habitat is defined in section 3 (5)(A) of the Act as--(i)
the specific areas within the geographic area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
In order for occupied habitat to be included in a critical habitat
designation, the habitat features must be ``essential to the
conservation of the species.'' Such critical habitat designations
identify, to the extent known using the best scientific and commercial
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Regulations under 50 CFR 424.02(j) define special management
considerations or protection to mean any methods or procedures useful
in protecting the physical and biological features of the environment
for the conservation of listed species. Special management and
protection are not required if adequate management and protection are
already in place. Adequate special management or protection may be
provided by a legally operative plan/agreement that addresses the
maintenance and improvement of the primary constituent elements
important to the species and manages for the long-term conservation of
the species. If any areas containing the primary constituent elements
are currently being managed to address the conservation needs of the
Newcomb's snail and do not require special management or protection,
they would not meet the definition of critical habitat in section
3(5)(A)(i) of the Act and would not be included in this proposal.
In order for unoccupied habitat to be included in a critical
habitat designation, it must be ``essential to the conservation of the
species.'' Conservation is defined in section 3(3) of the Act as the
use of all methods and procedures which are necessary to bring any
endangered or threatened species to the point at which listing under
the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires conferences on
Federal actions that are likely to result in the destruction or adverse
modification of proposed critical habitat. Destruction or adverse
modification is defined as the direct or indirect alteration that
appreciably diminishes the value of critical habitat for the
conservation of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical. Aside from the added protection that may be provided under
section 7, the Act does not provide other forms of regulatory
protection to lands designated as critical habitat. Because
consultation under section 7 of the Act does not apply to activities on
private or other non-Federal lands that do not involve a Federal nexus,
critical habitat designation does not afford any additional regulatory
protection under the Act.
Critical habitat also provides non-regulatory benefits to the
species by informing the public of areas that are important for species
recovery and where conservation actions would be most effective.
Designation of critical habitat can help focus conservation activities
for a listed species by identifying areas that contain the physical and
biological features that are essential for conservation of that
species, and can alert the public as well as land-managing agencies to
the importance of those areas. Critical habitat also identifies areas
that may require special management considerations or protection, and
may help provide protection to areas where significant threats to the
species have been identified or help to avoid accidental damage to such
areas.
When we designate critical habitat at the time of listing, as
required under Section 4 of the Act, or under short court-ordered
deadlines, we may not have the information necessary to identify all
areas which are essential for the conservation of the species.
Nevertheless, we are required to designate those areas we know to be
critical habitat, using the best information available to us.
Within the geographic area of the species, we will designate only
currently known essential areas. We will not speculate about what areas
might be found to be essential if better information became available,
or what areas may become essential over time. If the information
available at the time of designation does not show that an area
provides essential life cycle needs of the species, then the area will
not be included in the critical habitat designation. Our regulations
state that, ``The Secretary shall designate as critical habitat areas
outside the geographic area presently occupied by the species only when
a designation limited to its present range would be inadequate to
ensure the conservation of the species'' (50 CFR 424.12(e)).
Accordingly, when the best available scientific and commercial data do
not demonstrate that the conservation needs

[[Page 3853]]

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

Methods and Criteria Used To Identify Critical Habitat

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

[[Page 3854]]

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

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

Primary Constituent Elements

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

[[Page 3855]]

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

Proposed Critical Habitat Designation

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

Unit I: Na Pali Coast Streams

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

Unit I(a): Kalalau Stream

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

Unit I(b): Hanakoa Stream

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

Unit I(c): Hanakapiai Stream

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

[[Page 3856]]

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

Unit II: Central Rivers

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

Unit III: Eastside Mountain Streams

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

[[Page 3857]]

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

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out do
not destroy or adversely modify critical habitat to the extent that the
action appreciably diminishes the value of the critical habitat for the
survival and recovery of the species. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat only if their actions occur on
Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated or proposed. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer with us
on any action that is likely to jeopardize the continued existence of a
proposed species or result in destruction or adverse modification of
proposed critical habitat. Conference reports provide conservation
recommendations to assist the agency in eliminating conflicts that may
be caused by the proposed action. The conservation recommendations in a
conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)).
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that actions
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species nor to destroy or adversely
modify its critical habitat. If a Federal action may affect a listed
species or its critical habitat, the responsible Federal agency (action
agency) must enter into consultation with us. Through this consultation
we would ensure that the permitted actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.02 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Director
believes would avoid destruction or adverse modification of critical
habitat. Reasonable and prudent alternatives can vary from slight
project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation with us on actions for which formal consultation has been
completed if those actions may affect designated critical habitat.
Activities on Federal lands that may affect the Newcomb's snail or
its critical habitat would require section 7 consultation; however, no
populations of Newcomb's snail are known to exist on Federal land.
Activities on private or State lands requiring a permit from a Federal
agency, such as a permit from the U. S. Army Corps of Engineers (ACOE)
under section 404 of the Clean Water Act, or some other Federal action,
including funding (e.g., from the Federal Highway Administration,
Federal Aviation Administration, Federal Emergency Management Agency,
or Natural Resources Conservation Service) will also continue to be
subject to the section 7 consultation process. Federal actions not
affecting listed species or critical habitat and actions on non-Federal
lands that are not federally funded or permitted do not require section
7 consultation.
Section 4(b)(8) of the Act requires us to evaluate briefly in any
proposed or final regulation that designates critical habitat those
activities involving a Federal action that may adversely modify such
habitat or that may be

[[Page 3858]]

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

[[Page 3859]]

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

Exclusions Under Section 4(b)(2)

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

Public Comments Solicited

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

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of such review is to ensure listing and critical habitat decisions are
based on scientifically sound data, assumptions, and analyses. We will
send copies of this proposed rule to these peer reviewers immediately
following publication in the Federal Register. We will invite the peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designations of
critical habitat.
We will consider all comments and data received during the 60-day
public comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made at least 15
days prior to the close of the public comment period. We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of

[[Page 3860]]

those hearings in the Federal Register and local newspapers at least 15
days prior to the first hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical language or jargon that interferes with the clarity? (3) Does
the format of the proposed rule (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the proposed rule in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the document? (5) Is
the background information useful and is the amount appropriate? (6)
What else could we do to make the proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240.

Required Determinations

Regulatory Planning and Review

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

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Act (SBREFA) of
1996), whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that rule will not have a significant
economic effect on a substantial number of small entities. SBREFA also
amended the RFA to require a certification statement. In today's rule,
we are certifying that the rule will not have a significant effect on a
small number of small entities. However, should the economic analysis
prepared pursuant to section 4(b)(2) of the ESA indicate otherwise, we
will revisit this determination at that time. The following discussion
explains our rationale.
Small entities include small organizations, such as independent
non-profit organizations, and small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents, as well as small businesses. Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than

[[Page 3861]]

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

[[Page 3862]]

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

Executive Order 13211

On May 18, 2001, the President issued Executive Order 13211, which
applies to regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Though this proposed rule is a significant regulatory action under
Executive Order 12866, it is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
August 25, 2000 et seq.):
(a) This rule, as proposed, will not ``significantly or uniquely''
affect small governments. A Small Government Agency Plan is not
required. Small governments will be affected only to the extent that
any programs having Federal funds, permits, or other authorized
activities must ensure that their actions will not adversely affect the
critical habitat. However, as discussed above, these actions are
currently subject to equivalent restrictions through the listing
protections of the species, and no further restrictions are anticipated
to result from critical habitat designation of occupied areas. In our
economic analysis, we will evaluate any impact of designating areas
where section 7 consultations would not have occurred but for the
critical habitat designation.
(b) This rule, as proposed, will not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. The
designation of critical habitat imposes no obligations on State or
local governments.

Takings

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

Federalism

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

[[Page 3863]]

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

Civil Justice Reform

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

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

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

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

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

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

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

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

* * * * * * *
SNAILS

* * * * * * *
Snail, Newcomb's............... Erinna............ U.S.A. (HI),...... N/A.............. T 680 17.95(f)
newcombi..........

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

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

Sec. 17.95 Critical habitat--fish and wildlife.

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

Newcomb's snail (Erinna newcombi)

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

[[Page 3864]]

constituent elements, are not proposed as critical habitat.
(4) Critical Habitat Unit I--Na Pali Coast Streams.
(i) Unit I(a): Kalalau Stream (149 ha; 368 ac)
The Kalalau Stream Newcomb's snail critical habitat location
consists of all flowing surface waters within 63 boundary points
with the following coordinates in UTM Zone 4 with the units in
meters using North American Datum of 1983 (NAD83): 435010, 2450871;
434991, 2450828; 435008, 2450782; 435112, 2450715; 435107, 2450681;
435044, 2450591; 435058, 2450537; 435120, 2450441; 435078, 2450308;
435048, 2450279; 435017, 2450341; 434968, 2450375; 434678, 2450406;
434682, 2450441; 434678, 2450551; 434618, 2450603; 434578, 2450602;
434518, 2450564; 434418, 2450540; 434444, 2450711; 434428, 2450733;
434388, 2450657; 434338, 2450612; 434278, 2450596; 434228, 2450621;
434188, 2450596; 434166, 2450621; 434159, 2450691; 434148, 2450691;
434058, 2450599; 433995, 2450571; 433968, 2450540; 433878, 2450559;
433825, 2450544; 433767, 2450451; 433738, 2450478; 433700, 2450581;
433670, 2450611; 433670, 2450671; 433633, 2450738; 433715, 2450996;
433732, 2451168; 433740, 2451380; 433642, 2451551; 433633, 2451598;
433688, 2451664; 433842, 2451694; 434206, 2451592; 434680, 2451547;
435053, 2451609; 435129, 2451611; 435147, 2451590; 435114, 2451460;
435048, 2451400; 434973, 2451360; 435041, 2451320; 435043, 2451250;
435134, 2451170; 435126, 2451120; 435089, 2451069; 435075, 2451013;
435018, 2450933; 435010, 2450871;
(ii) Unit I(b): Hanakoa Stream (63 ha; 156 ac)
The Hanakoa Stream Newcomb's snail critical habitat location
consists of all flowing surface waters within 24 boundary points
with the following coordinates in UTM Zone 4 with the units in
meters using North American Datum of 1983 (NAD83): 435729, 2453628;
435717, 2453789; 436111, 2454127; 436637, 2454087; 436700, 2454008;
436719, 2453907; 436658, 2453889; 436654, 2453857; 436735, 2453697;
436744, 2453577; 436558, 2453527; 436518, 2453555; 436478, 2453559;
436250, 2453496; 436152, 2453358; 436123, 2453263; 436068, 2453238;
435998, 2453171; 435918, 2453168; 435869, 2453229; 435799, 2453248;
435780, 2453320; 435770, 2453490; 435729, 2453628.
(iii) Unit I(c): Hanakapiai Stream (35 ha; 86 ac )
The Hanakapiai Stream Newcomb's snail critical habitat location
consists of all flowing surface waters within 25 boundary points
with the following coordinates in UTM Zone 4 with the units in
meters using North American Datum of 1983 (NAD83): 438438, 2453772;
438785, 2453827; 438899, 2453794; 438961, 2453796; 439113, 2453829;
439216, 2453871; 439257, 2453846; 439234, 2453666; 439263, 2453606;
439310, 2453377; 439299, 2453306; 439258, 2453253; 439158, 2453265;
439098, 2453290; 438949, 2453407; 438769, 2453508; 438692, 2453457;
438674, 2453387; 438618, 2453307; 438591, 2453347; 438578, 2453417;
438525, 2453507; 438443, 2453622; 438429, 2453677; 438438, 2453772.
(iv) Map 1--Unit I--Na Pali Coast Streams-follows:
[GRAPHIC]
[TIFF OMITTED]
TP28JA02.061

(5) Critical Habitat Unit II--Central Rivers
(i) Unit II(a): Wainiha River (229 ha; 566 ac)
The Wainiha River Newcomb's snail critical habitat location
consists of all flowing surface waters within 97 boundary points
with the following coordinates in UTM Zone 4 with the units in
meters using North American Datum of 1983 (NAD83): 442795, 2446794;
442920, 2446901; 442806, 2446971; 442788, 2447024; 442714, 2447047;
442714, 2447111; 442595, 2447098; 442621, 2447201; 442708, 2447313;
442348, 2447194; 442331, 2447221; 442451, 2447358; 442418, 2447470;
442243, 2447470; 442368, 2447704; 442088, 2447660; 442149, 2447860;
442108, 2447916; 441936, 2447898; 441979, 2448161; 441686, 2448150;
441684, 2448250; 441799, 2448430; 441655, 2448417; 441686, 2448587;
441884, 2448882; 442498, 2449142; 442608, 2449108; 442607, 2448878;
442728, 2448926; 442797, 2448769; 442572, 2448540; 442605, 2448467;
442519, 2448310; 442521, 2448210; 442618, 2448118; 442768, 2448120;
442780, 2447942; 442967, 2447939; 442876, 2447700; 443058, 2447588;
443075, 2447517; 443239, 2447510; 443207, 2447420; 443222, 2447360;
443111, 2447280; 443229, 2447111; 443274, 2446940; 443358, 2446898;
443560, 2446922; 443608, 2446854; 443678, 2446875; 443708, 2446811;

[[Page 3865]]

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

[[Page 3866]]

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

[[Page 3867]]

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

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

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