Endangered and Threatened Wildlife and Plants; Final Designation and Nondesignation of Critical Habitat for 46 Plant Species From the Island of Hawaii, HI
Federal RegisterJul 2, 2003
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH02
Endangered and Threatened Wildlife and Plants; Final Designation and Nondesignation of Critical Habitat for 46 Plant Species From the Island of Hawaii, HI
AGENCY:
Fish and Wildlife Service, Interior.
ACTION:
Final rule.
SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for 41 of 58 listed plant species known historically from the island of Hawaii. A total of approximately 84,200 hectares (208,063 acres) of land on the island of Hawaii fall within the boundaries of the 99 critical habitat units designated for these 41 species. This critical habitat designation requires the Service to consult under section 7 of the Act with regard to actions carried out, funded, or authorized by a Federal agency. Section 4 of the Act requires us to consider economic and other relevant impacts when specifying any particular area as critical habitat. This rule also determines that designating critical habitat would not be prudent for four species,
Cyanea copelandii
ssp.
copelandii, Ochrosia kilaueaensis
,
Pritchardia affinis
, and
Pritchardia schattaueri.
We solicited data and comments from the public on all aspects of the proposed rule, including data on economic and other impacts of the designation.
DATES:
This rule becomes effective on August 1, 2003.
ADDRESSES:
Comments and materials received, as well as supporting documentation, used in the preparation of this final rule will be available for public inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., Room 3-122, P.O. Box 50088, Honolulu, HI 96850-0001.
FOR FURTHER INFORMATION CONTACT:
Paul Henson, Field Supervisor, Pacific Islands Office at the above address (telephone 808/541-3441; facsimile 808/541-3470).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection to Species
In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. [Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.”
Currently, only 306 species or 25% of the 1,211 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with NEPA, all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions. Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent? Environmental Management 11(4):429-437.
Background
In the List of Endangered and Threatened Plants (50 CFR 17.12(h)), there are 58 plant species that, at the time of listing, were reported from the island of Hawaii.
Twenty-seven of these species are endemic to the island of Hawaii, while 31 species are reported from the island of Hawaii and one or more other
Hawaiian islands. Each of these species is described in more detail below in the section named, “Discussion of Plant Taxa.” Although we considered designating critical habitat on the island of Hawaii for each of the 58 plant species, for reasons described below, the final designation includes critical habitat for 41 of 58 plant species. Species that also occur on other Hawaiian islands may have critical habitat designated on those other islands in previous rulemakings.
The Island of Hawaii
This largest island of the Hawaiian archipelago comprises 10,458 square kilometers (sq km) (4,038 sq miles (mi)) or two-thirds of the land area of the State of Hawaii, giving rise to its common name, the “Big Island.” We provided a detailed physical description for the island of Hawaii in the proposed critical habitat designation (67 FR 36970).
Species Endemic to Hawaii
These species and their distribution by island are identified in Table 1 in the
Federal Register
notice proposing this critical habitat designation (67 FR 36969). However, it is important to note that in this final rule we are using the word “occurrence” rather than “population” in most cases. This was done to avoid confusion regarding the number of location occurrences for each species, which do not necessarily represent viable populations, and the number of recovery populations (
e.g.
, 8 to 10 with 100, 300, or 500 reproducing individuals). For those species where we have substantial new or corrected information, including revisions to the number occurrence, we list that information below by species. For all other species and additional species specific background information on the species listed below please refer to the proposed rule (May 28, 2002, 67 FR 36968).
A summary of occurrences and landownership for the 58 plant species on the island of Hawaii appears given in Table 1.
Table 1.—Summary of Existing Occurrences on the Island of Hawaii and of Landownership for 58 Species Reported From the Island of Hawaii
Species
Number of current occurrences
Landownership/jurisdiction
Federal
State
Private
Achyranthes mutica
1
X
Adenophorus periens
4
X
1
X
X
Argyroxiphium kauense
4
X
1
X
X
Asplenium fragile
var.
insulare
36
X
1
2
X
X
Bonamia menziesii
2
X
Cenchrus agrimonioides
0
Clermontia drepanomorpha
2
X
X
Clermontia lindseyana
15
X
3
X
Clermontia peleana
0
Clermontia pyrularia
2
X
1
X
Colubrina oppositifolia
5
X
X
Cyanea copelandii
ssp.
copelandii
0
Ctenitis squamigera
0
Cyanea hamatiflora
ssp.
carlsonii
4
X
3
X
Cyanea platyphylla
6
X
X
Cyanea shipmanii
3
X
3
X
X
Cyanea stictophylla
6
X
X
Cyrtandra giffardii
8
X
1
X
X
Cyrtandra tintinnabula
4
X
X
Delissea undulata
2
X
Diellia erecta
5
X
Flueggea neowawraea
12
X
X
Gouania vitifolia
4
X
Hedyotis cookiana
0
Hedyotis coriacea
41
X
2
Hibiscadelphus giffardianus
1 (planted)
X
1
Hibiscadelphus hualalaiensis
2 (planted)
X
Hibiscus brackenridgei
4
X
X
Ischaemum byrone
6
X
1
X
X
Isodendrion hosakae
3
X
Isodendrion pyrifolium
1
X
Mariscus fauriei
2
X
X
Mariscus pennatiformis
0
Melicope zahlbruckneri
3
X
1
X
Neraudia ovata
9
X
1
2
X
X
Nothocestrum breviflorum
66
X
1
3
X
X
Ochrosia kilaueaensis
0
Phlegmariurus mannii
0
Phyllostegia parviflora
0
Phyllostegia racemosa
6
X
1
3
X
X
Phyllostegia velutina
8
X
3
X
X
Phyllostegia warshaueri
7
X
X
Plantago hawaiensis
6
X
1
X
Plantago princeps
0
Pleomele hawaiiensis
22
X
1
X
X
Portulaca sclerocarpa
24
X
1
2
X
X
Pritchardia affinis
unknown
Pritchardia schattaueri
3
X
Sesbania tomentosa
31
X
1
4
X
Sicyos alba
5
X
1
X
Silene hawaiiensis
156
X
1
2
X
X
Silene lanceolata
69
X
2
Solanum incompletum
1
X
2
Spermolepis hawaiiensis
30
X
1
2
X
Tetramolopium arenarium
8
X
2
Vigna o-wahuensis
1
X
Zanthoxylum dipetalum
var.
tomentosum
14
X
Zanthoxylum hawaiiense
186
X
2
X
1
Hawaii Volcanoes National Park.
2
PTA.
3
Hakalau Forest National Wildlife Refuge.
4
Government Services Administration
Previous Federal Action
On May 28, 2002, we published the court-ordered proposed critical habitat designations for 58 plant species from the island of Hawaii (67 FR 36968). In that proposed rule (beginning on page 36990), we included a detailed summary of the previous Federal actions completed prior to publication of the proposal. We now provide updated information on the actions that we have completed since the proposed critical habitat designation. In Table 2, we list the final critical habitat designations or nondesignations previously completed for 46 of the 58 plant species from the island of Hawaii, some of which also occur on other islands.
Table 2.—Summary of Critical Habitat Actions for 58 Plant Species From the Island of Hawaii
Species
Final critical habitat
Date(s)
Federal Register
Achyranthes mutica
NA
NA
Adenophorus periens
2/27/2003
3/19/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 35949
Argyroxiphium kauense
NA
NA
Asplenium fragile
var.
insulare
5/14/2003
68 FR 25934
Bonamia menziesii
2/27/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 25934
68 FR 35949
Cenchrus agrimonioides
5/14/2003
6/17/2003
68 FR 25934
68 FR 35949
Clermontia drepanomorpha
NA
NA
Clermontia lindseyana
5/14/2003
68 FR 25934
Clermontia peleana
NA
NA
Clermontia pyrularia
NA
NA
Colubrina oppositifolia
5/14/2003
6/17/2003
68 FR 25934
68 FR 35949
Ctenitis squamigera
2/27/03
3/19/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 25934
68 FR 35949
Cyanea copelandii
ssp.
copelandii
NA
NA
Cyanea hamatiflora
ssp.
carlsonii
NA
NA
Cyanea platyphylla
NA
NA
Cyanea shipmanii
NA
NA
Cyanea stictophylla
NA
NA
Cyrtandra giffardii
NA
NA
Cyrtandra tintinnabula
NA
NA
Delissea undulata
2/27/2003
68 FR 9116
Diellia erecta
2/27/2003
3/19/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 25934
68 FR 35949
Flueggea neowawraea
2/27/2003
3/19/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 25934
68 FR 35949
Gouania vitifolia
5/14/2003
6/17/2003
68 FR 25934
68 FR 35949
Hedyotis cookiana
2/27/2003
68 FR 9116
Hedyotis coriacea
5/14/2003
6/17/2003
68 FR 25934
68 FR 35949
Hibiscadelphus giffardianus
NA
NA
Hibiscadelphus hualalaiensis
NA
NA
Hibiscus brackenridgei
3/19/2003
5/14/2003
6/17/2003
68 FR 12982
68 FR 25934
68 FR 35949
Ischaemum byrone
2/27/2003
3/19/2003
5/14/2003
68 FR 9116
68 FR 12982
68 FR 25934
Isodendrion hosakae
NA
NA
Isodendrion pyrifolium
3/19/2003
5/14/2003
6/17/2003
68 FR 12982
68 FR 25934
68 FR 35949
Mariscus fauriei
3/19/2003
68 FR 12982
Mariscus pennatiformis
2/27/2003
5/14/2003
5/22/2003
6/17/2003
68 FR 9116
68 FR 25934
68 FR 28054
68 FR 35949
Melicope zahlbruckneri
NA
NA
Neraudia ovata
NA
NA
Nothocestrum breviflorum
NA
NA
Ochrosia kilaueaensis
NA
NA
Phlegmariurus mannii
5/14/2003
68 FR 25934
Phyllostegia parviflora
6/17/2003
68 FR 35949
Phyllostegia racemosa
NA
NA
Phyllostegia velutina
NA
NA
Phyllostegia warshaueri
NA
NA
Plantago hawaiensis
NA
NA
Plantago princeps
2/27/2003
3/19/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 25934
68 FR 35949
Pleomele hawaiiensis
NA
NA
Portulaca sclerocarpa
1/09/2003
68 FR 1220
Pritchardia affinis
NA
NA
Pritchardia schattaueri
NA
NA
Sesbania tomentosa
2/27/2003
3/19/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 25934
68 FR 35949
Sicyos alba
NA
NA
Silene hawaiiensis
NA
NA
Silene lanceolata
2/27/2003
3/19/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 35949
Solanum incompletum
NA
NA
Spermolepis hawaiiensis
2/27/2003
3/19/2003
5/14/2003
6/17/2003
68 FR 9116
68 FR 12982
68 FR 25934
68 FR 35949
Tetramolopium arenarium
NA
NA
Vigna o'wahuensis
5/14/2003
6/17/2003
68 FR 25934
68 FR 35949
Zanthoxylum dipetalum
var.
tomentosum
NA
NA
Zanthoxylum hawaiiense
2/27/2003
3/19/2003
5/14/2003
68 FR 9116
68 FR 12982
68 FR 25934
For many of the 58 plant species from the island of Hawaii, the issue of whether critical habitat would be prudent was discussed in previous proposals and incorporated into the May 28 proposal (see 65 FR 79192; 65 FR 83158; 67 FR 3939; 67 FR 15856; 67 FR 9806; 67 FR 16492; 67 FR 36968; 67 FR 37108). We also proposed that critical habitat was not prudent for
Cyanea copelandii
ssp.
copelandii
and
Ochrosia kilaueaensis
because it would be of no benefit to these species. In the May 28 proposal, we proposed that critical habitat was not prudent for two
species of the native palm,
Pritchardia affinis
and
Pritchardia schattaueri,
because it would increase the threat of vandalism or collection of those species on the island of Hawaii. Critical habitat was not proposed for seven species (
Cenchrus agrimonioides, Ctenitis squamigera, Hedyotis cookiana, Mariscus pennatiformis, Phlegmariurus mannii, Phyllostegia parviflora,
and
Plantago princeps
), which no longer occur on the island of Hawaii, because we were unable to identify any habitat essential to their conservation on the island. Critical habitat for 47 (
Achyranthes mutica, Adenophorus periens, Argyroxiphium kauense, Asplenium fragile
var.
insulare, Bonamia menziesii, Clermontia drepanomorpha, Clermontia lindseyana, Clermontia peleana, Clermontia pyrularia, Colubrina oppositifolia, Cyanea hamatiflora
ssp.
carlsonii, Cyanea platyphylla, Cyanea shipmanii, Cyanea stictophylla, Cyrtandra giffardii, Cyrtandra tintinnabula, Delissea undulata, Diellia erecta, Flueggea neowawraea, Gouania vitifolia, Hedyotis coriacea, Hibiscadelphus giffardianus, Hibiscadelphus hualalaiensis, Hibiscus brackenridgei, Ischaemum byrone, Isodendrion hosakae, Isodendrion pyrifolium, Mariscus fauriei, Melicope zahlbruckneri, Neraudia ovata, Nothocestrum breviflorum, Phyllostegia racemosa, Phyllostegia velutina, Phyllostegia warshaueri, Plantago hawaiensis, Pleomele hawaiiensis, Portulaca sclerocarpa, Sesbania tomentosa, Sicyos alba, Silene hawaiiensis, Silene lanceolata, Solanum incompletum, Spermolepis hawaiiensis, Tetramolopium arenarium, Vigna o-wahuensis, Zanthoxylum dipetalum
var.
tomentosum,
and
Zanthoxylum hawaiiense
) of 58 plant species from the island of Hawaii was proposed on approximately 176,968 ha (437,285 ac) of land on the island of Hawaii (67 FR 36968).
The publication of the proposed rule opened a 60-day public comment period, which closed on July 29, 2002. On July 11, 2002, we submitted joint stipulations to the U.S. District Court with Earthjustice requesting extension of the court orders for the final rules to designate critical habitat for plants from Lanai (December 30, 2002), Kauai and Niihau (January 31, 2003), Molokai (February 28, 2003), Maui and Kahoolawe (April 18, 2003), Oahu (April 30, 2003), the Northwestern Hawaiian Islands (April 30, 2003), and the island of Hawaii (May 30, 2003), citing the need conduct additional review of the proposals, address comments received during the public comment periods, and to conduct a series of public workshops on the proposals. The joint stipulations were approved and ordered by the court on July 12, 2002. On August 26, 2002, we published a notice (67 FR 54766) reopening the public comment period until September 30, 2002, on the proposal to designate critical habitat for plants from the island of Hawaii. On September 24, 2002, we published a notice (67 FR 59811) announcing the reopening of the comment period until November 30, 2002, and a notice of a public hearing. On October 8, 2002, we held a public information meeting at the Hilo State Office Building, Hilo, Hawaii. On October 9, 2002, we held a public information meeting at Waimea Civic Center, Waimea, Hawaii. On October 29, 2002, we held a public hearing at King Kamehameha Hotel, Kailua-Kona, Hawaii. On October 30, 2002, we held a public hearing at Hawaii Naniloa Resort, Hilo, Hawaii. On December 18, 2002, we published a notice (67 FR 77464) announcing the availability of the draft economic analysis on the proposed critical habitat and reopening the comment period until January 17, 2003.
In the final rule for Lanai plants (68 FR 1220), we found that critical habitat was prudent for the following 16 multi-island species that also occur on the island of Hawaii:
Adenophorus periens, Bonamia menziesii, Cenchrus agrimonioides, Ctenitis squamigera, Diellia erecta, Hedyotis cookiana, Hibiscus brackenridgei, Isodendrion pyrifolium, Mariscus fauriei, Portulaca sclerocarpa, Sesbania tomentosa, Silene lanceolata, Solanum incompletum, Spermolepis hawaiiensis, Vigna o-wahuensis,
and
Zanthoxylum hawaiiense.
In the final rule for Kauai and Niihau plants (68 FR 9116), we found that critical habitat was prudent for the following seven multi-island species that are also found on the island of Hawaii:
Achyranthes mutica, Delissea undulata, Flueggea neowawraea, Ischaemum byrone, Mariscus pennatiformis, Phlegmariurus mannii,
and
Plantago princeps.
In the final rule for Maui and Kahoolawe plants (68 FR 25934), we found that critical habitat was prudent for the following eight multi-island species that also occur on the island of Hawaii:
Asplenium fragile
var.
insulare, Clermontia lindseyana, Clermontia peleana, Colubrina oppositifolia, Gouania vitifolia, Hedyotis coriacea, Phyllostegia parviflora,
and
Tetramolopium arenarium.
Summary of Comments and Recommendations
In the proposed rule published on May 28, 2002 (67 FR 36968), we requested that all interested parties submit written comments on the proposal. We also contacted all appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment. Two requests for public hearings were received. We announced the date, time, and locations of the public hearings in letters to all interested parties, appropriate State and Federal agencies, county governments, and elected officials, and in notices published in the
Federal Register
(67 FR 59811) on September 24, 2002, and in the
Honolulu Star-Bulletin
on October 11, 2002. Transcripts of the hearings held in Kailua-Kona and Hilo on October 29 and 30, 2002, respectively, are available for inspection (
see
ADDRESSES
section).
We received a total of 29 oral and 672 written comments during the three comment periods on the proposal published on May 28, 2002 (67 FR 36968), and the draft economic analysis, including the public information meetings and the public hearings held on October 29 and October 30, 2002. These included responses from 12 State offices, the Department of Defense (7 responses), and 10 designated peer reviewers. Approximately 586 of these written comments were identical letters submitted as part of a mailing campaign in support of the proposed critical habitat designations. Of the 86 parties who did not respond as part of the mailing campaign, 21 supported the proposed designation, 78 were opposed, and 16 provided information or expressed neither opposition nor support for the proposed designation.
We reviewed all comments received for substantive issues and new information regarding critical habitat for
Achyranthes mutica, Adenophorus periens, Argyroxiphium kauense, Asplenium fragile
var.
insulare, Bonamia menziesii, Clermontia drepanomorpha, Clermontia lindseyana, Clermontia peleana, Clermontia pyrularia, Colubrina oppositifolia, Cyanea hamatiflora
ssp.
carlsonii, Cyanea platyphylla, Cyanea shipmanii, Cyanea stictophylla, Cyrtandra giffardii, Cyrtandra tintinnabula, Delissea undulata, Diellia erecta, Flueggea neowawraea, Gouania vitifolia, Hedyotis coriacea, Hibiscadelphus giffardianus, Hibiscadelphus hualalaiensis, Hibiscus brackenridgei, Ischaemum byrone, Isodendrion hosakae, Isodendrion
pyrifolium, Mariscus fauriei, Melicope zahlbruckneri, Neraudia ovata, Nothocestrum breviflorum, Phyllostegia racemosa, Phyllostegia velutina, Phyllostegia warshaueri, Plantago hawaiensis, Pleomele hawaiiensis, Portulaca sclerocarpa, Sesbania tomentosa, Sicyos alba, Silene hawaiiensis, Silene lanceolata, Solanum incompletum, Spermolepis hawaiiensis, Tetramolopium arenarium, Vigna o-wahuensis, Zanthoxylum dipetalum var. tomentosum, and Zanthoxylum hawaiiense.
Similar comments were grouped into general issues and are addressed in the following summary.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from 23 knowledgeable individuals (“peer reviewers”) with expertise in one or several fields, including familiarity with the species, familiarity with the geographic region that the species occurs in, and familiarity with the principles of conservation biology. We received comments from 10 of these reviewers. All generally supported our methodology and conclusions. Four of the peer reviewers supported the designation of critical habitat on the island of Hawaii and the other six neither specifically supported or opposed the designation. Comments received from the peer reviewers are summarized in the following section and were considered in developing this final rule.
Issue 1: Biological Justification and Methodology
(1)
Comment:
A peer reviewer commented on the configuration of the units, stating that with irregular boundaries, the units will be difficult to identify on the ground and that such boundaries will complicate management and increase the risk of fragmentation and edge effects on plant populations within the units. The reviewer also noted that proposed units do not appear to be representative of known geographic and elevation ranges for species and that unit boundaries appear to encompass the minimum area needed to capture known site localities, which may not provide the full spectrum of habitat conditions necessary for long-term survival and recovery.
Our Response:
The irregular boundaries are a result of attempting to map the primary constituent elements for each species and of the overlapping effect of multiple species' critical habitat. Universal Transverse Mercator coordinates are given to help locate these properties on the ground. We concur with the peer reviewer on the importance of protecting the ecosystems on which these species depend, as stated in the purpose of the Act (section 2(b)), and of conserving areas large enough to maintain and expand populations. We considered the importance of this, as well as the location of primary constituent elements, when delineating the boundaries of critical habitat for these final designations. While we acknowledge the potential negative impacts of edge effects on small habitat fragments, we only included areas that provide the biological and other processes that are essential for the conservation of the species.
(2)
Comment:
We received several comments regarding the incorporation of unoccupied habitat with critical habitat. A peer reviewer commented on the incorporation of unoccupied habitat to allow for the recovery of species that have been reduced to an unsustainable number of populations and said that it is unclear whether sufficient habitat is protected to provide the minimum populations needed for recovery. Another commenter raised the issue that more acreage of unoccupied habitat than occupied habitat was being proposed as critical habitat. This commenter felt that critical habitat should encompass the best populations of each species unless this is entirely impractical. One peer reviewer stated that the Service relied too heavily on currently occupied habitat and did not address potential habitat that currently lacks rare species.
Our Response:
The recovery plans for these species identify the need to expand existing populations and re-establish wild populations within the historical range of each species. Due to the extremely limited extant range of many of these species, designation of only occupied areas would not allow us to achieve the recovery goals developed for the species. Occupied areas, as well as similar contiguous or nearby habitat that occurs within the designated units of critical habitat that may be occupied in the future, provide the essential life cycle needs of the species and provide some or all of the habitat components essential for the conservation (
i.e.
, primary constituent elements) of these species.
The protection of additional unoccupied critical habitat is essential to ensure the recovery of these species through reintroduction. Although propagation and reintroduction are difficult for some species, both are vitally important to their recovery. Many recovery plans therefore include research into best methods of propagation and reintroduction as important tasks prior to attempting reintroduction. Areas of unoccupied habitat are essential to the conservation of the species because they provide habitat for the establishment of new populations.
(3)
Comment:
Several commenters, including one peer reviewer, expressed concern regarding the Service's decision to not propose critical habitat for
Pritchardia
species. One reviewer concurred with our finding that designation was not prudent, citing their knowledge of theft and over-collection of the species; however, nine did not agree with the Service's finding that critical habitat was not prudent (particularly for
P. affinis
and
P. schattaueri
). Several commenters disagreed with the Service's decision to not propose critical habitat for
P. affinis
and
P. schattaueri,
stating that they felt the claim that designation would increase threats to these species was speculative.
Our Response:
In this final rule to designate or not designate critical habitat for 58 plants from the island of Hawaii, we have incorporated new information, and we have addressed comments and new information received during the comment periods. However, no additional information was provided during the comment periods that demonstrates that the threats to
Pritchardia affinis
and
Pritchardia schattaueri
from vandalism or collection would not increase if critical habitat were designated for these species on the island of Hawaii. We believe that designation of critical habitat would likely increase the threat from vandalism to or collection of these species of
Pritchardia
on the island of Hawaii. First, they are easy to identify, and second, they may be attractive to collectors of rare palms either for their personal use or to trade or sell for personal gain (Johnson 1996). We believe that the evidence shows that species of
Pritchardia
may be attractive to such collectors. Several nurseries advertise and sell
Pritchardia
palms, including these and other federally listed
Pritchardia
species.
(4)
Comment:
The majority of the peer reviewers supported the multi-population approach and the Service's definition of a population for purposes of recovery; however, several peer reviewers commented on the recovery strategy of 8 to 10 populations for each species. Two peer reviewers commented that it might be difficult to achieve recovery plan goals of 8 to 10 populations for each species as some of these species are rare, localized island endemics that likely never had 8 to 10
populations throughout their evolutionary history and that the Service assumes that each population will be viable in the future when there is no guarantee of this.
Our Response:
The recovery objectives found in recovery plans for these species state that 8 to 10 viable populations are required for recovery of most of these species. Establishing and conserving 8 to 10 viable populations on one or more islands within the historic range of the species will provide each species with a reasonable expectation of persistence and eventual recovery, even with the high potential that one or more of these populations will be eliminated by normal or random adverse events, such as fires and nonnative plant invasions. There are some specific exceptions to this general recovery goal of 8 to 10 populations for species that are believed to be very narrowly distributed on a single island (
e.g.
,
Argyroxiphium kauense,
for which the recovery goal is 10 or more large, widespread populations of at least 2,000 individuals each), and designation of critical habitat reflects these exceptions. For the majority of the species, however, designation of adequate suitable habitat for 8 to 10 populations as critical habitat is essential to give the species a reasonable likelihood of long-term survival and recovery, based on currently available information. Each recovery plan stated that these recovery goals will be revised as more specific information becomes available for each species.
(5)
Comment:
Several peer reviewers raised the issue of genetic drift and the difficulty of measuring this phenomenon in terms of the 8 to 10 populations. One reviewer recommended that we consider the consequences of this proposed population structuring on genetic drift or inbreeding, and how this potential problem might be alleviated. One peer reviewer commented that he did not believe that defining a population on the basis of low/no gene flow would benefit the species. One reviewer cautioned that for clonal species, the number (100, 300, 500) needs to reflect genetic individuals, not ramets. Another stated that, ideally, every population should be genetically isolated from all other conspecific populations.
Our Response:
Many of the species have been reduced to such low numbers that the recovery plans identify propagation and reintroduction as a key step. While we do not have direct evidence for most species to indicate that reduced reproductive vigor or inbreeding are problems, we believe they should be considered, based on current conservation biology theory and practice. This is particularly important to consider when developing a propagation and reintroduction program, to ensure that recovery efforts do not cause or exacerbate genetic issues. While measures of genetic diversity do not directly measure relative fitness, it is reasonable to assume that the two are correlated. The issue of gene flow and genetic drift will be addressed through research actions identified as needed in the recovery plans.
(6)
Comment:
One peer reviewer stated that the 8 to 10 population approach should not preclude the high priority of building large populations both through population growth and the merger of multiple small populations (which will require a breeding plan to conserve and increase the genetic diversity of remnant populations).
Our Response:
The areas designated as critical habitat in this rule allow for merging of multiple, small populations (where they exist) and the increase of population numbers as outlined in our recovery plans. Because the general use of the word “population” in the proposed rule caused some confusion, we replaced it with “occurrence” in this rule when referring to existing locations of plants, and we use “population” only in the context of recovery guidelines.
(7)
Comment:
Several commenters, including two peer reviewers, stated that the species' need for pollinators is important to consider. One peer reviewer stated that designation of critical habitat needs to consider the presence of appropriate pollinators for species that do not self-pollinate or feasible, sustainable alternatives to key pollinators that may be absent. The Service's consideration of this issue did not appear to be explicitly listed in the proposed rule.
Our Response:
Very little is known about the life histories of many of these plant species. The species' accounts provided in the proposed rule acknowledged that loss of pollinators, through habitat loss or predation by nonnative insects, could be a factor in lack of species' regeneration. As such, we created critical habitat units that were of sufficient size to provide habitat for at least one population of the target species in which the individuals could be regularly cross-pollinated. We also recommend, as a management action, maintenance (to the extent we have data) of natural pollinators and pollination systems.
(8)
Comment:
Two commenters stated that the Service failed to demonstrate that proposed critical habitat is essential to species conservation.
Our Response:
In order to be included in a critical habitat designation, if within range occupied by the species at time of listing, habitat must contain the biological or physical features essential to the conservation of the species and may require management. If outside the range at time of listing, it must be essential to the conservation of the species.
(9)
Comment:
Several peer reviewers and other commenters, including the Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, expressed concern over the inclusion of degraded habitat within critical habitat. Several peer reviewers stated that as much habitat as possible, even degraded habitat, should be protected as it has potential for reintroduction. One commenter noted that while they felt that focusing conservation efforts on the most pristine, least degraded sites is a logical, efficient, and cost-effective strategy when possible, for many of the listed plant species there is not enough suitable habitat remaining, and, as a result, it is essential to include degraded areas for future restoration. One commenter specifically requested that excessively degraded areas and those dominated by nonnative plants be excluded from critical habitat as these areas would not, or only have nominal value to, support the taxa for which critical habitat is proposed.
Our Response:
We agree that recovery of a species is more likely in designated critical habitat in the least degraded areas containing primary constituent elements. However, for some species, especially those only known from low elevation areas, only degraded habitat remains. Therefore, some units contain essential habitat that, while currently degraded, is essential to the conservation of the species. Management for the restoration of these habitats is addressed in the species' recovery plans. However, we have excluded manmade features that do not contain the primary constituent elements, and we have revised this list based on information received during the public comment periods.
(10)
Comment:
One peer reviewer commented on the omission of large areas of high quality dry forest that contain key populations of
Neraudia ovata, Nothocestrum brevifolium,
and
Pleomele hawaiiensis
from critical habitat. The commenter noted that hundreds of acres of the best dry forest were not proposed to be included as critical habitat; however, degraded shrublands (as low quality dry forest) were proposed for inclusion. One peer reviewer commented that some lowland
populations do not appear to have been included in the proposal. This reviewer recommended that suitable areas in lowlands that still support semi-natural plant communities and that have the potential to be restored should be considered.
Our Response:
This rule designates four critical habitat units for
Neraudia ovata
for a total of six populations. In addition, four populations of
N. ovata
occur on the excluded lands at PTA. Three critical habitat units for
Nothocestrum breviflorum
are designated in this rule for a total of nine populations. Four critical habitat units for
Pleomele hawaiiensis
are designated in this rule for a total of nine populations. In addition, excluded Kamehameha Schools land provides habitat for one population of
Pleomele hawaiiensis
. Thus, we have designated habitat for 8 to 10 populations for each of these species as outlined in our recovery plans. We evaluated all suitable habitat identified for each species under consideration in this rule, but are designating only those areas deemed essential for the conservation of these species. Nevertheless, the habitat outside of these areas may contribute to the conservation of these species and are subject to other provisions of the Act.
(11)
Comment:
One peer reviewer did not agree that critical habitat should not be proposed for the seven plant species believed to be extirpated on the island of Hawaii, stating that even if they are believed extirpated, it is possible that some species may be found during future surveys. Even if this is not the case, future restoration efforts for these seven species may be more effective if currently unoccupied habitat on the island of Hawaii is included in designated critical habitat.
Our Response:
Critical habitat is not designated for
Cenchrus agrimonioides
,
Ctenitis squamigera
,
Hedyotis cookiana
,
Mariscus pennatiformis
,
Phlegmariurus mannii
,
Phyllostegia parviflora
, and
Plantago princeps
on the island of Hawaii because these species no longer occur on this island, and we are unable to determine habitat essential to their conservation. There is an undocumented report of
Cenchrus agrimonioides
on the island of Hawaii made in 1800.
Ctenitis squamigera
was last collected on the island of Hawaii in 1909, at “Kalua,” an indeterminable place name.
Hedyotis cookiana
was last collected on the island of Hawaii in 1816.
Mariscus pennatiformis
has not been seen on the island of Hawaii since the middle of the 1800s.
Phlegmariurus mannii
was last collected on the island of Hawaii in 1949.
Phyllostegia parviflora
has not been observed on the island of Hawaii since the 1800s.
Plantago princeps
has not been seen on the island of Hawaii since the 1860s. Until these species are rediscovered, we are unable to identify habitat essential to their conservation due to lack of information in the historical record. We chose not to speculate on the needs of these species on the island of Hawaii. Therefore, no change is made to our not prudent determinations here. If these species are rediscovered on the island of Hawaii, we may propose critical habitat for these species at that time.
(12)
Comment:
Several commenters expressed concern over the Service's failure to propose critical habitat for
Cyanea copelandii
ssp.
copelandii
and
Ochrosia kilaueaensis
“because they have not been seen recently in the wild and no viable genetic material is known to exist.” One commenter considered this finding to be the first step in delisting the species.
Our Response:
Historically,
Cyanea copelandii
ssp.
copelandii
was found at two sites on the southeastern slope of Mauna Loa, near Glenwood.
Ochrosia kilaueaensis
is known historically only from Puuwaawaa and at Kipuka Puaulu in Hawaii Volcanoes National Park. Neither of these species have been seen in the wild since 1957 and 1927, respectively. No viable genetic material is known to exist for either species, so there is no possibility of propagation materials for use in restoration efforts. For these reasons, critical habitat is not designated, as it would be of no benefit.
(13)
Comment:
One peer reviewer commented that in order to fully assess the validity of proposed critical habitat, an indication of the uncertainties in the data used in its identification should be included. This would include things such as whether expert opinion, data from surrogate species, or direct quantitative assessments were used and the relative reliability of those data sources. This type of information could then serve as a guide for further data collection and to highlight which critical habitat areas were likely to be modified once new data become available.
Our Response:
All data and information on species' status received in preparation of this rule were equally weighted and considered to come from reliable sources. Where discrepancies existed between different data sources, the most current data were used. Changes in this final rule that decrease the boundaries of many units are based on additional information received during the public comment period and in meetings with additional species experts and land managers.
(14)
Comment:
Several commenters stated that they did not concur that the Service used the best available scientific information.
Our Response:
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, we are required to base critical habitat determinations on the best scientific and commercial data available. The use of information gathered from reliable sources determined which lands were proposed as critical habitat. Based upon newly available information, coordination with landowners and stakeholders, and input received during the public comment period, we have made revisions to the areas designated as critical habitat, which are reflected in this final rule. We are not aware of any reliable information that is currently available to us that was not considered in this designation process.
(15)
Comment:
One commenter noted that there are several listed plants historically known from the Hawaiian Islands that are not included in the proposals; they suggested that the proposals for critical habitat should clearly state that only plants listed from 1990 to 1996 are included. Another commenter expressed concern over the Service's failure to propose critical habitat for
Cyrtandra crenata.
One peer reviewer commented that it was unclear why critical habitat was not proposed for designation on the island of Hawaii for
Caesalpinia kavaiensis
,
Abutilon menziesii
,
Argyroxiphium sandwicense
ssp.
sandwicense,
Lipochaeta venosa,
and
Gardenia brighamii
, especially when A.
sandwicense
ssp.
sandwicense
and
L. venosa
are only known from the island of Hawaii, and the recovery plan for
Gardenia brighamii
calls for the establishment and maintenance of three populations on this island. The same reviewer recommended that the Service discuss why the above species are not included in the action and provide notice of the subsequent action in which critical habitat for these species will be addressed. The reviewer also noted that a discussion of the relationship of other designated critical habitat (
e.g.
, for
Kokia drynarioides
) to the critical habitat proposed in this rule should have been included.
Our Response:
The species named by the commenters were not included in the court order in
Conservation Council for Hawaii
v.
Babbitt,
2F. Supp. 2d 1280 (D. Haw. 1998) and subsequent stipulations, and therefore were not included in this rulemaking. We may consider critical habitat for these species in the future if warranted and if funding and resources are available.
(16)
Comment:
One commenter stated that the Service should consider recovering threatened and endangered plant species in areas that are already protected and managed (
e.g.
, Hawaii Volcanoes National Park and Hakalau National Wildlife Refuge) as these areas are pristine and free of threats and are locations where native species have made a dramatic recovery.
Our Response:
We agree that these managed areas should be a focus for recovery actions. We have included several such areas in critical habitat on the island of Hawaii that contain the appropriate primary constituent elements for each species. However, these areas alone do not include all of the habitat essential for the conservation of the species for which critical habitat is designated on the island of Hawaii.
(17)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that the proposal did not provide information on the critical habitat proposed on other islands, did not separately map or identify how much acreage is needed for each of the populations, and did not specify how many separate populations are within each unit. As such, it did not contain enough information to evaluate the adequacy of the proposal.
Our Response:
While the proposed rule for critical habitat on the island of Hawaii did not repeat the information contained in the critical habitat designations for the other islands, we made the data available upon request. In this rule, we have mapped each species' critical habitat and provide separate maps, acreage, and population numbers. For multiple-island species, we have included information on whether critical habitat has been designated on other islands and the number of populations allowed for, both in critical habitat and in excluded lands.
(18)
Comment:
One commenter stated that while the Navy will manage endangered species found on its property, they would not agree to the introduction of an endangered species to an area where it does not occur.
Our Response:
No Navy lands are included in critical habitat on the island of Hawaii.
Issue 2: Site-Specific Biological Comments
(19)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, asked why units Hawaii A1 and Hawaii A2 are separated.
Our Response:
Hawaii A1 provides habitat for
Pleomele hawaiiensis.
Three other critical habitat units for this species are designated in this rule for a total of nine populations, and excluded Kamehameha Schools lands provide habitat for one additional population (see “
Analysis of Impacts Under Section 4(b)(2)
”). Unit Hawaii A2 was proposed as critical habitat for one species,
Nothocestrum breviflorum
. There is habitat designated elsewhere on the island of Hawaii for this species, providing habitat for nine populations. The area between the two units is not considered essential for the conservation of either of these species.
(20)
Comment:
One commenter stated that proposed critical habitat areas for
Achyranthes mutica
(unit Hawaii B) should be plotted using a global positioning system and identified on the critical habitat maps, with the subsequent removal of any other areas.
Our Response:
We have revised the unit to include only the gulches in this area. Ten critical habitat units, encompassing a total of 603 ha (1,491 ac), have been designated for this multi-island species. The remaining area outside of the gulches has been removed.
(21)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that unit Hawaii C contains only planted individuals of
Sesbania tomentosa
and is not considered to be critical habitat for this species. However, Lapakahi State Park in North Kohala should be considered for critical habitat.
Our Response:
The entire area proposed for
Sesbania tomentosa
in this unit was excluded, as it is not essential to the conservation of this species because it has a lower proportion of associated native species than other areas we consider to be essential to the conservation of this species. There is critical habitat designated elsewhere on the island of Hawaii for this species that provides habitat for two populations. We have not included Lapakahi State Park in the critical habitat designation for
Sesbania tomentosa
because it was not deemed essential to the conservation of the species. There are other locations that have been designated as critical habitat in order to meet the recovery goal of 8 to 10 populations throughout its historical range on this and other islands.
(22)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, recommended that the boundary for unit Hawaii B follow the Puu O Umi NAR boundary on the northeast side, noting that the Kohala Forest Reserve is very degraded and does not merit status as critical habitat. Another commenter noted that unit Hawaii B contains prime and other important agricultural lands along both sides of Kohala Mountain Road.
Our Response:
Unit Hawaii B provides habitat for six populations of
Clermontia drepanomorpha
and three populations of
Phyllostegia warshaueri
within their historical ranges. Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for these species.
(23)
Comment:
One commenter suggested that unit Hawaii D be expanded to include more endangered plant species and that perhaps this could be accomplished by transferring some of the acreage allocated to unoccupied habitat in unit Hawaii D3 to occupied habitat in unit Hawaii D7. Several commenters provided information on species present within unit Hawaii D, including:
Portulaca sclerocarpa
in unit Hawaii D1;
Lipochaeta venosa
in unit Hawaii D2;
Acacia koaia
in unit Hawaii D4; the largest known population of
Lipochaeta venosa
and unoccupied habitat for
Tetramolopium arenarium
in unit Hawaii D4, and a very extensive population of
Portulaca sclerocarpa
and two populations of
Isodendrion hosakae
and
Silene hawaiiensis
in unit Hawaii D7.
Our Response:
Unit Hawaii D1 through Hawaii D8 were proposed as critical habitat for
Isodendrion hosakae,
Portulaca sclerocarpa
, and
Vigna o-wahuensis
. Habitat is provided for two populations of
Isodendrion hosakae
and one population of
Vigna o-wahuensis
on the excluded lands at PTA. Modifications were made to these units to exclude areas that do not contain the primary constituent elements for these species or were considered not essential to the conservation of these species because they have a lower proportion of associated native species than other areas we consider to be essential to the conservation of these species, and there are at least eight other locations that have been designated to meet the recovery goal of 8 to 10 populations throughout their historical ranges on this and other islands. Other endangered species in this area are not part of this rulemaking.
(24)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, suggested removing the northeast corner of unit Hawaii E that extends into Hawaiian Home Lands property as it is degraded pasture land. If the unit followed the Laupahoehoe section of the Hilo Forest Reserve boundary, it would be more accurate.
Our Response:
This unit was proposed as critical habitat for three species:
Clermontia lindseyana
,
Clermontia pyrularia
, and
Phyllostegia racemosa
. Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for these species. The unit now lies only in the Hakalau Forest National Wildlife Refuge and the Hilo Forest Reserve.
(25)
Comment:
One commenter provided information for unit Hawaii F regarding two populations of
Cyrtandra tintinnabula
(at Nauhi in the Honohina Tract and in the Maulua Tract) occurring at the highest elevation cutoff in this unit and in unit Hawaii E at about 5,000 feet elevation.
Our Response:
Unit Hawaii E was proposed as critical habitat for three species:
Clermontia lindseyana
,
Clermontia pyrularia
, and
Phyllostegia racemosa
. Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for these species. Unit Hawaii F was proposed as critical habitat for seven species:
Clermontia peleana
,
Cyanea platyphylla
,
Cyanea shipmanii
,
Cyrtandra giffardii
,
Cyrtandra tintinnabula
,
Phyllostegia racemosa
, and
Phyllostegia warshaueri
. Two critical habitat units are designated in this rule with habitat for a total of nine populations of
Cyrtandra tintinnabula
. Although the habitat in unit Hawaii E may be important for the conservation of this species, we do not believe that it is essential at this time.
(26)
Comment:
One commenter stated that he had not been provided with specific information on how the decision to propose critical habitat in unit Hawaii G was made. The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that in unit Hawaii G, the area north of Stainback Highway that is above 3,200 feet elevation should be added to this unit and the area around Kulani, south of the highway, should be omitted, as it is dominated by timber plantations.
Our Response:
This unit was proposed as critical habitat for 12 species:
Argyroxiphium kauense, Asplenium fragile
var
insulare, Clermontia lindseyana, Clermontia peleana, Cyanea platyphylla, Cyanea shipmanii, Cyanea stictophylla, Cyrtandra giffardii, Phyllostegia racemosa, Phyllostegia velutina, Plantago hawaiensis, and Sicyos alba.
Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for these species or were considered not essential to the conservation of these species. Some portions excluded were not essential to the conservation of these species because they have a lower proportion of associated native species than other areas we consider to be essential to the conservation of these species, and there are at least eight other locations that have been designated or proposed to meet the recovery goal of 8 to 10 populations throughout these species' historical ranges on this and other islands. We excluded the proposed critical habitat for the multi-island species
Asplenium fragile
var.
insulare
in unit Hawaii G because it is not essential to the conservation of this species.
Asplenium fragile
var.
insulare
is historically known from Maui, and we designated critical habitat for two populations of this species on that island. There is also habitat for seven populations on lands excluded from this final rule on the island of Hawaii in PTA (
see
“
Analysis of Impacts Under Section 4(b)(2)
”), and this rule designates critical habitat for one population elsewhere on the island. We excluded the proposed critical habitat on Kamehameha Schools lands in this area because the benefits of excluding these lands outweighed the benefits of including them in critical habitat (see “
Analysis of Impacts Under Section 4(b)(2)
”). Those excluded lands provide habitat for recovery populations of
Phyllostegia racemosa
and
Phyllostegia velutina
.
(27)
Comment:
One commenter stated that the lone justification for unit Hawaii J is the presence of
Adenophorus periens
, which is currently found on Kauai, Molokai, and Hawaii. Within this unit, that species is threatened by volcanic emissions and acid precipitation, feral pigs and goats, and competition from nonnative plants.
Our Response:
Unit Hawaii J (now called unit Hawaii 28—Adenophorus periens—a) is designated as critical habitat for
Adenophorus periens
and provides habitat within its historical range for one population of this multi-island species. This unit, along with designated critical habitat for this species on Kauai (four populations), Oahu (one population), and Molokai (four populations), is needed to help achieve the recovery goal of 8 to 10 populations of this multi-island species.
(28)
Comment:
One peer reviewer suggested that unit Hawaii J should be extended toward the coast to provide an elevation corridor with unit Hawaii M5. This reviewer also asked why units Hawaii K and Hawaii H or Hawaii J and Hawaii L were not linked and why unit Hawaii AA does not include areas to the south. The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, recommended that the boundary of Hawaii K should exclude the plantations in the Waihaka Gulch area. Also, the commenter questioned why a large section of the Waihaka and Kaalaala drainages is omitted from this unit.
Our Response:
The Act requires us to use the best available scientific and commercial information in undertaking species listing and recovery actions, including the designation of critical habitat as set forth in this rule. In the proposed rule, we concluded that many areas were not essential for the conservation of plant species on the island of Hawaii, based on available information concerning status of the species in specific areas and level of habitat degradation. Several areas of the island were not included in the proposed rule, or are excluded from this final rule, because they are not essential for the conservation of the species. We determined them to be nonessential due to their lacking primary constituent elements or lacking the primary constituent elements and being more degraded when compared to other areas.
(29)
Comment:
One commenter stated that they did not understand how the Service could propose critical habitat in unit Hawaii L that is used by the Volcano Wilderness Run (an annual sports event).
Our Response:
Operation, use, and maintenance of existing manmade features and structures adjacent to critical habitat, or where primary constituent elements are absent, are not subject to consultation pursuant to section 7 of the Act. The Volcano Wilderness Run uses existing manmade structures and thus would not be affected by a critical habitat designation in Hawaii Volcanoes National Park, which contains proposed unit Hawaii L unless there are impacts on adjacent critical habitat.
(30)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, suggested that the boundaries for units Hawaii N1 and Hawaii N2 should be closer to the coast and include the coastline itself.
Our Response:
Unit Hawaii N1 is situated along the coast and includes the coastline from Keoneokanuku Bay to Kamilo Point. Unit Hawaii N2 is also situated along the coast and includes the coastline from Mahana Bay to Pohakea.
(31)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that unit Hawaii P should include the Hawaiian Ranchos subdivision and
be extended toward the ocean. Another commenter stated that this unit was proposed due to the presence of one occurrence of
Pleomele hawaiiensis.
Our Response:
Unit Hawaii P was proposed as critical habitat for one species,
Pleomele hawaiiensis;
however, the entire area proposed for this species has been removed. This change was made because we determined that this unit is not essential to the conservation of this species because it has a lower proportion of associated native species than other areas we consider to be essential to the conservation of this species and because there are 10 other locations that have been designated to meet the recovery goal of 8 to 10 populations throughout its historical range on this island.
(32)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that unit Hawaii Q should be extended to match the Manuka NAR boundary, with the southern boundary moved to the south-southeast (to the 200-meter elevation contour) and concurrent with the Manuka NAR southeastern boundary.
Our Response:
This unit was proposed as critical habitat for six species:
Colubrina oppositifolia, Diellia erecta, Flueggea neowawraea, Gouania vitifolia, Neraudia ovata,
and
Pleomele hawaiiensis.
Modifications were made to this unit to remove areas that do not contain the primary constituent elements for these species. The portions not included were not essential to the conservation of these species because they have a lower proportion of associated native species than other areas we consider to be essential to the conservation of these species, and there are at least eight other locations that have been designated to meet the recovery goal of 8 to 10 populations throughout their historical ranges. We did not add any area to this unit because there is enough habitat to provide 10 populations throughout the historical ranges of each of these species.
(33)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that the boundary of unit Hawaii R should be moved south to match up the with the boundary of State lands at Honomalino.
Our Response:
The northern boundary of unit Hawaii R was moved south to include only the South Kona Forest Reserve.
(34)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, provided information that unit Hawaii T contains habitat for
Clermontia lindseyana,
so critical habitat for this species should be added the unit.
Our Response:
Clermontia lindseyana
is currently found on Maui and the island of Hawaii. Critical habitat for two populations was designated on Maui and habitat for eight populations is designated for this species on the island of Hawaii in this rule. Therefore, additional populations were not deemed essential.
(35)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, provided information that unit Hawaii W is not currently occupied by wild individuals of
Delissea undulata
but does contain historical habitat for this species and for
Zanthoxylum hawaiiense.
Our Response:
Unit Hawaii W was proposed as critical habitat for one species,
Delissea undulata.
The entire area proposed for this species was excluded. Portions of this unit are not essential to the conservation of this species. We excluded the proposed critical habitat on Kamehameha Schools lands in this area because the benefits of excluding these lands outweighed the benefits of including them in critical habitat (
see
“
Analysis of Impacts Under Section 4(b)(2)
”). These excluded lands are still essential and provide habitat for three populations of
Delissea undulata.
There is habitat designated elsewhere on the island of Hawaii for this species, providing habitat for two populations.
Delissea undulata
is known historically on Maui and is currently found on Kauai and the island of Hawaii. In addition to the designation in this rule, we have also designated critical habitat on Kauai (habitat for three populations).
Zanthoxylum hawaiiense
is known historically on Lanai and is currently found on Kauai, Molokai, Maui, and the island of Hawaii. We designated critical habitat for this species on Kauai (habitat for two populations), Molokai (habitat for one population), and Maui (habitat for one population). There is additional habitat for six populations of
Zanthoxylum hawaiiense
on the island of Hawaii in the excluded PTA lands (
see
“
Analysis of Impacts Under Section 4(b)(2)
”).
(36)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, provided information that unit Hawaii X contains
Phyllostegia velutina
(in Honuaula Forest Reserve).
Our Response:
Two critical habitat units for
Phyllostegia velutina
are designated in this rule for a total of 10 populations. Although the habitat in the Honuaula Forest Reserve may be important for the conservation of this species, it is not considered to be essential.
(37)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, suggested that
Pleomele hawaiiensis
be added to unit Hawaii Y1 and
Caesalpinia kavaiensis
added to unit Hawaii Y2.
Our Response:
Caesalpinia kavaiensis
is not included in the court order, and therefore was not included in this rulemaking. There is habitat designated elsewhere on the island of Hawaii for
Pleomele hawaiiensis
for 10 populations. Although the habitat in the Honuaula Forest Reserve may be important for the conservation of this species, it is not essential.
(38)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that much of unit Hawaii Z contains badly degraded areas, and these areas should be excluded from designation, as they are currently being managed for hunting, ranching, and other multiple use programs that may not be compatible with plant critical habitat management.
Our Response:
Unit Hawaii Z was proposed as critical habitat for 12 species:
Bonamia menziesii, Colubrina oppositifolia, Cyanea stictophylla, Delissea undulata, Flueggea neowawraea, Hibiscadelphus hualalaiensis, Hibiscus brackenridgei, Nothocestrum breviflorum, Phyllostegia velutina, Plantago hawaiensis, Pleomele hawaiiensis, and Zanthoxylum dipetalum
var.
tomentosum.
Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for these species or are not essential to the conservation of these species. Some portions removed are not essential to the conservation of these species because they have a lower proportion of associated native species than other areas we consider to be essential to the conservation of these species, and there are at least 8 other locations that have been designated to meet the recovery goal of 8 to 10 populations throughout their historical ranges on this and other islands.
(39)
Comment:
The Department of Land and Natural Resources, Division of Forestry and Wildlife, a State agency, stated that much of unit Hawaii AA is badly degraded; dominated by weedy, fire-prone vegetation; and is currently being managed for hunting, which may not be compatible with plant critical habitat management. The commenter also suggested that the lower boundary of this unit be at the 3,500-foot elevation level and configured in accordance with
the Service's map of the upper Puu Anahulu area in order to omit the central portion, which is dominated by
Pennisetum setaceum.
Our Response:
This unit was proposed as critical habitat for 10 species:
Asplenium fragile
var.
insulare, Hedyotis coriacea, Neraudia ovata, Portulaca sclerocarpa, Silene hawaiiensis, Silene lanceolata, Solanum incompletum, Spermolepis hawaiiensis, Tetramolopium arenarium,
and
Zanthoxylum hawaiiense.
The entire area proposed for these species was excluded (see “
Analysis of Impacts Under Section 4(b)(2)
”).
(40)
Comment:
One peer reviewer suggested that the northern and eastern portion of PTA be removed from critical habitat, even though this area has numerous populations of
Silene hawaiiensis,
since there are large populations of this species in other critical habitat units.
Our Response:
All of PTA lands are being excluded from critical habitat in this rule (see “
Analysis of Impacts Under Section 4(b)(2)
”).
(41)
Comment:
One commenter stated that critical habitat units Hawaii B, D2, N, O, Z, and AA affect grazing lands; units M2 and M3 affect papaya orchards in mauka areas of Puna; and unit Q affects macadamia nut orchards and livestock grazing.
Our Response:
Modifications were made to units Hawaii B, D2, O, Q, and Z to remove areas that do not contain the primary constituent elements. Units Hawaii N1, N2, M2, and M3 were all removed, as these areas are not essential to the conservation of
Sesbania tomentosa
and
Ischaemum byrone.
They are not essential because they have a lower proportion of associated native species than other areas we consider to be essential to the conservation of these species, and there are at least 10 other locations that have been designated for each of these species. In addition, Unit Hawaii AA was excluded (see “
Analysis of Impacts Under Section 4(b)(2)
”).
Issue 3: Species-Specific Biological Comments
(42)
Comment:
One peer reviewer commented that the following should be included in critical habitat: Cinder cone habitats in the Waimea area for
Isodendrion hosakae
and
Lipochaeta venosa;
eastern Mauna Kea wet forests, especially the areas downslope from Hakalau National Wildlife Refuge; dry forests north of Kona (for
Neraudia ovata, Isodendrion pyrifolium,
and
Nothocestrum brevifolium
); and dry and mesic forests in south Kona.
Our Response:
Lipochaeta venosa
is not one of the species at issue in the court order in
Conservation Council of Hawaii
v.
Babbitt
(D. Hawaii 1998) and subsequent stipulations and therefore was not included in this rulemaking. Critical habitat is designated elsewhere on the island of Hawaii for
Isodendrion hosakae
(for eight populations). Four other critical habitat units for
Neraudia ovata
are designated on the island of Hawaii for a total of six populations, and habitat is provided for four populations on the excluded lands at PTA (see “
Analysis of Impacts Under Section 4(b)(2)
”).
Isodendrion pyrifolium
is known historically on Oahu, Molokai, Lanai, and Maui and is currently found on the island of Hawaii. We designated critical habitat for this species on Oahu (habitat for three populations), Molokai (habitat for one population), and Maui (habitat for two populations). Habitat for two additional populations is in the lands excluded from critical habitat on Lanai. Three critical habitat units for
Nothocestrum breviflorum
are designated in this rule for a total of nine populations. Although the habitat outside of these areas may be important for the conservation of these species, it is not essential.
(43)
Comment:
Several commenters suggested that we update the distribution of
Cyrtandra tintinnabula
by contacting a local expert; another provided information that
Hibiscus brackenridgei
had recently been located on Puuwaawaa.
Our Response:
We have revised the designated critical habitat in the final rule to incorporate new information and to address comments and new information received during the comment periods, including information on species occurrences and areas of potentially suitable unoccupied habitat for some of these species.
(44)
Comment:
One commenter stated that the subdivisions of Kona Coastview, Kona Wonderview, and Kona Highlands are not appropriate for propagation of
Pleomele hawaiiensis,
as they are residential areas that are covered with roads, driveways, houses, and lawns.
Our Response:
The subdivisions of Kona Coastview, Kona Wonderview, and Kona Highlands are not included in the proposed or final critical habitat for
Pleomele hawaiiensis.
Issue 4: Mapping and Primary Constituent Elements
(45)
Comment:
One peer reviewer suggested that it would be informative to show State and Federal property boundaries as well as roads and elevation contours.
Our Response:
Depending on the scale of the map (which is dependent on unit size), major roads, geographical landmarks, and elevation contours were included in the maps. It would be cost-prohibitive and make the rule unnecessarily large to include all the information available. Specific maps, such as landownership and land use maps, are available upon request.
(46)
Comment:
One commenter stated that most of the primary constituent elements put forth by the Service are non-specific plant community associations or general physical locations and lack a clear and quantifiable relationship to the species, but this information will be essential for future consultations with the Service.
Our Response:
As described in the discussions for each of the 47 species for which critical habitat was proposed, very little is known about the specific physical and biological requirements of these species. As such, we defined the primary constituent elements on the basis of the habitat features of the areas from which the plant species are reported, such as the type of plant community, associated native plant species, locale information (
e.g.
, steep rocky cliffs, talus slopes, stream banks), and elevation. The habitat features represent the ecological components required by the plant. The type of plant community and associated native plant species represent on specific microclimate conditions, retention and availability of water in the soil, soil microorganism community, and nutrient cycling and availability. The locale indicates soil type, elevation, rainfall regime, and temperature. Elevation indicates information on daily and seasonal temperature and sun intensity. Therefore, the descriptions of the physical elements of the locations of each of these species and the plant communities associated with the species represent the primary constituent elements for these species.
(47)
Comment:
One commenter remarked that only a rudimentary map was provided with no indication of the boundaries of the proposed areas, acreage involved, nor any indication of how the Service determined what lands were in or out of proposed critical habitat.
Our Response:
The maps in the
Federal Register
provide the general location and shape of critical habitat and are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the critical habitat (50 CFR 17.94). The legal descriptions are readily plotted and transferable to a variety of mapping formats and were made available electronically upon request for use with GIS programs. Unit
boundaries were defined by giving the coordinates in UTM Zone 5 with units in meters using North American Datum of 1983 (NAD83). These coordinates can be used to determine boundaries with some accuracy. At the public hearing, the maps were expanded to wall-size to assist the public in better understanding the proposed critical habitat. These larger scale maps were also provided to individuals upon request. Furthermore, we provided direct assistance in response to written or telephone questions with regard to mapping and landownership within the proposed critical habitat. Designated critical habitat in this final rule consists of units separately mapped for each species and is more true to the elevation contours, the distribution of habitat, and other natural features while excluding, to the extent feasible, areas where primary consistent elements are absent.
(48)
Comment:
The Department of Transportation, a State agency, stated that designation of critical habitat would significantly increase the costs of planning, design, construction, and maintenance of a number of State highways and recommended that the buffer zones on each side of the State highway right-of-way (minimum 100 feet), along with all planned roads, be excluded from designation of critical habitat.
Our Response:
Operation and maintenance of existing manmade features and structures adjacent to critical habitat would not be subject to consultation pursuant to section 7 of the Act because such features or structures do not contain the PCEs, unless there are effects to adjacent critical habitat. If regular maintenance of the roads extends 100 feet from the road base, it is excluded from critical habitat. Otherwise, areas that contain primary constituent elements and which have been determined to be essential to the conservation of a number of the plant species on the island of Hawaii are designated as critical habitat.
Issue 5: Effects of Designation
(49)
Comment:
Several commenters, including the Department of Land and Natural Resources, Land Division, a State agency, remarked on the need for consultation, pursuant to section 7 of the Act, which would be triggered by designation of critical habitat, and the potentially adverse effect such consultation could have on flexibility of land management and activities such as water diversion projects, manipulation of vegetation, grazing, applications for Federal loans or grants (
e.g.
, the NRCS), conservation district use applications, property maintenance, and construction projects.
Our Response:
Under section 7 of the Act, all Federal agencies must consult with us to insure that any action that they authorize, fund, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat. If we find that the proposed actions are likely to jeopardize the continued existence of an endangered or threatened species or result in destruction or adverse modification of critical habitat, we suggest reasonable and prudent alternatives that would allow the Federal agency to implement their proposed action without such adverse consequences. Every consultation is unique, and it is impossible to comment on what the results of a future consultation would be without details of the proposed activity and the status of the species and its critical habitat at the time of the consultation.
(50)
Comment:
Several commenters stated that designation of critical habitat would unnecessarily adversely affect military training (some of which cannot be duplicated elsewhere) and may delay construction of required training facilities.
Our Response:
The potential direct and indirect costs to the Army are discussed in detail in Chapter 3, section 3f, of the Draft Economic Analysis (DEA) and in sections 3h and 4f of the Addendum. We have had numerous discussions with the Army regarding these areas, and, as a result, we have removed PTA, based on either the lack of primary constituent elements or other reasons (
see
“
Analysis of Impacts Under Section 4(b)(2)
”).
(51)
Comment:
One commenter stated that all species should be offered protection, but they cannot support protection for some and not for others. They are concerned about the nonnative animals, whose fate would be decided by agencies that consider them invasive and kill them. The current interpretation of critical habitat in effect allows the Federal government and its partners to utilize any methodology they wish in dealing with feral animals with impunity, although such methods may be cruel and environmentally unsound.
Our Response:
The designation of critical habitat does not give the Federal government or its partners the authority to manage feral animals. Any potential animal management program would be subject to all applicable State, Federal, and local laws.
(52)
Comment:
Several commenters expressed concern over the effect that designation of critical habitat would have on subsistence hunting and gathering, particularly that the control of feral pigs and ungulates would result in adverse economical and cultural effects to Native Hawaiian people and the State's economy. Others stated that the removal of ungulates from the forest would result in an increased threat and frequency of fire.
Our Response:
A critical habitat designation has no regulatory effect on access to State or private lands. Recreational, commercial, and subsistence activities, including hunting on non-Federal lands, are not regulated by this critical habitat designation and may be affected only where there is Federal involvement in the action and when the action is likely to destroy or adversely modify critical habitat. Such designation also does not require the State or a private landowner to fence the designated area and/or remove game mammals. We also recognize that under certain circumstances, removal of ungulates can result in an increase in weedy growth and associated fire risk, and we recommend that ungulate management programs assess and address this issue.
(53)
Comment:
The Department of Hawaiian Homelands, a State agency, stated that Hawaiian home lands in the area of the Waimea and South Point parcels have already been subdivided into individual lots. The Department of Hawaiian Home Lands does not have the authority to retroactively impose management plans on individual lessees. Therefore, any regulatory impact will fall on these lessees.
Our Response:
A critical habitat designation does not constitute a land management plan, does not mandate a management plan, and does not mandate particular management actions. On State or private lands, there is no direct Federal regulatory impact from a critical habitat designation unless some sort of Federal permit, license, or funding is involved. If there is a Federal nexus, the Federal agency granting or issuing the permit, license, or funding, not an individual lessee, is required to consult with the Service to ensure that the activity being permitted, licensed, or funded is not likely to destroy or adversely modify critical habitat. By consulting with the Service, the Federal agency can usually minimize or avoid potential conflicts with listed species and their critical habitat, and the proposed activity may be undertaken.
(54)
Comment:
One commenter raised the issue of the number of fires currently burning in the landfill at Keahuolu that have the potential to explode and raised concerns that
designation of critical habitat could adversely affect plans for remediation.
Our Response:
The burning landfill is not within the final critical habitat designation. Operation and maintenance of existing manmade features and structures adjacent to critical habitat are not subject to section 7 consultation. Unless a Federal action related to landfill remediation activities directly or indirectly affects nearby habitat containing the primary constituent elements, these activities would not be affected by the designation of critical habitat.
Issue 6: Legal Issues
(55)
Comment:
One commenter stated that the Service cannot lawfully exclude areas from critical habitat based on a finding that they currently are adequately managed or protected. To do so would violate the mandatory duty to designate critical habitat to the maximum extent prudent and determinable. The commenter urges the Service not to exclude any areas from designation on this basis (
i.e.
, lands already managed or protected), since doing so would violate the mandatory duty to designate critical habitat “to the maximum extent prudent and determinable.”
Our Response:
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 base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. If an area is covered by a plan that meets our management criteria, we believe it does not constitute critical habitat as defined by the Act because the primary constituent elements found there are not considered to be in need of special management or protection. For a detailed explanation of this evaluation see the “
Analysis of Managed Lands Under Section 3(5)(A)
” section below. However, to the extent that special management considerations and protection may be required for any of these areas and they, therefore, would meet the definition of critical habitat according to section 3(5)(A)(i), they are also properly excluded from designation under section 4(b)(2) of the Act (
see
“
Analysis of Impacts under Section 4(b)(2)
” section below).
(56)
Comment:
Several commenters, including the Department of Land and Natural Resources, Land Division, a State agency, stated that the proposal appeared to not recognize the interplay in Hawaii between Federal and State laws, particularly environmental laws. They stated that harming endangered and threatened plants, even on private property, is already prohibited under State law and that designation of critical habitat duplicates existing regulations, zoning laws, and land use laws, creating an additional unnecessary regulatory burden and decrease in land values, thus resulting in “taking.”
Our Response:
The designation of critical habitat requires all Federal agencies to ensure, in consultation with the Service, that any action authorized, funded, or carried out by the agency is not likely to result in the destruction or adverse modification of designated critical habitat. If, after consultation, our biological opinion concludes that a proposed action is likely to result in the destruction or adverse modification of critical habitat, we are required to suggest reasonable and prudent alternatives to the action that would avoid the destruction or adverse modification of the critical habitat (16 U.S.C. 1536(b)(3)(A)). If we cannot suggest acceptable reasonable and prudent alternatives, the agency (or the applicant) may apply for an exemption from the Endangered Species Committee under section 7(e) through (p) of the Act. Possible effects resulting from interplay of the Federal Endangered Species Act and Hawaii State law are also discussed in the DEA and Addendum under indirect costs.
However, the mere promulgation of a regulation, like the enactment of a statute, does not take private property unless the regulation on its face denies the property owners all economically beneficial or productive use of their land (
Agins
v.
City of Tiburon,
447 U.S. 255, 260-263 (1980);
Hodel
v.
Virginia Surface Mining and Reclamation Ass'n,
452 U.S. 264, 195 (1981);
Lucas
v.
South Carolina Coastal Council,
505 U.S. 1003, 1014 (1992)). The Act does not automatically restrict all uses of critical habitat, but only imposes restrictions under section 7(a)(2) on Federal agency actions that may result in destruction or adverse modification of designated critical habitat. Furthermore, as discussed above, if a biological opinion concludes that a proposed action is likely to result in destruction or modification of critical habitat, we are required to suggest reasonable and prudent alternatives. Finally, habitat value is only one factor among many that State and local governments consider in making decisions on allowable property uses, (
See, e.g.
HRS 205-17) and would not necessarily be solely attributable to critical habitat.
(57)
Comment:
Several commenters, including the Department of Land and Natural Resources, Land Division, a State agency, raised concerns over the temporal relationship of the economic analysis relative to designation of critical habitat. One commenter stated that economic impacts should be considered concurrent with all other information and objected to the disjointed process. Another commenter wanted to ensure that the economic analysis be completed prior to the designation of critical habitat to ensure the Service meets the “prudent and determinable” standard for such designation.
Our Response:
An economic analysis of the impact of critical habitat cannot be performed without knowing the location of the critical habitat. This fact is easily realized by considering the difference of proposed critical habitat on land zoned for protective conservation versus land zoned for urban development. These types of zoning issues, as well as other issues, will greatly affect any economic analysis of critical habitat and cannot be taken into consideration until a proposal of critical habitat is put forth. The proposed prudency finding is not a final prudency finding since it has not considered the economic issues. The fact that the proposed critical habitat is published in a proposed rule emphasizes that no final decision has been made on location or extent of critical habitat. The final designation of critical habitat occurs after public comments have been taken into consideration and the economic analysis on the proposed critical habitat has been completed. The effects of the public comments and the economic analysis are then reflected in the final rulemaking.
(58)
Comment:
Several commenters stated that designation of critical habitat could have an adverse affect on the voluntary cooperation for species conservation between the private sector and the Federal government and may actually result in less species recovery. Several commenters suggested the use of alternatives to critical habitat designation that would result in greater net benefits to the species and recommended that the Service and landowners focus their resources towards proactive cooperation between the Federal and State agencies and private landowners, including the development of monetary and other incentives to engage in species protection and recovery.
Our Response:
We are required under section 4 of the Act to designate critical habitat based on the best available information we have at the time of designation. In addition, we are directed by the Act to recover the species and the ecosystems on which they depend, not just preserve them in a horticultural facility. We realize that designation of critical habitat alone will not achieve recovery. Many threatened and endangered species occur on private lands, and we recognize the importance of conservation actions by private landowners. Cooperation from private landowners is an important element of our conservation efforts, and we have had considerable success in developing partnerships with large and small landowners, government agencies, and nongovernmental organizations for conservation activities on the island of Hawaii, in the State of Hawaii, and throughout the nation.
We administer several programs aimed at providing incentives to landowners to conserve endangered and threatened species on their lands. One of these programs is the Endangered Species Landowner Incentive Program, which was first funded by Congress in fiscal year 1999. Under this program, we provide technical assistance and funding to landowners for carrying out conservation actions on their lands. In the first year alone, 145 proposals totaling $21.1 million competed for $5 million in grant money. Additional information on landowner incentive programs that we administer may be found on our Web site (
http://endangered.fws.gov/landowner/index.html
).
(59)
Comment:
Several commenters raised concerns about the nature of the public hearings. Several commenters requested that there be a process that would reach the more rural areas, and others requested that more public hearings be held, particularly after the economic analysis was completed, to make the conclusions available to the general public.
Our Response:
Section 4(b)(5)(E) of the Act requires that a public hearing be held if it is requested within 45 days of the publication of a proposed rule. In response to two requests from recreational hunting organizations, we published a notice of two public hearings on the proposed critical habitat designations for 47 plants from the island of Hawaii, and we reopened the comment period, which originally closed on July 29, 2002. The two public hearings were held on the island of Hawaii in Kailua-Kona and Hilo on October 29 and October 30, 2002, respectively. These notices were advertised in the
Honolulu Star-Bulletin.
We also held several informal meeting to discuss critical habitat with a variety of groups, including trade organizations, community associations, and hunting clubs. Although we did not have a public hearing on the economic analysis, notice of its availability was published in the
Federal Register
and comments were solicited.
(60)
Comment:
One commenter asked how long it would take to undo designation of critical habitat if necessary to correct or adjust for future conditions.
Our Response:
If provided with new information, we may revise the critical habitat designation at any time in the future. The time it takes to produce a proposed rule, receive peer review and public comment, and to publish a final rule varies with the situation.
(61)
Comment:
One commenter stated that, should current public use of any area that is designated as critical habitat be reduced or removed, the Service should provide in-kind mitigation.
Our Response:
Possible effects resulting from interplay of the Federal Endangered Species Act and Hawaii State law are discussed in the DEA and Addendum under indirect costs (
e.g.
, possible conservation management mandate for the private landowner and reduction in game mammals' population). Further, the DEA and Addendum discuss the indirect impacts resulting from the possible redistricting of private land into the Conservation District, noting that, under a most extreme scenario, areas designated as critical habitat could be placed in the Protective Subzone with the most severe restrictions, which could restrict development or a new agricultural use, or interfere with irrigation water development. As indicated in the Addendum, the likelihood of mandated redistricting is undetermined but is expected to be small.
(62)
Comment:
One commenter stated that the newly elected governor and her staff be allowed time to comment, as she will need to deal with any economic or social fallout from the designation of critical habitat on the island of Hawaii. Another commenter stated that as more than 50 percent of the lands proposed for designation are State lands, the Hawaii State legislature should have significant input into the designation.
Our Response:
All persons were invited to comment on the proposed rule. Four public comment periods were open for this rule. The first opened upon publication of the rule on May 28, 2002, for initial comments on the rule, and remained open until July 29, 2002 (67 FR 36968). The second was open from August 26, 2002, until September 30, 2002 (67 FR 54766). The third was open from September 24, 2002, until November 30, 2002 (67 FR 59811). The fourth opened on December 18, 2002, to allow comments on the DEA and closed on January 17, 2003 (67 FR 77464). Comments were received from representatives of various State agencies.
(63)
Comment:
Several commenters stated that the designation of critical habitat will result in a flood of lawsuits. One commenter was concerned that if it is found that more critical habitat was designated than is needed, it will be impossible to rescind the designation for these areas.
Our Response:
The Act does not obligate landowners to manage their land to protect critical habitat, nor would landowners and managers be obligated under the Act to participate in projects to recover a species for which critical habitat has been designated. However, the DEA does discuss the potential impacts pursuant to the interplay with State law, including the possibility of litigation. Specifically, adverse impacts on development, including delays for additional studies and agency reviews, increased costs for environmental studies, increased risk of project denials, increased risk of costly mitigation measures, and increased risk of litigation over approvals, are not expected.
(64)
Comment:
One commenter stated that proposed critical habitat on lands owned by the Queen Liliuokalani Trust at Keahuolu are surrounded by urban development and have been designated for future urban development by the State and County of Hawaii.
Our Response:
We have excluded Queen Liliuokalani Trust lands and other lands in this area (see “
Analysis of Impacts Under Section 4(b)(2)
”). We met with owners of land in the proposed critical habitat in the Keahuolu area and have revised unit Hawaii Y2 based on new information received during the public comment period.
(65)
Comment:
We received a comment letter on February 21, 2003 (after the close of the comment period), requesting additional time to work with us to implement interim conservation measures believed to be more beneficial to
Neraudia ovata
(and Blackburn's sphinx moth (
Manduca blackburni
)) and their respective habitats on lands owned by TSA and MID corporations. The landowner offered to: (1) Set aside 100 to 130 contiguous areas located in the proposed critical habitat unit Hawaii Y1 (and proposed Blackburn's sphinx moth proposed critical habitat); (2) Enter into
good faith negotiations with Federal, State, or county entities for acquisition of the area; (3) Agree to enter into a Safe Harbor Agreement with us to ensure the protection and management of a baseline level of
Neraudia ovata
(and Blackburn's sphinx moth); and (4) Enter into a memorandum of understanding or cooperative agreement that addresses habitat protection, land access, and monitoring and management actions.
Our Response:
Unit Hawaii Y1 was proposed as critical habitat for two species:
Isodendrion pyrifolium
and
Neraudia ovata.
We have excluded lands in this area (see “Analysis of Impacts Under Section 4(b)(2)”).
Issue 7: Economic Issues
(66)
Comment:
One commenter expressed concern over the potential for designation of critical habitat to have significant adverse effects on private lands, both Agricultural and Urban Districts, due to increased State regulatory implications.
Our Response:
The potential adverse effect on private lands in both the Agricultural and Urban Districts are discussed in the Indirect Costs sections of the DEA and in the Addendum. The effects include redistricting, conservation management, State and county development approvals, reductions in property values, etc. The DEA and Addendum estimate the costs of such impacts. For certain parcels, a reduction in certain property values is reasonably foreseeable, but the magnitude and duration of the loss is not known. As such, the Addendum estimates these impacts to be some undetermined fraction of $71.2 million to $124.4 million over 10 years.
(67)
Comment:
One commenter expressed concern that the designation of critical habitat would result in a lawsuit to remove game animals, which would cause a tremendous financial burden on the State and destroy traditional and cultural practices of its people.
Our Response:
Chapter VI, Section 4.b.(3) of the DEA acknowledges that, if it were to occur, the removal of game animals would result in a loss in hunting activity, economic activity, hunter benefits, consumption of hunting meat, and social and cultural value of hunting, and it would increase State expenditures. However, the concern about the removal of game animals is based in part on the premise that critical habitat will require the State to undertake steps to avoid the taking of a listed species. As stated in the Conservation Management section of the Addendum, while critical habitat may provide information to help a landowner identify where take may occur, take prohibitions—to the extent they apply to listed plants—are triggered by the listing of a species and would apply whether or not critical habitat is designated. As such, designating critical habitat is not anticipated to result in the removal of game animals.
(68)
Comment:
Several commenters expressed concern that the designation of critical habitat would constrain community and infrastructure growth, business growth, and development of affordable housing.
Our Response:
We have excluded lands in this area (
see
“Analysis of Impacts Under Section 4(b)(2)”).
(69)
Comment:
Several commenters expressed concern that the designation of critical habitat would constrain outdoor recreation and subsistence hunting and gathering.
Our Response:
The impacts to outdoor recreation and subsistence hunting and gathering are discussed in the DEA and the Addendum. Specifically, the Direct Costs section of the DEA, as amended by the Addendum, discusses impacts to State-managed hunting, National Parks and Wildlife Refuges, State-managed areas, and the State trail and access system. The Indirect Costs section of the DEA, as amended by the Addendum, discusses the impacts to management of game mammals and hunting lands, and subsistence and Native Hawaiian practices. Potential benefits to ecotourism and outdoor recreation are discussed in the Benefits Section of the DEA. The impacts, if any, for each of these activities are summarized below.
In summary, our final economic analysis estimates that the probability of a major State-initiated change in game mammal management,
i.e.
, that the State would adopt a policy to substantially reduce game mammal populations in critical habitat units that overlap with State hunting units, is small. The probability that restriction of access and prohibition of subsistence activities in all critical habitat areas is undetermined but unlikely. It is more likely that subsistence activities would be consistent with conservation restrictions, should any be imposed. Thus it is anticipated that the impact of critical habitat on subsistence activities will be minimal. Ecotourism could benefit from project modifications, that may result from critical habitat designation, that enhance the quality of the ecosystem and expand the geographic scope of high-quality ecosystems, thereby increasing the appeal of ecotourism tours to visitors.
(70)
Comment:
Some commenters raised concerns over the ability of wildlife and other projects to receive Pittman-Robertson or other Federal funding or grants.
Our Response:
Chapter VI, Section 3.a. of the DEA discusses Pittman-Robertson funding for wildlife projects. The State Department of Land and Natural Resources (DLNR) already consults with the Service regarding projects that receive Pittman-Robertson funding. As stated in the DEA, the designation of critical habitat may increase the level of effort required to analyze the effects of feral ungulates, especially in areas that are unoccupied by the listed plants. However, Hawaii currently receives the minimum amount of Pittman-Robertson funds, so the critical habitat designation would not impact the amount of Pittman-Robertson funds the State receives.
Impacts to other projects that receive Federal funding or grants, or have Federal involvement, are discussed in the Direct Costs section of the DEA, as amended by the Addendum. As shown in Table Add-3, the total direct costs range from $46.6 million to $62.7 million over 10 years.
(71)
Comment:
Two commenters had concerns regarding funding and assistance to farmers and ranchers in the form of U.S. Department of Agriculture (USDA) loans, grants, subsidy payments, etc., or other Federal funding such as Veterans Administration (VA) loans, Federal Housing Administration (FHA) loans, NMHA loans or similar Housing and Urban Development (HUD) programs.
Our Response:
The impacts associated with USDA and HUD programs are discussed in the Ranching Operations and Residential Development sections of the Addendum. Potential impacts to ranching operations include $38,800 to $82,400 in costs to ranchers, NRCS, and the Service in section 7 consultation costs with no project modifications. The Addendum anticipates no impacts to residential development because areas planned for development are removed from the final designation and other planned developments have no reasonably foreseeable Federal involvement.
(72)
Comment:
One commenter was concerned that the designation of critical habitat would adversely affect their sale of conservation easements to the U.S. Forest Service.
Our Response:
The commenter's land was not included in the proposed designation and is also not included in the critical habitat designation, so this analysis anticipates that the designation of critical habitat will not impact the sale of conservation easements on these parcels.
(73)
Comment:
One commenter had specific concerns about the effect the designation of critical habitat would have relative to the Department of Hawaiian Homelands (DHHL) homesteading program.
Our Response:
As discussed in the Residential Development section in the Addendum, there is no DHHL land within the critical habitat designation that is planned to be developed within the next 20 years. As such, any potential impacts to the DHHL homestead program are well beyond the 10-year timeframe of this analysis.
(74)
Comment:
Several commenters commented that the economic analysis did not thoroughly consider the nexus between the State of Hawaii's environmental laws and the Federal Endangered Species Act and other Federal laws (such as the Coastal Zone Management Act). At least two commenters commented that these plant species are already protected under State of Hawaii law, which virtually assures that a violation of the Federal Endangered Species Act will also be a violation of the State law prohibition on harm to federally listed and State-listed plants.
Our Response:
The nexus between the State of Hawaii's environmental laws and Federal laws is discussed in detail in the Indirect Costs section of the DEA, as amended by the Addendum. Specifically, impacts associated with State redistricting, mandated conservation management, State and county development approvals, and State and county environmental review are considered.
The DEA and Addendum examine any indirect costs of critical habitat designation, such as when critical habitat designation triggers the applicability of a State or local statute. Prohibition of “harm” is associated with State laws regarding the take of listed plants. Take prohibitions are attributable to a listing decision and they are not coextensive costs of critical habitat designations. There are no take prohibitions associated with critical habitat. Other possible indirect impacts, such as loss in property values due to State redistricting of land from agricultural or rural to conservation were analyzed (see also our response to Comment 81). However, there is considerable uncertainty as to whether any or all of these indirect impacts may occur since they depend on actions and decisions other than those required under the ESA, and there is only limited history to serve as guidance.
The commenters' reference to the Coastal Zone Management Act discusses the possibility of delays or denials of county Special Management Area (SMA) Use Permits for development projects in critical habitat. None of the planned development projects in the critical habitat designation are located in the SMA, so this analysis anticipates no impacts associated with SMA Use Permits.
(75)
Comment:
Several commenters, including the Department of Land and Natural Resources, Land Division, a State agency, commented that the economic analysis needs to take into consideration all economic impacts, including those in addition to “indirect” effects, those effects in the “reasonably foreseeable” future, or for those projects that are expected to occur within the next 10 years. Several commenters, including the Department of Agriculture, a State agency, commented that the scope of the economic analysis was too narrow and needed to go beyond those direct economic impacts associated with project compliance with section 7 of the Act.
Our Response:
Both direct and indirect impacts are analyzed in Chapter VI of the DEA and in the Addendum, and both are summarized in Table Add-3. Information is limited and unreliable for projects, land uses, and activities that may occur at some time beyond the reasonably foreseeable future, so in general, these projects, land uses, and activities are not considered in the DEA or in the Addendum. A 10-year time horizon is used because many landowners and managers do not have specific plans for projects beyond 10 years. In addition, the forecasts in the analysis of future economic activity are based on current socioeconomic trends and the current level of technology, both of which are likely to change over the long term.
(76)
Comment:
Several commenters commented that the economic analyses should also include those significant beneficial economic benefits that are provided by the designation of critical habitat, particularly since the economic analysis provides text to this effect. These benefits include, but are not necessarily limited to, things such as groundwater recharge, maintenance of surface water quality, erosion control, funding for research, development of nursery and landscape products, volunteer conservation work, careers in biology, and ecotourism. One commenter commented that protecting critical habitat is essential not only for the recovery of threatened and endangered plants but also to protect the ecosystems upon which they rely for long-term survival and recovery.
Our Response:
The Benefits sections of the DEA and the Addendum discuss the benefits mentioned above. It is not feasible, however, to fully describe and accurately quantify these benefits in the specific context of the critical habitat designation because of the scarcity of available studies and information relating to the size and value of beneficial changes that are likely to occur as a result of designating critical habitat. In particular, the following information is not currently available: (1) Scientific studies on the magnitude of the recovery and ecosystem changes resulting from the critical habitat designation, and (2) economic studies on the per-unit value of many of the changes.
(77)
Comment:
One commenter commented that the only benefit that would arise from designation of critical habitat would be the availability of funding for the DLNR that would be used for the implementation of management plans prepared by The Nature Conservancy to fence and eradicate all game mammals within these areas.
Our Response:
As mentioned in the Indirect Costs section of the DEA, the designation of critical habitat is not expected to change the nature of the ongoing debate regarding the management of the game mammal population in Hawaii, although it may expand or refine the geographic focus. However, even with critical habitat, the DEA assumes that the probability is small that the State DLNR would adopt a policy to substantially reduce game mammal populations in critical habitat units that overlap with State Hunting Units, even if critical habitat caused an increase in funding. This judgment is based on discussions with DLNR, others familiar with the subject, and a decade of public testimony by hunters.
(78)
Comment:
One commenter stated that to avoid legal liability (
i.e.
, “taking”), a landowner may have to incur substantial costs associated with conservation management actions (
e.g.
, fencing and exotics control) on their lands that contain designated critical habitat. Another commenter raised concerns over the amount of funds necessary to manage all the lands proposed for critical habitat, citing costs associated with a 15-acre restoration project in North Kona (Kaupulehu) that was initiated in 1990, has used over $600,000, and still continues to require management actions.
Our Response:
Although the costs of conservation management were presented in the DEA for the purposes of illustration, this analysis assumes that these costs are not reasonably
foreseeable for the reasons explained in Section 4.b. of the Addendum.
(79)
Comment:
One commenter commented that the designation of critical habitat on the majority of Hawaiian Home Lands at South Point and Waimea, which would require beneficiaries to conduct environmental assessments and consultations under section 7 of the Act in order to build homes or commence farming, would represent a substantial economic impact.
Our Response:
Much of the DHHL land at South Point and Waimea is not included in the final designation. North of Waimea, only gulches that are not suitable for housing development are included in Hawaii Unit 9. Near South Point, we have reduced the amount of DHHL land from 603 ha (1,490 ac) in the proposed designation to 126 ha (313 ac) in the critical habitat designation. The 126 ha (313 ac) in Hawaii Unit 19 are part of the Kamaoa-Puueo tract. As stated in the DEA, the 2002 DHHL
Hawaii Island Plan
identifies the Kamaoa-Puueo tract as a non-priority development, which means that its development is not likely in the next 20 years. There is no more DHHL land included in the critical habitat designation. As such, this analysis estimates no impacts associated with DHHL land within the 10-year timeframe of this analysis.
(80)
Comment:
One commenter commented that there are 23,000 hunters in Hawaii who contribute an estimated $31 million annually to State revenue. A disproportionately large percentage of these hunters live on the Island of Hawaii, so, designation of critical habitat will have a correspondingly adverse effect on the island's economic condition.
Our Response:
For illustrative purposes, the loss in direct sales, indirect sales, employment, and income associated with a loss of hunting activity in critical habitat is presented in Chapter VI, Section 4.b.(3) of the DEA. However, the DEA assumes that the probability that the State will adopt a policy to remove game animals from critical habitat is low. The Addendum makes no changes to this conclusion.
(81)
Comment:
Several comments commented on how designation of critical habitat would trigger the DLNR initiation of review, and potential reclassification, of lands to the Conservation District pursuant to Hawaii Revised Statutes (HRS) 195D-5.1. Costs associated with this review were pointed out by another commenter who stated that they needed to be factored into the economic analysis along with reductions in tax revenues to Hawaii County, which would result from these actions.
Our Response:
HRS section 195D-5.1 states that the Department of Land and Natural Resources (DLNR) “shall initiate amendments to the conservation district boundaries consistent with section 205-4 in order to include high quality native forests and the habitat of rare native species of flora and fauna within the conservation district.” HRS section 205-2(e) specifies that “conservation districts shall include areas necessary for * * * conserving indigenous or endemic plants, fish and wildlife, including those which are threatened or endangered * * *.” Unlike the automatic conferral of State law protection for all federally listed species (
see
HRS 195D-4(a)), these provisions do not explicitly reference federally designated critical habitat and, to our knowledge, DLNR has not proposed amendments in the past to include all designated critical habitat in the Conservation District. Nevertheless, according to the Land Division of DLNR, DLNR is required by HRS 195D-5.1 to initiate amendments to reclassify critical habitat lands to the Conservation District (Deirdre Mamiya, Administrator, Land Division, in litt. 2002).
State law only permits other State departments or agencies, the county in which the land is situated, and any person with a property interest in the land to petition the State Land Use Commission (LUC) for a change in the boundary of a district. HRS section 205-4. The Hawaii Department of Business, Economic Development & Tourism's (DBEDT) Office of Planning also conducts a periodic review of district boundaries taking into account current land uses, environmental concerns and other factors and may propose changes to the LUC.
The State Land Use Commission determines whether changes proposed by DLNR, DBEDT, other state agencies, counties or landowners should be enacted. In doing so, State law requires LUC to take into account specific criteria, set forth at HRS 205-17. While the LUC is specifically directed to consider the impact of the proposed reclassification on “the preservation or maintenance of important natural systems or habitats,” it is also specifically directed to consider five other impacts in its decision: (1) “Maintenance of valued cultural, historical, or natural resources;” (2) “maintenance of other natural resources relevant to Hawaii's economy, including, but not limited to, agricultural resources;” (3) “commitment of state funds and resources;” (4) “provision for employment opportunities and economic development;” and (5) “provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups.” HRS 205.17. Approval of redistricting requires six affirmative votes from the nine commissioners, with the decision based on a “clear preponderance of the evidence that the proposed boundary is reasonable.” HRS 205-4.
The costs associated with redistricting are discussed in detail in the Indirect Costs sections of the DEA and the Addendum. As stated in the Addendum, this analysis assumes that the probability is low that land currently planned for development in Hawaii Units 12 and 13 will be redistricted to the Conservation District, especially if landowners agree to certain conditions to protect portions of the critical habitat designation. This determination is the result of the requirements for redistricting, including the requirement that the LUC consider “provision for employment opportunities and economic development;” “commitment of State funds and resources;” the “provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups;” and “preservation or maintenance of important natural systems or habitats” when considering a petition for redistricting (HRS 205-17).
However, it is reasonably foreseeable that certain other privately owned parcels in the Agricultural District in the critical habitat designation may be redistricted. Redistricting is more likely for these parcels because there are no current plans for economic or community development and they are not prime agricultural land. This redistricting could be completed by State agencies or mandated as a result of a third-party lawsuit. The economic costs associated with redistricting these unplanned parcels are expressed in terms of a loss in property values and a loss in agricultural activity as discussed in the Indirect Costs section of the Addendum.
This analysis assumes that the impacts on county tax revenues as a result of redistricting are expected to be small. Much of the land that is at risk of redistricting is already assessed at a low agricultural value. In many cases, the agricultural value is lower than the assessed value for land in the Conservation District. This counter-intuitive result reflects the tax break the State gives to encourage agriculture. If the land is redistricted to a subzone other than the Protective Subzone,
agriculture could continue in these areas, and the land would still be assessed at a low agricultural value. Land that is not assessed at a low agricultural value is assessed based on its future development potential. However, a loss in development potential for land in the critical habitat designation could result in an increase in the development potential of land outside of the critical habitat designation. This would result in little or no net change in the total property values on the island of Hawaii. As such, while there may be a positive or negative effect on county tax revenues associated with redistricting, this analysis assumes that the net effect will be small.
(82)
Comment:
One commenter disagreed with the finding that any redistricting of private lands would likely be limited for the following reasons: (1) The DLNR mandate to initiate down-zone; (2) the extensive amount of critical habitat proposed for designation; and (3) the Service's efforts to document and justify critical habitat boundaries.
Our Response:
As mentioned in the Indirect Costs section of the Addendum, even if DLNR initiates amendments to the Conservation District boundaries based on critical habitat, or is forced to do so by a third-party lawsuit, the LUC makes the final decision to redistrict a parcel. State law requires the LUC to consider a variety of factors when making this decision, including the “maintenance of other resources relevant to Hawaii's economy, including, but not limited to, agricultural resources;” “provision for employment opportunities and economic development;” “commitment of State funds and resources;” “provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups;” and “the preservation or maintenance of important natural systems or habitats” when considering a petition for redistricting (HRS 205-17). Portions of Hawaii Units 12 and 13 are planned for economic and community development. Based on the LUC's criteria, this analysis assumes that there is a low probability that the LUC will redistrict (either on its own accord or as a result of a third-party lawsuit) these portions of Hawaii Units 12 and 13 to the Conservation District.
Most of the land (approximately 104,288 ha (257,700 ac), or 95 percent) in the critical habitat designation is (1) already in the Conservation District, or (2) owned by the State or Federal Government. Much of the remaining land either (1) is planned for development and thus not likely to be redistricted for the reasons mentioned above, or (2) has little economic value because it is a cinder cone (puu), gulch, or established endangered plant preserve. The remaining 3,806 ha (9,404 ac) of land are in the Agricultural District and are not currently planned for economic or community development. It is reasonably foreseeable that this land will be redistricted to the Conservation District because of its importance to the conservation of the plant species. The economic costs associated with redistricting this land are presented in the State Redistricting of Land section of the Addendum. Specifically, these costs and other costs associated with redistricting are estimated to be $22.3 million to $27.9 million.
(83)
Comment:
One commenter commented that the figures for indirect costs should be totaled in Table VI-3, as the commenter did not agree with the Service's finding that these costs were “speculative.”
Our Response:
A total indirect costs figure is not presented in Table VI-3 or in Table Add-3 because the probability that some of the indirect costs will occur is undetermined and the magnitude of other indirect costs is undetermined. Instead, the probabilities and magnitudes of certain categories of indirect costs are presented in the tables, with further discussion presented in the Indirect Costs sections of the DEA and Addendum.
The probability that certain indirect costs will occur depends on the interaction of Federal, State, and county officials; landowners; and other interested parties. The outcome of these interactions will depend on a variety of factors that are not subject to accurate quantification or prediction. Furthermore, the probability that third parties will file lawsuits and the probability that these lawsuits will be successful is not known. Thus, the probability that certain indirect costs will occur is undetermined.
(84)
Comment:
A reference to the Kaloko Town Center and Kaloko Properties Development needs to be added to Table ES-1 under “residential development.”
Our Response:
The Kaloko Town Center and Kaloko Properties development are referenced in Section 3.c. of the Addendum and are included in the heading “Other Residential Development” in Table Add-3.
(85)
Comment:
Text on page VI-9, Section 3.b (residential development), needs to add a discussion regarding the proposed residential development that would be part of the Kaloko Town Center and Kaloko Properties Development.
Our Response:
The Kaloko Town Center and Kaloko Properties development are referenced in Section 3.c. of the Addendum; however, there is no change in the DEA cost estimate.
(86)
Comment:
Text on page VI-16, Section 3.c (industrial, commercial and other urban development), should include a discussion regarding the proposed Kaloko Town Center office, commercial, retail, school, and park uses.
Our Response:
The Kaloko Town Center office, commercial, retail, school, and park uses are referenced in Section 3.f. of the Addendum; however, there is no change in the DEA cost estimate.
(87)
Comment:
Text on page VI-17, second paragraph under 3.c, should be revised to reflect that the developer is TSA Corporation and that a county zone change allowing for commercial industrial mixed use development was granted.
Our Response:
This information is included in Section 3.e. of the Addendum; however, there is no change in the DEA cost estimate.
(88)
Comment:
Text on page VI-41, last paragraph, should be revised to reflect the proposed Kaloko Town Center development and proposed residential uses that would be affected. In addition, reference to the donation of land to the National Park Service should be deleted.
Our Response:
As discussed in Section 3.k. of the Addendum, since the land is planned for development, this analysis estimates that the conservation set-aside scenario for construction of the Main Street Road project is no longer feasible. As such, the $10.7 million to $15.7 million total project modification cost for the K-to-K road projects mentioned in the DEA is adjusted to $10.5 million to $15.3 million.
(89)
Comment:
Text on page VI-69 should add Kaloko Town Center and Kaloko Properties development to the cost of development loss due to redistricting.
Our Response:
The economic cost of the loss of development potential of the Kaloko Town Center is not discussed in the redistricting section of the Addendum because the land is currently in the Conservation District. Instead, the cost of development loss for the Kaloko Town Center is included in the State and County Development Approvals section of the Addendum.
As discussed in the State Redistricting of Land section in the Addendum, the planned development in the portions of the Kaloko Properties development that are included in critical habitat include
a golf course and single-family homes. The employment that could be generated by this project is not known. However, construction of the golf course and homes will generate employment on the island. Since the LUC must consider factors such as the “provision for employment opportunities and economic development” (HRS 205-17) when making redistricting decisions, this analysis assumes there is a low probability that the Kaloko Properties will be redistricted to the Conservation District.
(90)
Comment:
Text on page VI-74 regarding the expansion of Kaloko Industrial Park needs to be revised to reflect an economic loss of $33 million due to an estimated loss of 82 acres affecting 72 lots.
Our Response:
As discussed in the State Redistricting of Land section in the Addendum, the planned development in the portions of the Kaloko Industrial Park expansion that are included in critical habitat include light industrial development and industrial/commercial mixed use development. Approximately 88 percent of the project is in Hawaii Unit 12. The entire project is expected to generate 19,345 direct full-time equivalent jobs during the build-out phase and 2,789 direct full-time equivalent jobs upon full build-out (Wilson Okamoto & Associates, Inc. 2000). Since the LUC must consider factors such as the “provision for employment opportunities and economic development” (HRS 205-17) when making redistricting decisions, this analysis assumes there is a low probability the Kaloko Industrial Park expansion will be redistricted to the Conservation District.
As mentioned in the State and County Development Approvals section of the Addendum, all of the major discretionary approvals for the Kaloko Industrial Park expansion have been obtained, so the designation of critical habitat is expected to have little impact on development approvals for the project. As such, this analysis anticipates there will be no loss of development potential attributable to the critical habitat designation.
(91)
Comment:
Text on pages VI-76 and VI-85 should add the proposed Kaloko Town Center and Kaloko Properties development.
Our Response:
These planned developments are considered in the State Redistricting of Land and the Reduced Property Value sections of the Addendum.
(92)
Comment:
Text on page VI-83, section 4e(3), needs to indicate that the completed Environmental Impact Statement for Kaloko Town Center will likely need to be updated and supplemented if that land is included within designated critical habitat.
Our Response:
This information is included and discussed in the State and County Environmental Review section of the Addendum.
(93)
Comment:
If total economic loss of Kaloko Properties lands resulted from designation of critical habitat, this loss would be an estimated $390 million, which would be in addition to direct impacts to three proposed roadway projects.
Our Response:
As discussed in the State and County Development Approvals section in the Addendum, the Kaloko Properties and Kaloko Town Center developments (Kaloko Developments) will require major discretionary approvals from the State and county. The commenter estimates that the total economic impact if these developments do not occur as an indirect result of the critical habitat designation will be approximately $390 million, based on the allowable density; average regional selling values of single-family and multi-family homes; the development cost of office, commercial, and retail buildings; and the development costs per acre of golf courses and parks.
However, the methodology used by the commenter to derive the estimated economic impact of $390 million is not consistent with the methodology presented in the DEA. The landowner's estimate is based on selling values and development cost, not profits. As mentioned in the DEA, only the previous expenditures (sunk costs) and future potential profits to the landowner are considered an economic impact of critical habitat designation. Additional construction and development costs are not considered because it is assumed that if development cannot occur in critical habitat, it will relocate elsewhere in the region. This assumption is supported by the fact that a large area surrounding critical habitat is planned for urban expansion in the County of Hawaii's General Plan, and because there are other entitled projects awaiting development (such as a 1,068 ha (2,640 ac) project on State lands that is just north of Hawaii Unit 13 and planned for residential, commercial, and light industrial development; parks; a golf course; and other uses).
As estimated in the State and County Development Approvals section in the Addendum, the sunk costs associated with the Kaloko Developments in the critical habitat designation is $5.8 million, and the present value of the future stream of profits ranges from $17 million to $34 million. Again, the specific likelihood that the Kaloko Developments will not obtain State and county development approvals as a result of the critical haibitat designation is unknown.
(94)
Comment:
The Department of Business, Economic Development and Tourism, a State agency, commented that the designation of critical habitat would compromise the financial feasibility of the VOLA (Village of Laiopua) project should there be future Federal involvement. As such, the commenter does not agree that the economic impacts of the designation of critical habitat would be “moderate” or “modest.”
Our Response:
Section 3.b of the Addendum specifically addresses the commenter's concerns. The State Housing and Community Development Corporation of Hawaii (HCDCH) is the primary agency responsible for planning the VOLA (Village of Laiopua) project. As a result of further discussions with HCDCH and a review of the Service's record regarding the VOLA project, this analysis concludes that no section 7 consultations are anticipated in the next 10 years. First, HCDCH is not currently seeking Federal funding for the project and was unable to identify specific potential Federal funding programs. Second, HUD indicates that there are currently no competitive grant programs for the development of affordable housing and that there are not likely to be any in the near future (HUD 2003). Third, the U.S. Department of Agriculture Rural Housing Service (RHS) has a loan guarantee program and a competitive loan program for the development of affordable housing, but this program is used primarily by individual homeowners and has never been used by State and county agencies in Hawaii (RHS 2003). Thus, because there is no reasonably foreseeable Federal involvement for the VOLA development, no section 7 consultations are anticipated.
(95)
Comment:
One commenter provided information on a proposed plan for the rehabilitation of the landfill site at Keahuolu, which involves development of a golf course to be used to teach children both a sport and a skill, and commented that designation of critical habitat in this area would adversely affect the proposal. The commenter also commented that in the area currently occupied by the sewage plant, there was a desire to build a wetlands endangered species park and designation of critical habitat could affect potential Federal funding sources.
Our Response:
Section 3.m of the Addendum discusses the K2020 project.
Specifically, due to likely Federal involvement, the K2020 project would be subject to a section 7 consultation. As a result of the consultation, the Service indicates that K2020 may have to obtain funding for planned endangered plant preserves in Hawaii Unit 13 and the restoration of the portions of critical habitat that are temporarily disturbed.
The area currently occupied by the sewage plant and planned for a wetlands endangered species park is not included in the critical habitat designation and thus this analysis anticipates no costs associated with this portion of the K2020 planned project.
(96)
Comment:
One commenter commented that the designation of critical habitat would restrict the Department of Transportation's options in the design, maintenance, and construction of highways in affected areas and threaten the limited resources available to maintain and improve State highways. This commenter also stated that the designation of critical habitat would significantly increase the cost of planning design, construction, maintenance, and repair of the following roads: Saddle Road, Kohala Mountain Road, Kawaihae Road, Queen Kaahumanu Highway, Mamalahoa Highway, Volcano Road, and Kealakehe Parkway.
Our Response:
The costs associated with planned road projects in critical habitat are discussed in Chapter VI, Section 3.i. of the DEA and in Sections 3.j. and 3.k. of the Addendum. These sections discuss the Saddle Road Improvement and Realignment project and the planned widening of the Queen Kaahumanu Highway. The Kawaihae Road is not included in the critical habitat designation. Within the 10-year timeframe of this analysis, there are no known construction, maintenance, and repair projects for the Kohala Mountain Road and the Volcano Road that will impact the primary constituent elements for the listed plants in the critical habitat designation.
The Mamalahoa Highway (Route 190) safety improvements in Hawaii Unit 10 involve simple re-paving and resurfacing of the existing roadway. As mentioned in the DEA, the critical habitat provisions of section 7 do not apply to the operation and maintenance (O&M) of existing manmade features and structures because these features do not contain any primary constituent elements. Thus, the safety improvements planned for Mamalahoa Highway in Hawaii Unit 10 would not be subject to section 7 consultation because they involve operation and maintenance activities rather than new construction.
Finally, while the widening of Kealakehe Parkway (Route 197) in Hawaii Unit 13 is a long-term project, there is no timetable given for the project. It is likely that extension of the Parkway (outside of the critical habitat designated critical habitat area) would be required before widening the existing portion of roadway; however, no timetable is given for the completion of the extension. In addition, the State DOT is working on several other widening projects in the area, with its main focus on widening the Queen Kaahumanu Highway from downtown Kailua to the Airport, that are not estimated to be completed until 2011. Given the circumstances, it is unlikely that widening of Kealakehe Parkway (Route 197) will occur within the next 10 years.
(97)
Comment:
Several commenters commented that the designation of critical habitat on trust lands (
e.g.
, the Queen Liliuokalani Trust and Kamehameha Schools) could negate decades of planning as well as millions of dollars of infrastructure investment. This, in turn, could adversely affect future revenues that would be generated by these entities and, therefore, their ability to carry out social and cultural mandates to provide for their beneficiaries. One commenter specifically referenced concerns over Keahuolu Ahupuaa being the last and only future of producing lands owned by the Queen Liliuokalani Trust and the need for those lands to continue the legacy left by the Queen.
Our Response:
The economic, social, cultural, and political impacts associated with the loss of the development potential on Queen Liliuokalani Trust (QLT) land in Hawaii Unit 13 are discussed in detail in Chapter VI, Section 4.c.(7) of the DEA and the State and County Development Approvals section in the Addendum. Specifically, the Addendum estimates that the critical habitat designation could lead to a delay in State and county development approvals. This would delay completion of the project and the associated lease-rent revenues for QLT. This could have related social and cultural costs for the community.
The portions of the parcel owned by Kamehameha Schools and leased by PIA-Kona Limited Partnership that are planned for housing development are not included in the final designation. The portions of this parcel that are included in the critical habitat designation are currently managed as an endangered plant preserve, and there are no plans for a change in management. Kamehameha Schools did not identify other lands in the critical habitat designation that are planned for development or are likely to generate significant future revenues.
(98)
Comment:
One commenter commented on areas of the economic analysis where they felt it both overestimated and underestimated economic costs. The commenter requested that the DEA be revised to reflect that QLT's own analysis did acknowledge that additional funds would be expended to achieve build-out of Phases I and II. The commenter also asked that the economic analysis include the increased likelihood of loss of entitlements and revenue and increased costs associated with permitting costs and development of infrastructure for Phase III.
Our Response:
Chapter VI, Section 4.c.(7) of the DEA discusses the costs associated with the loss of development potential at the Keahuolu project site. The DEA references an economic impact analysis supplied by QLT that states the portions of the planned development in Phases I and II in the proposed critical habitat would yield $44.2 million per year in lease-rent revenue after the project is fully completed. The DEA states that this estimate tends to overstate the total economic impact because it does not include additional funds that would have to be expended by QLT in order to reach full completed. The QLT analysis acknowledges this fact, and thus the QLT analysis did not overstate the total economic impact.
The economic impacts associated with a delay of entitlements, a loss of revenue, and a potential modification to the development approvals for Phase III of the Keahuolu Project are discussed in the State and County Development Approvals section of the Addendum. In particular, costs are anticipated to range from $14.1 million to $21.9 million.
(99)
Comment:
One commenter raised a specific concern about the economic impact to Kamehameha Schools and PIA-Kona Limited Partnership.
Our Response:
The portions of the parcel owned by Kamehameha Schools and leased by PIA-Kona Limited Partnership that are planned for housing development are not included in the final designation. The portions of this parcel that are included in the critical habitat designation are currently managed as an endangered plant preserve, and there are no plans for a change in management. As such, this analysis anticipates there will be no economic impact to the owners of this parcel as a result of the critical habitat designation.
(100)
Comment:
Two commenters commented that critical habitat in the Kailua to Keahole area of Kona is
proposed in a region that has been master-planned for urban expansion by the State and county for over 30 years and for which $50 million of infrastructure (
e.g.
, Kealakehe Parkway and Kealakehe High School) is already in place. This area also includes a currently undeveloped portion of the State's Villages at Laiopua (VOLA) project that is intended for affordable housing, although that project is currently stalled in litigation. The commenter noted that this West Hawaii area is one of the fastest growing regions in the State and there is no other viable area for expansion.
Our Response:
The direct and indirect impacts to the Kailua to Keahole area of Kona within Hawaii Units 12 and 13 are discussed in detail in the DEA and in the Addendum, including impacts to State VOLA project, the Keahuolu Project, the Kaloko Industrial Park expansion, the Kaloko Town Center, the Kaloko Properties development, three road projects, and the K2020 county landfill project. However, Hawaii Units 12 and 13 cover a relatively small portion of the area planned for urban expansion in the County of Hawaii General Plan. While the DEA and the Addendum estimate the economic costs to landowners in areas designated as critical habitat, it is estimated that any development displaced by critical habitat will occur elsewhere on the island of Hawaii, due to the availability of comparable land. Thus, the net economic impacts to the economic development of the island of Hawaii will be small.
(101)
Comment:
Several commenters commented regarding the potential adverse effect that designation of critical habitat could have on the military. Specifically, hindering the Army and Navy's (Marines’) ability to perform their missions because of the limitations imposed by critical habitat would not only have an adverse effect on the nation's military readiness but would also be a costly waste of fiscal resources or an additional financial burden.
Our Response:
The impacts on the readiness and budget of the military are discussed in the Military Activities section in the Direct Costs section of the Addendum and in the Military Readiness section in the Indirect Costs section of the Addendum. Specifically, the direct costs to military operations over the next 10 years range from $31 million to $40 million. The indirect costs include an undetermined probability of a loss of $693 million in transformation projects and a possible reduction in readiness.
(102)
Comment:
One commenter commented that designation of critical habitat will cause private landowners to spend their own resources to determine the possible consequences of such designation on their lands (
e.g.
, legal fees).
Our Response:
The costs associated with determining the possible consequences of critical habitat are included in the Investigating the Implications of Critical Habitat section of the Addendum. Specifically, approximately 19 private landowners may investigate the implications of critical habitat on their lands at a cost of $50,000 to $181,000.
Summary of Changes From the Proposed Rule
Based on a review of public comments received on the proposed determinations of critical habitat, we have reevaluated our proposed designations and included several changes to the final designations of critical habitat. These changes include the following:
(1) We have designated 99 single species critical habitat units for 41 plant species on the island of Hawaii instead of multi-species units to clarify the exact location of critical habitat for each species.
(2) The scientific names were changed for the following associated species found in the “
Supplementary Information: Discussion of the Plant Taxa
” section:
Cocculus trilobus
changed to
Cocculus orbiculatus
in the discussions of
Neraudia ovata
and
Pleomele hawaiiensis. Jacquemontia sandwicensis
changed to
Jacquemontia ovalifolia
ssp.
sandwicensis
in the discussion of
Sesbania tomentosa. Scaevola sericea
changed to
Scaevola taccada
in the discussions of
Ischaemum byrone
and
Sesbania tomentosa. Styphelia tameiameiae
changed to
Leptecophylla tameiameiae
in the discussions of
Argyroxiphium kauense, Asplenium fragile
var.
insulare, Clermontia drepanomorpha, Clermontia lindseyana, Colubrina oppositifolia, Hedyotis coriacea, Isodendrion hosakae, Plantago hawaiensis, Sesbania tomentosa, Silene hawaiiensis, Silene lanceolata,
and
Tetramolopium arenarium. Wollastonia venosa
changed to
Melanthera venosa
in the discussions of
Isodendrion hosakae, Portulaca sclerocarpa, and Sesbania tomentosa.
We replaced
Passiflora mollissima
with
Passiflora tarminiana
in the discussions of
Clermontia lindseyana, Clermontia pyrularia, Cyanea hamatiflora
ssp.
carlsonii, Delissea undulata, Phyllostegia racemosa,
and
Sicyos alba
(Palmer 2003; Wagner and Herbst 2002).
(3) In “
Supplementary Information: Discussion of the Plant Taxa
”: We removed
Carex montis-eeka
from the list of associated species for
Argyroxiphium kauense.
We replaced
Psychotria mariniana
and
Psychotria greenwelliae
with
Psychotria
spp. (because those two specific species are not found on the island of Hawaii) in the discussion of
Delissea undulata.
We replaced:
Blechnum occidentale
with
Blechnum appendiculatum
in the discussion of
Diellia erecta; Nototrichium breviflorum
with
Nothocestrum breviflorum
in the discussion of
Hibiscus hualalaiensis; Cyathea cooperi
with
Sphaeropteris cooperi
in the discussion of
Phlegmariurus mannii;
and
Athyrium sandwicensis
with
Diplazium sandwichianum
in the discussions of
Phyllostegia warshaueri.
(4) In order to avoid confusion regarding the number of location occurrences for each species (that do not necessarily represent viable populations) and the number of viable populations needed for recovery (
e.g.
, 8 to 10 with 100, 300, or 500 reproducing individuals), we changed the word “population” to “occurrence” and updated the number of occurrences for the following species found in the “
Supplementary Information: Discussion of the Plant Taxa
” section and “Table 1.—Summary of existing occurrences on the island of Hawaii, and landownership for 58 species reported from the island of Hawaii”:
Adenophorus periens
changed from 13 populations to 4 occurrences;
Argyroxiphium kauense
changed from 3 populations to 4 occurrences;
Asplenium fragile
var.
insulare
changed from 17 populations to 36 occurrences;
Bonamia menziesii
and
Clermontia drepanomorpha
changed from 1 population to 2 occurrences;
Clermontia lindseyana
changed from 17 populations to 15 occurrences;
Clermontia pyrularia
changed from 1 population to 2 occurrences;
Colubrina oppositifolia
changed from 8 populations to 5 occurrences;
Cyanea platyphylla
changed from 9 populations to 6 occurrences;
Cyanea shipmanii
changed from 5 populations to 3 occurrences;
Cyanea stictophylla
changed from 5 populations to 6 occurrences;
Cyrtandra giffardii
changed from 7 populations to 8 occurrences;
Cyrtandra tintinnabula
changed from 6 populations to 4 occurrences;
Isodendrion hosakae
changed from 2 populations to 3 occurrences;
Diellia erecta
changed from 3 populations to occurrences;
Flueggea neowawraea
changed from 4
populations to 12 occurrences;
Gouania vitifolia
changed from 1 population to 4 occurrences;
Hedyotis coriacea
changed from 11 populations to 41 occurrences;
Ischaemum byrone
changed from 5 populations to 6 occurrences;
Melicope zahlbruckneri
changed from 2 populations to 3 occurrences;
Neraudia ovata
changed from 3 populations to 9 occurrences;
Nothocestrum breviflorum
changed from 10 populations to 66 occurrences;
Phyllostegia racemosa
changed from 7 populations to 6 occurrences;
Phyllostegia velutina
changed from 5 populations to 8 occurrences;
Plantago hawaiensis
changed from 8 populations to 6 occurrences;
Pleomele hawaiiensis
changed from 8 populations to 22 occurrences;
Portulaca sclerocarpa
changed from 19 populations to 20 occurrences;
Sesbania tomentosa
changed from 11 populations to 31 occurrences;
Sicyos alba
changed from 4 populations to 5 occurrences;
Silene hawaiiensis
changed from 23 populations to 156 occurrences;
Silene lanceolata
changed from 10 populations to 69 occurrences;
Spermolepis hawaiiensis
changed from 4 populations to 30 occurrences;
Tetramolopium arenarium
changed from 2 populations to 8 occurrences;
Zanthoxylum dipetalum
var.
tomentosum
changed from 1 population to 14 occurrences; and
Zanthoxylum hawaiiense
changed from 4 populations to 186 occurrences.
(5) We revised the list of excluded, manmade features in the “
Criteria Used to Identify Critical Habitat
” and § 17.99 to include additional features based on information received during the public comment periods.
(6) We made revisions to the unit boundaries based on information supplied by commenters, as well as information gained from field visits to some of the sites, that indicated that the primary constituent elements were not present in certain portions of the proposed unit, that certain changes in land use had occurred on lands within the proposed critical habitat that would preclude those areas from supporting the primary constituent elements, or that the areas were not essential to the conservation of the species in question. In addition, areas were excluded based other impacts pursuant to section 4(b)(2) of the Act (
see
“Other Impacts”).
(7) In accordance with the revisions described in (1) through (6), we revised § 17.12 “
Endangered and threatened plants
” and § 17.99 “
Critical Habitat; plants on the islands of Kauai, Niihau, Molokai, Maui, Kahoolawe, Oahu, and Hawaii, Hawaii, and the Northwestern Hawaiian Islands
”, as appropriate.
A brief summary of the modifications made to each unit is given below (
see also
Figure 1).
BILLING CODE 4310-55-P
S4725
ER02JY03.000
BILLING CODE 4310-55-C S4700
Hawaii A1
This unit was proposed as critical habitat for one species,
Pleomele hawaiiensis.
Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for this species. The area designated as critical habitat for this endemic species provides habitat within its historical range for one population of
Pleomele hawaiiensis.
Three other
critical habitat units for this species are designated on the island of Hawaii for a total of nine populations, and excluded Kamehameha Schools lands provide habitat for one additional population (
see
“
Analysis of Impacts Under Section 4(b)(2)
”).
These modifications resulted in the reduction from 719 ha (1,777 ac) to 677 ha (1,673 ac). This unit was renamed Hawaii 7—
Pleomele hawaiiensis
—a.
Hawaii A2
This unit was proposed as critical habitat for
Nothocestrum breviflorum.
Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for this species. The area designated as critical habitat for this endemic species provides habitat within its historical range for four populations of
Nothocestrum breviflorum.
There is habitat designated elsewhere on the island of Hawaii for this species providing habitat for nine populations.
These modifications resulted in the reduction from 2,685 ha (6,635 ac) to 1,516 ha (3,744 ac). This unit was renamed Hawaii 5—
Nothocestrum breviflorum
—a and Hawaii 6—
Nothocestrum breviflorum
—b.
Hawaii B
This unit was proposed as critical habitat for three species:
Achyranthes mutica, Clermontia drepanomorpha,
and
Phyllostegia warshaueri.
Modifications were made to this unit to exclude areas that do not contain the primary constituent elements for these species.
The area designated as critical habitat for the two species endemic to the island of Hawaii provides habitat for six populations of
Clermontia drepanomorpha
and three populations of
Phyllostegia warshaueri
within their historical ranges. One other critical habitat unit for
Phyllostegia warshaueri
is designated on the island of Hawaii for a total of 10 populations. The area designated as critical habitat for the multi-island
Achyranthes mutica
species provides habitat for 10 populations within its historical range. Nine other critical habitat units for this species are designated on the island of Hawaii. This species is historically known from Kauai, but no critical habitat was designated for it on that island (68 FR 9116, February 27, 2003).
These modifications resulted in the reduction from 8,200 ha (20,263 ac) to 3,360 ha (8,304 ac). This unit was renamed Hawaii 9—
Achyranthes mutica
—a, Hawaii 9—
Achyranthes mutica
—b, Hawaii 9—
Achyranthes mutica
—c, Hawaii 9—
Achyranthes mutica
—d, Hawaii 9—
Achyranthes mutica
—e, Hawaii 9—
Achyranthes mutica
—f, Hawaii 9—
Achyranthes mutica
—g, Hawaii 9—
Achyranthes mutica
—h, Hawaii 9—
Achyranthes mutica
—i, Hawaii 9—
Achyranthes mutica
—j, Hawaii 8—
Clermontia drepanomorpha
—a, and Hawaii 8—
Phyllostegia warshaueri
—b.
Hawaii C
This unit was proposed as critical habitat for one multi-island species,
Sesbania tomentosa.
The entire area proposed for this species is eliminated from this final rule. This area is not essential to the conservation of this species because it has a lower proportion of associated native species than other areas we consider to be essential to the conservation of this species, and there are 12 other locations that have been designated to meet the recovery goal of 8 to 10 populations throughout its historical range on this and other islands. We designated critical habitat for this species on Nihoa (habitat for one population), Necker (habitat for one population),
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