# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Blackburn's Sphinx Moth

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URL: https://www.frixlaw.com/law-library/documents/fr%3A03-14144

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 10, 2003
- **Citation:** 68 FR 34710

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH94
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Blackburn's Sphinx Moth

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Blackburn's sphinx moth
(Manduca blackburni)
, pursuant to the Endangered Species Act of 1973, as amended (Act). A total of approximately 22,440 hectares (55,451 acres) fall within the boundaries of the 9 critical habitat units designated on the Hawaiian islands of Hawaii, Kahoolawe, Maui, and Molokai for Blackburn's sphinx moth. This critical habitat designation requires the Service to consult under section 7 of the Act with regard to actions carried out, funded, or authorized by a Federal agency. Section 4 of the Act requires us to consider economic and other relevant impacts when specifying any particular area as critical habitat. We solicited data and comments from the public on all aspects of our proposal, including data on economic and other impacts of the designation.

DATES:

This rule becomes effective on July 10, 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

Blackburn's sphinx moth (moth) (
Manduca blackburni
) is one of Hawaii's largest native insects. We provided a detailed species description as well as a biogeographical overview of the Hawaiian islands in the proposed rule (67 FR 40633), we incorporate that information by reference in this final designation.

Blackburn's Sphinx Moth Biology and Status

Very few specimens of the moth have been seen since 1940, and after a concerted effort by staff at the Bishop Museum to relocate this species in the late 1970s, it was considered to be extinct (Gagné and Howarth 1985). In

1984, a single population was rediscovered on Maui (Riotte 1986), and subsequently, populations on two other islands were rediscovered. Currently, the moth is known only from populations on Maui, Kahoolawe, and Hawaii. Moth population numbers are known to be small based upon past sampling results; however, no reasonably accurate estimate of population sizes has been determinable at this point because of the adult moth's wide-ranging behavior and overall rarity (Arthur Medeiros, U.S. Geological Survey-Biological Resources Division (USGS-BRD), pers. comm. 1998; Van Gelder and Conant 1998). Before humans arrived, dry and mesic shrubland and forest covered about 823,283 hectares (ha) (2,034,369 acres (ac)) on all the main islands (Hawaii Natural Heritage Program (HHP) 2000), and it is likely that the Blackburn's sphinx moth inhabited much of that area (Riotte 1986). Reports by early naturalists indicate the species was once widespread and abundant, at least during early European settlement on nearly all the main Hawaiian islands (Riotte 1986).

The moth has been recorded from the islands of Kauai, Kahoolawe, Oahu, Molokai, Maui, and Hawaii, and has been observed from sea level to 1,525 m (5,000 ft) elevation. Most historical records were from coastal or lowland dry forest habitats in areas receiving less than 127 cm (50 in) of annual rainfall. On the island of Kauai, the moth was recorded only from the coastal area of Nawiliwili. Populations were known from Honolulu, Honouliuli, and Makua on leeward Oahu, and Kamalo, Mapulehu, and Keopu on Molokai. On Hawaii, it was known from Hilo, Pahala, Kalaoa, Kona, and Hamakua. It appears that this moth was historically most common on Maui, where it was recorded on Kahului, Spreckelsville, Makena, Wailuku, Kula, Lahaina, and West Maui.

Blackburn's sphinx moth larvae feed on plants in the nightshade family (Solanaceae). The natural host plants are native trees within the genus
Nothocestrum
(aiea), on which the larvae consume leaves, stems, flowers, and buds. However, many of the plants recorded for this species are not native to the Hawaiian Islands, and include
Nicotiana tabacum
(commercial tobacco),
Nicotiana glauca
(tree tobacco),
Solanum melongena
(eggplant),
Lycopersicon esculentum
(tomato), and possibly
Datura stramonium
(Jimson weed). Sphingid moths are known to exploit nutritious but low-density, low-apparency host plants such as vines and sapling trees. Development from egg to adult can take as little as 56 days, but pupae may remain in a state of torpor (inactivity) in the soil for up to a year. The growth rates of larvae for many closely related sphingid species are reported to decrease when their host plants lack suitable water content. In fact, suitable host plant water content can improve the later fecundity of the adult stage (Murugan and George 1992).

Adult moths have been found throughout the year, and have been observed feeding on nectar from
Ipomoea indica
(koaliawa). Other likely native nectar-providing plants for the moth are other
Ipomea
species (spp.),
Capparis sandwichiana
(maiapilo), and
Plubago zeylancia
(iliee). Many sphingid studies have shown that air temperature restricts adult feeding activity above a certain temperature (usually 30 degrees Celsius (86 degrees Fahrenheit)) (Herrera 1992). During Van Gelder and Conant's captive-rearing study (1998), adult moth feeding was not observed and captive-reared adult moths lived no longer than 12 days. In general, sphingids are known to live longer than most moths because of their ability to feed and take in water from a variety of sources, rather than relying only upon stored fat reserves. Because they live longer than most moths, female sphingid moths have less time pressure to mate and lay eggs, and often will take more time in locating the best host plants for egg laying (B. Gagné, pers. comm. 1994; David Hopper, Service,
in litt.
2000, 2002; Williams 1931, 1947; Riotte 1986; Van Gelder and Conant 1998; Kitching and Cadiou 2000). Because there are no studies showing any sphingid-species adults being short-lived, we believe that some unknown factor contributed to the brief adulthood of the Blackburn's sphinx moths observed during Van Gelder and Conant's (1998) study.

Blackburn's Sphinx Moth Habitat and Range

Plant species composition in the moth's habitat varies considerably depending on location and elevation, but some of the most common native plants in areas where the moth occurs are the trees
Diospyros sandwicensis
(lama),
Rauvolfia sandwicensis
(hao),
Reynoldsia sandwicensis
(ohe),
Pouteria sandwicensis
(alaa), the shrubs
Erythrina sandwicensis
(wiliwili),
Dodonaea viscosa
(aalii), and
Myoporum sandwicense
(naio) (Roderick and Gillespie 1997; Van Gelder and Conant 1998; Wagner
et al.
1999; Cabin
et al.
2000; Wood 2001a, 2001b).

The largest populations of Blackburn's sphinx moths, on Maui and Hawaii, are associated with trees in the genus
Nothocestrum
(Van Gelder and Conant 1998). For example, the large stand of
Nothocestrum
trees within the Ka naio Natural Area Reserve (NAR), Maui, is likely the largest in the State (Medeiros
et al.
1993), and this fact may explain why the moth occurs with such regularity in the Ka naio area (A. Medeiros, pers. comm. 1994).
Nothocestrum
is a genus of four species endemic to the Hawaiian Islands (Simon 1999) which currently occur on Kauai, Oahu, Molokai, Lanai, Hawaii, and Maui. One species,
N. longifolium
, primarily occurs in wet forests, but can occur in mesic forests as well. Three species,
N. latifolium, N. brevifolium
, and
N. peltatum
, occur in dry to mesic forests, the habitat in which the moth has been most frequently recorded. Moth larvae have been documented feeding on two
Nothocestrum
spp.,
N. latifolium
, and
N. brevifolium
; it is likely that
N. peltatum
and
N. longifolium
are suitable host plants for larval moths as well. This is supported not only by the fact that these two species are closely related to known larval hosts, but also because past historical records document the moth as occurring on the islands of Kauai and Oahu, where
N. latifolium
is not abundant and
N. brevifolium
does not occur. Furthermore, the species is known to feed on a variety of native and nonnative Solanaceae.

On Molokai, moth habitat includes vegetation consisting primarily of mixed-species mesic and dry forest communities composed of native and introduced plants (HHP 2000). Although Molokai is not known to currently contain a moth population, past moth sightings on Molokai have been reported. The island does contain native
Nothocestrum
larval host plants, including
N. longifolium
and
N. latifolium
, as well as adult host plants and restorable, manageable areas associated with these existing host plants (Wood 2001a). Because of its proximity to Maui (currently and historically home to the most persistent and largest population) and the fact that Molokai has in the past and presently supports
N. latifolium
, many researchers believe the moth could re-establish itself on the island and become a viable population(s) in the future (Frank Howarth, Bishop Museum, pers. comm. 2001).

The endangered larval host plant,
Nothocestrum brevifolium
, as well as adult host plants, occur in the areas on Hawaii Island that support populations of the moth (Marie Bruegmann, Service,

pers. comm. 1998), where there are many recorded associations of eggs, larvae, and adult moths with this plant species. This tree species is primarily threatened by habitat conversion associated with development; competition from nonnative species such as
Schinus terebinthifolius
(Christmas berry),
Pennisetum setaceum
(fountain grass),
Lantana camera
(lantana), and
Leucaena leucocephala
(Kona hao le); browsing by cattle; fire; random environmental events such as prolonged drought; and reduced reproductive potential resulting from the small number of existing individuals (59 FR 10325).

Although
Nothocestrum
spp. are not currently reported from Kahoolawe, there were very few surveys of this island prior to the intense ranching activities, which began in the middle of the last century, and the subsequent use of the island as a weapons range for 50 years. Prior to their removal, goats also played a major role in the destruction of vegetation on Kahoolawe (Cheetah and Stone 1990). It is likely that the reappearance of some vegetation as a result of the removal of the goats and the cessation of military bombing activities have allowed the moth to inhabit the island. On Kahoolawe, moth larvae feed on the nonnative
Nicotiana glauca
, which appears to adequately support production and growth of the larval stage during nondrought years. However, the native
Nothocestrum
are more stable and drought-resistant than the
Nicotiana glauca
, which dies back significantly during especially dry years (A. Medeiros, pers. comm. 2001). Therefore, it appears likely that long-term survival of the moth on Kahoolawe will require the planting of
Nothocestrum latifolium
(A. Medeiros, pers. comm. 1998).

Threats to the Conservation of Blackburn's Sphinx Moth

Habitat Loss and Degradation

Dry to mesic forest habitats in Hawaii have been severely degraded by past and present land management practices, including ranching, the impacts of introduced plants and animals, wildfire, and agricultural development (Cheetah and Stone 1990). Because of these factors,
Nothocestrum peltatum
on Kauai and
N. brevifolium
on Hawaii are now federally listed as endangered species (59 FR 9327; 59 FR 10325). Although all
Nothocestrum
spp. are not presently listed as endangered or threatened, the entire genus is declining and considered uncommon (Medeiros
et al.
1993; HHP 2000). For example, while
N. latifolium
presently occurs at moderate densities at Ka naio NEAR (HHP 1993), there has been a complete lack of seedling survival and the stand is being degraded by goats (F. Howarth, pers. comm. 1994; Steven Montgomery, pers. comm. 1994; Medeiros
et al.
1993). Goats have played a major role in the destruction of dryland and mesic forests throughout the Hawaiian Islands (Van Riper and Van Riper 1982; Stone 1985).

Because the moth was once so widespread and sphinx moths are known to be strong fliers, we believe it is likely that inter-island dispersal of the species occurred to some degree prior to the loss of much of its historical habitat. Currently, the areas of dry to mesic shrub and forest habitats below 1,525 m (5,000 ft) elevation that are suitable for Blackburn's sphinx moth are approximately 148,585 ha (367,161 ac).

Localized Extirpation

In addition to, or perhaps because of, habitat loss and fragmentation, Blackburn's sphinx moths are also susceptible to seasonal variations and weather fluctuations affecting their quality and quantity of available habitat and food. For example, during times of drought, nectar availability for adult moths are expected to decrease. During times of decreased nectar availability, life spans of individuals may not be affected, but studies with butterflies have shown marked decreases in reproductive capacity for many species (Center for Conservation Biology 1994). In another study, Jansen (1984) reported that host plant availability directly affected sphingid reproductive activity. In fact, for some lepidopteran (butterflies and moths) species, if nectar intake is cut in half, reproduction is also cut approximately in half. Such resource stress may occur on any time scale, ranging from a few days to an entire season, and a pattern of continuous long-term adult feeding stress could affect the future viability of a population (Center for Conservation Biology 1994).

Often, habitat suitability for herbivorous insects is determined by factors other than host plant occurrence or density. Microclimatic conditions (Thomas 1991; Solbreck 1995) and predator pressure (Roland 1993; Roland and Taylor 1995; Walde 1995) are two such widely reported factors. In a study of moth population structure, habitat patch size and the level of sun exposure were shown to affect species occupancy, while patch size and the distance from the ocean coast were reported to affect moth density. Moth populations in small habitat patches were more likely to become extinct (Forare and Solbreck 1997).

Nonnative Arthropods

The geographic isolation of the Hawaiian Islands restricted the number of original successful colonizing arthropods and resulted in the development of an unusual fauna. Only 15 percent of the known insect families are represented by the native insects of Hawaii (Howarth 1990). Some groups that often dominate continental arthropod faunas, such as social Hymenoptera (group-nesting ants, bees, and wasps), are entirely absent from the native Hawaiian fauna. Accidental introductions from commercial shipping and air cargo to Hawaii have now resulted in the establishment of over 2,500 species of alien arthropods (Howarth 1990; Howarth
et al.
1994), with a continuing establishment rate of 10 to 20 new arthropod species per year (Nishida 1997). In addition to the accidental establishment of nonnative species, private individuals and government agencies began importing and releasing nonnative predators and parasites for biological control of pests as early as 1865. This resulted in the introduction of 243 nonnative species between 1890 and 1985, in some cases with the specific intent of reducing populations of native Hawaiian insects (Funasaki
et al.
1988; Lai 1988). Alien arthropods, whether purposefully or accidentally introduced, pose a serious threat to Hawaii's native insects, through direct predation, parasitism, and competition for food or space (Howarth and Medeiros 1989; Howarth and Ramsay 1991).

Ants

Ants are not a natural component of Hawaii's arthropod fauna, and native species evolved in the absence of predation pressure from ants. Ants can be particularly destructive predators because of their high densities, recruitment behavior, aggressiveness, and broad range of diet (Reimer 1993). Because they are often generalist feeders, ants may affect prey populations independent of prey density, and may locate and destroy isolated individuals and populations (Nafus 1993a). At least 36 species of ants have become established in the Hawaiian Islands, and three particularly aggressive species have severely affected the native insect fauna (Zimmerman 1948).

For example, in areas where the big-headed ant (
Pheidole megacephala
) is present, native insects, including most moths, have been eliminated (Perkins 1913; Gagné 1979; Gillespie and Reimer 1993). The big-headed ant generally does not occur at elevations higher than

610 m (2,000 ft), and is also restricted by rainfall, rarely being found in particularly dry (less than 35 to 50 cm (15 to 20 in) annually) or wet (more than 250 cm (100 in) annually) areas (Reimer
et al.
1990). The big-headed ant is also known to be a predator of eggs and caterpillars of native Lepidoptera, and can completely exterminate populations (Zimmerman 1958). This ant occurs on all the major Hawaiian Islands, including those currently inhabited by Blackburn's sphinx moth and is a direct threat to these populations (Neil Reimer, Hawaii Department of Agriculture (HDOA), pers. comm. 2001; Medeiros
et al.
1993; Nishida 1997).

Several additional ant species threaten the conservation of Blackburn's sphinx moth. The Argentine ant (
Linepithema humilis
) has been reported on several islands, including Maui, Kahoolawe, and Hawaii (Adam Asquith, Service, pers. comm. 1998; A. Medeiros, pers. comm. 1998; Nishida 1997). The long-legged ant (
Anoplolepis longipes
) is reported on several islands, including Hawaii and Maui (Hardy 1979). At least two species of fire ants,
Solenopsis geminata
and
S. papuana
, are also important threats (Reagan 1986; Gillespie and Reimer 1993) and occur on many of the major islands (Reimer
et al.
1990; Nishida 1997).
Ochetellus glaber
, a recently reported ant introduction, occurs on Maui, Hawaii, and Kahoolawe (A. Medeiros, pers. comm. 1998; N. Reimer, pers. comm. 2001; Nishida 1997).

Parasitic Wasps

Hawaii also has a limited fauna of native Hymenopteran wasp species, with only two native species in the family Braconidae (Beardsley 1961), neither of which is known to parasitize Blackburn's sphinx moth. In contrast, other species of Braconidae are common predators (parasitoids) on the larvae of the tobacco hornworm and the tomato hornworm in North America (Gilmore 1938). There are now at least 74 nonnative species, in 41 genera, of braconid wasps established in Hawaii, of which at least 35 species were purposefully introduced as biological control agents (Nishida 1997). Most species of alien braconid and ichneumonid wasps that parasitize moths are not host-specific, but attack the caterpillars or pupae of a variety of moths and have become the dominant larval parasitoids even in intact, high-elevation, native forest areas of the Hawaiian Islands (Zimmerman 1948, 1978; Funasaki
et al.
1988; Howarth
et al.
1994). These wasps lay their eggs within the eggs or caterpillars of Lepidoptera. Upon hatching, the wasp larvae consume internal tissues, eventually killing the host. At least one species established in Hawaii,
Hyposeter exiguae
, is known to attack the tobacco hornworm and the related tomato hornworm in North America (Carlson 1979). This wasp is recorded from all of the main islands except Kahoolawe and Lanai (Nishida 1997) and is a recorded parasitoid of the lawn armyworm (
Spodoptera maurita
) on tree tobacco on Maui (Swezey 1927). Because of the rarity of Blackburn's sphinx moths, no documentation exists of alien braconid and ichneumonid wasps parasitizing the species. However, given the abundance and the breadth of available hosts of these wasps, they are considered significant threats to the moth (F. Howarth, pers. comm. 1994; Howarth 1983; Gagné and Howarth 1985; Howarth
et al.
1994).

Small wasps in the family Trichogrammatidae parasitize insect eggs, with numerous adults sometimes developing within a single host egg. The taxonomy of this group is confusing, and it is unclear if Hawaii has any native species (John Beardsley, University of Hawaii, pers. comm. 1994; Nishida 1997). Several alien species are established in Hawaii (Nishida 1997), including
Trichogramma minutum
, which is known to attack the sweet potato hornworm in Hawaii (Fullaway and Krauss 1945). In 1929, the wasp
Trichogramma chilonis
was purposefully introduced into Hawaii as a biological control agent for the Asiatic rice borer (
Chilo suppressalis
). This wasp parasitizes the eggs of a variety of Lepidoptera in Hawaii, including sphinx moths (Funasaki
et al.
1988). Williams (1947) found 70 percent of the eggs of Blackburn's sphinx moth to be parasitized by a
Trichogramma
wasp that was probably
T. chilonis
. Over 80 percent of the eggs of the alien grasswebworm (
Herpetogramma licarsisalis
) in Hawaii are parasitized by these wasps (Davis 1969). In Guam,
Trichogramma chilonis
effectively limits populations of the sweet potato hornworm (Nafus and Schreiner 1986), and is considered under complete biological control by this wasp in Hawaii (Lai 1988). While this wasp probably affects Blackburn's sphinx moth in a density-dependent manner (Nafus 1993a), and theoretically is unlikely to directly cause extinction of a population or the species, the availability of more abundant alternate hosts (any other lepidopteran eggs) may allow for the extirpation of Blackburn's sphinx moth by this or other egg parasites as part of a broader host base (Tothill
et al.
1930; Howarth 1991; Nafus 1993b).

Parasitic Flies

Hawaii has no native parasitic flies in the family Tachinidae (Nishida 1997). Two species of tachinid flies,
Lespesia archippivora
and
Chaetogaedia monticola
, were purposefully introduced to Hawaii for control of army worms (Funasaki
et al.
1988; Nishida 1997). These flies lay their eggs externally on caterpillars, and upon hatching, the larvae burrow into the host, attach to the inside surface of the cuticle, and consume the soft tissues (Etchegaray and Nishida 1975b). In North America,
C. monticola
is known to attack at least 36 species of Lepidoptera in eight families, including sphinx moths;
L. archippivora
is known to attack over 60 species of Lepidoptera in 13 families, including sphinx moths (Arnaud 1978). These species are on record as parasites of a variety of Lepidoptera in Hawaii and are believed to depress populations of at least two native species of moths (Lai 1988). Over 40 percent of the caterpillars of the monarch butterfly (
Danaus plexippus
) on Oahu are parasitized by
Lespesia archippivora
(Etchegaray and Nishida 1975a), and the introduction of a related species to Fiji resulted in the extinction of a native moth there (Tothill
et al.
1930; Howarth 1991). Both of these species occur on Maui and Hawaii (Nishida 1997) and are direct threats to the Blackburn's sphinx moth.

Based on the findings discussed above, nonnative predatory and parasitic insects are considered important factors contributing to the reduction in range and abundance of the Blackburn's sphinx moth, and in combination with habitat loss and fragmentation, are a serious threat to its continued existence. Some of these nonnative species were intentionally introduced by HDOA or other agricultural agencies (Funasaki
et al.
1988) and importations and augmentations of lepidopteran parasitoids continues. Although the State of Hawaii requires new introductions to be reviewed before release (HDOA 1994), post-release biology and host range cannot be predicted from laboratory studies (Gonzalez and Gilstrap 1992; Roderick 1992), and the purposeful release or augmentation of any lepidopteran parasitoid is a potential threat to the conservation of the Blackburn's sphinx moth (Gagné and Howarth 1985; Simberloff 1992).

As Table 1 indicates, the assemblage of potential alien predators and parasites on each island may differ.

Table 1.—Potential Nonnative Insect Predators and Parasites of Blackburn's Sphinx Moth

Order/family
Genus/species
Major island(s) on which the species has been reported
Major island(s) on which the species has not been reported

Diptera/Tachinidae
Chaetogaedia monticola (fly)
Hawaii, Kauai, Lanai, Maui, Molokai, Oahu
Kahoolawe.

Diptera/Tachinidae
Lespesia archippivora (fly)
Hawaii, Kauai, Maui, Molokai, Oahu
Kahoolawe, Lanai.

Hymenoptera/Formicidae
Anoplolepis longipes (long-legged ant)
Hawaii, Kauai, Maui, Oahu
Kahoolawe, Lanai, Molokai.

Hymenoptera/Formicidae
Linepithema humilis (Argentine ant)
Hawaii, Kahoolawe, Kauai, Lanai, Maui
Molokai, Oahu.

Hymenoptera/Formicidae
Ochetellus glaber (ant)
Hawaii, Kahoolawe, Kauai, Maui, Oahu
Lanai, Molokai.

Hymenoptera/Formicidae
Pheidole megacephala (big-headed ant)
Hawaii, Kahoolawe, Kauai, Lanai, Maui, Molokai, Oahu
none.

Hymenoptera/Formicidae
Solenopsis geminita (fire ant)
Hawaii, Kauai, Lanai, Maui, Molokai, Oahu
Kahoolawe.

Hymenoptera/Formicidae
Solenopsis papuana (fire ant)
Hawaii, Kauai, Lanai, Maui, Molokai, Oahu
Kahoolawe.

Hymenoptera/Vespidae
Vespula pennsylvanica (yellow jacket wasp)
Hawaii, Kauai, Maui, Oahu
Kahoolawe, Molokai.

Hymenoptera/Ichneumonidae
Hyposeter exiguae (wasp)
Hawaii, Kauai, Maui, Molokai, Oahu
Kahoolawe, Lanai.

Hymenoptera/Trichogrammatidae
Trichogramma chilonis (wasp)
Kauai, Oahu
Hawaii, Maui, Kahoolawe, Lanai, Molokai.

Hymenoptera/Trichogrammatidae
Trichogramma minutum (wasp)
Hawaii, Lanai, Molokai, Oahu
Kauai, Kahoolawe, Maui.

Furthermore, the arthropod community may differ from one area to another, even on the same island, based upon elevation, temperature, prevailing wind pattern, precipitation, or other factors (Nishida 1997). Conserving and restoring Blackburn's sphinx moth populations in multiple locations should decrease the likelihood that the effect of any single alien parasite or predator, or the combined pressure of such species, could result in the diminished vigor or extinction of the moth.

Because of the threats discussed above, we do not believe the existing habitats containing Blackburn's sphinx moth populations are sufficient to ensure the long-term survival of the species. A diverse set of habitats and climates within its former range is necessary to remove the long-term risk of rangewide extinction of the species. Threats to the moth identified in the final listing rule include vandalism and collection, predation/parasitism by alien arthropods, and habitat alteration and loss from nonnative plant and ungulate invasion (65 FR 4770; February 1, 2000). Considering the rarity of the moth, small population size is also believed to be a factor that threatens the long-term survival of the species, since random population fluctuations and catastrophic events are more likely to result in the extirpation of local populations. Wildfire and feral ungulate pressure on the moth's habitat, along with direct pressure of alien predators and parasites, are important factors currently reducing the moth's range and abundance and threatening the species' continued existence (Funasaki
et al.
1988).

Previous Federal Action

A summary of previous Federal actions on this species up to the time we proposed this critical habitat designation is found in the
Federal Register
notice proposing designation of this critical habitat (67 FR beginning page 40638).

On June 13, 2002, we published a proposed rule for designation of critical habitat for Blackburn's sphinx moth on approximately 40,240 ha (99,433 ac) of land on the islands of Hawaii, Kahoolawe, Maui, and Molokai (67 FR 40633). The publication of the proposed rule opened a 60-day public comment period, which closed on August 12, 2002.

Subsequently, we determined that an additional extension of time was needed to complete this designation process. On August 21, 2002, the District Court in Hawaii approved another joint stipulation extending the date for the final rule designating critical habitat for Blackburn's sphinx moth to May 30, 2003.

On August 26, 2002, we published a notice (67 FR 54763) announcing the reopening of the comment period until December 30, 2002, and notice of a public hearing on the proposed rule to be held on the island of Maui. On September 12, 2002, we held a public hearing at the Maui Arts and Cultural Center Meeting Room, Kahului.

On October 10, 2002, we published a notice of a public hearing on the proposed rule to be held on the island of Hawaii (67 FR 63064). On October 29, 2002, we held a public hearing in Kailua-Kona, Hawaii.

On November 15, 2002, we published a notice of the availability of, and invitation for, comments on the draft economic analysis (DEA) for the proposed rule (67 FR 69179). The second public comment period closed on December 30, 2002.

Summary of Comments and Recommendations

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited, during a prepublication peer review process, independent opinions from 15 knowledgeable individuals with expertise in one or several fields, including familiarity with the species, the geographic region that the species occurs in, and the principles of conservation biology. We received comments from five reviewers. After publication of the proposed rule, we solicited independent opinions from 27 knowledgeable individuals with similar expertise. We received 8 written responses from those 27 individuals. All eight reviewers generally supported our methodology and conclusion, and supported the proposed critical habitat designation, although they recognized the limitations of scientific knowledge of life history and population characteristics of the Blackburn's sphinx moth. All of the reviewers supported including currently unoccupied habitat

within the designation. Several reviewers suggested specific locations where critical habitat should have been expanded; in most cases this was to include additional mesic habitat areas for the moth. Several reviewers specifically expressed concern with the identified primary constituent elements, particularly pertaining to the fact that nonnative tree tobacco (
Nicotiana glauca
) was not identified as such. We summarize and address comments received from the peer reviewers in the following section. We considered all reviewers' comments in developing the final rule.

In the June 13, 2002, proposed critical habitat designation (67 FR 40633), we requested all interested parties submit comments on the specifics of the proposal, including information related to biological justification, policy, economics, and proposed critical habitat boundaries. We also contacted all appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment. The comment period was scheduled to close on August 12, 2002. To allow for additional comments on the proposed designation and to allow for comments on the DEA of the proposed critical habitat, we extended the comment period until December 30, 2002 (67 FR 54763). We received 30 individually written letters, from 10 designated peer reviewers, 4 State agencies, and 16 individuals or organizations. Approximately 715 additional letters were submitted as part of a mailing campaign, all of which supported the proposed designation.

We received three requests for a public hearing. We announced the date and time of the public hearings and invited comments in letters to appropriate elected officials; Federal, State, and local agencies; scientific organizations; and other interested parties. We also published notices in several news sources, including the
Federal Register
, Star Bulletin, West Hawaii Today, Hawaii Tribune Herald, Honolulu Advertiser, Molokai Advertiser News, and the Maui News. Five individuals at the October 2002 Kahului, Maui, public hearing and 5 individuals at the November 2002 Kailua-Kona, Hawaii, public hearing, gave testimony on the Blackburn's sphinx moth critical habitat proposal.

We provided notification of the DEA through letters and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, and interest groups. We also published notice of its availability in the
Federal Register
(67 FR 69179; November 15, 2002), and the DEA and associated material were made available on our Region 1 Fish and Wildlife Office Internet site following its release on November 15, 2002.

We reviewed all comments received for substantive issues and new information regarding the Blackburn's sphinx moth. Similar comments were grouped into six general issue categories relating specifically to the proposed critical habitat determination and DEA on the proposed determination. Comments have been incorporated directly into the final rule or final addendum to the economic analysis, and/or they have been addressed in the following summary.

Issue 1: Biological Justification and Methodology

(1)
Comment:
Multiple commenters, including one official with HDOA, stated that the Service should not designate unoccupied habitat for the moth, and that unoccupied areas should be excluded from the designation. However, all peer reviewers of the proposed rule, including one with the Hawaii Division of Forestry and Wildlife (DOFAW) and one with HDOA, were in support of the designation of unoccupied habitat. Many of the peer reviewers stated that unoccupied habitat is essential since currently occupied areas would be inadequate for conservation of the species.

Our Response:
Because of the comparatively limited current range of this species, designating only occupied areas would not meet the conservation requirements of the species. Many peer reviewers agreed with this and stated that currently occupied areas, as well as the similar habitat around them within the designated units of critical habitat that may be occupied in the future, cannot provide all of the essential life-cycle needs of the species, nor provide all of the habitat components essential for the conservation (primary constituent elements) of this species. Therefore, providing the opportunity for expansion of this species to areas that were known to have been historically occupied (
i.e.
, Molokai) is essential to its conservation, and should help to prevent the possibility of the species' extinction in the event that some populations are extirpated by catastrophes such as large wildfires or hurricanes.

When designating currently unoccupied habitat for this species, we first evaluated lands that are suitable. Of this suitable habitat, we then identified those areas essential for the conservation of the species if they contained one or more of the primary constituent elements; were either in acceptable condition for conservation efforts, or could be made acceptable through appropriate management actions; and would provide the space and distribution needed by the moth to sustain itself in the future.

The one unoccupied area designated in this final rule is located on the island of Molokai. Although currently unoccupied by the moth, the area contains both larval stage and adult moth native host plants. The area is close enough in proximity to the Maui moth population that many peer reviewers stated it is feasible that the area may again be repopulated by the moth on its own. However, because it is a separate island, some additional protection from a potential natural catastrophe affecting, for example, the Maui population, may be afforded a future moth population on Molokai. Furthermore, as Molokai is the closest island to Oahu, we believe that allowing for a future moth population on Molokai may facilitate the species' dispersal and provide a flight corridor for moths eventually dispersing to the island of Oahu, which is also part of its historical range.

Molokai was designated as critical habitat in lieu of, or rather than, other suitable unoccupied areas, because we determined, to the best of our abilities, that it is the highest quality unoccupied habitat essential to the conservation of the moth. Lastly, the designated unoccupied area on Molokai may lack some of the serious potential threats to the moth (see Table 1). Conserving and restoring Blackburn's sphinx moth populations in multiple locations decreases the likelihood that the effect of any single alien parasite or predator, or the combined pressure of such species and other threats, could result in the diminished vigor or extinction of the species.

(2)
Comment:
Critical habitat designation should consider the following: (1) The importance of designating the best remaining elements of ecosystems for multispecies conservation; (2) the practicality of managing and protecting scattered units without apparent physical boundaries; and (3) the importance of public/private partnerships for species conservation.

Our Response:
We agree that all these factors are important for the conservation of listed species. We have designated only areas that are essential for the conservation of the Blackburn's sphinx moth, and which contain primary constituent elements within the highest quality remaining habitats. We also agree that public/private partnerships are often essential for species conservation. As an example,

we are excluding portions of proposed Units 1 and 2 because some private landowners are managing portions of their lands for the conservation benefit of the moth and numerous other listed species. We believe that the benefits of exclusion outweigh the benefits of including these areas as critical habitat because there is a higher likelihood of beneficial conservation activities occurring in those two areas without designated critical habitat.
See
- Exclusions Under Section 4(b)(2) for a more detailed discussion of the excluded areas.

(3)
Comment:
The majority of peer reviewers noted the lack of knowledge regarding basic biology of the species. They noted that little peer-reviewed biological and ecological information is available for the Blackburn's sphinx moth, and that much of the technical information used for the critical habitat designation is based on unpublished reports and field observations by Service staff, State biologists, and university researchers. One peer reviewer with DOFAW stated that the use of information from studies of other sphinx moths or butterflies is probably not valid for Blackburn's sphinx moth. Another peer reviewer suggested the use of studies for other lepidopterans could be problematic. However, other peer reviewers agreed that it was acceptable and appropriate for the Service to use studies and information on other lepidopterans, especially since there is limited information on the moth.

Our Response:
As noted in the Background section of this rule, we recognize the limited amount of scientific data available for this species, especially the very limited amount of information that is available in a peer-reviewed format. However, the Act requires us to use the best available scientific and commercial information in undertaking species listing and conservation actions, including the designation of critical habitat as set forth in this rule.

Prior to the rulemaking process associated with listing the Blackburn's sphinx moth as endangered, we participated in, led, or sponsored a number of surveys and studies in numerous habitat areas on several islands to document the presence or absence of the moth or its essential host plant species at these locations. In addition, other natural resource agencies and organizations, including the University of Hawaii, USGS-BRD, DLNR, and the National Botanical Garden, provided us with reports of field observations at many sites on several islands. While we acknowledge the limited amount of peer-reviewed published information regarding the Blackburn's sphinx moth, as required by law we have used the best scientific and commercial data available to identify and delineate the critical habitat boundaries. Furthermore, we believe that we have been cautious in using information from studies of other, similar lepidoptera in identifying critical habitat for this moth species. For example, throughout this rule, we have explicitly identified where we were making comparisons between Blackburn's sphinx moth and related taxa rather than making assumptions outright about the moth. We have also acknowledged throughout the rule that additional studies are needed to confirm certain aspects of the species's biology, including, but not limited to, its host plant co-interactions.

(4)
Comment:
Some commenters stated that the Service did not adequately consider recovery science and management in its proposed critical habitat designation.

Our Response:
When developing the rule to designate critical habitat for the moth, we have used the best scientific and commercial data available. This included, but is not limited to, documented locations of known Blackburn's sphinx moth populations and locations of the primary constituent elements, including peer-reviewed scientific publications; unpublished reports by researchers; the rule listing the species (65 FR 4770); the Blackburn's sphinx moth Recovery Outline (Service 2000); the HHP's current database; island-wide Geographic Information System (GIS) coverages (
e.g.
, vegetation, soils, annual rainfall, elevation contours, landownership); information received during the public comment periods and public hearings; recent biological surveys and reports; information received in response to outreach materials and requests for species and management information that we sent to all landowners, land managers, and interested parties; responses to the published Blackburn's sphinx moth critical habitat proposed rule; and the DEA.

The critical habitat unit approach in this rule addresses the numerous risks to the long-term survival and conservation of Blackburn's sphinx moth by employing two widely recognized and scientifically accepted methods for promoting viable populations of imperiled species—(1) creation or maintenance of multiple populations to reduce the possibility that a single or series of catastrophic events could threaten to extirpate the species; and (2) increasing the size of each population in the respective critical habitat units to a level where the threats of genetic, demographic, and normal environmental uncertainties are diminished (Tear
et al.
1995; Meffe and Carroll 1996; Service 1997a).

In general, the larger the number of populations and the larger the size of each population, the lower the probability of extinction (Raup 1991; Meffe and Carroll 1996). This basic conservation principle of redundancy applies to Blackburn's sphinx moth. By maintaining viable populations in the designated critical habitat units, the threats represented by a fluctuating environment are reduced and the species has a greater likelihood of achieving conservation. Conversely, loss of a Blackburn's sphinx moth critical habitat unit will result in an appreciable increase in the risk that the species may not recover and survive.

Re-establishing the species to a diverse set of habitats and climates within its former range is necessary to remove the long-term risk of rangewide extinction due to catastrophic events and the numerous direct threats to the species and its habitat (Service 1997a). We are keenly aware that simply designating an area as critical habitat will not ensure its long-term conservation and recovery and, in fact, we know and recognize that active management actions and proven recovery science methods will be far more important in the long run for the moth. In accordance with our policy on peer review published on July 1, 1994 (59 FR 34270), we also solicited the expert opinions of appropriate and independent specialists regarding the proposed rule. The purpose of this peer review was to ensure that our designation methodology of critical habitat for the Blackburn's sphinx moth was based on scientifically sound data, assumptions, and analysis, and recovery science. The comments of all of the peer reviewers were taken into consideration in the development of this final designation. Furthermore, we are in the process of developing a draft recovery plan for the moth, and all peer reviewers, stakeholders, and other interested parties will have an opportunity to provide input to ensure that the best recovery science is outlined for the moth's long-term conservation and recovery.

(5)
Comment:
Numerous comments were submitted regarding the Service's identification of the Blackburn's sphinx moth's primary constituent elements. Most peer reviewers stated that the Service had properly identified the primary constituent elements for this species. However, several reviewers,

including one with HDOA and one with DOFAW, expressed concern with the Service's decision not to include tree tobacco (
Nicotiana glauca
) as a primary constituent element because the adult moth often lays eggs on this plant species, and the moth's larval stage appears to feed readily and successfully on it. In addition,
N. glauca
is believed to be the only larval stage host plant that the Kahoolawe island Blackburn's sphinx moth population is utilizing.

Our Response:
Although Blackburn's sphinx moth larvae feed on the nonnative
Nicotiana glauca,
we do not consider this plant to be a primary constituent element for the designation of critical habitat. As previously discussed, the native
Nothocestrum
spp. are more stable and persistent components of dry-to-mesic forest habitats than
N. glauca
.
Nicotiana glauca
is a short-lived species that may disappear from areas during prolonged drought (A. Medeiros, pers. comm. 1998) or during successional changes in the plant community (F. Howarth, pers. comm. 2001; Simon 1999). Many studies have shown that insects, and particularly lepidopteran larvae, consume more food when the food has a relatively high water content (Murugan and George 1992). Relative consumption rate and growth have been reported to decrease for many sphingids closely related to the Blackburn's sphinx moth when raised on host plants or diets with a relatively low water content (Murugan and George 1992). The vulnerability of
N. glauca
to drought conditions suggests that its water content frequently may not be suitable for optimal growth of Blackburn's sphinx moth larvae.

Numerous conservation and restoration plans for particular areas throughout the State of Hawaii have identified as primary goals the restoration of native plants, including the native host plants for the Blackburn's sphinx moth and other endangered species. Achieving these restoration goals may also require the control or elimination of nonnative vegetation, potentially including
Nicotiana
spp. (
See also
Comment #22).

Additionally, unlike the
Nothocestrum
spp.,
Nicotiana glauca
is more likely to occur in habitats less suitable because of their occupation by alien insect predators (D. Hopper,
in litt.
2000, 2002; Simon 1999). Therefore, in comparison with
N. glauca
, the native
Nothocestrum
spp. better fulfill the primary biological needs of the moth larvae. For all of these reasons, we are not considering
N. glauca
as a primary constituent element for the designation of critical habitat.

(6)
Comment:
Several reviewers stated that the native
Nothocestrum
spp. host plant populations are currently very rare and most of them are not demonstrating regeneration, so that reviewers questioned the likelihood of the Blackburn's sphinx moth's eventual recovery. Several reviewers also pointed out that the few existing
Nothocestrum
populations are highly vulnerable to extirpation by catastrophic events such as large wild fires or hurricanes. Reviewers recommended that
Nothocestrum
populations be aggressively managed using techniques that include fencing and weed and feral ungulate control; otherwise, the decline of
Nothocestrum
populations would continue. Furthermore, it was suggested that existing
Nothocestrum
populations be augmented and new populations be established with techniques including outplanting and propagation.

Our Response:
We agree that active management of the remaining
Nothocestrum
spp. populations will be necessary to prevent their continued decline and thereby facilitate the moth's long-term conservation. This critical habitat designation and the draft recovery plan, which we are currently preparing, identify these needs.

(7)
Comment:
One peer reviewer questioned whether it was prudent to identify nectar food source plants for the adult Blackburn's sphinx moths as primary constituent elements because these plants, especially
Ipomea
spp., are more widespread than the native larval stage host plants identified as primary constituent elements, and they are found outside of the boundaries of proposed critical habitat. The reviewer noted that some areas proposed as critical habitat,
i.e.,
proposed Unit 2, were selected partly because the areas are known to contain adult moth primary constituent elements, even if currently devoid of native
Nothocestrum
spp.

Our Response:
We agree that known and likely native nectar food sources for adult Blackburn's sphinx moths are more widespread and abundant than known native food sources for larval moths. We included native nectar food sources as primary constituent elements for the moth to identify the specific habitat components needed for the species to complete its entire life cycle. We determined that identifying critical habitat based solely on the existing locations of larval stage primary constituent elements,
i.e.,

Nothocestrum
spp., would not meet the species' needs essential for its conservation. Some critical habitat areas were selected because they are known to contain adult moth primary constituent elements, even if currently devoid of native
Nothocestrum
spp. We included such areas when we determined that the areas were: (1) Within the moth's current or historic range; and/or (2) known or believed to have been occupied by
Nothocestrum
spp. in the past and capable of supporting
Nothocestrum
spp. again if properly protected or restored.

(8)
Comment:
One peer reviewer suggested that some areas currently occupied by the Blackburn's sphinx moth and proposed as critical habitat may actually be suboptimal habitat for the species. It was hypothesized that these same areas are occupied currently only because some threats, such as ants or certain
Trichogramma
parasitic wasp species, are either lacking or present in sufficiently low levels to allow the moth to persist there. The same peer reviewer also suggested that soil substrate is an important habitat component that may have been overlooked in the proposed rule. It was noted that the moth has often been found in areas with rocky, cinderlike, and relatively barren substrate. It was hypothesized that the moth may prefer such a loose, uncompacted substrate for the purpose of burrowing to complete pupation. However, it was also noted that moth occurrences in these areas may be due to the fact that such substrates are somewhat comparatively abiotic and sparsely vegetated, and may thus yield lower moth parasite and predator populations.

Our Response:
The best available information, both historic and current, was used from a variety of sources (see Methods section) to determine the primary constituent elements for the Blackburn's sphinx moth and its current and former range. As pointed out by reviewers, historic information is extremely scant for the species, but the only information currently available indicates the species is restricted to somewhat dry and leeward areas. While we acknowledge that additional studies are needed to better understand the moth's long-term conservation needs, the designated lands represent, to the best of our current knowledge, the areas essential to the species' conservation. We are currently preparing a draft recovery plan for the moth, and this plan identifies several priority research tasks such as the investigation of substrate preferences and effects of various predators and parasites on the species. We may revise this critical habitat designation in the future if new information indicates revisions are warranted.

(9)
Comment:
One peer reviewer recommended that the Service conduct

a genetic analysis of moth populations from both Kahoolawe and Maui to determine if the moth has perhaps evolved either a preference for, or an adaptation to, feeding on
Nicotiana glauca
. It was suggested that the Service might learn whether the Kahoolawe moth population is dependent upon Maui moth populations for recruitment. Furthermore, genetic analysis might reveal that
Nicotiana glauca
raised moth populations are dependent upon
Nothocestrum
spp. plants or that such moth populations are genetically distinct from those moth populations that appear to be
Nothocestrum
spp. dependent.

Our Response:
We agree that a greater understanding of the moth's genetics is needed to better address its long-term conservation needs. However, researching this aspect of the moth's biology is beyond the scope of this document. We are currently preparing a draft recovery plan for the moth that will identify a genetics study, in addition to other priority research objectives.

(10)
Comment:
Most of the peer reviewers stated that the proposed critical habitat areas seem suitable in size and that they are ecologically appropriate, provided that: (1) The proposed areas are protected from their primary threats, and (2) the excluded lands are properly managed and of large enough size to be ecologically sustainable.

Our Response:
We believe the core area of suitable habitat has been demarcated by the critical habitat boundaries as presented in this final rule. Moreover, the designated critical habitat units were chosen to create an array of multiple discrete populations across the four islands to reduce the risk of extinction resulting from catastrophic natural events, such as hurricanes, and to enhance the likelihood of conservation. Furthermore, the units were chosen because they are the highest quality native habitats essential to the moth's conservation and all are identified as manageable, restorable, and sufficient in size to capably support self-sustaining moth populations. Our conclusion is that 9 sites located within historic range on four islands are sufficient to achieve these goals. If provided with new information, we may revise the critical habitat designation in the future.

(11a)
Comment:
Three peer reviewers and one commenter noted that the proposed rule did not contain a great deal of information about the distribution of the mesic habitat plant,
Nothocestrum longifolium
nor its potential as a host plant for the larval stage of the moth. It was recommended that the Service map the distribution of
N. longifolium
by island. (11b)
Comment:
Two reviewers and one commenter, including one with HDOA, noted that very little mesic habitat, other than on Molokai, was proposed as critical habitat for the Blackburn's sphinx moth. They recommended that the Service include more mesic habitat in the final designation, especially in light of the fact that the islands have undergone, and often undergo, long periods of drought. (11c)
Comment:
One peer reviewer with HDOA provided additional observational data for the moth at light traps located near Olinda, East Maui, and suggested that the moths were either flying long distances from known habitat areas, or represented adults from an undocumented population potentially utilizing
N. longifolium
plants in mesic forests of northwest Haleakala. (11d)
Comment:
Another peer reviewer with DOFAW provided additional observational data for the moth on Maui that may indicate a distinct seasonal pattern to its appearances on that island. It was suggested that these respective periods of moth appearance coincided with annual regional precipitation patterns, and might indicate the moth was taking advantage of appropriate opportunities for larval development and flower (
e.g.,
nectar) foraging. (11e)
Comment:
The same reviewer recommended the inclusion of an altogether new unit on West Maui that was not proposed as critical habitat. The unit was justified since it would include additional mesic habitat and was persistently and strongly occupied by the moth. Additionally, the area contained adult Blackburn's sphinx moth primary constituent elements, specifically
Plumbago
spp. and
Ipomea
spp., as well as other potential larval stage host plants (not identified as primary constituent elements) such as
Solanum nelsoni
and
Scaevola sericea.
Lastly, it was suggested that the new unit might provide an important corridor for adult moths migrating toward the proposed Unit 7 on Molokai because of its proximity to Molokai and the area's relative lack of strong winds like those found in the isthmus area of Maui between West Maui and Haleakala.

Our Response:
We did not designate additional mesic land on East or West Maui because those lands are not essential for the conservation of the moth. This conclusion is based on available information concerning the status of the Blackburn's sphinx species in specific areas and/or the level of habitat degradation. We agree that some mesic forest areas not designated as critical habitat, especially on Maui, may potentially harbor undocumented populations of Blackburn's sphinx moth. We also acknowledge that additional survey efforts are needed to ascertain the existence of these moth populations or potential host plant populations. In preparation of this rule, we did fund three surveys for moth host plants within mesic habitats (Perry 2001; Wood 2001a; 2001b). While new reports of moth sightings provided by reviewers will be useful in focusing future survey efforts and research needs, the fact remains that too little is known about the moth's potential mesic habitat requirements. For example, the potential host plant suitability of mesic habitat plants such as
Nothocestrum longifolium
, to warrant the designation of additional mesic habitat for the moth beyond what we have designated. Furthermore, the mesic habitat we designated on the island of Molokai was identified as the best quality mesic habitat essential for the conservation of the moth. Lastly, the two designated units within the Maui isthmus, Units 5 and 6 are expected to adequately serve as a corridor for moths migrating to the designated unit on Molokai (Unit 9).

(12)
Comment:
Two peer reviewers noted that the quality of ‘darkness’ (
i.e.
, absence of artificial lighting) could be an important factor in the Blackburn's sphinx moth's biology, and suggested this habitat quality be considered a primary constituent element. It was stated that ‘darkness’ may be important for the normal nocturnal foraging, biology, and movement behavior of the adult Blackburn's sphinx moth. Furthermore, it was noted that most of the proposed critical habitat units are still in relatively dark areas, with the exception of proposed Units 3, 5a, and 5b. One commenter provided information about two occasions in which the moth was observed flying to bright lights at the State Forestry Baseyard in Kahului, Maui. During one of the occasions, the moth became disoriented and was killed by a feral cat. Two reviewers and one commenter suggested that management for darkness may be an important issue for Blackburn's sphinx moth conservation, especially if specific critical habitat units became more developed, such as in proposed Units 3, 5a, and 5b. One reviewer suggested that low-intensity and/or shielded lighting strategies might help reduce attraction and disorientation of nocturnally migrating adult moths. One commenter recommended that proposed Unit 3 not be included in the designation because

of the absence of ‘darkness.’ Another reviewer with DOFAW questioned whether future development within the two proposed Kailua-Kona units, and the subsequent reduction of darkness, might negatively impact moth behavior within that area.

Our Response:
We agree that the quality of darkness might be an important factor in the adult Blackburn's sphinx moth's behavior. However, at this time the we are unaware of prior studies on this issue. In the draft recovery plan for this species that we are currently preparing, we will include a research objective to explore the importance of the ‘darkness’ habitat quality to the moth. If provided with new information, we may revise the critical habitat designation in the future.

(13)
Comment:
One peer reviewer recommended the identification of additional primary constituent elements for the adult Blackburn's sphinx moth,
Scaevola sericea
and
S. coriacea,
located within coastal areas, and other
Scaevola
spp. located within montane areas. The reviewer had documented several observations of similar sphingid species taking nectar from
Scaevola
spp., although no Blackburn's sphinx moths were observed feeding upon these species. Furthermore, within coastal areas of proposed Unit 3, sphingid moths had been documented foraging during crepuscular (twilight) hours on
Scaevola
spp. within less than 50 m (164 ft) of
Nicotiana glauca
host plants containing Blackburn's sphinx moth larvae. It was suggested it was highly likely that some of the observed foraging adult moths could have been Blackburn's sphinx moth adults.

Our Response:
We agree that
Scaevola
spp. could potentially serve as a nectar food source for foraging adult moths. Flowers produced by this plant group share many of the characteristics of the flowers of plants described as primary constituent elements in this rule. We will include a research objective to explore the suitability of
Scaevola
spp. as a moth nectar resource in the draft recovery plan for this species that is currently being prepared.

Issue 2: Effects of Designation

(14)
Comment:
Multiple commenters stated that the designation of critical habitat alone will not prevent the loss of remaining natural habitats, and that funds would be better spent on natural resource management activities. Additionally, some reviewers, including one with DOFAW, stated that if management is not realistic, it makes little sense to designate critical habitat.

Our Response:
We are required under the Act to designate critical habitat on the basis of best available information. Management needs for the species will be addressed in the draft recovery plan that we are currently preparing.

(15)
Comment:
Multiple commenters expressed concern about the potential impacts to hunting activities and traditional gathering rights of native Hawaiians as a result of the proposed critical habitat designation. One commenter suggested the Service should involve hunter groups in any relevant discussions should it be determined that game animal management or hunting activities may be affected by the designation.

Our Response:
We agree that in many circumstances a well-designed hunting program can be an important component in the conservation of native ecosystems in Hawaii by helping to control excessive damage caused by large populations of feral mammals. In preparation of this rule, we did conduct public information meetings with State agencies and hunting groups to address these kinds of concerns.

Unless there is Federal nexus to the activity, an activity by the State or private landowner or individual, such as farming, grazing, logging, and gathering, generally is not affected by a critical habitat designation, even if the property is within the geographical boundaries of the critical habitat. Recreational, commercial, and subsistence activities on non-Federal lands, including hunting, are not regulated by this critical habitat designation. These activities may be impacted only where there is Federal involvement in the action and the action is likely to destroy or adversely modify critical habitat.

(16)
Comment:
Some commenters stated that critical habitat should be consistent with current and ongoing conservation efforts in priority areas so that resources are not directed elsewhere in an uncoordinated manner. It was suggested that the Service and landowners and managers work together to develop approaches that are more likely to lead to species conservation, rather than a passive designation lacking management.

Our Response:
We agree and recognize that the ultimate purpose of critical habitat is to contribute to the conservation of listed species, a purpose that can be best reached by cooperation between ourselves and the community. As an example, we are excluding portions of proposed Units 1 and 2 because some private landowners are managing portions of their lands for the conservation benefit of Blackburn's sphinx moth and numerous other listed species. We believe there is a higher likelihood of beneficial conservation activities occurring in those two areas without designated critical habitat than there would be with designated critical habitat in those locations. See Exclusions Under Section 4(b)(2) for a more detailed discussion of the excluded areas.

Issue 3: Site-Specific Biological Comments

(17)
Comment:
One peer reviewer with DOFAW commented that the two proposed Kailua-Kona Units (5a and 5b) may be too small and urbanized to be effective for the long-term conservation of the Blackburn's sphinx moth. One commenter with the Housing and Development Corporation of Hawaii (HCDCH), a State agency, provided more recent survey data that indicated the proposed Unit 5b no longer contained living
Nothocestrum brevifolium
host plants. Another commenter questioned whether the proposed Unit 5a was actually essential to the species. It was suggested that the 1992 data used to indicate presence of the
N. brevifolium
host plants was outdated, and at any rate, the presence of only two known
N. brevifolium
host plants failed to prove the area would be capable of supporting a viable moth population. Furthermore, it was questioned whether inclusion of the area would actually facilitate dispersal of the moth to other proposed areas, and ultimately whether the unit would contribute to genetic exchange between moth populations on the island of Hawaii. The commenter inquired as to the number of past moth sightings within the unit. One commenter requested that the proposed Units 5a and 5b be excluded from the designation since the rule did not demonstrate that exclusion would result in extinction of the moth.

Our Response:
We have excluded proposed Units 5a and 5b from the final designation. See the Summary of Changes from the Proposed Rule section for additional detail concerning the exclusion of these units.

(18)
Comment:
One peer reviewer suggested that it may be difficult to defend the inclusion of the Kahului Airport runway safety zone within Unit 3 because the area does not currently support native
Nothocestrum
spp. host plants. It is also unlikely to do so in the future since any potentially outplanted
Nothocestrum
spp. may not survive the strong winds and salt spray prevalent within the area. However, it was noted that the area could possibly support other native solanaceous plants such as

Solanum nelsoni,
which may be suitable larval stage host plants.

Our Response:
We were provided with additional information in the form of recently completed surveys for portions of the proposed Unit 3. The study, conducted by the Hawaii Biological Survey and the Bishop Museum, showed that areas on the western edge of the proposed Unit 3, encompassing and bordering some Kahului Airport lands, were in fact relatively devoid of identified primary constituent elements, and the area would therefore not appear to provide suitable long-term habitat for the moth. As a result of receiving the additional information on the proposed Unit 3, critical habitat in the area is now designated in the form of two smaller units that do not encompass the Kahului Airport runway safety zone, nor any other Kahului Airport lands other than that contained within the Kanaha Pond Wildlife Sanctuary boundaries. See the Summary of Changes from the Proposed Rule section for additional detail on the changes that were made to this unit.

We agree that
Solanum nelsoni
could potentially serve as an alternate coastal host plant food source for the moth's larval stage. We will include a research objective to explore the suitability of
Solanum nelsoni
as larval stage host plant in the draft recovery plan for this species, currently under preparation.

(19)
Comment:
One commenter pointed out that approximately 4 ha (10 ac) of proposed Unit 3 overlapped with a private parcel under a grazing lease. It was requested that the area in question be removed from the designation if the primary constituent elements were not present, or if the area did not warrant special management considerations.

Our Response:
As a result of receiving additional information on proposed Unit 3, we excluded several portions of this proposed unit, including the area in question from critical habitat because we determined that those areas lacked the moth's primary constituent elements.
See
the Summary of Changes from the Proposed Rule section for additional detail on the changes we made to this unit.

(20)
Comment:
One peer reviewer with HDOA suggested that the lack of collection records for certain potential parasites and predators on Molokai does not mean those organisms are not present on the island. Rather it is possible that the lack of records is, in fact, an artifact of limited prior collecting work there. It was recommended that searches for these potential parasites and predators should be conducted on Molokai before special effort is put forth to utilize the island as a restoration site for the Blackburn's sphinx moth.

Our Response:
We agree. The need to better document the presence of potential predator and parasites within identified habitat conservation areas for the Blackburn's sphinx moth will be addressed in the draft recovery plan currently being prepared for the species.

(21)
Comment:
One peer reviewer with DOFAW suggested that the proposed Units 1, 2, 6, and 7 would require fencing and large scale feral ungulate management to ensure conservation of the moth and its host plants in those areas. On a related note, one reviewer and one commenter suggested that the use of managed grazing could potentially aid moth habitat restoration through the suppression of invasive weeds and fire fuels.

Our Response:
We agree with the reviewer regarding the identified fencing needs, yet we also acknowledge that managed grazing, and even highly managed game animal populations, may potentially serve as tools in the suppression of invasive weeds and fire fuels. Many of these concepts are explored in greater detail within the draft recovery plan currently being prepared for the moth. Furthermore, we look forward to developing and implementing innovative strategies to restore identified Blackburn's sphinx moth habitat conservation areas with our public and private partners involved in the management of game or livestock.

(22)
Comment:
One peer reviewer with DOFAW stated that a potential, but resolvable, conflict in land management could occur within proposed Unit 3, specifically within the boundaries of the Kanaha Pond Wildlife Sanctuary, based on current management plans to ultimately restore the 95 ha (235 ac) of sanctuary lands as much as possible to native pre-contact conditions. The planned removal of all alien plant species may entail the removal of all existing
Nicotiana glauca
plants, the nonnative host plant for the moth. It was suggested that planned experimental outplanting of native
Nothocestrum
spp. may be attempted within the sanctuary. However, it was noted that if the attempts were unsuccessful, there may then be a need to retain the
N. glauca
for the moth, an important change in both the sanctuary's management and management plans.

Our Response:
We agree that the restoration of the Kanaha Pond area to a more native and pre-contact condition will benefit the remaining native components of that ecosystem, and that it should benefit the Blackburn's sphinx moth as well. We look forward to developing and implementing an innovative restoration strategy for this area with DOFAW. Determining if there are suitable, native coastal host plants that could be outflanked for the moth's larval stage is a research need that we will address in the draft recovery plan.

(23)
Comment:
One commenter provided additional information about the extent of grazing activities within proposed Unit 7 on Molokai, and questioned whether the area actually contained the Blackburn's sphinx moth's primary constituent elements. It was requested that the area be excluded from the designation.

Our Response:
As a result of receiving the additional information on proposed Unit 7, several portions of the proposed unit were excluded from critical habitat because new information revealed some lands in that unit did not contain the primary constituent elements, or were more seriously degraded than previously ascertained, and are therefore not essential for the conservation of the species.
See
the Summary of Changes from the Proposed Rule section for additional detail on the changes that were made to this unit.

(24a)
Comment:
It was recommended by two commenters that some of the areas within proposed Unit 1 be excluded since they did not contain the moth's primary constituent elements. One peer reviewer suggested that proposed Unit 1 could be extended eastward of the southern Haleakala boundary to Kaupo, especially along the coast (
e.g.,
Nui coastline), to include additional areas containing the primary constituent elements. (24b)
Comment:
Another peer reviewer with DOFAW recommended that the boundaries of proposed Unit 3 be expanded by extending the unit to the south and southeast to include the area demarcated by Highway 36, and east along Highway 36 to the three-way intersection of Highway 37 with Old Haleakala Highway and Hana Highway. The reviewer noted that both Blackburn's sphinx moth adults and larvae had been observed on numerous occasions, often in good numbers within the area. Furthermore, the reviewer suggested that this expansion of proposed Unit 3 would provide additional windward and mesic habitat for the moth, a habitat type not highly represented in the proposed areas.

Our Response:
As a result of receiving the additional information on proposed Unit 1, critical habitat in the area is now designated in the form of four smaller units.
See
the Summary of Changes from the Proposed Rule section for additional detail on the changes that were made to

this unit. In this final rule, several portions of proposed Unit 1 were excluded from critical habitat it was determined that these areas lacked the moth's primary constituent elements. Other portions of proposed Unit 1 were excluded because we decided that the benefits of excluding critical habitat outweighed the benefits of including critical habitat.
See
Exclusions Under Section 4(b)(2) for a more detailed discussion of the excluded areas.

We did not include these additional lands in critical habitat Units 1 and 3 because we concluded that they were not essential for the conservation of the Blackburn's sphinx moth. This was based on available information concerning the status of the species in specific areas and the level of habitat degradation. We agree that some of these additional lands may potentially harbor undocumented populations of Blackburn's sphinx moth, and we also acknowledge that additional survey efforts are needed to ascertain the existence of potential moth or host plant populations in these areas and likely in other areas as well. While new reports of moth sightings or other observations of potentially suitable habitat provided by reviewers will be useful in focusing future survey efforts and research needs, we believe we have identified for designation, the best quality habitat essential for the conservation of the moth.

Issue 4: Mapping

(25)
Comment:
Two commenters stated that greater precision is needed to identify manmade structures and features such as roads, houses, and buildings already present within the proposed critical habitat designation areas. The DEA conceded that a lack of clarity regarding excluded features and structures could force landowners to incur costs to investigate the implications of the regulations.

Our Response:
The maps in the
Federal Register
are meant to provide a general location and shape of critical habitat. The legal descriptions are readily plotted and transferable to a variety of mapping formats, and are available electronically upon request for use with GIS programs. At the two public hearings, the maps were expanded to wall size to assist the public in better understanding the proposal. 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 designation.

As stated in the proposed rule and this final rule, existing manmade features and structures within the boundaries of the mapped areas. This includes features such as the following that do not contain one or more of the primary constituent elements, and therefore, are not included in the critical habitat designations: Buildings; roads; aqueducts and other water system features, including but not limited to pumping stations, irrigation ditches, pipelines, siphons, tunnels, water tanks, gauging stations (section in a stream channel equipped with facilities for obtaining streamflow data), intakes, and wells; telecommunications towers and associated structures and equipment; electrical power transmission lines and associated rights-of-way; radars; telemetry antennas; missile launch sites; arboreta and gardens; heiau (indigenous places of worship or shrines); airports; other paved areas; lawns; and other rural residential landscaped areas.

To further address concerns with the potential costs of identifying nondesignated areas, the Economic Analysis Addendum (Addendum) revisited the hour estimates presented in the DEA. Chapter VI, section 4.I of the DEA indicated that the landowners may want to learn how the designation may affect: (1) the use of their land (either through restrictions or new obligations), and (2) the value of their land. Since no commenters provided an estimate of time or cost incurred in order to investigate implications of critical habitat, and because of the reduction in acreage from proposed to designated, the Addendum revised the number of landowners downward, which resulted in a cost for landowners of $173,000 to $618,000 to investigate the implication of critical habitat.

While some landowners may expend time and money to investigate the implications of critical habitat on their land during the designation process, many landowners may not do so until after final designation is complete. Thus, the DEA and the Addendum treated these costs as a cost attributable to the final designation.

Issue 5: Policy and Regulations

(26)
Comment:
One commenter stated that excluding any areas from designation based on current management would violate 16 U.S.C. 1533(a)(3), and further stated that conservation efforts do not alter the habitat's critical nature or the need to ensure its protection. Multiple commenters stated that areas already subject to conservation measures, or which may be the subject of conservation agreements in the future, should not be excluded from critical habitat.

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 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 already provides adequate management, 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. We considered a plan to be adequate when it provides: (1) A conservation benefit to the species,
i.e.,
the plan must maintain or provide for an increase in the species' population, or the enhancement or restoration of its habitat within the area covered by the plan; (2) assurances that the management plan will be implemented,
i.e.,
those responsible for implementing the plan are capable of accomplishing the objectives, have an implementation schedule in place, and/or have adequate funding for the management plan; and (3) assurances that the conservation plan will be effective,
i.e.,
it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan's goals and objectives. Therefore, if an area provides physical and biological features essential to the conservation of the species, and also is covered by a plan that meets these criteria, then such an area would not have constituted critical habitat, as defined by the Act, because the physical and biological features found there do not require special management. However, in the case of the moth no areas were found currently to be adequately managed, and therefore no areas have been excluded on that basis.

As to future conservation agreement, several owners have indicated that including their lands in a critical habitat designation would have a negative impact on their existing and future voluntary conservation efforts for the moth and other species. After weighing the benefits of including these areas as critical habitat with the benefits of excluding them, we concluded that the designation of critical habitat would have a net negative conservation effect in some situations, and we excluded some of these areas from the final designation of critical habitat.
See
our

discussion under
the Exclusions Under Section 4(b)(2) section.

(27)
Comment:
Multiple commenters, including DLNR, a State agency, noted that the Service has stated critical habitat affects only activities that require Federal permits or funding, and does not require landowners to carry out special management or restrict use of their land. However, the commenters stated that this fails to address the breadth of Federal activities that affect private property in Hawaii, and the extent to which private landowners are required to obtain Federal approval before they can develop their property. Such requirements extend to all State agencies using Federal funds in connection with a proposed action, and community actions for which Federal approval or review is necessary. The requirements also extend to loan and grant programs such as Natural Resources Conservation Service (NRCS) loans and grants.

Our Response:
Under section 7 of the Act, all Federal agencies must consult with the Service 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. We have provided our best assessment of what may be the effects of this consultation requirement on private landowners as well as for State agencies. However, not every project, land use, and activity that has a Federal involvement has historically been subject to a formal or informal section 7 consultation with the Service. The draft economic analysis and Addendum were confined to those projects, land uses, and activities that are, in practice, likely to be subject to consultation and are based on review of past consultations, current practices, and the professional judgments of Service staff and other Federal agency staff.

If the Service finds 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. Again, we have provided our best assessment for what this may mean in terms of management actions or land uses and any associated costs in the draft economic analysis and Addendum.

(28)
Comment:
Two commenters, including the Hawaii Department of Transportation, Airports Division (DATA), stated that prudence cannot be determined without an analysis of the economic impacts of critical habitat. The prudence of critical habitat designation is a final conclusion based on weighing all relevant factors, including economic factors. While the Service promised to complete its economic impact analysis before it promulgates its final determination of critical habitat, it risks putting the decision before the analysis. The prior determination that critical habitat is prudent and is therefore required, is treated as a given, even though it ignored economic factors. The Service should revisit (
Sierra Club
v.
U.S. Fish and Wildlife Service,
245 F.3d 434, 440-443 (5th Cir. 2001).

Our Response:
We determine whether critical habitat designation is prudent according to regulations found at 50 CFR 424.12(a)(1). In accordance with these regulations and recent case law, critical habitat designation is not prudent only when the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species. To determine whether critical habitat would be prudent for the species, we analyzed the potential threats and benefits to the species. The economic analysis is conducted after critical habitat has been proposed in a given area, as set forth in regulations found at 50 CFR 424.19. If designation of critical habitat is prudent, we look at all of the impacts of designating specific areas as critical habitat to see if the benefits of designation outweigh the benefits of excluding it from critical habitat. If we find that economic or other impacts outweigh the benefit of designating critical habitat in a given area, that area will be excluded. We concluded in the final rule listing the Blackburn's sphinx moth as endangered that there may be benefits of critical habitat designation that may outweigh the risks. Therefore, critical habitat is prudent for the species.

(29a)
Comment:
Multiple commenters stated that the DEA fails to consider economic impacts of critical habitat that result through interaction with Hawaii Land Use Law. Critical habitat could result in changes to zoning under State law.

Our Response:
Chapter VI, section 4.e. of the DEA and section 4.b. of the Addendum address costs involved in redistricting lands from the Urban, Rural and Agricultural Districts to the Conservation District. About 50,772 acres of Agricultural land, one acre of Rural land, and 430 acres of Urban land are included in the intended designation. Of this, approximately 12,352 acres of Agricultural land is owned by private landowners; one acre of Rural land is owned by private landowners; and 32 acres of Urban land is owned by private landowners. In the event that all of these private lands were redistricted to the Conservation District, the total economic cost could range from $80 million to $249 million. However, as discussed in the economic analysis, the redistricting of all lands to Conservation is not envisioned for several reasons.

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.

Thus, even if all federally designated critical habitat is petitioned for redistricting, the likelihood of redistricting will vary parcel by parcel. While the LUC may redistrict some parcels, it is unlikely that lands with a high economic value to the community, such as lands with significant State investments, prime agricultural land, land planned for the economic and community development, and land planned for the provision of housing, would be redistricted. By way of illustration, in the last State district boundary review only five privately owned parcels were redistricted to Conservation even though several hundred parcels were proposed for redistricting. While concern has been expressed that a third party would challenge a decision by the LUC not to redistrict a critical habitat parcel in State court, State courts have been deferential to the LUC decisions if they are supported by the record, consistent with statutory provisions, and not affected by errors.
See, e.g., Kilauea Neighborhood Ass'n.
v.
Land Use Comm'n.
751 P.2d 1031, 1035 (Haw. Ct. App. 1988) (finding that, although LUC's findings were poorly drawn, the record provided sufficient support for the decision);
Outdoor Circle
v.
Harold K.L. Castle Trust Estate,
675 P.2d 784, 793 (Haw. Ct. App. 1983) (upholding LUC's decision as consistent with statutory provisions and not affected by errors).

In summary, while it is possible that the designation of critical habitat could trigger a petition to redistrict land designated as critical habitat to the Conservation District, the likelihood appears small, absent litigation, that these lands would be redistricted.

(29b)
Comment:
Multiple commenters stated that the Service did not adequately address the direct or indirect “takings” of private property as a result of designating critical habitat for the Blackburn's sphinx moth. If the proposed designation of critical habitat precipitates conversion of agricultural lands to conservation land that has no economically beneficial use, then the Federal and State governments will have taken private property. Also, the incremental impact of designating critical habitat, over and above the original listing, is that it creates a presumption that modification of the land will “take” members of the species. The Service is obliged to calculate the impact of deterring landowners use of their land. If any economic use of the land not already developed is prevented, the Service is liable to compensate the private landowner for such losses.

Our Response:
Any redistricting of land to Conservation and any corresponding loss of economically beneficial use would be decided by the State Land Use Commission, not the Service, based on an array of state laws and other factors, including the extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii state plan (
see
our response to comment 29a); the extent to which the proposed reclassification conforms to the applicable district standards; and the impacts of the proposed reclassification on the following: preservation or maintenance of important natural systems or habitats; maintenance of valued cultural, historical, or natural resources; maintenance of other natural resources relevant to Hawaii's economy; commitment of state funds and resources; provision for employment opportunities and economic development; and provision for housing opportunities for all income groups; and the representations and commitments made by the petitioner in securing a boundary change.

In chapter VI, section 4 of the November 2002 DEA under indirect costs and in section 4 of the Addendum, they examined the indirect costs of critical habitat designation, such as where critical habitat triggers the applicability of a State or local statute. The economic analysis did not conclude that designation of critical habitat on Agricultural lands would prevent a rancher from using those lands. Rather, the economic analysis recognized that many areas within the critical habitat designation have been grazed for tens or hundreds of years, yet still contain the primary constituent elements for Blackburn's sphinx moth. The DEA concluded that sustainable grazing does not adversely affect the moth, and in fact, may indirectly benefit the species by reducing fire danger and controlling nonnative weeds. Moreover, the DEA concluded that areas historically subject to grazing were unlikely to meet the standards of a natural ecosystem required to be put in the Protective Subzone (HAR § 13-5-11). As a result, even if Agricultural land within the critical habitat designation were redistricted to Conservation, the DEA anticipated that agricultural activities could continue because typical agricultural activities are allowed in all subzones, except the Protective Subzone, with permission of the State Board of Land and Natural Resources (BLNR).

(30)
Comment:
Multiple commenters stated the proposal fails to properly consider the importance of cooperation and goodwill between the Service and private landowners, and the impact critical habitat designations will have in discouraging voluntary partnerships on private lands.

Our Response:
We recognize the importance of landowner cooperation for conservation of listed species. This is true for many of the lands designated for the Blackburn's sphinx moth that are under private ownership. We also recognize that critical habitat designations could potentially have a negative impact on voluntary partnerships with private landowners. Conservation of the moth requires control of threats from alien species and fire, and outplanting of host plant species that have been extirpated from the wild. Several owners have indicated that including their lands in a critical habitat designation would have a negative impact on their existing and future voluntary conservation efforts for the moth and other species. After weighing the benefits of including these areas as critical habitat with the benefits of excluding them, we concluded that the designation of critical habitat would have a net negative conservation effect in some situations, and we excluded some of these areas from the final designation of critical habitat.
See
our discussion under the Exclusions Under Section 4(b)(2) section.

(31)
Comment:
One commenter stated that although they support protection for endangered species, they are also concerned about protecting nonnative species. The current interpretation of critical habitat allows the Federal government and its partners to utilize any methodology they wish in dealing with feral animals, even though such

methods may be cruel and environmentally unsound.

Our Response:
The designation of critical habitat does not give the Federal government and its partners the authority to utilize any methodology they wish in dealing with feral animals. Any potential animal control program would be subject to all applicable State, Federal, and local laws.

(32)
Comment:
DATA commented that the Service has provided inadequate support for its decision to reverse its prior determination that designation of critical habitat for the Blackburn's sphinx moth is not “prudent.”

Our Response:
Our reasoning for determining that the designation of critical habitat for the Blackburn's sphinx moth is prudent is thoroughly discussed in the final rule listing the moth as an endangered species (65 FR 4770), which was published in the
Federal Register
on February 1, 2000, and is consistent with recent case law.

(33)
Comment:
DATA stated that the proposed rule does not contain an analysis of the potential impacts to aviation safety that might result from the designation of certain areas contained within proposed Unit 3. The Service is required by law to analyze any relevant potential impacts when proposing a specific area as critical habitat. The commenter recommended that the proposed rule be withdrawn until an analysis of the potential impacts to aviation safety has been conducted.

Our Response:
As discussed in the DEA (Chapter VI, section 3.h. Hawaii Department of Transportation, Airports Division expressed concern about designating critical habitat within the boundaries of Kahului Airport, due to possible conflicts with safety requirements. In this final rule, we have not included Kahului Airport lands from critical habitat designation due to a lack of primary constituent elements or because the areas were not essential to the moth's conservation (see Summary of Changes from the Proposed Rule section). We are unaware of any other areas in which aviation safety may be an issue as a result of the designation of critical habitat for the Blackburn's sphinx moth.

(34)
Comment:
The Service has misinterpreted the intent of the Act with exclusion of areas under 3(5)(A)(I). If a specific area of Blackburn's sphinx moth habitat is recognized to be critical to the extent that management is already taking place, the notion that such management renders designation unnecessary does not make sense. In fact, designation of these areas would seem more urgent.

Our Response:
Although we disagree with the commenter, we have not found any areas that are currently adequately managed for the moth. Therefore, we have not excluded areas on that basis. Please also refer to our response to Comment 26.

(35)
Comment:
The proposal violates the “commerce clause” because the Blackburn's sphinx moth is not related to interstate commerce. Critical habitat designation, and the underlying decision to list the species as endangered, are the subject of the designation and exceed the constitutional limits of the Service's delegated authority. Congress enacted the Act as an exercise of its Commerce Clause power and delegated exercise of that Commerce Clause power to the Service to apply the Act by regulation. The listed species exists only in Hawaii and does not cross State lines. Nor is it in commerce as the subject of any economic endeavor and it lacks any commercial value. Therefore, the Service's regulations listing this species and designating critical habitat for it within Hawaii exceed the Federal power to regulate interstate commerce under the governing precedents interpreting the Commerce Clause.

Our Response:
The Federal government has the authority under the Commerce Clause of the U.S. Constitution to apply the protections of the Act to species that occur within a single State. A number of court cases have specifically addressed this issue. The
National Association of Homebuilders
v.
Babbitt,
130 F. 3d 1041 (D.C. Cir. 1997),
cert. denied,
1185 S.Ct, 2340 (1998), involved a challenge to application of Act's prohibitions to protect the listed Delhi Sands flower-loving fly (
Rhaphiomidas terminatus abdominalis
). As with the species at issue here, the Delhi Sands flower-loving fly is endemic to only one State. The court held that application of the ESA to this fly was a proper exercise of Commerce Clause power because it prevented loss of biodiversity and destructive interstate competition. Similar conclusions have been reached in other cases,
see Gibbs
v.
Babbitt,
No. 99-1218 (4th Cir. 2000) and
Rancho Viejo
v.
Norton,
No. 01-5373 (D.C. Cir. 2003).

Issue 6: Economic Issues

(36)
Comment:
HDOA suggested that the Service is required to conduct a cumulative impacts analysis to determine the economic impacts resulting from all critical habitat designations on all the islands.

Our Response:
The commenter appears to be using the term “cumulative impacts” in the context of the National Environmental Policy Act (NEPA). We are required to consider only the effect of the designation of critical habitat for Blackburn's sphinx moth. The appropriate baseline for use in this analysis is the regulatory environment without this regulation. Against this baseline, we attempt to identify and measure the incremental costs and benefits associated with this designation of critical habitat. When critical habitat for other species has already been designated, it is properly considered part of the baseline for this analysis. Proposed and future critical habitat designations for other species in the area will be part of separate rulemaking, and consequently, their economic effects will be considered separately.

We have determined that an Environmental Assessment and/or an Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act, which includes critical habitat designations. A notice outlining our reason for this determination was published in the
Federal Register
on October 25, 1983 (48 FR 49244).

(37)
Comment:
The DEA lists economic impacts; however, there is no indication that the Service has identified appropriate critical habitat boundaries or modified the critical habitat boundaries in consideration of these economic impacts.

Our Response:
We considered the economic impacts that were analyzed and summarized in the DEA, and addendum, and excluded two units (proposed Units 5a and 5b) from critical habitat (
see
Exclusions Under Section 4(b)(2)).

(38)
Comment:
The DEA fails to distinguish potential costs resulting from the designation from those costs resulting from listing the moth as endangered. Nowhere does the draft provide any analysis of what impacts, if any, designating critical habitat for the moth would impose above and beyond those associated with the species' listing. Because the DEA does not distinguish between these costs, it cannot exclude proposed critical habitat from a final critical habitat designation pursuant to section 4(b)(2).

Our Response:
Our draft economic analysis evaluated potential future effects associated with the listing of Blackburn's sphinx moth as an endangered species under the Act, as

well as any potential effect of the critical habitat designation above and beyond those regulatory and economic impacts associated with listing. To quantify the proportion of total potential economic impacts attributable to section 7 implementation, including both the section 7 listing provisions and the proposed critical habitat designation, the analysis evaluated a “without section 7” baseline and compared it to a “with section 7” scenario. The “without section 7” baseline represented the current and expected economic activity under all modifications except those associated with section 7, including protections afforded the species under Federal and State laws. The difference between the two scenarios measured the net change in economic activity attributable to the implementation of section 7 for the Blackburn's sphinx moth. The categories of potential direct and indirect costs considered in the analysis included the costs associated with: (1) Conducting section 7 consultations associated with the listing or with the critical habitat, including incremental consultations and technical assistance; (2) modifications to projects, activities, or land uses resulting from the section 7 consultations; (3) potential delays associated with reinitiating completed consultations after critical habitat is finalized; (4) uncertainty and public perceptions resulting in loss of land value from the designation of critical habitat; (5) potential effects on property values including potential indirect costs resulting from the loss of hunting opportunities and increased regulation related costs due to the interaction of State and local laws; and (6) potential offsetting benefits associated with critical habitat, including educational benefits.

The majority of consultations resulting from the critical habitat designation for the Blackburn's sphinx moth are likely to address land development and road construction or road expansion activities. The planned road projects (proposed Ane Keohokalole Highway) within proposed Unit 5A is not in this designation. The final economic analysis estimates that, over the next 10 years, the designation may result in potential direct economic costs ranging from approximately $1,183,800 to $1,739,000, and concludes that economic impacts from the designation of critical habitat would not be significant.

A more detailed discussion of our analyses are contained in the November 15, 2002, DEA and the Addendum to the DEA. Both documents are available for inspection at the Pacific Islands Office (see
ADDRESSES
section).

(39)
Comment:
The Service has failed to consider the cascading impacts resulting from State-led regulatory activities that must, by law, be implemented as a result of critical habitat designation. Additional concerns include the broad interpretation of “take” under Hawaii's Endangered Species Act (ESA) (HRS Ch. 195D); mandatary “downzoning” of private lands under Hawaii's Land Use Law (HRS Ch. 205); unreasonably frequent requirements for full environmental impact statements for minor actions under Hawaii's Environmental Impact Statement Law (HRS Ch. 343); unreasonable permit delays for County-regulated Special Management Area permits under Hawaii's Coastal Zone Management Law (HRS Ch. 205A); and uncertainty of interpretation of the reach and extent of State regulatory authority under Hawaii's State Water Code (HRS Ch. 174C) and implications for water quality standards under Hawaii Administrative Rules Ch. 11-54, Water Quality Standards.

Our Response:
Possible costs resulting from interplay of the Act and Hawaii State laws were discussed in Chapter VI, section 4 of the November 2002 DEA under indirect costs and in section 4 of the Addendum. They examine the indirect costs of critical habitat designation, such as where critical habitat triggers the applicability of a State or local statute. Take prohibitions under Hawaii law are attributable to a listing decision and they are not coextensively costs of critical habitat designations. Where it is the listing of a species that prompts action at the State or local level, the impacts are not attributable to critical habitat designation and are not considered in the economic analysis of critical habitat designation. Other possible indirect impacts, such as the loss of development or loss in property values due to State redistricting of land from agricultural or rural to conservation were analyzed (see also our response to Comment 29a). 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 the source statute, and there is only limited history to serve as guidance.

(40)
Comment:
A commenter stated the following: The narrative exclusion of areas underlying currently developed areas such as buildings and driveways (“unmapped holes”) is too vague considering the cryptic nature of the moth and its habitat. Although the DEA concedes that the lack of clarity can force landowners to incur costs to investigate the implications of the regulations, it fails to fully consider the economic impacts of landowners' costs to properly demarcate “unmapped holes” in the process of obtaining necessary permits for development projects. The estimate that this will only take 15 to 40 hours is too low given the size of the designated areas, the vagueness of the regulatory exclusion, and the real costs of obtaining development approvals.

Another commenter also stated that the DEA's analysis of potential costs expected to be incurred by private landowners to investigate the implications of critical habitat on their lands was flawed, because the analysis failed to recognize that the costs to investigate the implications of critical habitat are associated with the designation process, not additional costs that the final designation would impose. The commenter further stated that any concerned party investigating the proposed designation of critical habitat on their lands would have already hired lawyers and consultants, and would have incurred the costs associated with figuring out the implications of designation on their lands. Moreover, were the private landowners' lands ultimately excluded from the final critical habitat designation, the landowners would still not recoup those costs; the money has already been spent. Thus, the commenter concluded that these costs should not be included in the analysis of future potential costs from designation since they have already been incurred, and were incurred, regardless of the final designation decision.

Our Response:
Chapter VI, section 4.I of the DEA indicated that landowners may want to learn how the designation may affect (1) the use of their land (either through restrictions or new obligations), and (2) the value of their land. It is recognized that some landowners may spend a great deal of time investigating, while other landowners may not conduct any investigation. The estimate contained in the DEA is a range that reflects the total cost for all landowners based on an average cost per landowner. Public comment did not provide an alternative estimate of time or cost incurred in order to investigate implications of critical habitat sufficient to require changes to the estimated average cost per landowner. Thus, the Addendum does not revise the number of hours that the DEA estimated the landowner and/or his attorneys or professional staff would spend on investigating the issues.

However, the Addendum does revise the number of affected landowners to 65 because of the intended modifications to the critical habitat indicated by us. As described in section 4.e. of the Addendum, an estimate of the costs involved with investigation for the intended designation ranges from roughly $173,000 to $618,000.

While some landowners may expend time and money to investigate the implications of critical habitat on their land during the designation process, many landowners may not do so until after final designation is complete. Thus, the DEA and the Addendum conservatively treat these costs as costs attributable to the final designation.

(41)
Comment:
DOTA stated that project modification costs, such as those to roads, are underestimated, particularly the cascading effect of project realignment with the purpose of avoiding critical habitat.

Our Response:
The project modification cost estimates were developed considering a wide array of projects, locations, and contingencies, as well as by examining the limited historical record of project modifications regarding the Blackburn's sphinx moth. The planned road project (proposed Ane Keohokalole Highway) within proposed Unit 5A is not in this designation.

(42)
Comment:
HCDCH stated the following: The DEA only partially considers the “indirect impacts” of critical habitat designation, and instead focuses on “direct impacts” resulting primarily from consultations under section 7 of the Act because of precedent set by
New Mexico Cattle Growers,
the Service must fully consider both types of impacts, and the DEA must present a thorough analysis of these economic effects. Several other commenters stated the DEA overemphasizes the direct costs attributable to critical habitat designation and ignores or omits other indirect impacts, such as: Impacts to housing supply, including affordable housing; decreases in public revenues as a result of lost construction and reduced economic activity; impacts to subsistence activities and their role in the local economy; and impacts to public infrastructure such as roads and water systems.

Our Response:
An analysis of both direct and indirect impacts was presented in chapter VI of the DEA and sections 3 and 4 of the Addendum. With respect to indirect effects, there is considerable uncertainty regarding whether any or all of the indirect impacts may actually occur, because they depend upon actions and decisions by entities other than the Service under circumstances for which there is limited or no history that can be used to determine the likelihood of different outcomes. Thus, based on the available information, indirect impacts were discussed qualitatively in the DEA and Addendum. In addition, where possible, estimates were given of worst-case scenarios for illustrative purposes and a sense of the likelihood of occurrence was provided.

The impact to the supply of affordable housing was discussed in the DEA in chapter VI, section 4.e. The DEA recognized that some landowners feared the possibility of redistricting land within the critical habitat designation to the Conservation District, and discussed the impact to the af

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-14144. Public record. Not legal advice.