# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Three Plant Species on Hawaii Island > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2018-17514 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** August 21, 2018 - **Citation:** 83 FR 42362 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket Number FWS-R1-ES-2013-0028; 4500030113] RIN 1018-AZ38 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Three Plant Species on Hawaii Island AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for Bidens micrantha ssp. ctenophylla (kookoolau), Isodendrion pyrifolium (wahine noho kula), and Mezoneuron kavaiense (uhiuhi) respectively, under the Endangered Species Act (Act). In total, approximately 11,640 acres (ac) (4,711 hectares (ha)) in North Kona and South Kohala on Hawaii Island fall within the boundaries of the critical habitat designation. Approximately 72 percent of this area is already designated as critical habitat for 42 plants and the Blackburn's sphinx moth ( Manduca blackburni ). We are excluding, under section 4(b)(2) of the Act, approximately 7,027 ac (2,844 ha) of land on the island of Hawaii that meet the definition of critical habitat from this final critical habitat designation. DATES: This rule is effective on September 20, 2018. ADDRESSES: This final rule, the final economic analysis, and some supporting documentation used in preparing this final rule are available on the internet at http://www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available, by appointment, during normal business hours, at U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box 50088, Honolulu, HI 96850; telephone 808-792-9400; or facsimile 808-792-9581. The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at http://www.fws.gov/pacificislands, at http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0028, and at the Pacific Islands Fish and Wildlife Office (address above). FOR FURTHER INFORMATION CONTACT: Mary Abrams, Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. This is a final rule to designate critical habitat for the following endangered plants: Bidens micrantha ssp. ctenophylla (listed in 2013), Isodendrion pyrifolium (listed in 1994), and Mezoneuron kavaiense (listed in 1986). These three plants occur in the same ecosystem and have not had designated critical habitat on Hawaii Island. Under the Act, species that are determined to be endangered or threatened species generally require critical habitat to be designated, to the maximum extent prudent and determinable. Designations of critical habitat can only be completed by issuing a rule. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the plants Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Here we are designating approximately 11,640 acres (ac) (4,711 hectares (ha)) in five multi-species critical habitat units for these species. The five units are in North Kona and South Kohala on Hawaii Island, on lands owned by the National Park Service, State of Hawaii, and private entities. Approximately 72 percent, or 8,443 ac (3,417 ha), of the area designated as critical habitat overlaps with areas already designated as critical habitat for listed plant and animal species. Therefore, 27 percent, or 3,197 ac (1,294 ha), of the area is new critical habitat. We have prepared an economic analysis of the designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the critical habitat designations and related factors. The draft economic analysis (DEA) addressed possible economic impacts of critical habitat designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and was made available for public review during three comment periods. Following the close of the comment periods, we reviewed and evaluated all information submitted during the comment periods, including information that pertains to our consideration of the possible incremental economic impacts of this critical habitat designation. We have incorporated the comments as appropriate and have completed the final economic analysis (FEA). Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from two knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and whether or not we had used the best available scientific information. These peer reviewers generally concurred with our methods and conclusions, and they provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated into this final designation. We also considered all comments and information received from the public during the comment periods. Previous Federal Actions We listed Mezoneuron kavaiense as an endangered species on July 8, 1986 (51 FR 24672) and Isodendrion pyrifolium as an endangered species on March 4, 1994 (59 FR 10305). On October 17, 2012, we published in the Federal Register a proposed rule to list 15 species, including Bidens micrantha ssp. ctenophylla, as endangered, and to designate critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense on Hawaii Island (77 FR 63928). On October, 29, 2013, we listed Bidens micrantha ssp. ctenophylla as an endangered species (78 FR 64638). We accepted public comments on our October 17, 2012, proposed rule to designate critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense on Hawaii Island (77 FR 63928) for 60 days, ending December 17, 2012. In addition, we published a public notice of the proposed rule on October 20, 2012, in the local Honolulu Star Advertiser, Hawaii Tribune Herald, and West Hawaii Today newspapers, at the beginning of that comment period. On April 30, 2013, we announced the availability of the DEA on the proposed designation of critical habitat, and reopened the comment period on our proposed rule, the DEA, and amended required determinations for another 30 days, ending May 30, 2013 (78 FR 25243). On April 30, 2013, we also announced a public information meeting in Kailua-Kona, Hawaii, which we held on May 15, 2013, followed by a public hearing on that same day (78 FR 25243). On July 2, 2013, we announced the reopening of the comment period on the proposed designation of critical habitat and the DEA for an additional 60 days, ending September 3, 2013 (78 FR 39698). In that July 2, 2013, document, we also announced a public information meeting in Kailua-Kona, Hawaii, which we held on August 7, 2013. On May 20, 2016, we announced an additional reopening of the comment period on the proposed critical habitat designation, including the economic impacts of the designation, ending June 6, 2016 (81 FR 31900). Background Hawaii Island Species Addressed in This Final Rule The table below (Table 1) provides the scientific name, common name, listing status, and critical habitat status for the plant species that are the subjects of this final rule. Table 1—The Hawaii Island Species Addressed in This Final Rule Scientific name Common name Listing status Critical habitat status Bidens micrantha ssp. ctenophylla kookoolau Listed as an endangered species, 2013 Designated in this rule. Isodendrion pyrifolium wahine noho kula Listed as an endangered species, 1994 Designated in this rule. Mezoneuron kavaiense uhiuhi Listed as an endangered species, 1986 Designated in this rule. Critical Habitat Unit Map Corrections We designated critical habitat for Cyanea shipmanii, Phyllostegia racemosa, Phyllostegia velutina, and Plantago hawaiensis in 2003 (68 FR 39624; July 2, 2003). In this final rule, we correct the critical habitat unit maps published at 50 CFR 17.99(k)(1) for these four species to accurately reflect their designated critical habitat units. We amend 50 CFR 17.99(k)(1) by removing four maps (Map 97, Unit 30— Cyanea stictophylla —d; Map 100, Unit 30— Phyllostegia hawaiiensis —c; Map 101, Unit 30— Phyllostegia racemosa —c; and Map 102, Unit 30— Phyllostegia velutina —b) that are either a duplicate of another unit map or labeled with the incorrect species name. We replace these four maps, using the same map numbers, with correctly labeled maps that accurately represent the geographic location of each species' critical habitat unit. We also remove the textual descriptions of critical habitat boundaries from the entries with corrected maps, in accordance with our rule published on October 27, 2017 (82 FR 49751). Determining Primary Constituent Elements of Critical Habitat Under section 4(a)(3)(A) of the Act (16 U.S.C. 1531 et seq. ), we are required to designate critical habitat to the maximum extent prudent and determinable concurrently with the publication of a final determination that a species is an endangered or threatened species. In this final rule, we are designating critical habitat for the plant Bidens micrantha ssp. ctenophylla, which was listed as an endangered species on October 29, 2013 (78 FR 64638); Isodendrion pyrifolium, which was listed as an endangered species on March 4, 1994 (59 FR 10305); and Mezoneuron kavaiense, which was listed as an endangered species on July 8, 1986 (51 FR 24672). These three species share occupied and unoccupied critical habitat on Hawaii Island. On February 11, 2016, we published a final rule in the Federal Register (81 FR 7414) to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat, including the identification of primary constituent elements (PCEs). That rule became effective on March 14, 2016, but, as stated in that rule, the amendments it sets forth apply to “rules for which a proposed rule was published after March 14, 2016.” We published our proposed critical habitat designation for the three plant species on October 17, 2012 (77 FR 63928); therefore, the amendments set forth in the February 11, 2016, final rule (81 FR 7414) do not apply to this final designation of critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. In this final rule, we designate critical habitat for three species in five multiple-species critical habitat units. Although critical habitat is identified for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense individually, we have found that the conservation of each depends on the successful functioning of certain physical or biological features shared by all three of these species in the lowland dry ecosystem. Each critical habitat unit identified in this rule contains the physical or biological features essential to the conservation of those individual species that occupied that particular unit at the time of listing, or in the case of areas that were not occupied at the time of listing, contains areas essential for the conservation of those species identified. These unoccupied areas are essential for the conservation of that species because the designation allows for the expansion of the species' range and reintroduction of individuals into areas where the species occurred historically, and provides area for recovery in the case of stochastic events that otherwise hold the potential to eliminate the species from the one or more locations where it is presently found. Under current conditions, some of these species are so rare in the wild that they are at high risk of extirpation or even extinction from various stochastic events, such as hurricanes or landslides. Therefore, building up resilience and redundancy in these species through the establishment of multiple robust populations is a key component of recovery. Each of the areas designated represents critical habitat for more than one species, based upon shared habitat requirements ( i.e., physical or biological features) essential for their conservation. The identification of critical habitat also takes into account any species-specific conservation needs as appropriate. Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense co-occur in the same lowland dry ecosystem on the island of Hawaii. These three plant species share many of the same physical or biological features ( e.g., elevation, annual rainfall, substrate, and associated native plant genera), as well as the same threats from development, fire, and nonnative ungulates and plants. Please refer to the proposed rule (77 FR 63928; October 17, 2012) or our supporting document “Supplemental Information for the Designation and Non-designation of Critical Habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense” available at http://www.regulations.gov (see ADDRESSES ), for a description of the island of Hawaii and associated map, and for a description of the lowland dry ecosystem that is designated as critical habitat for the three species addressed in this final rule. Current Status of the Three Species In order to avoid confusion regarding the number of locations of each species (a location does not necessarily represent a viable population), we use the word “occurrence” instead of “population.” Each occurrence is composed only of wild ( i.e., not propagated and outplanted) individuals. We have updated information on the status of the three species that was presented in the proposed rule (77 FR 63928; October 17, 2012), and provide the updated status below. Bidens micrantha ssp. ctenophylla (kookoolau), a perennial herb in the sunflower family (Asteraceae), occurs only on the island of Hawaii (Ganders and Nagata 1999, pp. 271, 273). Historically, Bidens micrantha ssp. ctenophylla was known from the north Kona district in the lowland dry ecosystem (HBMP 2010a). Currently, this subspecies is restricted to an area of less than 10 square miles (mi 2 ) (26 square kilometers (km 2 )) on the leeward slopes of Hualalai volcano, in the lowland dry ecosystem in five occurrences totaling fewer than 1,000 individuals. The largest occurrence is found in Kaloko and Honokohau, with over 475 individuals widely dispersed throughout the area (David 2005, pp. 8-10; Palmer 2005a, pp. 3-4; Palmer 2005b, pp. 4-5; Zimpfer 2011, in litt.). The occurrence at Kealakehe was reported to have been abundant and common in 1992, but by 2010 had declined to low numbers (Whistler 2007, pp. 1-18; Bio 2008, in litt.; HBMP 2010a; Whistler 2008, pp. 1-11). Currently, there are approximately 13 individuals scattered amongst several locations in the Kealakehe area (HFIA 2013, in litt.; Guinther et al. 2013). In addition, there are three individuals in Kaloko-Honokohau National Historical Park (NHP) (Beavers 2010, in litt.), and two occurrences are found to the northeast: an unknown number of individuals at Puu Waawaa, and a few scattered individuals at Kaupulehu (HBMP 2010a; Giffin 2011, pers. comm.). Bidens micrantha ssp. ctenophylla is under propagation for outplanting at the Future Forest Nursery (Hawaii). Seed banking of this subspecies is occurring at the Harold L. Lyon Arboretum Seed Conservation Laboratory (Oahu), and the Hawaii Island Seed Bank at the Hawaii Forest Institute (Hawaii). Bidens micrantha ssp. ctenophylla has been outplanted within fenced exclosures at Kaloko-Honokohau NHP (49 individuals), Koaia Tree Sanctuary (1 individual), Puu Waawaa (5 individuals), Kealakehe (124 individuals), and at several locations as a result of the Federal Highway Administration's (FHWA) conservation measures (over 600 individuals) (Boston 2008, in litt.; HBMP 2010a; Wagner 2013a, in litt., Wagner 2014a, in litt.; Wagner 2015, in litt.). Isodendrion pyrifolium (wahine noho kula), a perennial shrub in the violet family (Violaceae), is known from Niihau, Oahu, Molokai, Lanai, Maui, and Hawaii (Wagner et al. 1999a, p. 1,331). Isodendrion pyrifolium was thought to be extinct since 1870, but was rediscovered in 1991, at Kealakehe, near Kailua on the island of Hawaii. In 2003, Isodendrion pyrifolium was only known from a single occurrence of approximately nine individuals at Kealakehe on the island of Hawaii (68 FR 39624, July 2, 2003). Currently, there are no extant occurrences on Oahu, Lanai, Molokai, or Maui. Surveys have documented the decline of the total number of individuals at Kealakehe (from nine individuals in 2003, to four individuals in 2006, to three individuals in 2007, to two individuals in 2012) (David 2007, pers. comm. in USFWS 2008, in litt.; Wagner 2011b, in litt.) within two small, managed preserves situated in an urban setting. The larger 26 ac (11 ha) preserve is bordered by a high school, residential development, and construction of the Kealakehe portion of Ane Keohokalole Highway. Recent surveys have documented the mortality of the two mature, reproducing individuals, leaving only several immature individuals in one of the preserves (Wagner 2014b, in litt.; Wagner 2016, in litt.). Three individuals are represented in off-site seed storage collections (PEPP 2011, p. 32). Isodendrion pyrifolium is under propagation for outplanting at the Volcano Rare Plant Facility (Hawaii) and at the Future Forests Nursery (Hawaii) (VRPF 2010, in litt.; VRPF 2011, in litt; Wagner 2011b, in litt.). Seed banking for this species is occurring at the Volcano Rare Plant Facility (Hawaii), the Lyon Arboretum's Seed Conservation Lab (Oahu), and the National Tropical Botanical Garden (Kauai). Thirteen Isodendrion pyrifolium plants have been outplanted at the Kaloko-Honokohau NHP, 20 plants were outplanted in Puu Waawaa and Kaupulehu, and another 15 plants in the Kaloko area (Wagner 2011c, in litt.; Wagner 2013a, in litt.; Wagner 2013b, in litt.). Critical habitat has been designated for this species on Oahu (77 FR 57648; September 18, 2012), and on the islands of Maui and Molokai (81 FR 17790; March 30, 2016). Mezoneuron kavaiense (uhiuhi), a medium-sized tree in the pea family (Fabaceae), was known historically from Kauai, Oahu, Lanai, Maui, and Hawaii (Geesink et al. 1999, pp. 647-648). At the time of listing in 1986, a single large occurrence of approximately 30 individuals at Puu Waawaa contained the majority of individuals of this species on Hawaii Island (51 FR 24672, July 8, 1986; HBMP 2010c). In 1992, a second occurrence of 21 individuals was discovered at Kealakehe (USFWS 1994, p. 14; HBMP 2010c). In 1993, fire within a kipuka (an area of older land within the younger Kaupulehu lava flow) destroyed 80 percent of the individuals known from Puu Waawaa. Surveys in 2006 reported the number of individuals at Puu Waawaa to be approximately 50 to 100 individuals (HBMP 2010c). In addition, new information recently documented 13 individuals near Waikoloa Village (Faucette 2010, p. 3). A total of 520 individuals have been reintroduced at several sites in the North Kona and Waikoloa regions (USFWS 2015a, in litt.). Currently, Mezoneuron kavaiense is found in 6 occurrences totaling 72 mature and 22 immature wild individuals in the lowland dry ecosystem of Hawaii Island (USFWS 2015a, in litt.). Due to its rarity on Kauai and Oahu, remaining populations and individuals on those islands are regularly monitored by staff at the Plant Extinction Prevention Program of Hawaii. Mezoneuron kavaiense is under propagation for outplanting at the Volcano Rare Plant Facility (Hawaii), the Olinda Rare Plant Facility (Maui), the Pahole Rare Plant Facility (Oahu), the Waimea Valley (Oahu), and the National Tropical Botanical Garden (Kauai). Seed banking for this species is occurring at the Volcano Rare Plant Facility (Hawaii), the Maui Nui Botanical Garden (Maui), Lyon Arboretum Seed Conservation Laboratory (Oahu), and the National Tropical Botanical Garden (Kauai). Seed collections contain representation of genetic material from all islands across the species' distribution. Due to the small population sizes, few numbers of individuals, and reduced geographic range of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, we have determined that a recovery focus limited to the areas known to be occupied at the time of listing would be inadequate to achieve the conservation of these species. Some areas believed to be unoccupied, and that may have been unoccupied at the time of listing, have been determined to be essential for the conservation and recovery of the species; these areas provide the habitat necessary for the expansion of existing wild populations and reestablishment of wild populations within the historical range of the species. Conservation of suitable habitat in both occupied and unoccupied areas, either through critical habitat or conservation partnerships with landowners, is essential to facilitate the establishment of additional populations through natural recruitment or managed reintroductions. The recovery plans for these species note that augmentation and reintroduction of populations are necessary for the species' conservation (as described below in “Recovery Needs”). Population augmentation will increase the likelihood that the species will survive and recover in the face of normal and stochastic events ( e.g., hurricanes, fire, and nonnative species introductions) (Mangel and Tier 1994, p. 612; Pimm et al. 1998, p. 777; Stacey and Taper 1992, p. 27). Furthermore, because so many important habitat areas for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense occur on lands managed by non-Federal entities, collaborative relationships are essential for their recovery, and, in some cases, partnerships with landowners are sufficient to conserve areas occupied by the species. The conservation of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense is dependent upon the protection of existing population sites and the protection of suitable unoccupied habitat within the species' historical range, either through critical habitat or conservation partnerships; protection of these areas will provide for the requisite resiliency, redundancy, and representation of populations through restoration and reintroductions. Population resiliency is the population size, growth rate, and connectivity indicative of the ability to withstand stochastic disturbances. Redundancy refers to the spreading of risk among multiple populations over a large geographic area, and the ability to withstand catastrophic events. Representation is genetic and environmental diversity, and the ability to adapt to changing conditions over time. Sufficient resiliency, redundancy, and representation will ensure long-term viability and bring Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense to the point at which the protections of the Act are no longer necessary (that is, when delisting is appropriate). Summary of Changes From Proposed Rule We are designating a total of 11,640 ac (4,711 ha) of critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense on the island of Hawaii. We received a number of site-specific comments related to critical habitat for the species, completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act or for exemption under section 4(a)(3) of the Act, reviewed the application of our criteria for identifying critical habitat across the range of these species to refine our designations, and completed the FEA of the designation as proposed. We fully considered all comments from the public and peer reviewers on the proposed rule and the associated economic analysis to develop this final designation of critical habitat for these three species. This final rule incorporates changes to our proposed critical habitat based on the comments that we received and have responded to in this document, and considers conservation agreements, conservation partnerships, and other efforts to conserve Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Our final designation of critical habitat reflects the following changes from the proposed rule: (1) We updated the ownership of two parcels in Hawaii—Lowland Dry—Unit 35, TMK (3) 7-4-020:005 (21.7 ac (8.8 ha)) and TMK (3) 7-4-030:006 (24.8 ac (9.6 ha)) totaling 46.5 ac (18.4 ha), which we had indicated were under State of Hawaii ownership in the proposed rule to ownership by the Department of Hawaiian Home Lands (DHHL) in this final rule. (2) In response to comments, we provided additional detail from the Service's existing recovery plans for Isodendrion pyrifolium and Mezoneuron kavaiense, and discussed how the recovery goals and objectives for these two plants relate to the recovery of Bidens micrantha ssp. ctenophylla, in order to further explain the designation of critical habitat in unoccupied areas and the inclusion of areas for the expansion of existing populations. (3) In response to comments, we clarified that utility facilities and infrastructure, and their designated, maintained rights-of-way, are existing manmade features and structures that are not included in the critical habitat designation. (4) Based on public comments and information received regarding Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense in Hawaii, we determined that approximately 100 ac (40 ha) of unoccupied proposed critical habitat do not meet the definition of critical habitat; therefore, we removed these areas from this final designation. These areas that do not meet the definition of critical habitat include: 34.5 ac (14 ha) in Hawaii—Lowland Dry—Unit 31, 20.8 ac (8 ha) in Hawaii—Lowland Dry—Unit 32, 17.1 ac (7 ha) in Hawaii—Lowland Dry—Unit 34, and 28.7 ac (12 ha) in Hawaii—Lowland Dry—Unit 35. (5) For the areas that meet the definition of critical habitat, we carefully considered the benefits of inclusion and the benefits of exclusion in proposed critical habitat under section 4(b)(2) of the Act, particularly in areas where conservation agreements and management plans specific to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense are in place, and where the maintenance and fostering of important conservation partnerships were a consideration. Based on the results of our analysis, we are excluding approximately 7,027 ac (2,844 ha) from our final critical habitat designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (see Exclusions discussions, below). Two entire units of proposed critical habitat are excluded: Hawaii—Lowland Dry—Unit 32 (1,758 ac (711 ha)), and Hawaii—Lowland Dry—Unit 35 (1,164 ac (471 ha)). We excluded portions of the proposed designation in three other units, including the following: 2,834 ac (1,147 ha) of Hawaii—Lowland Dry—Unit 31, 593 ac (240 ha) of Hawaii—Lowland Dry—Unit 33, and 678 ac (274 ha) of Hawaii—Lowland Dry—Unit 34. The total area excluded represents approximately 37 percent of the area proposed as critical habitat for the three species. Exclusion from critical habitat should not be interpreted as a determination that these areas are unimportant, that they do not provide physical or biological features essential to the conservation of the species (for occupied areas), or are not otherwise essential for conservation (for unoccupied areas); exclusion merely reflects the Secretary's determination that the benefits of excluding those particular areas outweigh the benefits of including them in the designation. Due to these changes in our final critical habitat designation, we updated unit descriptions and critical habitat maps, all of which can be found later in this document. This final designation of critical habitat represents a reduction of 7,126 ac (2,886 ha) from our proposed critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, for the reasons detailed above. Additional minor differences between proposed and final critical habitat for these species on the order of roughly 3 ac (1 ha) beyond those detailed above are due to minor boundary adjustments and simple rounding error. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the primary biological or physical constituent elements (PCEs such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species. Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions related to listed plants. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of these species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. On February 11, 2016, we published a final rule in the Federal Register (81 FR 7414) to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on March 14, 2016, but, as stated in that rule, the amendments it sets forth to 50 CFR 424.12 apply to “rules for which a proposed rule was published after March 14, 2016.” We published our proposed critical habitat designation for the three plant species on October 17, 2012 (77 FR 63928); therefore, the amendments to 50 CFR 424.12 contained in the February 11, 2016, final rule at 81 FR 7414 do not apply to this final designation of critical habitat for the three plant species. Recovery Needs The lack of detailed scientific data on the life histories of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense precludes development of a robust quantitative model ( e.g., population viability analysis (Morris et al. 2002, p. 708)) to identify the optimal number, size, and location of critical habitat units needed to achieve recovery. Based on the best information available at this time, we have concluded that the current size and distribution of the extant populations are not sufficient to expect a reasonable probability of long-term survival and recovery of these plant species. For two of the three plant species, the recovery needs, outlined in the approved recovery plans, include: (1) Stabilization of existing wild populations; (2) protection and management of habitat; (3) enhancement of existing small populations and reestablishment of new populations within historical range; and (4) research on species biology and ecology (Recovery Plan for Caesalpinia kavaiensis (now Mezoneuron kavaiense ) and Kokia drynarioides, June 1994; Recovery Plan for the Big Island Plant Cluster, September 1996). Although a recovery plan has not yet been developed for Bidens micrantha ssp. ctenophylla, which we listed as endangered in 2013 (78 FR 64638; October 29, 2013), we believe it is reasonable to apply the same approach to this species because it has a similar life history, occurs in the same habitat, and faces the same threats as the two other plant species with approved recovery plans that are addressed in this final rule. The overall recovery goal stated in the recovery plans for Isodendrion pyrifolium and Mezoneuron kavaiense, and applied to Bidens micrantha ssp. ctenophylla, includes the establishment of 8 to 10 populations with a minimum of 100 mature, reproducing individuals per population for long-lived perennials; 300 mature, reproducing individuals per population for short-lived perennials; and 500 mature, reproducing individuals per population for annuals. These are the minimum population targets set for considering delisting of the species, which we consider the equivalent of achieving the conservation of the species as defined in section 3 of the Act (hereafter we refer to these delisting objectives as defined in recovery plans or by the Hawaii and Pacific Plants Recovery Coordinating Committee (HPPRCC 1998) as simply “recovery objectives”). To be considered recovered, the populations of multi-island species should be distributed among the islands of its known historical range (Recovery Plan for Caesalpinia kavaiensis (now Mezoneuron kavaiense ) and Kokia drynarioides, June 1994; Recovery Plan for the Big Island Plant Cluster, September 1996; HPPRCC 1998). A population, for the purposes of this discussion and as defined in the recovery plans for these species, is a unit in which the individuals could be regularly cross-pollinated and influenced by the same small-scale events (such as landslides), and which contains a minimum of 100, 300, or 500 mature, reproducing individuals, depending on whether the species is a long-lived perennial, short-lived perennial, or annual. For all plant species, propagated and outplanted individuals are generally not initially counted toward recovery, as populations must demonstrate recruitment (the ability to reproduce and generate multiple generations) and viability over an extended period of time to be considered self-sustaining. Bidens micrantha ssp. ctenophylla, a short-lived perennial herb, is known only from the leeward slopes of Hualalai volcano on Hawaii Island. Historically, this subspecies was known only from the North Kona district in the lowland dry ecosystem. Currently, this subspecies is restricted to an area of less than 10 square miles (mi 2 ) (26 square kilometers (km 2 )), in five occurrences totaling fewer than 1,000 individuals in the lowland dry ecosystem. One occurrence at Kaloko is considered reproducing, defined as offspring that reach reproductive maturity (produce viable fruit and seeds). The following recovery objectives apply to B. micrantha ssp. ctenophylla as a short-lived plant: • For interim stabilization, 3 populations reproducing and increasing in numbers, with at least 50 mature individuals; • For downlisting (that is, reclassifying from an endangered species to a threatened species), 5 to 7 populations documented where they now occur or occurred historically, that are naturally reproducing, stable, or increasing in number, with a minimum of 300 mature individuals per population; and • For delisting (that is, removing from the List of Endangered and Threatened Plants), 8 to 10 populations, that are each naturally reproducing, stable, or increasing in number, and secure from threats, with a minimum of 300 mature individuals per population and persisting at this level for a minimum of 5 consecutive years. There is no previously designated critical habitat for this subspecies. Isodendrion pyrifolium, a short-lived perennial shrub, is known from Niihau, Oahu, Molokai, Lanai, Maui, and Hawaii. Isodendrion pyrifolium was thought to be extinct since 1870, but was rediscovered in 1991, in a single occurrence with 50 to 60 individuals at Kealakehe on the island of Hawaii. Currently, there are no extant occurrences on Niihau, Oahu, Lanai, Molokai, or Maui. On Hawaii Island, only a few immature, wild individuals remain at a single location, and approximately 90 outplanted individuals occur in four locations in the lowland dry ecosystem. One location at Laiopua has reproducing plants. The following recovery objectives apply to Isodendrion pyrifolium as a short-lived plant: • For interim stabilization, 3 populations reproducing and increasing in numbers, with at least 50 mature individuals; • For downlisting, 5 to 7 populations documented on islands where they now occur or occurred historically, that are naturally reproducing, stable, or increasing in number, with a minimum of 300 mature individuals per population; and • For delisting, 8 to 10 populations, that are each naturally reproducing, stable, or increasing in number, and secure from threats, with a minimum of 300 mature individuals per population and persisting at this level for a minimum of 5 consecutive years. Critical habitat has been designated for this species on Oahu within 8 units totaling 1,924 ac (779 ha) (77 FR 57648; September 18, 2012), and on the islands of Maui and Molokai within 13 units totaling 21,703 ac (8,783 ha) (81 FR 17790; March 30, 2016). Mezoneuron kavaiense, a long-lived tree, was known historically from Kauai, Oahu, Lanai, Maui, and Hawaii. Currently, this species is represented by single mature tree on Kauai, five mature trees and two seedlings in two populations on Oahu, extirpated on Lanai (two outplanted individuals), and extirpated on Maui. On Hawaii Island, M. kavaiense is found in six occurrences totaling 72 mature wild and 22 immature wild individuals in the lowland dry ecosystem on Hawaii Island (USFWS 2015, in litt.). None of these occurrences has reproducing plants. In addition, a total of 520 individuals have been reintroduced at several sites in the North Kona and Waikoloa regions (USFWS 2015, in litt.). The recovery plan for Mezoneuron kavaiense identifies the following objectives: • For downlisting, a minimum of 100 mature individuals in each of three populations in the North Kona region on Hawaii Island, and 100 mature individuals in each of three populations on each of Kauai, Oahu, Lanai, and Maui; and • For delisting, a total of 8 to 10 populations, that are each naturally reproducing, stable, or increasing in number, and secure from threats, with a minimum of 100 mature individuals per population and persisting at this level for a minimum of 5 consecutive years (USFWS 1996, p. 118). There is no previously designated critical habitat for this species. The recovery objectives listed above are intended to reduce the adverse effects of genetic inbreeding and random environmental events and catastrophes, such as landslides, floods, and hurricanes, which could destroy a large percentage of a species at any one time (Kramer et al. 2008, p. 879; Menges 1990, pp. 56-60; Neel and Ellstrand 2003, p. 347). These recovery objectives were initially developed by the HPPRCC and are found in the recovery plans for Isodendrion pyrifolium and Mezoneuron kavaiense, and applied to Bidens micrantha ssp. ctenophylla, which does not have an approved recovery plan. As stated above, these objectives describe the minimum population criteria to be met, based on the best available scientific data, to ensure adequate population resiliency (population size, growth rate, and connectivity; indicative of ability to withstand stochastic disturbances), redundancy (spreading the risk among multiple populations over a large geographic area; ability to withstand catastrophic events), and representation (genetic and environmental diversity; ability to adapt to changing conditions over time) to ensure long-term viability and bring these species to the point at which the protections of the Act are no longer necessary (that is, when delisting is appropriate). Under section 3 of the Act, “conserve” means to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary; therefore, we consider meeting these recovery objectives as essential to the conservation of these species. These population recovery objectives are not necessarily the only recovery criteria for each species, but they served as the guide for our identification of the critical habitat areas essential for the conservation of the three species in this rule, in terms of providing the ability to meet the specified population objectives. In conclusion, the conservation of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense is dependent upon the protection of existing population sites, including room for population growth and expansion, and the protection of suitable unoccupied habitat within their historical range, to provide for the requisite resiliency, redundancy, and representation of populations through restoration and reintroductions. Methods As required by section 4(b) of the Act, we used the best scientific data available in determining those areas that contain the physical or biological features essential to the conservation of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and for which designation of critical habitat is considered prudent, by identifying the occurrence data for each species and determining the ecosystems upon which they depend. This information was developed by using: • The known locations of the three species, including site-specific species information from the Hawaii Biodiversity Mapping Program (HBMP) database (HBMP 2010a; HBMP 2010b; HBMP 2010c), the The Nature Conservancy database (TNC 2007- Ecosystem Database of ArcMap Shapefiles, unpublished), and our own rare plant database; • Species information from the plant database housed at National Tropical Botanical Garden (NTBG); • Maps of habitat essential to the recovery of Hawaiian plants, as determined by the Hawaii and Pacific Plant Recovery Coordinating Committee (HPPRCC 1998, 32 pp. + appendices); • Maps of important habitat for the recovery of plants protected under the Act (USFWS 1999, pp. F12); • The Nature Conservancy's Ecoregional Assessment of the Hawaiian High Islands (2006) and ecosystem maps (TNC 2007- Ecosystem Database of ArcMap Shapefiles, unpublished); • Color mosaic 1:19,000 scale digital aerial photographs for the Hawaiian Islands (March 2006 to January 2009); • Island-wide Geographic Information System (GIS) coverage ( e.g., Gap Analysis Program (GAP) vegetation data of 2005, HabQual data of 2014, Landfire data of 2014); • 1:24,000 scale digital raster graphics of U.S. Geological Survey (USGS) topographic quadrangles; • Geospatial data sets associated with parcel data from Hawaii County (2008); • Species Distribution Models (USFWS 2013, unpublished); • Recent biological surveys and reports; and • Discussions with qualified individuals familiar with these species and ecosystems. Based upon all of this data, we determined the areas that were occupied by these species at the time of listing, and whether they contain the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. In light of the recovery needs of the species, we also examined areas that were not occupied at the time of listing by one or more of the three species, to identify areas essential for the conservation of the species (TNC 2006b, pp. 1-2). Physical or Biological Features In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. For plant species, ecosystems that provide appropriate dryland habitats, host species, pollinators, soil types, and associated plant communities are taken into consideration when determining the physical or biological features essential for a species. We derived the specific physical or biological features essential for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense from studies on each of the species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the Federal Register on October 17, 2012 (77 FR 63928), and in the information presented below. Additional information can be found in the final listing rules published in the Federal Register on October 29, 2013 (78 FR 64638), for Bidens micrantha ssp. ctenophylla, on March 4, 1994 (59 FR 10305), for Isodendrion pyrifolium, and on July 8, 1986 (51 FR 24672) for Mezoneuron kavaiense; as well as in the Recovery Plan for Caesalpinia kavaiensis and Kokia drynarioides (USFWS 1994, pp. 1-91), the Recovery Plan for the Big Island Plant Cluster (USFWS 1996, pp. 1-252), and the 2003 Final Designation and Nondesignation of Critical Habitat for 46 Plant Species From the Island of Hawaii, HI (68 FR 39624, July 2, 2003). We have reevaluated the physical and biological features for Isodendrion pyrifolium based on the features of the ecosystem on which its survival depends, using species information from the 2003 Final Designation and Nondesignation of Critical Habitat for 46 Plant Species From the Island of Hawaii, HI (68 FR 39624, July 2, 2003) and new scientific information that has become available since that time. Bidens micrantha ssp. ctenophylla is found in locations with the same substrate age and soil type as Isodendrion pyrifolium and Mezoneuron kavaiense, and is known to share the same land cover (vegetation) type as Mezoneuron kavaiense throughout over 85 percent of its range (HBMP 2010c). Therefore, we believe that Bidens micrantha ssp. ctenophylla shares the same physical or biological features that we have determined for Isodendrion pyrifolium and Mezoneuron kavaiense. We have determined that the three lowland dry plant species (Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense ) addressed in this final rule require the physical or biological features described in the following paragraphs and summarized in Table 2, below. Based on the recovery needs of these species discussed above, it is essential to conserve suitable habitat in both occupied and unoccupied areas, which will in turn allow for the establishment of additional populations through natural recruitment or managed reintroductions. Establishment of these additional populations will increase the likelihood that the species will survive and recover in the face of normal and stochastic events ( e.g., hurricanes, fire, and nonnative species introductions) (Mangel and Tier 1994, p. 612; Pimm et al. 1998, p. 777; Stacey and Taper 1992, p. 27). For these reasons, the designation of critical habitat limited to the geographic areas occupied by the species at the time of listing would be insufficient to achieve recovery objectives. In this final rule, the physical or biological features are described based on the features of the ecosystem on which Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense depend, the lowland dry ecosystem. Ecosystem characteristic parameters include elevation, precipitation, substrate ( i.e., age of lava), and associated native plant genera. The lowland dry ecosystem consists of shrublands and forests generally below 3,300 feet (ft) (1,000 meters (m)) elevation and receives less than 50 inches (in) (130 centimeters (cm)) annual rainfall, or otherwise bearing prevailingly dry substrate conditions that range from weathered reddish silty loams to stony clay soils, rocky ledges with very shallow soil, or relatively recent little-weathered lava (TNC 2006b). As conservation of each species is dependent upon a functioning ecosystem to provide its fundamental life requirements, such as a certain substrate type or minimum level of rainfall, we consider the physical or biological features present in the lowland dry ecosystem described in this rule to provide the necessary physical and biological features for each of the three species (see Table 2, below). Table 2—Physical and Biological Features* for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense Ecosystem Elevation Annual precipitation Substrate Supporting one or more of these associated native plant genera Canopy Subcanopy Understory Lowland Dry <3,300 ft (<1,000 m) <50 in (<130 cm) Weathered silty loams to stony clay, rocky ledges, little-weathered lava Diospyros, Erythrina, Metrosideros, Myoporum, Pleomele, Santalum, Sapindus Chamaesyce, Dodonaea, Osteomeles, Psydrax, Scaevola, Wikstroemia Alyxia, Artemisia, Bidens, Capparis, Chenopodium, Nephrolepis, Peperomia, Sicyos. *Note: These features also represent the primary constituent elements for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. When designating critical habitat in occupied areas, we focus on the physical or biological features that may be essential to the conservation of the species and which may require special management considerations or protections. In unoccupied habitat, we focus on whether the area is essential for the conservation of the species. The physical or biological features for occupied areas, in conjunction with the unoccupied areas needed to expand and reestablish wild populations within their historical range, provide a more accurate picture of the geographic areas needed for the recovery of each species. We believe this information will be helpful to Federal agencies and our other partners, as we collectively work to recover these imperiled species. Primary Constituent Elements for the Three Species Under the Act and implementing regulations applicable to this rule, we are required to identify the physical or biological features essential to the conservation of the three plant species in areas occupied at the time of listing, focusing on the features' PCEs. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species. The PCEs identified in this final rule take into consideration the ecosystem on which these species depend for survival and reflect a distribution that we believe is essential to achieving the species' recovery needs within the lowland dry ecosystem on Hawaii Island. As described above, we considered the current population status of each species, to the extent it is known, and assessed its status relative to the recovery objectives for that species, in terms of population goals (numbers of populations and individuals in each population, which contributes to population resiliency) and distribution (whether the species occurs in habitats representative of its historic geographical and ecological distribution, and are sufficiently redundant to withstand the loss of some populations over time). This analysis informed us as to whether the species requires space for population growth and expansion in areas occupied at the time of listing, or whether additional areas unoccupied at the time of listing may be required for the reestablishment of populations to achieve conservation. In this final rule, the PCEs for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense are defined based on those physical or biological features essential to support the successful functioning of the ecosystem upon which each species depends, and which may require special management considerations or protection. As the conservation of each species is dependent upon a functioning ecosystem to provide its fundamental life requirements, such as a certain soil type or minimum level of rainfall, we consider the physical or biological features present in the lowland dry ecosystem described in this rule to provide the necessary PCEs for each of the three species. The ecosystem's features collectively provide the suite of environmental conditions essential to meeting the requirements of each species, including the appropriate microclimatic conditions for germination and growth of plants ( e.g., light availability, soil nutrients, hydrologic regime, and temperature), and in all cases, space within the appropriate habitats for population growth and expansion, as well as to maintain the historical geographical and ecological distribution of each species. In the case of Isodendrion pyrifolium, due to its relatively recent rediscovery and limited geographic distribution at one known occurrence, the more general description of the physical or biological features that provide for the successful function of the ecosystem that is essential to the conservation of the species represents the only scientific information available. Accordingly, for the purposes of this final rule, the physical or biological features of a properly functioning lowland dry ecosystem are the PCEs essential to the conservation of the three species at issue here (see Table 2, above). Special Management Considerations or Protections When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The following discussion of special management needs is applicable to each of the three Hawaii Island species for which we are designating critical habitat. For Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, we have determined that the features essential to their conservation are those required for the successful functioning of the lowland dry ecosystem in which they occur (see Table 2, above). Special management considerations or protections are necessary throughout the critical habitat areas designated here to avoid further degradation or destruction of the habitat that provides those features essential to their conservation. The primary threats to the physical or biological features essential to the conservation of these three species include habitat destruction and modification by development, nonnative ungulates, competition with nonnative species, hurricanes, fire, drought, and climate change. The reduction of these threats will require the implementation of special management actions within each of the critical habitat areas identified in this final rule. All designated critical habitat may require special management actions to address the ongoing degradation and loss of habitat caused by residential and urban development. Urbanization also increases the likelihood of wildfires ignited by human sources. Without protection and special management, habitat containing the features that are essential for the conservation of these species will continue to be degraded and destroyed. All designated critical habitat may require active management to address the ongoing degradation and loss of native habitat caused by nonnative ungulates (goats and cattle). Nonnative ungulates also impact the habitat through predation and trampling. Without this special management, habitat containing the features that are essential for the conservation of these species will continue to be degraded and destroyed. All designated critical habitat may require active management to address the ongoing degradation and loss of native habitat caused by nonnative plants. Special management is also required to prevent the introduction and spread of nonnative plant species into native habitats. Particular attention is required in nonnative plant control efforts to avoid creating additional disturbances that may facilitate the further introduction and establishment of invasive plant seeds. Precautions are also required to avoid the inadvertent trampling of listed plant species in the course of management activities. The active control of nonnative plant species will help to address the threat posed by fire in all five of the designated critical habitat units. This threat is largely a result of the presence of nonnative plant species such as the grasses Pennisetum setaceum and Melinis minutiflora that increase the fuel load and quickly regenerate after a fire. These nonnative grass species can outcompete native plants that are not adapted to fire, creating a grass-fire cycle that alters ecosystem functions (D'Antonio and Vitousek 1992, pp. 64-66; Brooks et al. 2004, p. 680). In summary, we find that each of the areas we are designating as critical habitat contains features essential for the conservation of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense that may require special management considerations or protection to ensure the conservation of the three plant species for which we are designating critical habitat. These special management considerations and protections are required to preserve and maintain the essential features provided to these species by the lowland dry ecosystem upon which they depend. Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. In accordance with the Act and implementing regulations at 50 CFR 424.12(b) applicable to this final rule, we review available information pertaining to the habitat requirements of the species and identify areas occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are designating critical habitat in areas within the geographical area occupied by Bidens micrantha ssp. ctenophylla at the time of its listing in 2013, Isodendrion pyrifolium at the time of its listing in 1994, and Mezoneuron kavaiense at the time of its listing in 1986. We also are designating critical habitat in areas outside the geographical area occupied by these species at the times of their listing because we have determined that such areas are essential for the conservation of these species. We considered several factors in the selection of specific boundaries for critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. We determined critical habitat unit boundaries taking into consideration the known past and present locations of the species, important areas of habitat identified by HPPRCC (HPPRCC 1998, entire), recovery areas described by species' Recovery Plans (for Isodendrion pyrifolium and Mezoneuron kavaiense ), projections of geographic ranges of Hawaiian plant species (Price et al. 2012, entire), space to allow for increases in numbers of individuals and for expansion of populations to provide for the minimum numbers required to reach delisting goals (as described in recovery plans), and space between individual critical habitat units to provide for redundancy of populations across the range of the species in case of catastrophic events such as fire and hurricanes (see also Methods, above). For these three species, we designate critical habitat only in the geographic area of historical occurrence on Hawaii Island, which is restricted to the lowland dry ecosystem in the north Kona and south Kohala regions. Initial draft boundaries were superimposed over digital topographic maps of the island of Hawaii and further evaluated. In general, land areas that were identified as highly degraded were removed from the final critical habitat units, and natural or manmade features ( e.g., ridge lines, valleys, streams, coastlines, roads, and obvious land features) were used to delineate the final critical habitat boundaries. We are designating critical habitat on lands that contain the physical or biological features essential to conserving these species, and unoccupied lands that are essential the species' conservation, based on their shared dependence on the lowland dry ecosystem. The critical habitat is a combination of areas occupied by these three species at the time of listing, as well as areas that may be currently unoccupied. The best available scientific information suggests that these species either presently occur within, or have occupied, these habitats. The occupied areas provide the physical or biological features essential to the conservation of these species, which all depend on the lowland dry ecosystem. However, due to the small population sizes, few numbers of individuals, and reduced geographic range of each of the three species for which critical habitat is here designated, we have determined that a designation limited to the areas known to be occupied at the time of listing would be inadequate to achieve the conservation of those species. The areas believed to be unoccupied, and that may have been unoccupied at the time of listing, have been determined to be essential for the conservation and recovery of the species because they provide the habitat necessary for the expansion of existing wild populations and reestablishment of wild populations within the historical range of the species. We are designating critical habitat on lands that contain the physical or biological features essential to conserving multiple species, based on their shared dependence on the functioning ecosystem they have in common. Because the lowland dry ecosystem that supports the three plant species addressed here does not form a contiguous area, it is divided into five geographic units. Some of the designated critical habitat for the three plant species overlies critical habitat already designated for other plants on the island of Hawaii. Because of the small numbers of individuals or low population sizes of each of these three plant species, each requires suitable habitat and space for the expansion of existing populations to achieve a level that could approach recovery. For example, recent surveys of Isodendrion pyrifolium have documented the mortality of the two remaining mature, reproducing individuals, leaving only several immature individuals in the lowland dry ecosystem on Hawaii Island (Wagner 2014b, in litt.; Wagner 2016, in litt.) and three individuals represented in off-site seed storage collections (PEPP 2011, p. 32). The unoccupied areas of each unit are essential for the expansion of this species to achieve viable population numbers and maintain its historical geographical and ecological distribution. This same reasoning applies to Bidens micrantha ssp. ctenophylla and Mezoneuron kavaiense. Further details are provided under Final Critical Habitat Designation, below. The critical habitat areas described below constitute our best assessment of the areas occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense at their times of listing that contain the physical or biological features essential for the recovery and conservation of the three plant species, and the unoccupied areas that are needed for the expansion or augmentation of reduced populations or reestablishment of populations. The approximate size of each of the five plant critical habitat units and the status of their land ownership, are identified in Table 3. As noted in Table 3, all areas designated for critical habitat designation are found within the lowland dry ecosystem. Table 4 identifies the areas excluded from critical habitat designation under section 4(b)(2) of the Act (see Consideration of Impacts Under Section 4(b)(2) of the Act, below). When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas (such as lands covered by buildings, pavement, railroads, airports, runways, utility facilities and infrastructure and their designated and maintained rights-of-way, other paved areas, lawns, and other urban landscaped areas) because such lands lack the physical or biological features essential for the conservation of the three plant species. The scale of the maps we prepared under the parameters for publication within the CFR may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, Federal actions involving these areas would not trigger section 7 consultation with respect to critical habitat or the requirement to avoid adverse modification of critical habitat unless the specific action would affect the physical or biological features in the adjacent critical habitat. Table 3—Critical Habitat Designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense on the island of Hawaii [Totals may not sum due to rounding] Designated critical habitat area Size of section in acres Size of section in hectares State Federal County Private Corresponding critical habitat map in the Code of Federal Regulations Hawaii—Lowland Dry —Unit 10 2,913 1,179 2,913 Map 39a. —Unit 31 7,067 2,860 7,067 Map 104. —Unit 33 989 400 989 Map 105. —Unit 34 268 109 242 27 Map 105. —Unit 36 402 163 5 397 Map 105. Total Lowland Dry 11,640 4,711 11,216 397 27 We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the species, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Units are designated based on sufficient elements of physical or biological features being present to support the life processes of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Some units contain all of the identified elements of physical or biological features and support multiple life processes. Some units contain only some elements of the physical or biological features necessary to support the species' particular use of that habitat. The critical habitat designation is defined by the maps, and refined by accompanying regulatory text, presented at the end of this document in the regulatory portion of this final rule. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. The coordinates or plot points or both on which each map is based are available to the public on http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0028, on our internet site at http://www.fws.gov/pacificislands/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT , above). Final Critical Habitat Designation We are designating 11,640 ac (4,711 ha) as critical habitat in five units within the lowland dry ecosystem for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (see Table 3, above, for details). Of these five units, 8,443 ac (3,417 ha) or 72 percent, was already designated as critical habitat for other listed species. The final critical habitat includes land under State, County of Hawaii, Federal (Kaloko-Honokohau NHP), and private ownership. The critical habitat units we describe below constitute our current best assessment of those areas that meet the definition of critical habitat for the three species of plants. The five critical habitat units are: Hawaii—Lowland Dry—Unit 10, Hawaii—Lowland Dry—Unit 31, Hawaii—Lowland Dry—Unit 33, Hawaii—Lowland Dry—Unit 34, and Hawaii—Lowland Dry—Unit 36 (see the Regulation Promulgation section of this rule, 50 CFR 17.99(k)(115), the Table of Protected Species Within Each Critical Unit for the Island of Hawaii, for the occupancy status of each unit). Because some of the final critical habitat for the three plants overlays critical habitat already designated for other plant species on the island of Hawaii, we have incorporated the maps of the areas newly designated as critical habitat in this final rule into the existing critical habitat unit numbering system established for the plants on the island of Hawaii in the Code of Federal Regulations (CFR) at 50 CFR 17.99(k). The maps and area descriptions presented here represent the critical habitat designation that we have identified for the three plant species, subdivided into a total of five units (see Table 3, above). The critical habitat unit numbers and the corresponding map numbers that will appear at 50 CFR 17.99 are provided for ease of reference in the CFR. Descriptions of the Five Critical Habitat Units Hawaii—Lowland Dry—Unit 10 Hawaii—Lowland Dry—Unit 10 consists of 2,913 ac (1,179 ha) of State land from Puu Waawaa to Kaupulehu on the northwestern slope of Hualalai between the elevations of 1,400 and 2,600 ft (427 and 793 m). This unit overlaps portions of previously designated plant critical habitat in unit Hawaii 10 (see 50 CFR 17.99(k)), and includes critical habitat for the following listed plant species: Bonamia menziesii, Colubrina oppositifolia, Hibiscadelphus hualalaiensis, Neraudia ovata, Nothocestrum breviflorum, and Pleomele hawaiiensis. This unit is depicted on Map 39a in the Regulation Promulgation section of this rule. This unit is occupied by Mezoneuron kavaiense and includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 2, above). This unit also contains unoccupied habitat for Mezoneuron kavaiense that is essential to the conservation of this species by providing the PCEs necessary for the expansion of the existing wild populations. Although Hawaii—Lowland Dry—Unit 10 is not known to be occupied by Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium, we have determined this area is also essential for the conservation and recovery of these two species because it provides the PCEs necessary for the reestablishment of wild populations within their historical range. Due to their small numbers of individuals, these species require suitable habitat and space for expansion or introduction to achieve population levels that could approach recovery. Hawaii—Lowland Dry—Unit 31 Hawaii—Lowland Dry—Unit 31 consists of 7,067 ac (2,860 ha) of State land from Puu Waawaa to Kaupulehu on the northwestern slope of Hualalai between the elevations of 720 and 1,960 ft (427 and 597 m). This unit is not in previously designated plant critical habitat and comprises only newly designated plant critical habitat. This unit is depicted on Map 104 in the Regulation Promulgation section of this rule. This unit is occupied by Mezoneuron kavaiense and includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 2, above). This unit also contains unoccupied habitat for Mezoneuron kavaiense that is essential to the conservation of this species by providing the PCEs necessary for the expansion of the existing wild populations. Although Hawaii—Lowland Dry—Unit 31 is not known to be occupied by Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium, we have determined this area is also essential for the conservation and recovery of these two species because it provides the PCEs necessary for the reestablishment of wild populations within their historical range. Due to their small numbers of individuals, these species require suitable habitat and space for expansion or introduction to achieve population levels that could approach recovery. Hawaii—Lowland Dry—Unit 33 Hawaii—Lowland Dry—Unit 33 consists of 989 ac (400 ha) of State land, from Puukala to Kalaoa on the western slope of Hualalai between the elevations of 360 and 1,080 ft (110 and 329 m). This unit is not in previously designated critical habitat and comprises only newly designated critical habitat. This unit is depicted on Map 105 in the Regulation Promulgation section of this rule. This unit is unoccupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense; however, it contains the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 2, above). Although Hawaii—Lowland Dry—Unit 33 is not known to be occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, we have determined this area is essential for the conservation and recovery of these lowland dry species because it provides the PCEs necessary for the reestablishment of wild populations within their historical range. Due to their small numbers of individuals or low population sizes, these species require suitable habitat and space for expansion or reintroduction to achieve population levels that could approach recovery. Hawaii—Lowland Dry—Unit 34 Hawaii—Lowland Dry—Unit 34 consists of 242 ac (98 ha) of State land, and 27 ac (11 ha) of privately owned land for a total of 269 ac (109 ha), from Kalaoa to Puukala on the western slope of Hualalai between the elevations of 280 and 600 ft (85 and 183 m). This unit is not in previously designated critical habitat and comprises only newly designated critical habitat. This unit is depicted on Map 105 in the Regulation Promulgation section of this rule. This unit is unoccupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense; however, it includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 2, above). Although Hawaii—Lowland Dry—Unit 34 is not known to be occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, we have determined this area is essential for the conservation and recovery of these lowland dry species because it provides the PCEs necessary for the reestablishment of wild populations within their historical range. Due to their small numbers of individuals or low population sizes, these species require suitable habitat and space for expansion or reintroduction to achieve population levels that could approach recovery. Hawaii—Lowland Dry—Unit 36 Hawaii—Lowland Dry—Unit 36 consists of 5 ac (2 ha) of State land and 397 ac (161 ha) of Federal land for a total of 402 ac (163 ha), near the coastline at Kaloko and Honokohau on the western slope of Hualalai between the elevations of 20 and 90 ft (6 and 27 m). This unit is not in previously designated critical habitat and comprises only newly designated critical habitat. This unit is depicted on Map 105 in the Regulation Promulgation section of this rule. This unit is occupied by the plant Bidens micrantha ssp. ctenophylla, and includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 2, above). This unit also contains unoccupied habitat for Bidens micrantha ssp. ctenophylla that is essential to the conservation of this species by providing the PCEs necessary for the expansion of the existing wild populations. Although Hawaii—Lowland Dry—Unit 36 is not known to be occupied by Isodendrion pyrifolium, we have determined this area is also essential for the conservation and recovery of this lowland dry species because it provides the PCEs necessary for the reestablishment of wild populations within its historical range. Due to their small numbers of individuals or low population sizes, these species require suitable habitat and space for expansion or reintroduction to achieve population levels that could approach recovery. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act, as amended, requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final rule defining “destruction or adverse modification” on February 11, 2016 (81 FR 7214). “Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to section 7 consultation process are actions on Federal lands or that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the FHWA, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, County, or private lands that are not federally funded or authorized, do not require section 7 consultation. At the conclusion of section 7 consultation, we may issue: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate formal consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the “Adverse Modification” Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the three species, or would retain its current ability for the essential features to be functionally established. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of these species or that preclude or significantly delay development of such features. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. These activities include, but are not limited to: (1) Actions that may appreciably degrade or destroy the physical or biological features for the species, including, but not limited to, overgrazing, maintaining or increasing feral ungulate levels, clearing or cutting native live trees and shrubs ( e.g., woodcutting, bulldozing, construction, road building, mining, herbicide application), and taking actions that pose a risk of fire. (2) Actions that may alter watershed characteristics in ways that would appreciably reduce groundwater recharge or alter natural, wetland, aquatic, or vegetative communities. Such activities include new water diversion or impoundment, excess groundwater pumping, and manipulation of vegetation through activities such as the ones mentioned in (1), above. (3) Recreational activities that may appreciably degrade vegetation. (4) Mining sand or other minerals. (5) Introducing or facilitating the spread of nonnative plant species. (6) Importing nonnative species for research, agriculture, and aquaculture, and releasing biological control agents. Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense (DOD) lands with a completed INRMP within the critical habitat designation. Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to Federal, State, or local laws that may apply to critical habitat. We also look at whether these benefits might be reduced by the existence of a conservation plan. In such cases, we consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information. When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to encourage new conservation partnerships and future conservation efforts. The Secretary places great weight on demonstrated partnerships, as in many cases they can lead to the implementation of conservation actions that provide benefits to the species and their habitat beyond those that are achievable through the designation of critical habitat and section 7 consultations, particularly on private lands. As most endangered or threatened species in Hawaii occur on private and other non-Federal lands, such conservation partnerships are of heightened importance on the islands of Hawaii. After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation. Based on the information provided by landowners, as well as public comments received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We are excluding the following areas from critical habitat designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense: Table 4—Areas Excluded From Critical Habitat Designation by Critical Habitat Unit Unit name designated CH + area excluded, in acres (Hectares) Landowner or land manager Area excluded from critical habitat, in acres (Hectares) Hawaii—Lowland Dry—Unit 31 12,814 (4,039) Kamehameha Schools Total 2,834 (1,147). Hawaii—Lowland Dry—Unit 32 1,779 (720) Waikoloa Village Association (WVA) Total 1,758 (712). Hawaii—Lowland Dry—Unit 33 1,583 (640) Palamanui Global Holdings LLC; Department of Hawaiian Home Lands (DHHL) 502 (203). 91 (30). Total 593 (233). Hawaii—Lowland Dry—Unit 34 961 (389) Kaloko Entities; Lanihau Properties 631 (255). 47 (19). Total 677 (274). Hawaii—Lowland Dry—Unit 35 1,192 (485) County of Hawaii (State); Hawaii Housing and Finance Development Corporation (HHFDC) (State); Department of Hawaiian Home Lands (DHHL); Forest City Kona; Queen Liliuokalani Trust (QLT) 165 (67). 30 (12). 401 (165). 265 (107). 302 (122). Total 1,164 (471). Consideration of Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a DEA of the proposed critical habitat designation and related factors (IEc 2013, entire). The draft analysis, dated April 4, 2013, was made available for public review from April 30, 2013, through May 30, 2013 (78 FR 25243; April 30, 2013); from July 2, 2013, through September 3, 2013 (78 FR 39698); and from May 20, 2016, through June 6, 2016 (81 FR 31900). The DEA addressed potential economic impacts of critical habitat designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Following the close of the comment periods, a final analysis of the potential economic effects of the designation (FEA) was developed taking into consideration the public comments and any new information received (IEc 2016). We also considered the effects of the exclusion of lands owned by Kaloko Properties LLC, which resulted in Unit 34 becoming an unoccupied unit. The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species ( e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with designation of critical habitat. The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on development and transportation projects. The FEA looks retrospectively at costs that have been incurred since the listing of the three species (51 FR 24672, July 8, 1986; 59 FR 10305, March 4, 1994; 78 FR 64638, October 29, 2013), and considers those costs that may occur in the 10 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 10-year timeframe. The FEA analyzes economic impacts of the conservation efforts for these species associated with the following categories of activity: Residential and commercial development projects, and transportation projects. The FEA concluded that critical habitat designation is unlikely to change the outcome of future section 7 consultations on projects or activities within occupied areas, and that incremental impacts due to section 7 consultations in occupied areas will most likely be limited to the additional administrative effort of considering adverse modification (IEc 2016, p. 2-9). The FEA estimates approximately $35,000 over the next 10 years (an annualized impact of $4,700, 7 percent discount rate) associated with future section 7 consultations. Impacts on projects occurring in areas being considered for exclusion are expected to be $15,000 (an annualized impact of $2,000, 7 percent discount rate) (IEc 2016, p. E-7). The FEA concluded that additional impacts, beyond administrative costs associated with section 7 consultations, are likely within unoccupied areas but limited information is available regarding the nature and extent of these impacts and precludes quantification of these costs. Two specific projects in unoccupied habitat were identified that may be subject to economic impacts due to a critical habitat designation. Prior to finalizing this rule, we also evaluated the potential economic effects related to a third project in Unit 34, which, based on a potential 4(b)(2) exclusion, would become an unoccupied unit. The first is a DHHL residential development project that is expected to involve the use of Federal funds, and would thus require section 7 consultation, but this area is being excluded from the critical habitat designation; therefore, any anticipated effects due to the designation will not occur. The second is a QLT mixed-use development project that is not likely to be subject to a Federal nexus and would, therefore, have very little chance of any economic impacts due to critical habitat designation. The QLT land is also being excluded from the critical habitat designation. The third project is a highway extension planned on Kaloko Entities property and State lands in proposed Unit 34. With the exclusion of the Kaloko Entities lands, this unit would be considered unoccupied, and, therefore, the only critical habitat the project would be impacting would be unoccupied critical habitat. However, the project would also still be impacting occupied areas on the Kaloko Entities lands, and, therefore, a section 7 jeopardy analysis on the presence of the species within the project area would already be required. Because one of the primary threats to these species is habitat loss and degradation, the consultation process under section 7 of the Act for projects with a Federal nexus will, in evaluating the effects to these species, evaluate the effects of the action on the conservation or function of the habitat for the species regardless of whether critical habitat is designated for these lands, and will likely result in similar recommended conservation measures. Therefore, the cost of critical habitat designation on this project would be limited to the additional administrative cost of adding the adverse modification analysis to the section 7 jeopardy analysis. The FEA additionally considered the potential indirect effects of the designation, including, for example, perceptional effects on land values, or the potential for third-party lawsuits. Given the uncertainties surrounding the probability of any such effects occurring (and if so, the magnitude of any such effects), quantification of the potential indirect effects of the designation was not possible. The FEA acknowledges, however, that these uncertainties result in an underestimate of the quantified impacts of the designation (IEc 2016, p. 2-23). Exclusions Based on Economic Impacts The Service considered the economic impacts of the critical habitat designation and the Secretary is not exercising his discretion to exclude any areas from this designation of critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense based on economic impacts. A copy of the FEA may be obtained by contacting the Pacific Islands Fish and Wildlife Office (see ADDRESSES ) or by downloading from the internet at http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0028. Exclusions Based on Impacts on National Security or Homeland Security Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that no lands within the designation of critical habitat for these three species are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exercising his discretion to exclude any areas from this final designation based on impacts on national security or homeland security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements, or non-permitted conservation agreements which reduce the benefits of critical habitat or partnerships that would be encouraged by exclusion from critical habitat. In preparing this final rule, we have determined that the final designation of critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense does not include any land covered by permitted conservation plans. We anticipate no impact to permitted conservation plans from this critical habitat designation. Private or Other Non-Federal Conservation Plans or Agreements and Partnerships We sometimes exclude areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements that can minimize the benefits of critical habitat. We may also exclude areas covered by conservation agreements if we believe a benefit of exclusion would be to encourage future conservation partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service. We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. Some of the factors that we will consider for non-permitted plans or agreements are listed below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement. 1. The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species; 2. Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; 3. The demonstrated implementation and success of the chosen conservation measures; 4. The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership; 5. The extent of public participation in the development of the conservation plan; 6. The degree to which there has been agency review and required determinations ( e.g., State regulatory requirements), as necessary and appropriate; 7. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) compliance was required; and 8. Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information. The Secretary places great weight on demonstrated partnerships, as in many cases they can lead to the implementation of conservation actions that provide benefits to the species and their habitat beyond those that are achievable through the designation of critical habitat and section 7 consultations, particularly on private lands, reducing the benefits of critical habitat. In addition, we consider the potential benefits of exclusion where voluntary conservation agreements may encourage future conservation actions and partnerships. The establishment and encouragement of strong conservation partnerships with non-Federal landowners is especially important in the State of Hawaii, where there are relatively few lands under Federal ownership; we cannot achieve the conservation and recovery of listed species in Hawaii without the help and cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned (Lubowski et al. 2006, p. 35), and at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse et al. 2002, p. 720). In the State of Hawaii, 84 percent of landownership is non-Federal (U.S. General Services Administration, in Western States Tourism Policy Council, 2009). Given the distribution of listed species with respect to landownership, conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners (Wilcove and Chen 1998, p. 1,407; Crouse et al. 2002, p. 720; James 2002, p. 271). Building partnerships and promoting voluntary cooperation of landowners is essential to understanding the status of species on non-Federal lands and necessary to implement recovery actions, such as the reintroduction of listed species, habitat restoration, and habitat protection. Many non-Federal landowners derive satisfaction from contributing to endangered species recovery. Conservation agreements with non-Federal landowners, safe harbor agreements, other conservation agreements, easements, and State and local regulations enhance species conservation by extending species protections beyond those available through section 7 consultations. We encourage non-Federal landowners to enter into conservation agreements based on a view that we can achieve greater species conservation on non-Federal lands through such partnerships than we can through regulatory methods alone (USFWS and NOAA 1996e (61 FR 63854, December 2, 1996)). Many non-Federal landowners, however, are wary of the possible consequences of attracting endangered species to their property. Some evidence suggests that some regulatory actions by the government, while well intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on non-Federal lands (Wilcove et al. 1996, pp. 5-6; Bean 2002, pp. 2-3; James 2002, pp. 270-271; Koch 2002, pp. 2-3). Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where endangered or threatened species are found. Consequently, harboring endangered species is viewed by many landowners as a liability. This perception can result in an anti-conservation incentive because of the fear that maintaining habitats for endangered species could represent a risk to future economic opportunities (Main et al. 1999, pp. 1,264-1,265; Brook et al. 2003, pp. 1,644-1,648). Because so many important habitat areas for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense occur on lands managed by non-Federal entities, collaborative relationships are essential for their recovery. These species and their habitat are expected to benefit substantially from voluntary land management actions that implement appropriate and effective conservation strategies, or that add to our bank of knowledge about the species and their ecological needs. The conservation benefits of critical habitat, on the other hand, are primarily regulatory or prohibitive in nature. Where consistent with the discretion provided by the Act, the Service believes it is both desirable and necessary to implement policies that provide positive incentives to non-Federal landowners and land managers to voluntarily conserve natural resources and to remove or reduce disincentives to conservation (Wilcove et al. 1996, pp. 1-14; Bean 2002, p. 2). We believe it is imperative for the recovery of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense to support ongoing positive management efforts with non-Federal conservation partners, and to provide positive incentives for other non-Federal land managers who might be considering implementing voluntary conservation activities but have concerns about incurring incidental regulatory, administrative, or economic costs. Many landowners perceive critical habitat as an unnecessary and duplicative regulatory burden, particularly if those landowners are already developing and implementing conservation and management plans that benefit listed species on their lands. In certain cases, we believe the exclusion of non-Federal lands that are under positive conservation management is likely to strengthen the partnership between the Service and the landowner, which may encourage other conservation partnerships with that landowner in the future. As an added benefit, by modeling positive conservation partnerships that may result in exclusion from critical habitat, such exclusion may also help encourage the formation of new partnerships with other landowners, with consequent benefits to the listed species. For all of these reasons, we place great weight on the value of conservation partnerships with non-Federal landowners when considering the potential benefits of inclusion versus exclusion of areas in critical habitat. We are excluding a total of approximately 7,027 ac (2,844 ha) of non-Federal lands on the island of Hawaii that meet the definition of critical habitat from the final critical habitat rule under section 4(b)(2) of the Act. We are excluding these lands because the continuation and strengthening of important conservation partnerships with the landowners will increase the likelihood of meaningful conservation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and increase the possibility that these partnerships will encourage others to enter into similar partnerships. Furthermore, the development and implementation of management plans covering portions of these excluded lands increase the accessibility necessary for surveys or monitoring designed to promote the conservation of these federally listed plant species and their habitat, as well as provide for other native species of concern, thereby reducing the benefits of overlying a designation of critical habitat. The Secretary has determined that the benefits of excluding these areas outweigh the benefits of including them in critical habitat, and that such exclusion will not result in the extinction of the species. The specific areas excluded are detailed in Table 4. Maps of each area excluded are provided in our supporting document “Supplemental Information for the Designation and Nondesignation of Critical Habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense” available at http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0028. Here we present (by landowner) an overview of each of the areas we are excluding based on conservation partnerships with the landowners, followed by a summary of our analysis of the benefits of inclusion versus the benefits of exclusion in each case. Kamehameha Schools In this final designation, the Secretary has exercised his discretionary authority to exclude from critical habitat lands that are owned by the Kamehameha Schools, totaling 2,834 ac (1,147 ha), under section 4(b)(2) of the Act. These lands fall within a portion of the 9,936 ac (4,021 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 31 (77 FR 63928, October 17, 2012), have documented presence of Bidens micrantha ssp. ctenophylla and Mezoneuron kavaiense, and are considered essential to the conservation of Isodendrion pyrifolium. Kamehameha Schools is a proven conservation partner, as demonstrated, in part, by their ongoing management programs that provide important conservation benefits to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense and their habitat, as well as to other federally listed species. These programs include Kamehameha Schools Natural Resources Management Plan (NRMP), the Three Mountain Alliance TMA Management Plan, and the management program on Kamehameha Schools lands at Kaupulehu. We have determined that the benefits of excluding these lands owned by Kamehameha Schools outweigh the benefits of including them in critical habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense. Kamehameha Schools is the largest private landowner in the State of Hawaii, owning approximately 375,000 ac (151,757 ha), with approximately 297,000 ac (120,192 ha) on Hawaii Island alone. Approximately 98 percent of these lands are dedicated to agriculture and conservation, and the remaining 2 percent of lands are in commercial real estate and properties. Kamehameha Schools is a private charitable educational trust established in 1887, through the will of Princess Bernice Pauahi Paki Bishop. The trust is used primarily to operate a comprehensive educational program for students of Hawaiian ancestry. In addition, part of the Kamehameha Schools' mission is to protect Hawaii's environment through recognition of the significant cultural value of the land and its unique flora and fauna. Kamehameha Schools has established a policy to guide the sustainable stewardship of its lands including natural resources, water resources, and ancestral places (Kamehameha Schools 2013, entire). The maintenance of healthy, functioning native ecosystems is a critical component of the Kamehameha Schools' integrated management strategy, and is sustained through a suite of voluntary actions including invasive weed control, native species restoration, ungulate management, rodent control, and wildfire mitigation on lands owned by Kamehameha Schools. In 1993, the North Kona Dry Forest Working Group was organized to address recovery of dry forest ecosystems in the region. The group consisted of Kamehameha Schools in partnership with Federal and State agencies, other private landowners, conservation organizations, scientific researchers, and the Service. The group selected a 5.8-ac (2.3-ha) parcel at Kaupulehu Mauka managed by Kamehameha Schools as a pilot project to demonstrate the feasibility of economically restoring and regenerating the lowland dry forest ecosystem (Hawaii Forest Industry Association (HFIA) 1998, p. 3). By 1998, the group had successfully demonstrated exclusion of ungulates, removal of fountain grass ( Pennisetum setaceum ), a reduction in rodent populations, and establishment of numerous native understory plant species at Kaupulehu Mauka. The benefits of these actions for endangered plant recovery include reduction in the threat of wildfire, reduction in rodent predation of fruits and seeds of native plant species, and increased regeneration of native plant species. In 1999, the North Kona Dry Forest Working Group received funding from the Service's Private Landowner Incentive Program to outplant nine endangered plant species and as part of an effort to expand dry forest restoration efforts to larger areas within the region (Cordell et al. 2008, pp. 279-284). The group initiated this effort at Kaupulehu Makai (Cordell et al. 2008, pp. 279-284), an approximately 70-ac (28-ha) parcel that is managed as part of a larger parcel owned by the Kamehameha Schools. Five endangered plant species naturally occur within Kaupulehu Makai, including one of the species for which critical habitat is designated in this rule, Mezoneuron kavaiense. The other four naturally occurring federally listed plant species are Bonamia menziesii, Colubrina oppositifolia, Nothocestrum breviflorum, and Pleomele hawaiiensis. Four other listed plant species have been outplanted here, inclu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2018-17514. Public record. Not legal advice.