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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-

Endangered and Threatened Wildlife and Plants; Proposed

Threatened Status for Newcomb's Snail From the Hawaiian Islands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes

threatened status pursuant to the Endangered Species Act of 1973, as

amended, for Newcomb's snail (Erinna newcombi). This freshwater snail

is restricted to the Hawaiian Island of Kaua'i. The distribution of

this snail has greatly decreased from the known historic distribution

and extant populations are presently limited to restricted habitats

within five perennial streams on State land. The five known populations

of this snail and its habitat are currently threatened by predation by

a species of non-native predatory snail and two species of non-native

marsh flies. These populations are also subject to an increased

likelihood of extirpation from naturally occurring events, including

natural disasters such as hurricanes and landslides. Comments and

materials related to this proposal are solicited.

DATES: To ensure consideration in the final rule for this species,

comments from all interested parties should be received by September

19, 1997. Public hearing requests must be received by September 4,

1997.

ADDRESSES: Comments and materials concerning this proposal should be

sent to Robert P. Smith, Manager, Pacific Islands Ecoregion, U.S. Fish

and Wildlife Service, 300 Ala Moana Boulevard, Room 3108, Box 50088,

Honolulu, Hawaii 96850. Comments and material received will be

available for public inspection, by appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT: Robert P. Smith, Pacific Islands

Ecoregion Manager, at the above address (808/541-2749; facsimile 808/

541-2756).

SUPPLEMENTARY INFORMATION:

Background

The Hawaiian archipelago is comprised of eight main islands

(Ni'ihau, Kaua'i, O'ahu, Moloka'i, Lana'i, Kaho'olawe, Maui, and

Hawaii) and their offshore islets, plus the shoals and atolls of the

Northwest Hawaiian Islands. The main islands and the northwestern chain

were formed sequentially by basaltic lava that emerges from a crustal

hot spot currently located near the southeast coast of the island of

Hawaii (Stearns 1985). Hawaii is the youngest island in the chain and

is characterized by gently sloping shield volcanoes and currently

active lava flows. Volcanoes on the other islands are either dormant or

extinct. Ongoing erosion has formed steep-walled valleys with well

developed soils and stream systems throughout the chain. Kaua'i, the

oldest and most northwesterly of the main islands, is characterized by

high rainfall, deep valleys, numerous perennial streams, and luxuriant

vegetation.

Four species of Lymnaeidae snails are native to Hawaii (Morrison

1968, Hubendick 1952). Three of these species are found on two or more

of the eight main islands. The fourth species, Newcomb's snail, is

restricted to the island of Kaua'i. Newcomb's snail is unique among the

Hawaiian lymnaeids in that the shell spire typically associated with

lymnaeids has been completely lost. The result is a smooth, black shell

formed by a single, oval whorl, 6 millimeters (mm) (0.25 inches (in.))

long and 3 mm (0.12 in.) wide. A similar shell shape is found in a

Japanese lymnaeid (Burch 1968), but Burch's study of chromosome number

shows that Newcomb's snail has evolutionary ties to the rest of the

Hawaiian lymnaeids, all of which are derived from North American

ancestors (Patterson and Burch 1978). This parallel evolution of

similar shell morphology in Japan and Hawaii from two distinct lineages

of lymnaeid snails is of particular scientific interest.

At the present time, there is no generally accepted nomenclature

for the genera of Hawaiian lymnaeids, although each of these snail

species, including Newcomb's snail, is recognized as a well defined

species. Newcomb's snail was originally described as Erinna newcombi in

1855 by H. & A. Adams (see Hubendick 1952). Hubendick (1952) did not

feel that the distinctive shell form (described above) and reduced

structures of the nervous system of Newcomb's snail warranted a

monotypic genus. In fact, Hubendick included all Hawaiian lymnaeids in

the genus Lymnaea. Morrison (1968) opposed Hubendick, and argued that

the distinctive shell characters of Newcomb's snail supported the

generic name Erinna. Burch (1968), Patterson and Burch (1978), Taylor

(1988), and Cowie (1995) all followed Morrison and referred to

Newcomb's snail as Erinna newcombi. This is the currently accepted

scientific name for Newcomb's snail.

Newcomb's snail is an obligate freshwater species. While the

details of its ecology are not well known, Newcomb's snail probably has

a life history similar to other members of the family. These snails

generally feed on algae and vegetation growing on submerged rocks. Eggs

are attached to submerged rocks or vegetation and there are no

dispersing larval stages; the entire life cycle is tied to the stream

system in which the adults live (Baker 1911). Dispersal of Newcomb's

snail between stream systems is probably very infrequent due to their

obligate freshwater habitat requirements. Historic dispersal probably

relied on long-term erosional events that captured adjacent stream

systems. It should be noted that this life history differs greatly from

the freshwater Hawaiian neritid snails (Nertinana sp.), which have

marine larvae that colonize streams following a period of oceanic

dispersal (Kinzie 1990). It is likely that larvae of these neritid

snails can disperse across the oceanic expanses that separate the

Hawaiian Islands and colonize streams

[[Page 38954]]

on any or all of these islands. This dispersal capacity is not

available to Newcomb's snail.

The specific habitat requirements of Newcomb's snail include fast

flowing perennial streams with stable overhanging rocks, springs, rock

seeps (rheocrenes), and waterfalls (Michael Kido, University of Hawaii

in litt. 1994; Stephen Miller, U.S. Fish and Wildlife Service in litt.

1994; Polhemus 1992; Burch 1968; Hubendick 1952). Surveys of main

stream channels of many of the perennial streams of Kaua'i indicate

that Newcomb's snail is rarely found in this habitat (Adam Asquith,

U.S. Fish and Wildlife Service in litt. 1994a; Don Heacock, State of

Hawaii, Department of Land and Natural Resources, Division of Aquatic

Resources in litt. 1995; M. Kido in litt. 1994, 1995; S. Miller in

litt. 1994a, b; Timbol 1983). The limited occurrence of this snail in

main stream channels may be due to scouring by sediment, rocks, and

boulders that are moved downstream during heavy rains. Consequently,

available suitable habitat is generally associated with small feeder

streams, seeps, and waterfalls.

The present known range of Newcomb's snail is limited to five

stream systems. Each stream supports a single population of Newcomb's

snail (A. Asquith in litt. 1994a; M. Kido in litt. 1994; S. Miller in

litt. 1994a, b; Hubendick 1952). These populations are located in the

Hanalei River, Kalalau Stream, the Lumahai River, Makaleha Stream, and

Waipahe'e Stream. Makaleha and Waipahe'e Streams both flow into Kapa'a

Stream. The populations fall into two groups--populations first

observed prior to 1925 and populations observed since 1993. Five

populations were identified prior to 1925. Three of these populations

(Wainiha, Hanakapi`ai, and Hanakoa) no longer exist. Of the two

remaining pre-1925 populations, one (Waipahe'e) is small and the other

(Kalalau) is relatively large (see below). These data indicate that the

number of populations of Newcomb's snail has been greatly reduced since

1925, perhaps by as much as 60 percent.

Since 1990, surveys of at least 46 streams, tributaries and springs

on Kaua'i have located three previously unknown populations of

Newcomb's snail (A. Asquith in litt. 1994a, b; D. Heacock in litt.

1995; M. Kido in litt. 1994, 1995; S. Miller in litt. 1994a, b; Timbol

1983). Two of these populations are small (see below), and the third

population has been described as large.

No historic information is available on the population sizes of

Newcomb's snail. However, recent reports indicate that two of the five

known populations of Newcomb's snail are relatively large: The Kalalau

and Lumahai populations. The Kalalau population is found in the

northeastern tributary on two permanent waterfalls and in the section

of intervening stream between the waterfalls. The high density of

individuals in this population may be indicative of an undisturbed

natural condition. The estimated maximum density at the base of the

upper permanent waterfall, including the area behind the falling water,

is approximately 800 snails/square meter (m2) (75 snails/

square foot (ft2)) (S. Miller in litt. 1994b). The total

area occupied by these snails could not be accurately evaluated due to

the extreme vertical orientation of the waterfall. Habitat used by

these snails is probably limited to the lower section of the waterfall.

Little information on specific size or area is currently available for

the population of Newcomb's snail from the Lumahai River, although this

population has been reported to be large (M. Kido in litt. 1995).

The population in Makaleha Stream is divided into two

subpopulations. The subpopulation at the waterfall that forms the head

of the main channel of Makaleha Stream is estimated at 30 snails/

m2 (2 to 3 snails/ft2) distributed over 2 to 3

m2 (21 to 32 ft2) (M. Kido in litt. 1994). This

is considerably smaller than the previously described waterfall

population in Kalalau Stream. The reasons for differences in these two

populations are not known with certainty, but may be due to the

presence or absence of non-native predators and biocontrol agents that

feed on lymnaeid snails. The subpopulation that occupies Makaleha

Springs and its small feeder stream covers approximately 20 to 30

m2 (212 to 318 ft2) (S. Miller in litt. 1994a).

Snail densities at this site are difficult to estimate but may be as

high as 20 to 30 snails/m2 (1 to 3 snails/ft2)

(S. Miller in litt. 1994a).

The sizes of two other populations of Newcomb's snail have been

characterized as small. The population in the Waipahe'e branch of

Kealia Stream is estimated to cover 5 to 10 m2 (53 to 106

ft2) with a density of approximately 50 to 80 snails/

m2 (4 to 8 snails/ft2) (A. Asquith in litt.

1994a). The population of Newcomb's snail in the Hanalei River is

divided into four subpopulations in the upper reach of this river (M.

Kido in litt. 1994, 1995). One subpopulation has approximately 10 to 20

snails/m2 (1 to 2 snails/ft2) and occupies 2 to 3

m2 (21 to 32 ft2) (M. Kido in litt. 1994). A

second subpopulation supports approximately 25 snails. The two

remaining subpopulations are reported to be small with very few snails

(M. Kido in litt. 1995).

Based on these data, the Service estimates that the five known

populations of Newcomb's snail have a total of approximately 6,000 to

7,000 individuals. The great majority of these snails, perhaps over 90

percent, are located in the two populations at Kalalau and Lumahai.

Previous Federal Action

The February 28, 1996, Notice of Review of Plant and Animal Taxa

That Are Candidates for Listing as Endangered or Threatened Species (61

FR 7596) included Newcomb's snail as a candidate species. Candidates

are those species for which the Service has on file sufficient

information on biological vulnerability and threat(s) to support

issuance of a proposed rule to list, but issuance of the proposed rule

is precluded.

The processing of this proposed listing rule conforms with the

Service's final listing priority guidance for fiscal year 1997,

published in the Federal Register on December 5, 1996 (61 FR 64475-

64481). The guidance clarifies the order in which the Service will

process rulemakings following two related events: (1) The lifting, on

April 26, 1996, of the moratorium on final listings imposed on April

10, 1995 (Pub. L. 104-6), and (2) the restoration of significant

funding for listing through passage of the omnibus budget

reconciliation law on April 26, 1996, following severe funding

constraints imposed by a number of continuing resolutions between

November 1995 and April 1996. The guidance calls for giving highest

priority to handling emergency situations (Tier 1) and second highest

priority (Tier 2) to resolving the listing status of the outstanding

proposed listings. Tier 3 includes the processing of new proposed

listings for species facing high magnitude threats. This proposed rule

for Newcomb's snail falls under Tier 3. The Pacific Islands Ecoregion

currently has no outstanding Tier 1 or 2 species, therefore processing

of Tier 3 activities is encouraged under the listing priority guidance

(61 FR 64480). This rule has been updated by the Pacific Islands

Ecosystem Office to reflect any changes in distribution, status and

threats since the effective date of the listing moratorium.

Summary of Factors Affecting the Species

Section 4 of the Endangered Species Act and regulations (50 CFR

part 424) promulgated to implement the listing

[[Page 38955]]

provisions of the Act set forth the procedures for adding species to

the Federal lists. A species may be determined to be an endangered or

threatened species due to one or more of the five factors described in

section 4(a)(1). These factors and their application to Newcomb's snail

(Erinna newcombi H. and A. Adams 1855) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range

Although modification of habitat is not an immediate threat, water

development projects have been proposed within Newcomb's snail habitat

in the past. For example, in 1994, a proposed water development project

at Makaleha Springs (State of Hawai`i 1994a) threatened to destroy the

population of Newcomb's snail at this site. This project was ultimately

rejected by the State of Hawai`i, Commission of Water Resource

Management (Michael Wilson in litt. 1995). However, the State of

Hawai`i Department of Water and Land Development can submit a new

application for future development of the water resources at Makaleha

Springs.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization is not known to be a factor affecting Newcomb's

snail, and future overutilization of this species is not anticipated.

C. Disease and Predation

Predation by the non-native rosy glandina snail (Euglandina rosea)

is a serious threat to the survival of Newcomb's snail. This predatory

snail was introduced into Hawaii in 1955 (Funasaki et al. 1988), and

has established populations throughout the main islands. The rosy

glandina feeds on snails and slugs, and field studies have established

that it will readily feed on native snails found in Hawaii (Hadfield et

al. 1994). Furthermore, Kinzie (1992) demonstrated that the rosy

glandina snail can fully submerge itself under water and feed on

aquatic snails such as Newcomb's snail. The rosy glandina has been

observed on the wet, algae-covered rocks of the Makaleha Springs stream

very near individuals of Newcomb's snail (S. Miller in litt. 1994a),

and is believed to prey on them. The rosy glandina snail has caused the

extinction of many populations and species of native snails throughout

the Pacific islands (Hadfield et al. 1994, Miller 1993, Hopper and

Smith 1992, Murray et al. 1988, Tillier and Clarke 1983), and

represents a significant threat to the survival of Newcomb's snail.

Predation on the eggs and adults of native Hawaiian lymnaeid snails

by two non-native species of Sciomyzidae flies also represents a

significant threat to the survival of Newcomb's snail. Two species of

marsh flies (Sepedomerus macropus and Sepedon aenescens) that feed on

lymnaeid snails (Davis 1960) were introduced into Hawaii in 1958 and

1966, respectively, as biological control agents for a non-native

lymnaeid snail, Galba viridis (Funasaki et al. 1988). Galba viridis was

targeted for biocontrol because it is an intermediate host of the

cattle liver fluke (Fasciola gigantica) (Alicata 1938, Alicata and

Swanson 1937). These authors misidentified Galba viridis as Fossaria

ollula, as discussed in Morrison (1968). The non-native lymnaeid and

the two biocontrol flies occur on Kauai as well as on other islands in

Hawaii (Funasaki et al. 1988, Davis and Chung 1969, Davis 1960,

Hubendick 1952). One of the marsh fly species has been observed at a

site (Hanakoa stream) where Newcomb's snail was historically recorded

but is no longer present (S. Miller in litt. 1994b). Another marsh fly

was observed near the waterfall of a Kauai stream (Manoa) that had many

dead lymnaeids in the waterfall plunge pool (S. Miller in litt. 1994b).

These biocontrol agents represent a significant threat to Newcomb's

snail and other native lymnaeid snails.

D. The Inadequacy of Existing Regulatory Mechanisms

All of the five known extant populations of Newcomb's snail are

located on watershed lands of the State of Hawaii. Currently, there are

no State or Federal laws that afford protection for Newcomb's snail.

Recent recommendations by the Stream Protection and Management Task

Force (State of Hawaii 1994b) may lead to some protection for some of

the populations of Newcomb's snail. All of the stream systems that

currently support populations of Newcomb's snail or have supported

populations in the past have been identified as streams with

outstanding aquatic resources (National Park Service 1990). All but one

of these stream systems have been recommended as candidate streams for

protection (National Park Service 1990). Kapaa Stream was not included

in these recommendations, yet this stream system supports the Makaleha

and Waipahee populations of Newcomb's snail.

Newcomb's snail is not currently listed as an endangered or

threatened species in Hawaii. If Newcomb's snail is listed under the

Federal Endangered Species Act, the State of Hawaii Endangered Species

Act (HRS, Sect. 195D-4(a)) will automatically be invoked. The State

statue reads as follows:

``Any species of aquatic life, wildlife, or land plant that has

been determined to be an endangered species pursuant to the [Federal]

Endangered Species Act shall be deemed to be an endangered species

under the provisions of this chapter and any indigenous species of

aquatic life, wildlife, or land plant that has been determined to be a

threatened species pursuant to the [Federal] Endangered Species Act

shall be deemed to be a threatened species under the provisions of this

chapter.''

Under section 404 of the Clean Water Act, the U.S. Army Corps of

Engineers (Corps) regulates the discharge of fill material into waters

of the United States (33 CFR parts 320-330). Waters of the United

States include navigable waters and other waters, their headwaters

(streams with an average annual flow of less than 5 cubic feet per

second), and wetlands (either isolated or adjacent to other waters).

Section 404 regulations require that applicants obtain a permit for

projects that involve the discharge of fill material into waters of the

United States. Projects may qualify for authorization to place fill

material into headwaters and isolated waters, including wetlands, under

Nationwide Permit 26 (NWP 26) if ``[t]he discharge does not cause the

loss of more than 3 acres of waters of the United States nor cause the

loss of waters of the United States for a distance greater than 500

linear feet of stream bed'' (61 FR 65916). These projects can normally

be permitted with minimal environmental review by the Corps. Projects

that qualify for authorization under NWP 26 and ``caus[e] a loss of \1/

3\ acre or less of waters of the United States the permittee must

submit a report within 30 days of completion of the work * * *'' Formal

predischarge evaluation of the impacts of such projects is thus

precluded under the section 404 permit process. An individual permit

may be required by the Corps if a project otherwise qualifying under

NWP 26 would have greater than minimal adverse environmental impacts.

No activity which is likely to jeopardize the continued existence of a

threatened or endangered species, or which is likely to destroy or

adversely modify the critical habitat of such species, is authorized

under any NWP (61 FR 65920). Candidate species receive no special

consideration under section 404, regardless of the type of permit

deemed

[[Page 38956]]

necessary. Thus, this taxon currently receives no protection under

section 404 of the Clean Water Act.

E. Other Natural or Manmade factors Affecting Its Continued Existence

Naturally occurring events may affect the continued existence of

Newcomb's snail. As indicated above, the five known populations of

Newcomb's snail cover very small areas in settings that may be

subjected to extreme effects associated with exceptionally heavy

rainfall or hurricanes. Hurricanes struck the island of Kauai in 1983

and 1992. Rainfall associated with these hurricanes can wash out

streams (Polhemus 1993) and create landslides that can alter stream

flow (Jones et al. 1984). Events such as these could destroy the

habitat of Newcomb's snail or physically displace individuals into

areas where they cannot survive.

Reduced stream flow due to water development projects, droughts, or

other natural or human causes may have several potential negative

effects on the ability of Newcomb's snail to complete its life cycle.

Loss of water could reduce or eliminate the habitat of Newcomb's snail

and possibly lead to increased resource competition or desiccation and

death. Reduced water flow could also lead to increased predation by

non-native predators. Low flows may allow marsh flies or the rosy

glandina snail easier access to individual snails that are otherwise

protected by the force of water movement. Droughts are not uncommon in

the Hawaiian Islands. Between 1860 and 1986 the island of Kauai was

affected by 33 droughts, 20 of which significantly affected the

available water supply on the island (Giambelluca et al. 1991). The

development of water resources also is a continuing issue. These

projects divert water from streams, springs and aquifers that may

otherwise maintain habitats for Newcomb's snail.

Intentional or accidental introductions of snail predators

constitute a significant threat to Newcomb's snail. The State of Hawaii

continues to carry out an active program of introductions of biological

control agents. These introduced organisms are meant to control

agricultural pests, and the impacts on native species have only

recently been considered in evaluating a release program. The marsh

flies and the rosy glandina snail are examples of biological control

agents that were introduced to Hawaii without adequate assessment of

their impact on Newcomb's snail or other native Hawaiian species.

Finally, the combined effects of numerous factors can degrade

stream ecosystems, leading to a gradual decline in snail population

size and an increase in the likelihood of negative stochastic or

biological effects.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this species in determining to propose this

rule. Based on this evaluation, the preferred action is to list

Newcomb's snail (Erinna newcombi) as threatened. Critical habitat is

not being designated at this time for reasons addressed in the

``Critical Habitat'' section of this proposed rule.

Critical Habitat

Critical Habitat is defined in section 3 of the Act as: (i) The

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection and; (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means that use of all methods and

procedures needed to bring the species to the point at which listing

under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. The Service

finds that designation of critical habitat is not prudent for Newcomb's

snail at this time. Service regulations (50 CFR 424.12(a)(1)) state

that designation of critical habitat is not prudent when one or both of

the following situations exist: (1) The species is threatened by taking

or other human activity, and identification of critical habitat can be

expected to increase the degree of threat to the species, or (2) such

designation of critical habitat would not be beneficial to the species.

Given the very restricted range of this species, the Service is

concerned that the disclosure of the location of the species may lead

to purposeful vandalism of known populations. The Service has received

letters from a landowner on the island of Kaua`i that threaten such

vandalism for other listed species. The publication of precise maps and

descriptions of critical habitat in the Federal Register, as required

for the designation of critical habitat, would increase the degree of

threat to this snail due to vandalism.

In addition, the species proposed herein is known to occur, at

least in part, on non-federally owned lands. Critical habitat

designation provides protection only on Federal lands or on private or

State owned lands when there is Federal involvement through

authorization or funding of, or participation in, a project or

activity. All Federal and state agencies and local planning agencies

involved, have been notified of the location and importance of

protecting Erinna newcombi habitat. Protection of this species' habitat

will be addressed through the recovery process and through the section

7 consultation process. Section 7(a)(2) of the Act requires Federal

agencies, in consultation with the Service, to ensure that any action

authorized, funded, or carried out by such agency, does not jeopardize

the continued existence of a federally listed species, or does not

destroy or adversely modify designated critical habitat. Newcomb's

snail is confined to small geographic areas and each population is

composed of so few individuals that the determinations for jeopardy and

adverse modification would be essentially the same. Therefore,

designation of critical habitat provides no additional benefit beyond

those that the species would receive by virtue of its listing as a

threatened species and likely would increase the degree of threat from

vandalism, collecting, or other human activities. The Service finds

that designation of critical habitat for Newcomb's snail is not prudent

at this time.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain practices. Recognition through listing results in

public awareness and conservation actions by Federal, State, and local

agencies, private organizations, and individuals. The Act provides for

possible land acquisition and cooperation with the States and requires

that recovery actions be carried out for all listed species. The

protection required of Federal agencies and the prohibitions against

taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being

[[Page 38957]]

designated. Regulations implementing this interagency cooperation

provision of the Act are codified in 50 CFR part 402. Section 7(a)(4)

requires Federal agencies to confer with the Service on any action that

is likely to jeopardize the continued existence of a species proposed

for listing or result in destruction or adverse modification of

proposed critical habitat. If a species is listed subsequently, section

7(a)(2) requires Federal agencies to ensure that activities they

authorize, fund, or carry out are not likely to jeopardize the

continued existence of the species or destroy or adversely modify its

critical habitat. If a Federal action may affect a listed species or

its critical habitat, the responsible federally agency must enter into

formal consultation with the Service.

Federal agency actions that may require conference and/or

consultation as described in the preceding paragraph include Army Corps

of Engineers authorization of projects such as the construction of

drainage diversions, roads, bridges, and dredging projects subject to

section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.) and section

10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.), U.S.

Environmental Protection Agency authorized discharges under the

National Pollutant Discharge Elimination System (NPDES), and U.S.

Housing and Urban Development or Natural Resource Conservation Service

funded projects.

The Act and its implementing regulations set forth a series of

general trade prohibitions and exceptions that apply to all threatened

wildlife. The prohibitions, codified in 50 CFR 17.21 and 17.31, in

part, make it illegal for any person subject to the jurisdiction of the

United States to take (includes harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect; or to attempt any of these),

import or export, ship in interstate commerce in the course of

commercial activity, or sell or offer for sale in interstate or foreign

commerce any listed species. It is also illegal to possess, sell,

deliver, carry, transport, or ship any such wildlife that has been

taken illegally. Certain exceptions apply to agents of the Service and

State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving threatened wildlife under certain circumstances. Regulations

governing permits are codified in 50 CFR 17.32. Such permits are

available for scientific purposes, to enhance the propagation or

survival of the species, and/or for incidental take in the course of

otherwise lawful activities. For threatened species, permits are also

available for zoological exhibition, educational purposes, or special

purposes consistent with the purposes of the Act.

It is the policy of the Service, published in the Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent

practicable at the time a species is listed those activities that would

or would not constitute a violation of section 9 of the Act. The intent

of this policy is to increase public awareness of the effect of the

listing on proposed and ongoing activities within a species' range. The

Service believes that, based on the best available information, the

following activities will not result in a violation of section 9 of the

Act:

(1) Scientific or recreational activities within the main channel

of streams that support populations of Newcomb's snail, but exclusive

of the specific sites known to support populations of this snail.

Activities that the Service believes could potentially result in

``take'' of Newcomb's snail include, but are not limited to the

following:

(1) Release, diversion, or withdrawal of water that results in

displacement, disruption of breeding or feeding, or death of individual

snails.

(2) Actions that lead to the destruction or alteration of the

occupied habitat of Newcomb's snail (e.g., in stream dredging, rock

removal, channelization, discharge of fill material, actions that

result in siltation of the habitat, diversion of ground water flow

required to maintain the habitat).

(3) Introduction of non-native species that are predators or

competitors of aquatic snails and especially those snails in the family

Lymnaeidae and the closely related family Physidae.

Questions regarding whether specific activities will constitute a

violation of section 9 of the Federal Endangered Species Act should be

directed to the Manager of the Pacific Islands Ecoregion (see ADDRESSES

section). Requests for copies of the regulations regarding listed

wildlife and inquiries about prohibitions and permits may be addressed

to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911

N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-6241; facsimile

503/231-6243).

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

(1) Biological, commercial, or other relevant data concerning any

threat (or lack thereof) to this species;

(2) The location of any addition populations of this species and

the reasons why habitat should or should not be determined to be

critical habitat pursuant to section 4 of the Act;

(3) Additional information concerning the range, distribution, and

population size of this species;

(4) Current or planned activities in the subject area and their

possible impacts on this species.

Final promulgation of the regulation(s) on this species will take

into consideration the comments and any additional information received

by the Service, and such communications may lead to a final regulation

that differs from this proposal.

The Endangered Species Act provides for one or more public hearings

on this proposal, if requested. Requests must be received within 45

days of the date of publication of the proposal in the Federal

Register. Such requests must be made in writing and addressed to the

Pacific Islands Ecoregion Manager (See ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements.

References Cited

A complete list of all references cited herein, as well as others,

is available upon request from Pacific Islands Ecoregion (see ADDRESSES

section).

Author: The primary author of this document is Dr. Stephen E.

Miller, U.S. Fish and Wildlife Service, Pacific Islands Ecoregion,

Ecological Services, 300 Ala Moana Boulevard, Room 3108, P.O. Box

50088, Honolulu, Hawaii 96850 (808/541-3441; facsimile 808/541-3470).

Recent data on the

[[Page 38958]]

distribution of Newcomb's snail were contributed by Dr. Adam Asquith,

U.S. Fish and Wildlife Service, Pacific Islands Ecoregion; Mr. Michael

Kido, Environmental Research Laboratory, University of Hawaii, Kaua'i;

and Mr. Don Heacock, Kaua'i District Aquatic Biologist, State of

Hawaii, Department of Land and Natural Resources, Division of Aquatic

Resources.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby proposes to amend part 17,

subchapter B of chapter I, title 50 of the Code of Federal Regulations,

as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by adding the following, in

alphabetical order under SNAILS, to the List of Endangered and

Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

--------------------------------------------------------------- population

where Critical Special

Historic range endangered Status When listed habitat rules

Common name Scientific name or

threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

SNAILS:

* * * * * * *

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

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: June 9, 1997.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97-19057 Filed 7-18-97; 8:45 am]

BILLING CODE 4310-55-U