# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for 12 Species of Picture-Wing Flies From the Hawaiian Islands > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-27664 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 4, 2008 - **Citation:** 73 FR 73794 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R1-ES-2007-0006; 92210-1117-0000-B4] RIN 1018-AU93 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for 12 Species of Picture-Wing Flies From the Hawaiian Islands AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for 12 species of Hawaiian picture-wing flies ( Drosophila aglaia , D. differens , D. hemipeza , D. heteroneura , D. montgomeryi , D. mulli , D. musaphilia , D. neoclavisetae , D. obatai , D. ochrobasis , D. substenoptera , and D. tarphytrichia ) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 8,788 acres (ac) (3,556 hectares (ha)) fall within the boundaries of the final critical habitat designation. The critical habitat is located in four counties (City and County of Honolulu, Hawaii, Maui, and Kauai) in Hawaii. DATES: This final rule becomes effective on January 5, 2009. ADDRESSES: The final rule, final economic analysis, and map of critical habitat are available on the Internet at http://www.regulations.gov . Supporting documentation we used in preparing this final rule will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, P.O. Box 50088, Honolulu, HI 96850; telephone 808-792-9400; facsimile 808-792-9580. FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office (see ADDRESSES ); telephone 808-792-9400; facsimile 808-792-9581. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this final rule. For additional information on the 12 Hawaiian picture-wing flies, refer to the final listing rule published in the Federal Register on May 9, 2006 (71 FR 26835), the revised proposed critical habitat rule published in the Federal Register on November 28, 2007 (72 FR 67428), and the recovery outline for the 12 Hawaiian picture-wing flies available on the Internet at http://www.fws.gov/Pacific/ecoservices/endangered/recovery/documents/Drosophilarecoveryoutline-final.pdf. Previous Federal Actions On November 28, 2007, we published a revised proposed rule in the Federal Register to designate critical habitat for the 12 Hawaiian picture-wing flies (72 FR 67428). The publication of the revised proposal opened a 60-day public comment period, which closed on January 28, 2008. On March 6, 2008, we published a document in the Federal Register announcing the reopening of the public comment period until April 25, 2008, and a notice of two public hearings (73 FR 12065). On April 4, 2008, we held a public hearing in Hilo, Hawaii, and on April 10, 2008, we held a public hearing in Honolulu, Hawaii. On August 12, 2008, we published a document in the Federal Register (73 FR 46860) announcing the availability of the draft economic analysis of the proposed critical habitat designation and reopening the public comment period until September 11, 2008. For more information on previous Federal actions concerning the 12 species of Hawaiian picture-wing flies, refer to the proposed designation of critical habitat published in the Federal Register on August 15, 2006 (71 FR 46994), and the final rule to list 11 picture-wing flies as endangered and one picture-wing fly as threatened published in the Federal Register on May 9, 2006 (71 FR 26835). Summary of Comments and Recommendations During the comment period that opened on November 28, 2007, and closed on January 28, 2008 (72 FR 67428), we received 10 comments, including 2 requests for public hearings. Three comments were from peer reviewers, three were from State of Hawaii agencies, and four were from nongovernmental organizations or individuals. During the comment period that opened on March 6, 2008, and closed on April 25, 2008 (73 FR 12065), we received nine comments from organizations or individuals. We also conducted public hearings in Hilo on the Island of Hawaii and in Honolulu on the Island of Oahu, Hawaii. During the comment period that opened on August 12, 2008, and closed on September 11, 2008 (73 FR 46860), we received seven comments. Three comments were from individuals (which includes two individuals that presented testimony at the public hearing in Honolulu, Hawaii on April 10, 2008), one comment was from the U.S. Navy, and three comments were received from the State of Hawaii Division of Forestry and Wildlife, Office of Hawaiian Affairs, and the State Historic Preservation Office. Twelve comments supported the designation of critical habitat for the Hawaiian picture-wing flies and four opposed the designation. Two comments were received from individuals expressing general views on the Endangered Species Act, but were unrelated to the proposed designation of critical habitat. We received two comments objecting to the exemption of military lands under section 4(a)(3) of the Act, and one comment requesting that we exclude a portion of one critical habitat unit based on ongoing private conservation activities. All comments that we received were reviewed for substantive issues and new information regarding the proposed critical habitat designation for the 12 Hawaiian picture-wing fly species. All comments that we received have been fully considered in the final rule. Peer Review In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 15 knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from four of the peer reviewers, as are discussed below. Peer Reviewer Comments (1) Comment: Three peer reviewers recommended that the critical habitat designation include additional areas for 7 of the 12 picture-wing fly species ( Drosophila hemipeza, D. heteroneura, D. montgomeryi, D. neoclavisetae, D. obatai, D. substenoptera, and D. tarphytrichia ). The additional areas that they recommended are either within historical habitat, or within potentially suitable habitat that has not been surveyed that is located adjacent to occupied habitat. These peer reviewers stated that the amount of habitat or the number of units we proposed is insufficient to provide for conservation of the species, and that the inclusion of additional lands adjacent to the areas proposed would improve the likelihood of conserving the species. The peer reviewers stated that for some species, the lands adjacent to the proposed units contain habitat that is known or likely to contain relatively intact native forest. Some peer reviewers stated that the designation of additional lands adjacent to the proposed critical habitat units may help preserve the species' historical distribution or facilitate dispersal between localized subpopulations. Some peer reviewers also recommended that we include unsurveyed areas believed to support undocumented populations of picture-wing species, and that we include areas that are likely to support host plant populations. Our Response: The Act defines critical habitat as: • The specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and • Specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. The Act also states that “Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.” Section 4(b)(2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Although the peer reviewers recommended areas to add to the critical habitat designation, they did not provide information on habitat suitability or why they believed that the recommended areas contained the physical and biological features essential to the conservation of these species. The areas recommended by the peer reviewers are either unoccupied or they have not been surveyed. We did not include areas that were not occupied at the time of listing because: (1) It is unclear why the species were extirpated from previously occupied areas; and (2) we could not conclude from the available data whether or not the previously occupied areas currently support, or even could support in the future, the physical and biological features (including their host plants) essential for the conservation of the species. Furthermore, some of the areas recommended for inclusion have never been surveyed for the flies, nor surveyed for the presence of host plants. Therefore based on the available information, we are unable to conclude that these areas were occupied at the time of listing, or that they contain the physical and biological features essential for the conservation of the species. We used the best available, most recent survey data for adult flies to determine which sites we would identify as occupied and which sites we would identify as unoccupied. The primary dataset we used to document observations of these 12 picture-wing flies spans the years 1965-1999 (K. Kaneshiro, in litt. 2005a, pp. 1-16). We also reviewed a variety of peer-reviewed and other articles for this final rule, which included background information on the biology of each of the 12 species. Additional data were obtained from personal communications with landowners, scientists, and land managers familiar with particular species and locations. Specific information from all of these sources included estimates of historic and current distribution, abundance, and territory sizes for the 12 species, as well as information on habitat requirements. The physical and biological features essential to the conservation, or primary constituent elements (PCEs), of the 12 picture-wing flies include both the host plants used by the larvae, as well as the native forest components used by foraging adults. We used known adult location data to identify each critical habitat unit, and included the surrounding area encompassing the physical and biological features essential to the conservation of the species. We did not include within this critical habitat designation sites in which a species had been observed according to the most recent survey data but that did not include the PCEs. Based on the best available information, we believe that our final designation accurately encompasses sufficient areas for the conservation of the 12 Hawaiian picture-wing fly species. Therefore, we have not included the additional areas proposed by the peer reviewers. However, surveying historical habitat sites and adjacent potentially suitable habitat for extant populations of picture-wing flies and host plants will be a high priority during the recovery planning process, and we may consider amending the critical habitat designation at that time if new information indicates that these areas are essential to the recovery of these species. (2) Comment: One peer reviewer commented that the Waiea Tract, which is adjacent to the proposed Drosophila heteroneura —Unit 2—Kona Refuge on the Island of Hawaii, contains higher densities of Clermontia sp. (the species' primary host plant) than the area that we proposed as critical habitat. The peer reviewer stated that the Waiea Tract should therefore be a high priority for conservation. Our Response: The peer reviewer did not present scientific data with which we could evaluate whether the Waiea Tract includes areas that contain the physical and biological features essential to the conservation of D. heteroneura, or whether the areas currently proposed for designation for this species are inadequate. The Act defines critical habitat in part as areas containing the physical or biological features (PCEs) essential to the conservation of the species. To determine what is essential, we determine the amount and spatial arrangement of PCEs necessary to recover the species. We believe that the areas designated in this rule will adequately provide for the conservation and recovery of the species; that is, the currently designated areas provide the PCEs in the quantity and configuration sufficient to meet the conservation and recovery needs of the species. Although the Waiea Tract is known to be occupied and contains high densities of Clermontia species, we do not believe this additional area is essential to the conservation of D. heteroneura. We proposed a total of 4,628 ac (1,855 ha) of critical habitat for Drosophila heteroneura, which includes 3,604 ac (1,459 ha) of lands adjacent to the Waiea Tract ( Drosophila heteroneura —Unit 2—Kona Refuge). Based on the best scientific data available, we believe these areas accurately encompass the areas necessary for the conservation of D. heteroneura as required by the Act. (3) Comment: One peer reviewer stated that the absence of nonnative wasps (Vespula sp.) within suitable habitat should be included as a primary constituent element for Drosophila heteroneura. This peer reviewer stated that based on field surveys, nonnative wasps are capable of entirely excluding D. heteroneura from habitat that is otherwise suitable. Our Response: Primary constituent elements are those physical and biological features that are essential to the conservation of a species and that may require special management considerations or protection (50 CFR 424.12(b)). Predation by nonnative wasps has been identified as a significant threat to the 12 picture-wing fly species, and we intend to pursue recovery actions to minimize the impacts of nonnative wasps in currently occupied habitat and in areas within the flies' historical range. However, we disagree that the absence of predatory wasps should be included as a primary constituent element, since management strategies to address this specific threat remain to be developed. (4) Comment: Two peer reviewers stated that since each of the 12 Hawaiian picture-wing flies feed within decomposing portions of their host plants, critical habitat should encompass all host plant life stages (e.g., from seedlings to senescent individuals), and be large enough to support healthy, reproducing host plant populations. One peer reviewer also recommended that reproducing host plant populations be included as a primary constituent element. Our Response: Based on the best scientific data available, we believe that the areas designated as critical habitat in this final rule are large enough to provide for all host plant life stages (see our response to Comment (1), above, for a discussion about the information we used to designate critical habitat for the 12 Hawaiian picture-wing flies). We agree with the peer reviewer that including reproducing host plant populations as an additional primary constituent element for each of the 12 Hawaiian picture-wing fly species would improve precision in identifying the physical and biological features essential to the conservation of a species in the field. Accordingly, we have incorporated this recommendation into this final rule, although the addition of this new primary constituent element did not result in any boundary changes to any of the designated critical habitat units. (5) Comment: One peer reviewer emphasized that additional in-field management activities are necessary on the Island of Oahu to protect Urera glabra and U. kaalae , which are host plants for Drosophila aglaia, D. hemipeza , and D. montgomeryi . Our Response: We agree that management of the remaining Urera spp. populations on the Island of Oahu is necessary to prevent their continued decline and to support the long-term conservation of Drosophila aglaia, D. hemipeza, and D. montgomeryi. On a broader scale, specific management actions that relate to the conservation of host plants for each of the 12 Hawaiian picture-wing fly species will likely be an important recovery task as recovery plans and other conservation programs are developed. However, identifying specific management is beyond the scope of this final critical habitat designation. (6) Comment: One peer reviewer noted that the proposed rule lacks a formal analysis of how the critical habitat proposed for the 12 picture-wing flies will function under different scenarios of climate change. The reviewer suggested that the designation should take into account the potential for shifting distributions of both the picture-wing flies and their host plants along natural temperature and moisture gradients in response to climate change. Our Response: Although we agree that the impact of climate change to the distribution of picture-wing flies and their host plant populations is a potential concern, the effects of climate change are difficult to predict at the local or regional level. In addition, future changes in precipitation are uncertain because they depend in part on how El Nin o (a disruption of the ocean atmospheric system in the Tropical Pacific having important global consequences for weather and climate) might change, and reliable projections of changes in El Nin o have yet to be made (Hawaii Climate Change Action Plan 1998, pp. 2-10). As such, we do not have sufficient scientific information with which to formally analyze the potential effects of climate change on the Hawaiian picture-wing flies and their habitat at this time. To the extent that climate change leads to a future shift in the location of the PCEs for these species, we would need to address that in future critical habitat revisions. Federal Agency Comments (7) Comment: The U.S. Navy, on behalf of the National Aeronautics and Space Administration requested that we exclude parts of Kokee Sites B and D that intersect the proposed critical habitat. They characterized the areas as being fenced and developed, stating that these areas would be unlikely to support Hawaiian picture-wing flies. They also advised that they planned to survey for the endangered fly, Drosophila musaphila, at the Kokee Sites to determine its presence or absence, and that measures to benefit the fly will be included in the Pacific Missile Range Facility Integrated Natural Resources Management Plan if the fly is discovered. Our Response: We have attempted to exclude manmade structures using aerial photos and other available imagery. However, we were not always able to successfully exclude these structures from critical habitat maps because the resolution of our imagery does not allow us to locate small structures. Existing manmade features and structures within the boundaries of the areas mapped as critical habitat, such as buildings, roads, existing fences, telecommunications equipment towers and associated structures and equipment, communication facilities and regularly maintained associated rights-of-way, radars, telemetry antennas, paved areas, and other landscaped areas, do not contain one or more of the primary constituent elements described for D. musaphilia. Accordingly, the text of the rule makes clear that these types of areas are not included in the critical habitat designation, even if they occur within the boundary of the mapped critical habitat unit Drosophila musaphilia —Unit 1—Kokee. Comments From the State of Hawaii Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the State regarding the proposal to designate critical habitat for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia are addressed below. (8) Comment: The State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW) supported the critical habitat designations on private lands, provided the designations have landowner support. The DOFAW commented that it supports the targeted site-specific approach to designate critical habitat within larger areas being managed for watershed and native species protection and restoration of native ecosystems, and agrees with the proposals for the islands of Kauai, Oahu, and Molokai where designations are proposed on DOFAW lands. It requested additional review and coordination on sites proposed on DOFAW forest reserves on the Island of Hawaii that are included in the Tri-Mountain Watershed Partnership and Kohala Mountain Watershed Partnership for possible exclusion based on their protected status and adequacy of their management programs. It also requested that site visits be conducted for all areas proposed as critical habitat to confirm the adequacy of the site, to confirm appropriateness for exclusion, and to locate boundaries. Finally, it suggested that the critical habitat designation process could be improved if done concurrently with recovery planning. In addition, DOFAW stated that critical habitat designations for host plants may be adequate to meet the needs of the picture-wing flies. Our Response: We appreciate and commend the State's implementation of management plans that benefit the Hawaiian picture-wing flies' critical habitat areas that we are designating in this final rule. The Secretary has discretion to exclude lands that have been proposed under section 4(b)(2) of the Act, upon a determination that the benefits of such exclusion outweigh the benefits of specifying a particular area as part of the critical habitat (unless the failure to designate such an area would result in the extinction of the species). We have fully considered the State's request that we exclude certain parts of its lands from critical habitat designation. However, the units we are designating in this final rule meet the definition of critical habitat, contain the PCEs that are essential to the conservation of these species, and require special management. In addition, based on our economic analysis and the best available information, we are unaware of any substantive economic or other relevant impacts that would result from such designation on State lands. Accordingly, we have not excluded the State lands from the designation of critical habitat. On May 12, 2008, and September 17, 2008, we met with DOFAW personnel regarding their comments on the proposed critical habitat units on the Island of Hawaii. The State provided us with a copy of the 2008 Waiakea Timber Management Map, which was developed based on their 1997 timber inventory. This map indicated that portions of two units, ( Drosophila mulli —Unit 3—Waiakea Forest [373 acres/151 ha], and Drosophila mulli —Unit 2—Stainback Forest [76 acres/31 ha]), were planted in the 1960s with several timber crop species including Eucalyptus sp., Flindersia brayleyana (Queensland maple), and Toona ciliata (Australia red cedar). The DOFAW staff advised us that Drosophila mulli's host plant ( Pritchardia beccariana ) is scattered within the timber-planted areas and within the above critical habitat units. Although the two critical habitat units encompass areas planted with Eucalyptus sp. and other nonnative timber species, they contain the primary constituent elements, are occupied by D. mulli, and incorporate the physical and biological features essential to the conservation of this species. We agree that the process of designating critical habitat may be improved if it were completed concurrently with the development of a recovery plan. However, the Act and its implementing regulations require that we specify critical habitat to the maximum extent prudent and determinable at the time a species is proposed for listing (50 CFR 424.12(a)). In the case of the 12 picture-wing flies, we are also under a court-ordered deadline to complete the critical habitat designations by November 15, 2008 ( Center for Biological Diversity v. Allen, CV-05-274-HA). During the development of the revised proposed rule, we aligned the proposed critical habitat areas with areas that were already designated as critical habitat for other species to the maximum extent practicable on State and private lands. On the Island of Oahu, critical habitat has only been designated for one plant ( Urera kaalae ), which is a host plant for Drosophila hemipeza and D. montgomeryi . There is no designated critical habitat for the host plants of D. heteroneura, D. mulli, and D. ochrobasis on the Island of Hawaii. Therefore, we were not able to align existing host plant critical habitat with proposed critical habitat for the picture-wing flies on the Island of Hawaii. We believe that the lands designated as critical habitat in this final rule accurately represent areas that will provide for the conservation of the 12 picture-wing flies. (9) Comment: The State of Hawaii Department of Land and Natural Resources, Division of State Parks commented that four areas within the proposed unit Drosophila musaphilia —Unit 1—Kokee, appeared to include roads, lawns, and buildings, and other structures. The State presented maps depicting the areas in question, and requested that we remove them from the designation if the primary constituent elements were not present. Our Response: Our analysis of satellite imagery determined that the developed areas in question are not within the Drosophila musaphilia —Unit 1—Kokee critical habitat unit. Accordingly, the area in question is not included in the area that we originally proposed and are herein designating as critical habitat. (10) Comment: The State of Hawaii Office of Hawaiian Affairs commented that they support the reconsideration of the Hawaiian picture-wing fly critical habitat, and that the revised designation more accurately reflects the best scientific data available as required by the Act. The State Historic Preservation Office commented that the designation of critical habitat does not affect historic properties. Our Response: Based on the best scientific data available, we agree that this final rule more accurately reflects the physical and biological requirements of the 12 Hawaiian picture-wing flies. We also agree that the designation of critical habitat does not affect historic properties. Public Comments Related to the Military and Exemption of Military Lands From the Designation (11) Comment: Four individuals or non-governmental organizations submitted written comments or testimony at the public hearings stating opposition to the exemption of Oahu military lands from the designation. They also requested that we provide information on our finding that the Oahu Integrated Natural Resources Management Plan will protect the two picture-wing fly species involved ( Drosophila substenoptera and D. aglaia ), and that we justify the exemption of military lands from the critical habitat designation. Our Response: The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) states 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 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.” Accordingly, those portions of the Integrated Natural Resources Management Plan (INRMP) applicable to areas we were considering for critical habitat designation for Drosophila aglaia and D. substenoptera were evaluated according to the requirements of section 4(B)(i) of the Act. The U.S. Army Oahu INRMP for the West Range of the Schofield Barracks Military Reservation was completed in 2000. This INRMP includes several conservation measures that benefit Drosophila aglaia and D. substenoptera. The measures include: (1) Outplanting of native plants, which provides for the natural forest conditions necessary for adult fly foraging by both species; (2) feral ungulate control, which prevents both direct loss of the larval stage host plants and adult foraging substrate of both species and prevents habitat alteration by feral ungulates; (3) wildland wildfire control, which prevents both loss and alteration of habitat for D. aglaia ; and (4) nonnative plant control, which prevents habitat alteration for both species. Accordingly, we determined that the plan provides a benefit to D. aglaia and D. subsenoptera , and we therefore did not designate approximately 78 acres (31 ha) as critical habitat for D. aglaia and D. substenoptera under section 4(a)(3)(B)(i) of the Act. However, since these areas are important for the recovery of these species, we intend to work closely with the U.S. Army to identify recovery tasks and implement recovery efforts for these two species as recovery plans are developed. The other 10 species of picture-wing flies do not occur on Army land. (12) Comment: One individual provided testimony at a public hearing stating that the military is continually expanding their presence in the Hawaiian Islands at the expense of environmental protection. This commenter cited the recent expansion of training activities by the U.S. Navy and introduction of the U.S. Army's Stryker Brigade as examples. Our Response: The Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting, and enhancing fish, wildlife, and plants and their habitats for the continuing benefit of the American people. In this regard, it is paramount that we work cooperatively with all partners (including the military) to promote environmental stewardship. Although the U.S. Navy training activities and the presence of the U.S. Army Stryker Brigade are beyond the scope of this final critical habitat designation, we look forward to working with them to improve the status of imperiled species on their lands. Public Comments Related to the Effects of the Designation on Private Landownership (13) Comment: Two individuals provided written comments stating opposition to the designation because they believe it will negatively impact the rights of private landowners. One commenter did not want tax money to contribute to fruit flies stripping fellow citizens of their property rights. Our Response: The effect of a critical habitat designation is that activities authorized, funded, or carried out by a Federal agency require consultation with the Service under section 7 of the Act to ensure they are not likely to destroy or adversely modify critical habitat. For example, activities on private or State lands requiring a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1344 et seq. ) or a section 10(a)(1)(B) permit from us, or activities on private or State lands funded by a Federal agency, such as the Federal Highway Administration or Federal Emergency Management Agency funding, would be subject to the section 7 consultation process. Activities on State, Tribal, local, or private lands that are not carried out, funded, or authorized by a Federal agency are not subject to any regulatory requirements as a result of critical habitat designation. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area, and the designation of critical habitat does not allow government or public access to private lands. Most activities that require a Federal agency to consult with us generally can proceed without modification. (14) Comment: One land manager expressed opposition to the designation of critical habitat on private lands within the proposed Drosophila neoclavisetae —Unit 1—Puu Kukui. This commenter questioned whether the current conservation program in place for the Puu Kukui Watershed Preserve by the Maui Land and Pineapple Company might preclude the need for designation in light of the perceived loss of real property rights within the area. Our Response: We agree with the commenter that developing and maintaining public and private partnerships for species conservation are important. After fully evaluating the Puu Kukui conservation program, we are excluding a portion of the proposed Drosophila neoclavisetae —Unit 1—Puu Kukui from the final designation, since the private landowner is proactively managing the area for the conservation benefit of the D. neoclavisetae and numerous other listed species. We believe that there is a higher likelihood that beneficial conservation activities will continue if we do not include this area in this critical habitat designation. We have determined that the benefits of exclusion outweigh the benefits of including this area as critical habitat, as is discussed in detail in the “Exclusions Under Section 4(b)(2) of the Act” section below. Other Public Comments (15) Comment: One individual expressed opposition to the listing process that determined Federal status for the 12 Hawaiian picture-wing flies, and criticized the fact that comprehensive surveys were not conducted during the listing process. Our Response: Our November 28, 2007, proposed rule (72 FR 67428) specifically solicited comments on the proposed critical habitat revision. Comments relating to the May 9, 2006, final listing rule (71 FR 26835) are hereby acknowledged, but are beyond the scope of this final critical habitat designation. Summary of Changes From the Proposed Rule In preparing the final critical habitat designation for the 12 Hawaiian picture-wing flies, we reviewed and considered comments from the public and peer reviewers on the November 28, 2007, proposed designation of critical habitat (72 FR 67428), the March 6, 2008, document announcing the public hearings and the reopening of the comment period (73 FR 12065), and the August 12, 2008, document announcing the availability of the draft economic analysis and an amended required determinations section of the proposed rule and the reopening of the comment period (73 FR 46860). As a result of comments received, we made the following changes to our proposed designation: (1) The final designation includes the following revision of the primary constituent elements used to identify critical habitat for each of the 12 picture-wing fly species: Populations of the larval stage host plant(s) that exhibit one or more life stages (from seedlings to senescent individuals). This change does not affect the boundaries of the proposed designation. (2) We have excluded 450 ac (182 ha) of lands owned by the Maui Land and Pineapple Company (MLP) that we proposed as critical habitat for Drosophila neoclavisetae , within the Drosophila neoclavisetae —Unit 1—Puu Kukui, from the final designation (see the “Exclusions under Section 4(b)(2) of the Act” section of this final rule for further details on this exclusion). 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 (a) essential to the conservation of the species and (b) 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, as defined under section 3 of the Act, means 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 under 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 prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect 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 government or public access to private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner requests Federal agency funding or authorization for an activity that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of the critical habitat. For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time of listing must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found those physical and biological features essential to the conservation of the species). Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species. For the 12 Hawaiian picture-wing flies, we have determined that it is not necessary to designate critical habitat in unoccupied areas, as there are adequate occupied areas that contain the physical and biological features essential to the conservation of the species. 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 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 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, or other unpublished materials and expert opinion or personal knowledge. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, 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 designation is unimportant or may not promote the recovery of the species. Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the Federal agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may require consultation under section 7 of the Act and may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if information available at the time of these planning efforts calls for a different outcome. Primary Constituent Elements (PCEs) In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas 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 that may require special management considerations or protection. We consider the physical and biological features to be the primary constituent elements laid out in the appropriate quantity and spatial arrangement for the conservation of the species. 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, and rearing (or development) of offspring; (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. We derived the specific primary constituent elements required for the 12 species of picture-wing flies from their biological needs, as described in the revised proposed critical habitat rule published in the Federal Register on November 28, 2007 (72 FR 67428), and below. As required by 50 CFR 424.12(b), we are to list the known PCEs with our description of critical habitat. The PCEs provided by the physical and biological features upon which the designation is based may include, but are not limited to, the following: Roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinators, geological formations, vegetation types, tides, and specific soil types. Primary Constituent Elements (PCEs) for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia We identified the PCEs for the 12 Hawaiian picture-wing flies based on our knowledge of the life history, biology, and ecology of the species, and the physical and biological features of the habitat necessary to sustain their essential life history functions. To determine what is essential for these species, we determined the amount and spatial arrangement of PCEs necessary to provide for their conservation. Not all areas that contain one or more of the PCEs would necessarily be included in the designation if those PCEs were not in the quantity and configuration requisite to meeting the conservation needs of the species. For example, areas may not be included in the designation if they are in excess of the habitat that has been determined to be sufficient to meet the conservation and recovery needs of the species. Additional information about how we identified the PCEs can also be found in the revised proposed critical habitat rule published on November 28, 2007 (72 FR 67428). All areas designated as critical habitat for the 12 picture-wing flies are currently occupied, within the species' historical geographic range, contain all relevant PCEs, and support both the larval and adult foraging stages of the 12 Hawaiian picture-wing flies. Space for Individual and Population Growth and for Normal Behavior The general life cycle of Hawaiian Drosophilidae is typical of that of most flies. After mating, females lay eggs from which larvae (the immature stage) hatch. As larvae grow, they molt (shed their skin) through three successive stages (instars). When they are fully grown, the larvae change into pupae (a transitional form) in which they metamorphose and emerge as adults. Breeding for each of the 12 species of Hawaiian picture-wing flies included in this final rule generally occurs year-round, but egg laying and larval development increase following the rainy season as the availability of decaying matter, upon which the flies feed, increases in response to the heavy rains (K. Kaneshiro, in litt. 2005b, pp. 1-2). In general, Drosophila lay between 50 and 200 eggs at a single time. Eggs develop into adults in about a month, and adults generally become sexually mature 1 month later. Adults generally live for 1 to 2 months (Science Panel 2005). It is unknown how much space is needed for these flies to engage in courtship and territorial displays, and mating activities. Adult behavior may be disrupted or modified by less than ideal conditions, such as decreased forest cover or loss of suitable food material (K. Kaneshiro, in litt. 2005b, pp. 1-2). Additionally, adult behavior may be disrupted, and the flies themselves may be susceptible to the hunting activities of nonnative Hymenoptera, including yellow jacket wasps and ants (Kaneshiro and Kaneshiro 1995, pp. 41-42). The larvae generally pupate within the soil located below their host plant material, and it is presumed that they require relatively undisturbed and unmodified soil conditions to complete this stage before reaching adulthood (Science Panel 2005, p. 5). Lastly, it is well-known that these 12 species and most other picture-wing flies are susceptible to even slight temperature increases, an issue that may be exacerbated by loss of suitable forest cover or the impacts from drought (K. Kaneshiro, in litt. 2005b, pp. 1-2). Food Each of the 12 species of Hawaiian picture-wing flies described in this document is found on a single island, and the larvae of each are dependent upon only a single or a few related species of plants. The adult flies feed on a variety of decomposing plant matter. The water or moisture requirements for all 12 of these species is unknown; however, during drier seasons or during times of drought, it is expected that available adult and larval stage food material in the form of decaying plant matter may decrease (K. Kaneshiro, in litt. 2005b, pp. 1-2). Because the larval stage of each of the 12 species feeds only on the decomposing portions of their specific host plants, designated lands must encompass an area sufficient to support healthy, reproducing host plant populations exhibiting one or more life stages (e.g., from seedlings to senescent individuals). Based on our current knowledge of the life history, biology, and ecology of each species, and the habitat requirements to sustain the essential life history functions of the 12 Hawaiian picture-wing flies, we provide the PCEs for the larval and adult life stages of Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia below: Oahu Species The PCEs for Drosophila aglaia are: (1) Dry to mesic, lowland, ohia, koa, and Diospyros sp., forest between the elevations of 1,865-2,985 feet (ft) (568-910 meters (m)); and (2) the larval stage host plant Urera glabra , which exhibits one or more life stages (from seedlings to senescent individuals). The PCEs for Drosophila hemipeza are: (1) Dry to mesic, lowland, ohia and koa forest between the elevations of 1,720-3,005 ft (524-916 m); and (2) the larval stage host plants Cyanea angustifolia, C. calycina, C. grimesiana ssp. grimesiana (Endangered (E)), C. grimesiana ssp. obatae (E), C. membranacea, C. pinnatifida (E), C. superba ssp. superba (E), Lobelia hypoleuca, L. niihauensis (E), L. yuccoides , and Urera kaalae (E), which exhibit one or more life stages (from seedlings to senescent individuals). The PCEs for Drosophila montgomeryi are: (1) Mesic, lowland, diverse ohia and koa forest between the elevations of 1,720-2,985 ft (524-910 m); and (2) the larval stage host plant Urera kaalae (E), which exhibits one or more life stages (from seedlings to senescent individuals). The PCEs for Drosophila obatai are: (1) Dry to mesic, lowland, ohia and koa forest between the elevations of 1,475-2,535 ft (450-773 m); and (2) the larval stage host plant Pleomele forbesii , which exhibits one or more life stages (from seedlings to senescent individuals). The PCEs for Drosophila substenoptera are: (1) Mesic to wet, lowland to montane, ohia and koa forest between the elevations of 1,920-4,030 ft (585-1,228 m); and (2) the larval stage host plants Cheirodendron platyphyllum ssp. platyphyllum, C. trigynum ssp. trigynum, Tetraplasandra kavaiensis, and T. oahuensis, which exhibit one or more of the life stages (from seedlings to senescent individuals). The PCEs for Drosophila tarphytrichia are: (1) Dry to mesic, lowland, ohia and koa forest between the elevations of 1,720-2,985 ft (524-910 m); and (2) the larval stage host plant Charpentiera obovata , which exhibits one or more life stages (from seedlings to senescent individuals). Hawaii (Big Island) Species The PCEs for Drosophila heteroneura are: (1) Mesic to wet, montane, ohia and koa forest between the elevations of 2,980-5,755 ft (908-1,754 m); and (2) the larval stage host plants Cheirodendron trigynum ssp. trigynum, Clermontia clermontioides, C. clermontioides ssp. rockiana, C. hawaiiensis, C. kohalae, C. lindseyana (E), C. montis-loa, C. parviflora, C. peleana (E), C. pyrularia (E), and Delissea parviflora , which exhibit one or more life stages (from seedlings to senescent individuals). The PCEs for Drosophila mulli are: (1) Wet, montane, ohia forest between the elevations of 1,955-3,585 ft (596-1,093 m); and (2) the larval stage host plant Pritchardia beccariana , which exhibits one or more life stages (from seedlings to senescent individuals). The PCEs for Drosophila ochrobasis are: (1) Mesic to wet, montane, ohia, koa, and Cheirodendron sp. forest between the elevations of 3,850-5,390 ft (1,173-1,643 m); and (2) the larval stage host plants Clermontia calophylla, C. clermontioides, C. clermontioides ssp. rockiana, C. drepanomorpha (E), C. hawaiiensis, C. kohalae, C. lindseyana (E), C. montis-loa, C. parviflora, C. peleana (E), C. pyrularia (E), C. waimeae, Marattia douglasii, Myrsine lanaiensis, M. lessertiana, and M. sandwicensis, which exhibit one or more life stages (from seedlings to senescent individuals). Kauai Species The PCEs for Drosophila musaphilia are: (1) Mesic, montane, ohia and koa forest between the elevations of 3,310-3,740 ft (1,009-1128 m); and (2) the larval stage host plant Acacia koa, which exhibits one or more life stages (from seedlings to senescent individuals). Maui Species The PCEs for Drosophila neoclavisetae are: (1) Wet, montane, ohia forest between the elevations of 3,405-4,590 ft (1,036-1,399 m), and (2) the larval stage host plants Cyanea kunthiana and C. macrostegia ssp. macrostegia , which exhibit one or more life stages (from seedlings to senescent individuals). Molokai Species The PCEs for Drosophila differens are: (1) Wet, montane, ohia forest between the elevations of 3,645-4,495 ft (1,111-1,370 m); and (2) the larval stage host plants Clermontia arborescens ssp. waihiae, C. granidiflora ssp. munroi, C. kakeana, C. oblongifolia ssp. brevipes (E), and C. pallida , which exhibit one or more life stages (from seedlings to senescent individuals). This final critical habitat designation identifies the known physical or biological features in the quantity and spatial arrangement on the landscape essential to support the life history functions of the species. Each of the areas designated in this rule contains the PCEs to provide for one or more of the life history functions of Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia. Special Management Considerations or Protections When designating critical habitat, we assess whether the areas occupied at the time of listing contain the physical and biological features essential to the conservation of the species, and whether these features may require special management considerations or protections. Nonnative plants and animals pose the greatest threats to these 12 picture-wing flies. In order to counter the ongoing degradation and loss of habitat caused by feral ungulates and invasive nonnative plants, active management or control of nonnative species is necessary for the conservation of all populations of the 12 picture-wing flies (Kaneshiro and Kaneshiro 1995, pp. 37-38). Without active management or control, native habitat containing the features that are essential for the conservation of the 12 picture-wing flies will continue to be degraded or destroyed. In addition, habitat degradation and destruction as a result of wildfire, competition with nonnative insects, and predation by nonnative insects, such as the western yellow-jacket wasp ( Vespula pensylvanica ), may significantly threaten many of the populations of the 12 picture-wing flies. Active management is necessary to control these threats, as well. The threats to the physical and biological features in the areas we are designating as critical habitat for the 12 picture-wing flies that may require special management considerations or protection include feral ungulates, rats, invasive nonnative plants, and yellow-jacket wasps. In addition, the units in dry or mesic habitats may also require special management to address wildfire and ants. Each of these threats is summarized below. For a more detailed discussion of each threat refer to the proposed revised critical habitat rule published in the Federal Register on November 28, 2007 (72 FR 67434). Feral Ungulates Feral ungulates have devastated native vegetation in many areas of the Hawaiian Islands (Cuddihy and Stone 1990, pp. 60-66). Because the endemic Hawaiian flora evolved without the presence of browsing and grazing ungulates, many plant groups have lost their adaptive defenses such as spines, thorns, stinging hairs, and defensive chemicals (University of Hawaii Department of Geography 1998, p. 138). Pigs ( Sus scrofa ), goats ( Capra hircus ), and cattle ( Bos taurus ) disturb the soil, and readily eat native plants (including the native host plants for 1 or more of the 12 picture-wing flies), and distribute nonnative plant seeds that can alter the ecosystem. In addition, browsing and grazing by feral ungulates in steep and remote terrain causes severe erosion of entire watersheds due to foraging and trampling behaviors (Cuddihy and Stone 1990, pp. 60-64 and 66). Rats (Rattus spp.) Several species of nonnative rats, including the Polynesian rat ( Rattus exulans ), the roof rat ( Rattus rattus ), and the Norway rat ( Rattus norvegicus ), are present on the Hawaiian Islands and cause considerable environmental degradation (Staples and Cowie 2001). The seeds, bark, and flowers of several of the picture-wing flies' host plants, including Clermontia sp., Pleomele sp., and Pritchardia beccariana , are susceptible to herbivory by all the rat species (Science Panel 2005; K. Magnacca, in litt. 2005; S. Montgomery, pers. comm. 2005b). The herbivory by rats causes host plant mortality, diminished vigor, and seed predation, resulting in reduced host plant fecundity and viability (Science Panel 2005; K. Magnacca, in litt. 2005; S. Montgomery, pers. comm. 2005b). Nonnative Plants The invasion of nonnative plants contributes to the degradation of native forests and the host plants of picture-wing flies (Kaneshiro and Kaneshiro 1995, pp. 38-39; Wagner et al. 1999, pp. 52-53 and 971; Science Panel 2005, p. 28), and threatens all populations of the 12 picture-wing flies. Some nonnative plants form dense stands, thickets, or mats that shade or out-compete native plants. Nonnative vines cause damage or death to native trees by overloading branches, causing breakage, or forming a dense canopy cover that intercepts sunlight and shades out native plants below. Nonnative grasses readily burn. They often grow at the border of forests, and carry wildfire into areas with woody native plants (Smith 1985, pp. 228-229; Cuddihy and Stone 1990, pp. 88-94). The nonnative grasses are more wildfire-adapted and can spread prolifically after a wildfire, ultimately creating a stand of nonnative grasses where native forest once existed. These nonnative plants cannot be used as host plants by the flies. Some nonnative plant species produce chemicals that inhibit the growth of other plant species (Smith 1985, p. 228; Wagner et al. 1999, p. 971). Wildfire Wildfire threatens habitat of the Hawaiian picture-wing flies in dry to mesic grassland, shrubland, and forests on the islands of Kauai ( Drosophila musaphilia ), Oahu ( D. aglaia, D. hemipeza, D. mongomeryi, D. obatai, and D. tarphytrichia ), and Hawaii (D. heteroneura). Dry and mesic regions in Hawaii have been altered in the past 200 years by an increase in wildfire frequency, a condition to which the native flora is not adapted. The invasion of wildfire-adapted alien plants, facilitated by ungulate disturbance, has contributed to wildfire frequency. This change in wildfire regime has reduced the amount of forest cover for native species (Hughes et al. 1991, p. 743; Blackmore and Vitousek 2000, p. 625) and resulted in an intensification of fire threat and feral ungulate disturbance in the remaining native forest areas. Habitat damaged or destroyed by wildfire is more likely to be revegetated by nonnative plants that cannot be used as host plants by these picture-wing flies (Kaneshiro and Kaneshiro 1995, p. 47). Nonnative Insect Competitors The Hawaiian Islands now support several established species of nonnative insects which compete with some of the 12 picture-wing flies within their larval stage host plants. The most important group of nonnative insect competitors includes tipulid flies (crane flies, family Tipulidae). The larvae of some species within this group feed within the decomposing bark of some of the host plants utilized by picture-wing flies, including Charpentiera, Cheirodendron, Clermontia, and Pleomele spp. (Science Panel 2005, p. 11; K. Magnacca, U.S. Geological Survey, in litt. 2005, p. 1; S. Montgomery, in litt. 2005a, p. 1). Each of the picture-wing flies addressed in this rule, except for Drosophila mulli, D. musaphilia, and D. neoclavisetae, face larval-stage resource competition from nonnative tipulid flies. The Hawaiian Islands also support several species of nonnative beetles (family Scolytidae, genus Coccotrypes ), a few of which bore into and feed on the nuts produced by certain native plant species including Pritchardia beccariana , the host plant of Drosophila mulli. Affected Pritchardia spp., including P. beccariana , drop their fruit before the nuts reach maturity due to the boring action of the scolytid beetles. Little natural regeneration of this host plant species has been observed in the wild since the arrival of this scolytid beetle (K. Magnacca, in litt. 2005, p. 1; Science Panel 2005, p. 11). Compared to the host plants of the other picture-wing flies, P. beccariana is long lived (up to 100 years), but over time scolytid beetles may have a significant impact on the availability of habitat for D. mulli. Nonnative Insect Predators Nonnative arthropods pose a serious threat to Hawaii's native Drosophila , both through direct predation or parasitism as well as competition for food or space (Howarth and Medeiros 1989, pp. 82-83; Howarth and Ramsay 1991, pp. 80-83; Kaneshiro and Kaneshiro 1995, pp. 40-45 and 47; Staples and Cowie 2001, pp. 41, 54-57). Due to their large colony sizes and systematic foraging habits, species of social Hymenoptera (ants and some wasps) and parasitic wasps pose the greatest predation threat to the Hawaiian picture-wing flies (Carson 1982, p. 1, 1986, p. 7; Gambino et al. 1987, pp. 169-170; Kaneshiro and Kaneshiro 1995, pp. 40-45 and 47). Criteria Used To Identify Critical Habitat As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial information available in determining the specific areas within the geographical occupied by each of the picture-wing flies, Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia at the time of listing that (1) contain PCEs in the quantity and spatial arrangement to support life history functions essential for the conservation of each of these species; and (2) may require special management considerations or protection. We relied on information in our prior rulemaking and new information gained through the peer review and public comment process. Each area that we are designating as critical habitat is occupied, contains the PCEs, and supports both the larval and adult foraging stages of the 12 Hawaiian picture-wing fly species. The discussion below summarizes the criteria used to identify critical habitat. For additional information, refer to the proposed critical habitat rule that was published in the Federal Register on November 28, 2007 (72 FR 67435). The following geospatial, tabular data sets were used in preparing this final critical habitat designation: (1) Occurrence data for all 12 species (K. Kaneshiro, in litt. 2005a, pp. 1-16); (2) vegetation mapping data for the Hawaiian Islands (Gap Analysis Program (GAP) Data—Hawaiian Islands 2005); (3) color mosaic 1:19,000 scale digital aerial photographs for the Hawaiian Islands dated April to May 2005; and (4) 1:24,000 scale digital raster graphics of U.S. Geological Survey (USGS) topographic quadrangles. Land ownership was determined from geospatial data sets associated with parcel data from Oahu County (2006); Hawaii County (2005); Kauai County (2005); and Maui County (2004). We also reviewed a variety of peer-reviewed and other articles in preparing this final rule, including: (1) Background information on the biology of each of the 12 species (e.g., Montgomery 1975, pp. 83, 94, 96-98, and 100; Foote and Carson 1995, pp. 1-4; Kaneshiro and Kaneshiro 1995, pp. 1-47); (2) plant ecology and biology (Wagner et al. 1999, pp. 45, 52-53, 971, 1,314-1,315, and 1,351-1,352); and (3) the ecology of the Hawaiian Islands and the areas we are designating in this final rule (e.g., Smith 1985, pp. 227-233; Stone 1985, pp. 251-253, 256, and 260-263; Cuddihy and Stone 1990, pp. 59-66, 73-76, and 88-94). Additional information reviewed included: (1) The October 29, 1991, final rule listing the plant species Urera kaalae (a host plant for two of the fly species) as endangered (56 FR 55770); (2) the June 17, 2003, final critical habitat designation for U. kaalae (68 FR 35950); (3) the May 9, 2006, final listing rule for the 12 species of picture-wing flies (71 FR 26835); (4) the August 15, 2006, proposed critical habitat designation for 11 species of picture-wing flies (71 FR 46994); (5) unpublished reports by The Nature Conservancy of Hawaii (TNCH); and (6) aerial photographs and satellite imagery of the Hawaiian Islands. We obtained additional information through personal communications with landowners, scientists, and land managers familiar with the 12 species and their habitats, including individuals affiliated with the University of Hawaii, University of California at Berkeley, the U.S. Geological Survey, the Bishop Museum, Hawaii State Department of Land and Natural Resources, TNCH, and the U.S. Army. Specific information from these sources included estimates of historic and current distribution, abundance, and territory sizes for the 12 species, as well as data on resources and habitat requirements. The primary constituent elements of this final critical habitat designation include both the host plants used by the larvae, as well as the native forest components used by foraging adults. We used known adult location data to identify each critical habitat unit, and included the surrounding area encompassing the physical and biological features essential to the conservation of the species. While there has been considerable survey work conducted for Hawaiian picture-wing flies in an overall sense, some areas where these 12 species are found have not been surveyed in many years. We used the best available, most recent survey data for adult flies to determine which sites we would identify as occupied and which sites we would identify as unoccupied. We did not designate critical habitat in areas where a species had been observed, but where the areas had either become degraded (e.g., due to loss or degradation of native vegetation, increase in nonnative vegetation, or documented presence of yellow-jacket wasps) and lacked PCEs, or if multiple surveys over the course of several years failed to detect the species. The final critical habitat unit boundaries included in this rule reflect the results of this analysis, after taking into account the presence of known developed areas, as described below. When determining critical habitat boundaries, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack PCEs within the 32 critical habitat units designated by this final rule for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia. However, because of the scale of the maps, the maps may not reflect the exclusion of such developed areas. Accordingly, any developed areas that fall within the critical habitat boundaries reflected on the maps in this final rule have been excluded by text in this rule, and are not included within the critical habitat designation. Federal actions limited to these areas would not trigger section 7 consultation, unless they affect the species or primary constituent elements in adjacent critical habitat. Critical Habitat Designation We are designating 32 units as critical habitat for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia. In total, approximately 8,788 ac (3,556 ha) occur within the boundaries of this critical habitat designation. The critical habitat areas described below constitute our current best assessment of areas determined to be occupied at the time of listing, contain the primary constituent elements essential for the conservation of the 12 Hawaiian picture-wing flies, and may require special management. The 32 areas designated as critical habitat are: Table 1—Critical Habitat Units and Island Island Unit name Oahu Drosophila aglaia—Unit 1—Palikea. Oahu Drosophila aglaia—Unit 2—Puu Kaua. Oahu Drosophila hemipeza—Unit 1—Kaluaa Gulch. Oahu Drosophila hemipeza—Unit 2—Makaha Valley. Oahu Drosophila hemipeza—Unit 3—Palikea. Oahu Drosophila hemipeza—Unit 4—Puu Kaua. Oahu Drosophila montgomeryi—Unit 1—Kaluaa Gulch. Oahu Drosophila montgomeryi—Unit 2—Palikea. Oahu Drosophila montgomeryi—Unit 3—Puu Kaua. Oahu Drosophila obatai—Unit 1—Puu Pane. Oahu Drosophila obatai—Unit 2—Wailupe. Oahu Drosophila substenoptera—Unit 1—Mt. Kaala. Oahu Drosophila substenoptera—Unit 2—Palikea. Oahu Drosophila tarphytrichia—Unit 1—Kaluaa Gulch. Oahu Drosophila tarphytrichia—Unit 2—Palikea. Oahu Drosophila tarphytrichia—Unit 3—Puu Kaua. Hawaii (Big Island) Drosophila heteroneura—Unit 1—Kau Forest. Hawaii (Big Island) Drosophila heteroneura—Unit 2—Kona Refuge. Hawaii (Big Island) Drosophila heteroneura—Unit 3—Lower Kahuku. Hawaii (Big Island) Drosophila heteroneura—Unit 4—Pit Crater. Hawaii (Big Island) Drosophila heteroneura—Unit 5—Waihaka Gulch. Hawaii (Big Island) Drosphila mulli—Unit 1—Olaa Forest. Hawaii (Big Island) Drosphila mulli—Unit 2—Stainback Forest. Hawaii (Big Island) Drosphila mulli—Unit 3—Waiakea Forest. Hawaii (Big Island) Drosophila ochrobasis—Unit 1—Kipuka 9. Hawaii (Big Island) Drosophila ochrobasis—Unit 2—Kipuka 14. Hawaii (Big Island) Drosophila ochrobasis—Unit 3—Kohala Mountains East. Hawaii (Big Island) Drosophila ochrobasis—Unit 4—Kohala Mountains West. Hawaii (Big Island) Drosophila ochrobasis—Unit 5—Upper Kahuku. Kauai Drosophila musaphilia—Unit 1—Kokee. Maui Drosophila neoclavisetae—Unit 1—Puu Kukui. Molakai Drosophila differens—Unit 1—Puu Kolekole. The areas identified as containing the features essential to the conservation of each of the 12 Hawaiian picture-wing flies for which we are designating critical habitat include a variety of undeveloped, forested areas that are used for larval stage development and adult fly stage foraging. Designated critical habitat includes land under Federal, State, City and County, and private ownership. The approximate area, land ownership, and area excluded from each designated critical habitat unit are shown in Table 2. Table 2—Designated Critical Habitat Units for Drosophila Aglaia, D. Differens, D. Hemipeza, D. Heteroneura, D. Montgomeryi, D. Mulli, D. Musaphilia, D. Neoclavisetae, D. Obatai, D. Ochrobasis, D. Substenoptera, and D. Tarphytrichia. [Area estimates reflect all land within critical habitat unit boundaries and are given in acres (ac) (hectares (ha)). Areas in parentheses overlap with other units; therefore, the total area designated as critical habitat for each species will not equal the total area designated for the 12 species combined] Species—unit Land ownership [ac/ha] Federal State City and Co. of Honolulu Private Lands meeting the definition of critical habitat [ac/ha] Lands excluded [ac/ha] Critical habitat [ac/ha] Oahu Units Drosophila aglaia—Unit 1—Palikea 0 4 2 0 204 83 208 84 0 0 208 84 Drosophila aglaia—Unit 2—Puu Kaua 0 0 0 87 35 87 35 0 0 87 35 Drosophila hemipeza—Unit 1—Kaluaa Gulch 0 0 0 527 213 527 213 0 0 527 213 Drosophila hemipeza—Unit 2—Makaha Valley 0 40 16 71 29 0 111 45 0 0 111 45 Drosophila hemipeza—Unit 3—Palikea 0 (4) (2) 0 (204) (83) (208) (84) 0 0 (208) (84) Drosophila hemipeza—Unit 4—Puu Kaua 0 0 0 (87) (35) (87) (35) 0 0 (87) (35) Drosophila montgomeryi—Unit 1—Kaluaa Gulch 0 0 0 (527) (213) (527) (213) 0 0 (527) (213) Drosophila montgomeryi—Unit 2—Palikea 0 (4) (2) 0 (204) (84) (208) (84) 0 0 (208) (84) Drosophila montgomeryi—Unit 3—Puu Kaua 0 0 0 (87) (35) (87) (35) 0 0 (87) (35) Drosophila obatai—Unit 1—Puu Pane 0 33 13 0 0 33 13 0 0 33 13 Drosophila obatai—Unit 2—Wailupe 0 45 18 0 32 13 77 31 0 0 77 31 Drosophila substenoptera—Unit 1—Mt. Kaala 0 59 24 57 23 0 116 47 0 0 116 47 Drosophila substenoptera—Unit 2—Palikea 0 (4) (2) 0 (204) (83) (208) (84) 0 0 (208) (84) Drosophila tarphytrichia—Unit 1—Kaluaa Gulch 0 0 0 (527) (213) (527) (213) 0 0 (527) (213) Drosophila tarphytrichia—Unit 2—Palikea 0 (4) (2) 0 (204) (83) (208) (84) 0 0 (208) (84) Drosophila tarphytrichia—Unit 3—Puu Kaua 0 0 0 (87) (35) (87) (35) 0 0 (87) (35) Big Island Units Drosophila heteroneura—Unit 1—Kau Forest 0 125 51 0 0 125 51 0 0 125 51 Drosophila heteroneura—Unit 2 Kona Refuge 3,604 1,459 0 0 0 3,604 1,459 0 0 3,604 1,459 Drosophila heteroneura—Unit 3—Lower Kahuku 687 278 0 0 0 687 278 0 0 687 278 Drosophila heteroneura—Unit 4—Pit Crater 0 0 0 46 18 46 18 0 0 46 18 Drosophila heteroneura—Unit 5—Waihaka Gulch 0 120 49 0 0 120 49 0 0 120 49 Drosophila mulli—Unit 1—Olaa Forest 0 244 99 0 0 244 99 0 0 244 99 Drosophila mulli—Unit 2—Stainback Forest 0 76 31 0 0 76 31 0 0 76 31 Drosophila mulli—Unit 3—Waiakea Forest 0 373 151 0 0 373 151 0 0 373 151 Drosophila ochrobasis—Unit 1—Kipuka 9 0 9 4 0 0 9 4 0 0 9 4 Drosophila ochrobasis—Unit 2—Kipuka 14 0 15 6 0 0 15 6 0 0 15 6 Drosophila ochrobasis—Unit 3—Kohala Mountains East 0 193 78 0 0 193 78 0 0 193 78 Drosophila ochrobasis—Unit 4—Kohala Mountains West 0 41 17 0 91 132 54 0 0 132 54 Drosophila ochrobasis—Unit 5—Upper Kahuku 64 26 24 10 0 0 88 36 0 0 88 36 Kauai Unit Drosophila musaphilia—Unit 1—Kokee 0 794 321 0 0 794 321 0 0 794 321 Maui Unit Drosophila neoclavisetae—Unit 1—Puu Kukui 0 134 54 0 450 182 584 237 450 182 134 54 Molokai Unit Drosophila differens—Unit 1—Puu Kolekole 0 0 0 988 400 988 400 0 0 988 400 Total (32 units) 4,356 1,763 2,331 943 128 52 2,424 981 9,238 3,738 450 182 8,788 3,556 The critical habitat areas described below constitute our best assessment of the physical and biological features essential for the recovery and conservation of the 12 Hawaiian picture-wing flies. Brief descriptions of all units and the rationale for why each unit meets the definition of critical habitat for the 12 picture-wing flies are presented below. Each of the designated critical habitat units for the 12 Hawaiian picture-wing flies was occupied by the species at the time of listing, contains PCEs that provide for both the larval and adult life stage of one or more of the 12 species of picture-wing flies, and may require special management considerations or protection (see Table 3). Table 3—Threats and Occupancy in Areas Containing Physical and Biological Features Essential to the Conservation of Drosophila Aglaia, D. Differens, D. Hemipeza, D. Heteroneura, D. Montgomeryi, D. Mulli, D. Musaphilia, D. Neoclavisetae, D. Obatai, D. Ochrobasis, D. Substenoptera, and D. Tarphytrichia Species—unit Threats requiring special management or protections Occupied at the time of listing Currently occupied Oahu Units Drosophila aglaia—Unit 1—Palikea Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila aglaia—Unit 2—Puu Kaua Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila hemipeza—Unit 1—Kaluaa Gulch Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila hemipeza—Unit 2—Makaha Valley Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila hemipeza—Unit 3—Palikea Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila hemipeza—Unit 4—Puu Kaua Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila montgomeryi—Unit 1—Kaluaa Gulch Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila montgomeryi—Unit 2—Palikea Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila montgomeryi—Unit 3—Puu Kaua Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila obatai—Unit 1—Puu Pane Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila obatai—Unit 2—Wailupe Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila substenoptera—Unit 1—Mt. Kaala Feral ungulates, nonnative plants, and nonnative competitors Yes Yes. Drosophila substenoptera—Unit 2—Palikea Feral ungulates, nonnative plants, and nonnative competitors Yes Yes. Drosophila tarphytrichia—Unit 1—Kaluaa Gulch Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila tarphytrichia—Unit 2—Palikea Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Drosophila tarphytrichia—Unit 3—Puu Kaua Feral ungulates, rats, nonnative plants, ants, nonnative competitors, and wildfire Yes Yes. Big Island Units Drosophila heteroneura—Unit 1—Kau Forest Feral ungulates, rats, nonnative plants, yellow-jacket wasps, ants, and nonnative competitors Yes Yes. Drosophila heteroneura—Unit 2—Kona Refuge Feral ungulates, rats, nonnative plants, yellow-jacket wasps, ants, and nonnative competitors Yes Yes. Drosophila heteroneura—Unit 3—Lower Kahuku Feral ungulates, rats, nonnative plants, yellow-jacket wasps, ants, and nonnative competitors Yes Yes. Drosophila heteroneura—Unit 4—Pit Crater Feral ungulates, rats, nonnative plants, yellow-jacket wasps, ants, nonnative competitors, and wildfire Yes Yes. Drosophila heteroneura—Unit 5—Waihaka Gulch Feral ungulates, rats, nonnative plants, yellow-jacket wasps, ants, and nonnative competitors Yes Yes. Drosophila mulli—Unit 1—Olaa Forest Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila mulli—Unit 2—Stainback Forest Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila mulli—Unit 3—Waiakea Forest Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila ochrobasis—Unit 1—Kipuka 9 Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila ochrobasis—Unit 2—Kipuka 14 Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila ochrobasis—Unit 3—Kohala Mountains East Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila ochrobasis—Unit 4—Kohala Mountains West Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Drosophila ochrobasis—Unit 5—Upper Kahuku Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Kauai Unit Drosophila musaphilia—Unit 1—Kokee Feral ungulates, nonnative plants, yellow-jacket wasps, ants, and wildfire Yes Yes. Maui Unit Drosophila neoclavisetae—Unit 1—Puu Kukui Feral ungulates, nonnative plants, and yellow-jacket wasps Yes Yes. Molokai Unit Drosophila differens—Unit 1—Puu Kolekole Feral ungulates, rats, nonnative plants, yellow-jacket wasps, and nonnative competitors Yes Yes. Oahu Units Drosophila aglaia —Unit 1—Palikea consists of 208 ac (84 ha) of lowland, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 m), this unit is privately and State-owned, and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. aglaia at the time of listing. This unit includes the known elevation range, moisture regime, and the native forest components used by foraging adults and identified as the PCEs for this species. This unit also includes populations of Urera glabra, the larval stage host plant associated with this species. Drosophila aglaia —Unit 2—Puu Kaua consists of 87 ac (35 ha) of lowland, diverse mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft (570-870 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, which is administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. aglaia at the time of listing. It includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera glabra , the larval stage host plant associated with this species. Drosophila hemipeza —Unit 1—Kaluaa Gulch consists of 527 ac (213 ha) of diverse, mesic forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,720-2,785 ft (525-850 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. hemipeza at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae, Cyanea sp., and Lobelia sp ., the larval stage host plants associated with this species. Drosophila hemipeza —Unit 2—Makaha Valley consists of 111 ac (45 ha) of lowland, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,995-3,005 ft (610-915 m), this unit is owned by the City and County of Honolulu and the State of Hawaii, and is largely managed as a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 4-5), this unit was occupied by D. hemipeza at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae, Cyanea sp., and Lobelia sp., the larval stage host plants associated with this species. Drosophila hemipeza —Unit 3—Palikea consists of 208 ac (84 ha) of lowland, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 m), this unit is privately and State-owned, and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. hemipeza at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae, Cyanea sp., and Lobelia sp., the larval stage host plants associated with this species. Drosophila hemipeza —Unit 4—Puu Kaua consists of 87 ac (35 ha) of lowland, diverse, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft (570-870 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. hemipeza at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae, Cyanea sp., and Lobelia sp., the larval stage host plants associated with this species. Drosophila montgomeryi —Unit 1—Kaluaa Gulch consists of 527 ac (213 ha) of diverse, mesic forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,720-2,785 ft (525-850 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. montgomeryi at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae , the larval stage host plant associated with this species. Drosophila montgomeryi —Unit 2—Palikea consists of 208 ac (84 ha) of lowland, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 m), this unit is both privately and State-owned, and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. montgomeryi at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae , the larval stage host plant associated with this species. Drosophila montgomeryi —Unit 3—Puu Kaua consists of 87 ac (35 ha) of lowland, diverse, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft (570-870 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. montgomeryi at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Urera kaalae , the larval stage host plant associated with this species. Drosophila obatai —Unit 1—Puu Pane consists of 33 ac (13 ha) of lowland, mesic, koa and ohia forest within the northeastern Waianae Mountains of Oahu. Ranging in elevation between 1,760-2,535 ft (535-770 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 6), this unit was occupied by D. obatai at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Pleomele forbesii , the larval stage host plant associated with this species. Drosophila obatai —Unit 2—Wailupe consists of 77 ac (31 ha) of lowland, mesic, koa and ohia forest within the southeastern Koolau Mountains of Oahu. Ranging in elevation between 1,475-2,155 ft (445-655 m), this unit is privately and State-owned, and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 6), this unit was occupied by D. obatai at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Pleomele forbesii , the larval stage host plant associated with this species. Drosophila substenoptera —Unit 1—Mt. Kaala consists of 116 ac (47 ha) of montane, wet, ohia forest within the northern Waianae Mountains of Oahu. Ranging in elevation between 2,750-4,030 ft (840-1,230 m), this unit is owned by the City and County of Honolulu and the State of Hawaii, and is largely managed as part of a State forest reserve and natural area reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 7), this unit was occupied by D. substenoptera at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron sp. and Tetraplasandra sp., the larval stage host plants associated with this species. Drosophila substenoptera —Unit 2—Palikea consists of 208 ac (84 ha) of lowland, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 m), this unit is privately and State-owned, and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. substenoptera at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron sp. and Tetraplasandra sp., the larval stage host plants associated with this species. Drosophila tarphytrichia —Unit 1—Kaluaa Gulch consists of 527 ac (213 ha) of diverse, mesic forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,720-2,785 ft (525-850 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. tarphytrichia at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Charpenteira obovata , the larval stage host plant associated with this species. Drosophila tarphytrichia —Unit 2—Palikea consists of 208 ac (84 ha) of lowland, mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 m), this unit is privately and State-owned, and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. tarphytrichia at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Charpenteira obovata , the larval stage host plant associated with this species. Drosophila tarphytrichia —Unit 3—Puu Kaua consists of 87 ac (35 ha) of lowland, diverse mesic, koa and ohia forest within the southern Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft (570-870 m), this unit is privately owned and is part of a larger area called the Honouliuli Preserve, administered and managed by TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this unit was occupied by D. tarphytrichia at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Charpenteira obovata , the larval stage host plant associated with this species. Hawaii (Big Island) Units Drosophila heteroneura —Unit 1—Kau Forest consists of 125 ac (51 ha) of montane, wet, ohia forest, and is located on the southern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 5,215-5,510 ft (1,590-1,680 m), this unit is owned by the State of Hawaii, and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron trigynum, Clermontia sp., and Delissea parviflora , the larval stage host plants associated with this species. Drosophila heteroneura —Unit 2—Kona Refuge consists of 3,604 ac (1,459 ha) of montane, mesic, closed koa and ohia forest, and is located on the western flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 2,980-5,755 (910-1,755 m), this unit is owned by the Service, and is managed as part of the Kona Unit of the Hakalau Forest National Wildlife Refuge. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron trigynum, Clermontia sp., and Delissea parviflora , the larval stage host plants associated with this species. Drosophila heteroneura —Unit 3—Lower Kahuku consists of 687 ac (278 ha) of montane, mesic to wet, ohia forest, and is located on the southern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 3,705-4,685 ft (1,130-1,430 m), this unit is owned and managed by the National Park Service (NPS), Hawaii Volcanoes National Park. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron trigynum, Clermontia sp., and Delissea parviflora , the larval stage host plants associated with this species. Drosophila heteroneura —Unit 4—Pit Crater consists of 46 ac (18 ha) of montane, mesic, open ohia forest with mixed grass species, and is located on the western flank of Hualalai and south of the Kaupulehu lava flow on the island of Hawaii. Ranging in elevation between 3,835-4,525 ft (1,170-1,380 m), this unit is privately owned and managed. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron trigynum, Clermontia sp., and Delissea parviflora , the larval stage host plants associated with this species. Drosophila heteroneura —Unit 5—Waihaka Gulch consists of 120 ac (49 ha) of montane, wet, koa and ohia forest, and is located on the southern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 4,065-4,390 ft (1,240-1,340 m), this unit is owned by the State of Hawaii, and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cheirodendron trigynum, Clermontia sp., and Delissea parviflora , the larval stage host plants associated with this species. Drosophila mulli —Unit 1—Olaa Forest consists of 244 ac (99 ha) of montane, wet, ohia forest and is located to the northeast of Kilauea Caldera on the southeastern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 3,120-3,300 ft (950-1,005 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by D. mulli at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Pritchardia beccariana , the larval stage host plant associated with this species. Drosophila mulli —Unit 2—Stainback Forest consists of 76 ac (31 ha) of montane, wet, ohia forest, and is located to the northeast of Kilauea Caldera on the southeastern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 1,955-2,165 ft (595-660 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by D. mulli at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Pritchardia beccariana , the larval stage host plant associated with this species. Drosophila mulli —Unit 3—Waiakea Forest consists of 373 ac (151 ha) of montane, wet, ohia forest, and is located to the northeast of Kilauea Caldera on the southeastern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 3,130-3,585 ft (955-1,095 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by D. mulli at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Pritchardia beccariana , the larval stage host plant associated with this species. Drosophila ochrobasis —Unit 1—Kipuka 9 consists of 9 ac (4 ha) of montane, wet, ohia forest with native shrubs, and is located within the Saddle Road area on the northeastern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 5,075-5,125 ft (1,545-1,560 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by D. ochrobasis at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Clermontia sp., Marattia douglasii , and Myrsine sp., the larval stage host plants associated with this species. Drosophila ochrobasis —Unit 2—Kipuka 14 consists of 15 ac (6 ha) of montane, wet, ohia forest with native shrubs, and is located within the Saddle Road area on the northeastern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 5,105-5,145 ft (1,555-1,570 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 12-13), this unit was occupied by D. ochrobasis at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Clermontia sp., Marattia douglasii , and Myrsine sp., the larval stage host plants associated with this species. Drosophila ochrobasis —Unit 3—Kohala Mountains East consists of 193 ac (78 ha) of montane, wet, ohia forest with native shrubs and mixed grass species, and is located on the southeastern flank of the Kohala Mountains on the island of Hawaii. Ranging in elevation between 3,850-4,140 ft (1,175-1,260 m), this unit is owned by the State of Hawaii and is largely managed as part of a State forest reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 12-13), this unit was occupied by D. ochrobasis at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Clermontia sp., Marattia douglasii , and Myrsine sp., the larval stage host plants associated with this species. Drosophila ochrobasis —Unit 4—Kohala Mountains West consists of 132 ac (54 ha) of montane, wet, ohia forest with native shrubs and mixed grass species, and is located on the southwestern flank of the Kohala Mountains on the island of Hawaii. Ranging in elevation between 4,945-5,325 ft (1,510-1,625 m), this unit is privately and State-owned, and is largely managed as part of a State forest reserve. Drosophila ochrobasis was not historically known from this area, but was first observed here during field surveys conducted in October of 2006 (K. Magnacca, in litt. 2006, p. 1), only four months from the date of listing of the species (June 2006). Given the fact that this area was surveyed so soon after the listing of the species, and contains relatively intact, closed-canopy, native forest, including the fly's host plant species, we have determined that it was occupied by D. ochrobasis at the time of the listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Clermontia sp., Marattia douglasii , and Myrsine sp., the larval stage host plants associated with this species. Drosophila ochrobasis —Unit 5—Upper Kahuku consists of 88 ac (36 ha) of montane, wet, ohia forest, and is located on the southern flank of Mauna Loa on the island of Hawaii. Ranging in elevation between 5,235-5,390 ft (1,595-1,645 m), this unit is owned by the State of Hawaii and the NPS Hawaii Volcanoes National Park. The area within this unit is largely managed as part of a State forest reserve and as a national park. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 12-13), this unit was occupied by D. ochrobasis at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Clermontia sp., Marattia douglasii , and Myrsine sp., the larval stage host plants associated with this species. Kauai Unit Drosophila musaphilia —Unit 1—Kokee consists of 794 ac (321 ha) of montane, mesic, koa and ohia forest, and is located in the Kokee region of northwestern Kauai. Ranging in elevation between 3,310-3,740 ft (1,010-1,140 m), this unit is owned by the State of Hawaii and occurs on lands managed as part of a State park, forest reserve, and natural area reserve. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 11), this unit was occupied by D. musaphilia at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Acacia koa , the larval stage host plant associated with this species. Maui Unit Drosophila neoclavisetae —Unit 1—Puu Kukui consists of 584 ac (237 ha) of montane, wet, ohia forest within the west Maui mountains on the island of Maui. Ranging in elevation between 3,405-4,590 ft (1,040-1,400 m), this unit is both privately and State-owned. All of the area within this unit occurs within the boundary of the Puu Kukui Watershed Preserve, lands jointly managed by TNCH, the State of Hawaii, and the MLP Company. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 11), this unit was occupied by D. neoclavisetae at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Cyanea kunthiana and C. macrostegia ssp. macrostegia , the larval stage host plant associated with this species. As described below, we are excluding 450 ac (182 ha) of this unit from the critical habitat designation for D. neoclavisetae (see “Exclusions Under Section 4(b)(2) of the Act” section). Molokai Unit Drosophila differens —Unit 1—Puu Kolekole consists of 988 ac (400 ha) of montane, wet, ohia forest within the eastern Molokai mountains on the island of Molokai. Ranging in elevation between 3,645-4,495 ft (1,110-1,370 m), this unit is privately owned and is managed by TNCH as part of the Kamakou and Pelekunu preserves. According to the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 11), this unit was occupied by D. differens at the time of listing. This unit includes the known elevation range, moisture regime, and native forest components used by foraging adults that have been identified as the PCEs for this species. This unit also includes populations of Clermontia sp., the larval stage host plant associated with this species. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act 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 a listed species or destroy or adversely modify designated critical habitat. Decisions by the Fifth and Ninth Circuit Court of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service , 378 F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al. , 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve its intended conservation role for the species. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act 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 to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (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 (BO) for Federal actions that may affect, but are likely to adversely affect, listed species or critical habitat. When we issue a BO concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “Reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that: • Can be implemented in a manner consistent with the intended purpose of the action; • Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction; • Are economically and technologically feasible; and • Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or 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 consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may need to request reinitiation of consultation with us on actions for which consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat in a manner not previously analyzed. Federal activities that may affect Drosophila aglaia , D. differens , D. hemipeza , D. heteroneura , D. montgomeryi , D. mulli , D. musaphilia , D. neoclavisetae , D. obatai , D. ochrobasis , D. substenoptera , and D. tarphytrichia or their designated critical habitat will require consultation under section 7(a)(2) of the Act. Activities on State, local, or private lands requiring 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 et seq. ) or a permit from the Service under section 10(a)(1)(B) of the Act, or involving some other Federal action such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency are examples of agency actions that may be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7(a)(2) consultations. 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 remain functional to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for the 12 picture-wing flies. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and, therefore, should result in consultation for the 12 picture-wing flies include, but are not limited to: (1) Actions that may degrade or remove host plant habitat or result in the loss and degradation of the 12 picture-wing flies' habitat. For example, this could occur through activities such as controlled burns, clearing or cutting of native live trees and shrubs, introducing or encouraging the spread of nonnative plants, recreational use, or the use of off-road vehicles in a manner that degrades native vegetation. (2) Actions that may result in the removal, thinning, or other modification of the 12 picture-wing flies' host plants. For example, this may occur through plowing, grading, development, road or fence building, burning or taking other actions that pose a risk of fire, mechanical weed control, herbicide application, recreational use, and activities associated with wildfire fighting (e.g., staging areas, surface disturbance). (3) Actions that may affect habitat value or quality through indirect effects (e.g., outplanting efforts that enable the spread of nonnative species or fragmentation). All of the units designated as critical habitat, including the Maui Land and Pineapple Co. portion of the Drosophila neoclavisetae —Unit 1—Puu Kukui, which was excluded under section 4(b)(2) of the Act, contain the physical and biological features essential to the conservation of the 12 picture-wing flies. Each of the 32 units that have been designated as critical habitat are within the geographic ranges of these species, were known to be occupied by the species at the time of listing, and are currently occupied. Federal agencies already consult with us on activities in areas that are currently occupied by these species in cases where they may be affected, to ensure that their actions do not jeopardize the continued existence of the 12 picture-wing flies. Exclusions Application of Section 4(a)(3) of the Act The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now states 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 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.” The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: • An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; • A statement of goals and priorities; • A detailed description of management actions to be implemented to provide for these ecological needs; and • A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. We coordinate with the military on the development and implementation of INRMPs for installations with listed species. INRMPs developed by military installations located within the range of the critical habitat designation for Drosophila aglaia and D. substenoptera were analyzed for purposes of section 4(a)(3) of the Act. Approved INRMPs West Range of Schofield Barracks Military Reservation The U.S. Army completed its Oahu INRMP in 2000. Conservation measures included in the INRMP that benefit Drosophila aglaia and D. substenoptera include (1) Outplanting of native plants, which provides for the natural forest conditions necessary for adult fly foraging by both species; (2) feral ungulate control, which prevents both direct loss of the larval stage host plants and adult foraging substrate of both species and prevents habitat alteration by feral ungulates; (3) wildland wildfire control, which prevents both loss and alteration of habitat for D. aglaia ; and (4) nonnative plant control, which prevents habitat alteration for both species. Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that conservation efforts identified in the U.S. Army Garrison Hawaii Oahu Training Areas Natural Resource Management Final Report (U.S. Army, 2000(b)) and the 2002-2006 Oahu Integrated Natural Resources Management Plan (U.S. Army, 2000(a)) provide benefits to Drosophila aglaia and D. substenoptera where they occur within or adjacent to the West Range of Schofield Barracks Military Reservation. Therefore, this installation is exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 78 ac (31 ha) of habitat on Oahu in this final critical habitat designation because of this exemption. The other 10 species of picture-wing flies do not occur on U.S. Army land, and are not subject to consideration under section 4(a)(3)(B)(i) of the Act. Recently, the Army informed us that they are updating their 2000 INRMP and incorporating the conservation measures found in the 2002-2006 Oahu Integrated Natural Resources Management Plan. Revisions to the INRMP are expected to be completed in 2009 (M. Mansker, in litt. 2008). Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary must designate and revise 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 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 legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, in considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If based on this analysis we make this determination, then we can exclude the area only if such exclusion would not result in the extinction of the species. In the following sections, we address a number of general issues that are relevant to the exclusion considered in this final critical habitat rule. Benefits of Designating Critical Habitat The process of designating critical habitat as described in the Act requires that the Service identify those lands on which are found the physical or biological features essential to the conservation of the species that may require special management considerations or protection, and those areas outside the geographical area occupied by the species at the time of listing that are essential to the conservation of the species. In identifying those lands, the Service must co [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%3AE8-27664. Public record. Not legal advice.