[Federal Register: June 10, 2003 (Volume 68, Number 111)]
[Rules and Regulations]
[Page 34709-34766]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn03-18]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Blackburn's Sphinx Moth; Final Rule
[[Page 34710]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH94
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Blackburn's Sphinx Moth
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Blackburn's sphinx moth (Manduca blackburni),
pursuant to the Endangered Species Act of 1973, as amended (Act). A
total of approximately 22,440 hectares (55,451 acres) fall within the
boundaries of the 9 critical habitat units designated on the Hawaiian
islands of Hawaii, Kahoolawe, Maui, and Molokai for Blackburn's sphinx
moth. This critical habitat designation requires the Service to consult
under section 7 of the Act with regard to actions carried out, funded,
or authorized by a Federal agency. Section 4 of the Act requires us to
consider economic and other relevant impacts when specifying any
particular area as critical habitat. We solicited data and comments
from the public on all aspects of our proposal, including data on
economic and other impacts of the designation.
DATES: This rule becomes effective on July 10, 2003.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300
Ala Moana Blvd., Room 3-122, P.O. Box 50088, Honolulu, HI 96850-0001.
FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, Pacific
Islands Office, at the above address (telephone 808/541-3441; facsimile
808/541-3470).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the ESA, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.''
Currently, only 306 species or 25% of the 1,211 listed species in
the U. S. under the jurisdiction of the Service have designated
critical habitat. We address the habitat needs of all 1,211 listed
species through conservation mechanisms such as listing, section 7
consultations, the Section 4 recovery planning process, the Section 9
protective prohibitions of unauthorized take, Section 6 funding to the
States, and the Section 10 incidental take permit process. The Service
believes that it is these measures that may make the difference between
extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with NEPA,
all are part of the cost of critical habitat designation. None of these
costs result in any benefit to the species that is not already afforded
by the protections of the Act enumerated earlier, and they directly
reduce the funds available for direct and tangible conservation
actions. Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent?
Environmental Management 11(4):429-437.
Background
Blackburn's sphinx moth (moth) (Manduca blackburni) is one of
Hawaii's largest native insects. We provided a detailed species
description as well as a biogeographical overview of the Hawaiian
islands in the proposed rule (67 FR 40633), we incorporate that
information by reference in this final designation.
Blackburn's Sphinx Moth Biology and Status
Very few specimens of the moth have been seen since 1940, and after
a concerted effort by staff at the Bishop Museum to relocate this
species in the late 1970s, it was considered to be extinct
(Gagn[eacute] and Howarth 1985). In
[[Page 34711]]
1984, a single population was rediscovered on Maui (Riotte 1986), and
subsequently, populations on two other islands were rediscovered.
Currently, the moth is known only from populations on Maui, Kahoolawe,
and Hawaii. Moth population numbers are known to be small based upon
past sampling results; however, no reasonably accurate estimate of
population sizes has been determinable at this point because of the
adult moth's wide-ranging behavior and overall rarity (Arthur Medeiros,
U.S. Geological Survey-Biological Resources Division (USGS-BRD), pers.
comm. 1998; Van Gelder and Conant 1998). Before humans arrived, dry and
mesic shrubland and forest covered about 823,283 hectares (ha)
(2,034,369 acres (ac)) on all the main islands (Hawaii Natural Heritage
Program (HHP) 2000), and it is likely that the Blackburn's sphinx moth
inhabited much of that area (Riotte 1986). Reports by early naturalists
indicate the species was once widespread and abundant, at least during
early European settlement on nearly all the main Hawaiian islands
(Riotte 1986).
The moth has been recorded from the islands of Kauai, Kahoolawe,
Oahu, Molokai, Maui, and Hawaii, and has been observed from sea level
to 1,525 m (5,000 ft) elevation. Most historical records were from
coastal or lowland dry forest habitats in areas receiving less than 127
cm (50 in) of annual rainfall. On the island of Kauai, the moth was
recorded only from the coastal area of Nawiliwili. Populations were
known from Honolulu, Honouliuli, and Makua on leeward Oahu, and Kamalo,
Mapulehu, and Keopu on Molokai. On Hawaii, it was known from Hilo,
Pahala, Kalaoa, Kona, and Hamakua. It appears that this moth was
historically most common on Maui, where it was recorded on Kahului,
Spreckelsville, Makena, Wailuku, Kula, Lahaina, and West Maui.
Blackburn's sphinx moth larvae feed on plants in the nightshade
family (Solanaceae). The natural host plants are native trees within
the genus Nothocestrum (aiea), on which the larvae consume leaves,
stems, flowers, and buds. However, many of the plants recorded for this
species are not native to the Hawaiian Islands, and include Nicotiana
tabacum (commercial tobacco), Nicotiana glauca (tree tobacco), Solanum
melongena (eggplant), Lycopersicon esculentum (tomato), and possibly
Datura stramonium (Jimson weed). Sphingid moths are known to exploit
nutritious but low-density, low-apparency host plants such as vines and
sapling trees. Development from egg to adult can take as little as 56
days, but pupae may remain in a state of torpor (inactivity) in the
soil for up to a year. The growth rates of larvae for many closely
related sphingid species are reported to decrease when their host
plants lack suitable water content. In fact, suitable host plant water
content can improve the later fecundity of the adult stage (Murugan and
George 1992).
Adult moths have been found throughout the year, and have been
observed feeding on nectar from Ipomoea indica (koaliawa). Other likely
native nectar-providing plants for the moth are other Ipomea species
(spp.), Capparis sandwichiana (maiapilo), and Plubago zeylancia
(iliee). Many sphingid studies have shown that air temperature
restricts adult feeding activity above a certain temperature (usually
30 degrees Celsius (86 degrees Fahrenheit)) (Herrera 1992). During Van
Gelder and Conant's captive-rearing study (1998), adult moth feeding
was not observed and captive-reared adult moths lived no longer than 12
days. In general, sphingids are known to live longer than most moths
because of their ability to feed and take in water from a variety of
sources, rather than relying only upon stored fat reserves. Because
they live longer than most moths, female sphingid moths have less time
pressure to mate and lay eggs, and often will take more time in
locating the best host plants for egg laying (B. Gagn[eacute], pers.
comm. 1994; David Hopper, Service, in litt. 2000, 2002; Williams 1931,
1947; Riotte 1986; Van Gelder and Conant 1998; Kitching and Cadiou
2000). Because there are no studies showing any sphingid-species adults
being short-lived, we believe that some unknown factor contributed to
the brief adulthood of the Blackburn's sphinx moths observed during Van
Gelder and Conant's (1998) study.
Blackburn's Sphinx Moth Habitat and Range
Plant species composition in the moth's habitat varies considerably
depending on location and elevation, but some of the most common native
plants in areas where the moth occurs are the trees Diospyros
sandwicensis (lama), Rauvolfia sandwicensis (hao), Reynoldsia
sandwicensis (ohe), Pouteria sandwicensis (alaa), the shrubs Erythrina
sandwicensis (wiliwili), Dodonaea viscosa (aalii), and Myoporum
sandwicense (naio) (Roderick and Gillespie 1997; Van Gelder and Conant
1998; Wagner et al. 1999; Cabin et al. 2000; Wood 2001a, 2001b).
The largest populations of Blackburn's sphinx moths, on Maui and
Hawaii, are associated with trees in the genus Nothocestrum (Van Gelder
and Conant 1998). For example, the large stand of Nothocestrum trees
within the Ka naio Natural Area Reserve (NAR), Maui, is likely the
largest in the State (Medeiros et al. 1993), and this fact may explain
why the moth occurs with such regularity in the Ka naio area (A.
Medeiros, pers. comm. 1994). Nothocestrum is a genus of four species
endemic to the Hawaiian Islands (Simon 1999) which currently occur on
Kauai, Oahu, Molokai, Lanai, Hawaii, and Maui. One species, N.
longifolium, primarily occurs in wet forests, but can occur in mesic
forests as well. Three species, N. latifolium, N. brevifolium, and N.
peltatum, occur in dry to mesic forests, the habitat in which the moth
has been most frequently recorded. Moth larvae have been documented
feeding on two Nothocestrum spp., N. latifolium, and N. brevifolium; it
is likely that N. peltatum and N. longifolium are suitable host plants
for larval moths as well. This is supported not only by the fact that
these two species are closely related to known larval hosts, but also
because past historical records document the moth as occurring on the
islands of Kauai and Oahu, where N. latifolium is not abundant and N.
brevifolium does not occur. Furthermore, the species is known to feed
on a variety of native and nonnative Solanaceae.
On Molokai, moth habitat includes vegetation consisting primarily
of mixed-species mesic and dry forest communities composed of native
and introduced plants (HHP 2000). Although Molokai is not known to
currently contain a moth population, past moth sightings on Molokai
have been reported. The island does contain native Nothocestrum larval
host plants, including N. longifolium and N. latifolium, as well as
adult host plants and restorable, manageable areas associated with
these existing host plants (Wood 2001a). Because of its proximity to
Maui (currently and historically home to the most persistent and
largest population) and the fact that Molokai has in the past and
presently supports N. latifolium, many researchers believe the moth
could re-establish itself on the island and become a viable
population(s) in the future (Frank Howarth, Bishop Museum, pers. comm.
2001).
The endangered larval host plant, Nothocestrum brevifolium, as well
as adult host plants, occur in the areas on Hawaii Island that support
populations of the moth (Marie Bruegmann, Service,
[[Page 34712]]
pers. comm. 1998), where there are many recorded associations of eggs,
larvae, and adult moths with this plant species. This tree species is
primarily threatened by habitat conversion associated with development;
competition from nonnative species such as Schinus terebinthifolius
(Christmas berry), Pennisetum setaceum (fountain grass), Lantana camera
(lantana), and Leucaena leucocephala (Kona hao le); browsing by cattle;
fire; random environmental events such as prolonged drought; and
reduced reproductive potential resulting from the small number of
existing individuals (59 FR 10325).
Although Nothocestrum spp. are not currently reported from
Kahoolawe, there were very few surveys of this island prior to the
intense ranching activities, which began in the middle of the last
century, and the subsequent use of the island as a weapons range for 50
years. Prior to their removal, goats also played a major role in the
destruction of vegetation on Kahoolawe (Cheetah and Stone 1990). It is
likely that the reappearance of some vegetation as a result of the
removal of the goats and the cessation of military bombing activities
have allowed the moth to inhabit the island. On Kahoolawe, moth larvae
feed on the nonnative Nicotiana glauca, which appears to adequately
support production and growth of the larval stage during nondrought
years. However, the native Nothocestrum are more stable and drought-
resistant than the Nicotiana glauca, which dies back significantly
during especially dry years (A. Medeiros, pers. comm. 2001). Therefore,
it appears likely that long-term survival of the moth on Kahoolawe will
require the planting of Nothocestrum latifolium (A. Medeiros, pers.
comm. 1998).
Threats to the Conservation of Blackburn's Sphinx Moth
Habitat Loss and Degradation
Dry to mesic forest habitats in Hawaii have been severely degraded
by past and present land management practices, including ranching, the
impacts of introduced plants and animals, wildfire, and agricultural
development (Cheetah and Stone 1990). Because of these factors,
Nothocestrum peltatum on Kauai and N. brevifolium on Hawaii are now
federally listed as endangered species (59 FR 9327; 59 FR 10325).
Although all Nothocestrum spp. are not presently listed as endangered
or threatened, the entire genus is declining and considered uncommon
(Medeiros et al. 1993; HHP 2000). For example, while N. latifolium
presently occurs at moderate densities at Ka naio NEAR (HHP 1993),
there has been a complete lack of seedling survival and the stand is
being degraded by goats (F. Howarth, pers. comm. 1994; Steven
Montgomery, pers. comm. 1994; Medeiros et al. 1993). Goats have played
a major role in the destruction of dryland and mesic forests throughout
the Hawaiian Islands (Van Riper and Van Riper 1982; Stone 1985).
Because the moth was once so widespread and sphinx moths are known
to be strong fliers, we believe it is likely that inter-island
dispersal of the species occurred to some degree prior to the loss of
much of its historical habitat. Currently, the areas of dry to mesic
shrub and forest habitats below 1,525 m (5,000 ft) elevation that are
suitable for Blackburn's sphinx moth are approximately 148,585 ha
(367,161 ac).
Localized Extirpation
In addition to, or perhaps because of, habitat loss and
fragmentation, Blackburn's sphinx moths are also susceptible to
seasonal variations and weather fluctuations affecting their quality
and quantity of available habitat and food. For example, during times
of drought, nectar availability for adult moths are expected to
decrease. During times of decreased nectar availability, life spans of
individuals may not be affected, but studies with butterflies have
shown marked decreases in reproductive capacity for many species
(Center for Conservation Biology 1994). In another study, Jansen (1984)
reported that host plant availability directly affected sphingid
reproductive activity. In fact, for some lepidopteran (butterflies and
moths) species, if nectar intake is cut in half, reproduction is also
cut approximately in half. Such resource stress may occur on any time
scale, ranging from a few days to an entire season, and a pattern of
continuous long-term adult feeding stress could affect the future
viability of a population (Center for Conservation Biology 1994).
Often, habitat suitability for herbivorous insects is determined by
factors other than host plant occurrence or density. Microclimatic
conditions (Thomas 1991; Solbreck 1995) and predator pressure (Roland
1993; Roland and Taylor 1995; Walde 1995) are two such widely reported
factors. In a study of moth population structure, habitat patch size
and the level of sun exposure were shown to affect species occupancy,
while patch size and the distance from the ocean coast were reported to
affect moth density. Moth populations in small habitat patches were
more likely to become extinct (Forare and Solbreck 1997).
Nonnative Arthropods
The geographic isolation of the Hawaiian Islands restricted the
number of original successful colonizing arthropods and resulted in the
development of an unusual fauna. Only 15 percent of the known insect
families are represented by the native insects of Hawaii (Howarth
1990). Some groups that often dominate continental arthropod faunas,
such as social Hymenoptera (group-nesting ants, bees, and wasps), are
entirely absent from the native Hawaiian fauna. Accidental
introductions from commercial shipping and air cargo to Hawaii have now
resulted in the establishment of over 2,500 species of alien arthropods
(Howarth 1990; Howarth et al. 1994), with a continuing establishment
rate of 10 to 20 new arthropod species per year (Nishida 1997). In
addition to the accidental establishment of nonnative species, private
individuals and government agencies began importing and releasing
nonnative predators and parasites for biological control of pests as
early as 1865. This resulted in the introduction of 243 nonnative
species between 1890 and 1985, in some cases with the specific intent
of reducing populations of native Hawaiian insects (Funasaki et al.
1988; Lai 1988). Alien arthropods, whether purposefully or accidentally
introduced, pose a serious threat to Hawaii's native insects, through
direct predation, parasitism, and competition for food or space
(Howarth and Medeiros 1989; Howarth and Ramsay 1991).
Ants
Ants are not a natural component of Hawaii's arthropod fauna, and
native species evolved in the absence of predation pressure from ants.
Ants can be particularly destructive predators because of their high
densities, recruitment behavior, aggressiveness, and broad range of
diet (Reimer 1993). Because they are often generalist feeders, ants may
affect prey populations independent of prey density, and may locate and
destroy isolated individuals and populations (Nafus 1993a). At least 36
species of ants have become established in the Hawaiian Islands, and
three particularly aggressive species have severely affected the native
insect fauna (Zimmerman 1948).
For example, in areas where the big-headed ant (Pheidole
megacephala) is present, native insects, including most moths, have
been eliminated (Perkins 1913; Gagn[eacute] 1979; Gillespie and Reimer
1993). The big-headed ant generally does not occur at elevations higher
than
[[Page 34713]]
610 m (2,000 ft), and is also restricted by rainfall, rarely being
found in particularly dry (less than 35 to 50 cm (15 to 20 in)
annually) or wet (more than 250 cm (100 in) annually) areas (Reimer et
al. 1990). The big-headed ant is also known to be a predator of eggs
and caterpillars of native Lepidoptera, and can completely exterminate
populations (Zimmerman 1958). This ant occurs on all the major Hawaiian
Islands, including those currently inhabited by Blackburn's sphinx moth
and is a direct threat to these populations (Neil Reimer, Hawaii
Department of Agriculture (HDOA), pers. comm. 2001; Medeiros et al.
1993; Nishida 1997).
Several additional ant species threaten the conservation of
Blackburn's sphinx moth. The Argentine ant (Linepithema humilis) has
been reported on several islands, including Maui, Kahoolawe, and Hawaii
(Adam Asquith, Service, pers. comm. 1998; A. Medeiros, pers. comm.
1998; Nishida 1997). The long-legged ant (Anoplolepis longipes) is
reported on several islands, including Hawaii and Maui (Hardy 1979). At
least two species of fire ants, Solenopsis geminata and S. papuana, are
also important threats (Reagan 1986; Gillespie and Reimer 1993) and
occur on many of the major islands (Reimer et al. 1990; Nishida 1997).
Ochetellus glaber, a recently reported ant introduction, occurs on
Maui, Hawaii, and Kahoolawe (A. Medeiros, pers. comm. 1998; N. Reimer,
pers. comm. 2001; Nishida 1997).
Parasitic Wasps
Hawaii also has a limited fauna of native Hymenopteran wasp
species, with only two native species in the family Braconidae
(Beardsley 1961), neither of which is known to parasitize Blackburn's
sphinx moth. In contrast, other species of Braconidae are common
predators (parasitoids) on the larvae of the tobacco hornworm and the
tomato hornworm in North America (Gilmore 1938). There are now at least
74 nonnative species, in 41 genera, of braconid wasps established in
Hawaii, of which at least 35 species were purposefully introduced as
biological control agents (Nishida 1997). Most species of alien
braconid and ichneumonid wasps that parasitize moths are not host-
specific, but attack the caterpillars or pupae of a variety of moths
and have become the dominant larval parasitoids even in intact, high-
elevation, native forest areas of the Hawaiian Islands (Zimmerman 1948,
1978; Funasaki et al. 1988; Howarth et al. 1994). These wasps lay their
eggs within the eggs or caterpillars of Lepidoptera. Upon hatching, the
wasp larvae consume internal tissues, eventually killing the host. At
least one species established in Hawaii, Hyposeter exiguae, is known to
attack the tobacco hornworm and the related tomato hornworm in North
America (Carlson 1979). This wasp is recorded from all of the main
islands except Kahoolawe and Lanai (Nishida 1997) and is a recorded
parasitoid of the lawn armyworm (Spodoptera maurita) on tree tobacco on
Maui (Swezey 1927). Because of the rarity of Blackburn's sphinx moths,
no documentation exists of alien braconid and ichneumonid wasps
parasitizing the species. However, given the abundance and the breadth
of available hosts of these wasps, they are considered significant
threats to the moth (F. Howarth, pers. comm. 1994; Howarth 1983;
Gagn[eacute] and Howarth 1985; Howarth et al. 1994).
Small wasps in the family Trichogrammatidae parasitize insect eggs,
with numerous adults sometimes developing within a single host egg. The
taxonomy of this group is confusing, and it is unclear if Hawaii has
any native species (John Beardsley, University of Hawaii, pers. comm.
1994; Nishida 1997). Several alien species are established in Hawaii
(Nishida 1997), including Trichogramma minutum, which is known to
attack the sweet potato hornworm in Hawaii (Fullaway and Krauss 1945).
In 1929, the wasp Trichogramma chilonis was purposefully introduced
into Hawaii as a biological control agent for the Asiatic rice borer
(Chilo suppressalis). This wasp parasitizes the eggs of a variety of
Lepidoptera in Hawaii, including sphinx moths (Funasaki et al. 1988).
Williams (1947) found 70 percent of the eggs of Blackburn's sphinx moth
to be parasitized by a Trichogramma wasp that was probably T. chilonis.
Over 80 percent of the eggs of the alien grasswebworm (Herpetogramma
licarsisalis) in Hawaii are parasitized by these wasps (Davis 1969). In
Guam, Trichogramma chilonis effectively limits populations of the sweet
potato hornworm (Nafus and Schreiner 1986), and is considered under
complete biological control by this wasp in Hawaii (Lai 1988). While
this wasp probably affects Blackburn's sphinx moth in a density-
dependent manner (Nafus 1993a), and theoretically is unlikely to
directly cause extinction of a population or the species, the
availability of more abundant alternate hosts (any other lepidopteran
eggs) may allow for the extirpation of Blackburn's sphinx moth by this
or other egg parasites as part of a broader host base (Tothill et al.
1930; Howarth 1991; Nafus 1993b).
Parasitic Flies
Hawaii has no native parasitic flies in the family Tachinidae
(Nishida 1997). Two species of tachinid flies, Lespesia archippivora
and Chaetogaedia monticola, were purposefully introduced to Hawaii for
control of army worms (Funasaki et al. 1988; Nishida 1997). These flies
lay their eggs externally on caterpillars, and upon hatching, the
larvae burrow into the host, attach to the inside surface of the
cuticle, and consume the soft tissues (Etchegaray and Nishida 1975b).
In North America, C. monticola is known to attack at least 36 species
of Lepidoptera in eight families, including sphinx moths; L.
archippivora is known to attack over 60 species of Lepidoptera in 13
families, including sphinx moths (Arnaud 1978). These species are on
record as parasites of a variety of Lepidoptera in Hawaii and are
believed to depress populations of at least two native species of moths
(Lai 1988). Over 40 percent of the caterpillars of the monarch
butterfly (Danaus plexippus) on Oahu are parasitized by Lespesia
archippivora (Etchegaray and Nishida 1975a), and the introduction of a
related species to Fiji resulted in the extinction of a native moth
there (Tothill et al. 1930; Howarth 1991). Both of these species occur
on Maui and Hawaii (Nishida 1997) and are direct threats to the
Blackburn's sphinx moth.
Based on the findings discussed above, nonnative predatory and
parasitic insects are considered important factors contributing to the
reduction in range and abundance of the Blackburn's sphinx moth, and in
combination with habitat loss and fragmentation, are a serious threat
to its continued existence. Some of these nonnative species were
intentionally introduced by HDOA or other agricultural agencies
(Funasaki et al. 1988) and importations and augmentations of
lepidopteran parasitoids continues. Although the State of Hawaii
requires new introductions to be reviewed before release (HDOA 1994),
post-release biology and host range cannot be predicted from laboratory
studies (Gonzalez and Gilstrap 1992; Roderick 1992), and the purposeful
release or augmentation of any lepidopteran parasitoid is a potential
threat to the conservation of the Blackburn's sphinx moth (Gagn[eacute]
and Howarth 1985; Simberloff 1992).
As Table 1 indicates, the assemblage of potential alien predators
and parasites on each island may differ.
[[Page 34714]]
Table 1.--Potential Nonnative Insect Predators and Parasites of Blackburn's Sphinx Moth
----------------------------------------------------------------------------------------------------------------
Major island(s) on Major island(s) on
Order/family Genus/species which the species has which the species has
been reported not been reported
----------------------------------------------------------------------------------------------------------------
Diptera/Tachinidae................... Chaetogaedia monticola Hawaii, Kauai, Lanai, Kahoolawe.
(fly). Maui, Molokai, Oahu.
Diptera/Tachinidae................... Lespesia archippivora Hawaii, Kauai, Maui, Kahoolawe, Lanai.
(fly). Molokai, Oahu.
Hymenoptera/Formicidae............... Anoplolepis longipes Hawaii, Kauai, Maui, Kahoolawe, Lanai,
(long-legged ant). Oahu. Molokai.
Hymenoptera/Formicidae............... Linepithema humilis Hawaii, Kahoolawe, Molokai, Oahu.
(Argentine ant). Kauai, Lanai, Maui.
Hymenoptera/Formicidae............... Ochetellus glaber (ant) Hawaii, Kahoolawe, Lanai, Molokai.
Kauai, Maui, Oahu.
Hymenoptera/Formicidae............... Pheidole megacephala Hawaii, Kahoolawe, none.
(big-headed ant). Kauai, Lanai, Maui,
Molokai, Oahu.
Hymenoptera/Formicidae............... Solenopsis geminita Hawaii, Kauai, Lanai, Kahoolawe.
(fire ant). Maui, Molokai, Oahu.
Hymenoptera/Formicidae............... Solenopsis papuana Hawaii, Kauai, Lanai, Kahoolawe.
(fire ant). Maui, Molokai, Oahu.
Hymenoptera/Vespidae................. Vespula pennsylvanica Hawaii, Kauai, Maui, Kahoolawe, Molokai.
(yellow jacket wasp). Oahu.
Hymenoptera/Ichneumonidae............ Hyposeter exiguae Hawaii, Kauai, Maui, Kahoolawe, Lanai.
(wasp). Molokai, Oahu.
Hymenoptera/Trichogrammatidae........ Trichogramma chilonis Kauai, Oahu............ Hawaii, Maui,
(wasp). Kahoolawe, Lanai,
Molokai.
Hymenoptera/Trichogrammatidae........ Trichogramma minutum Hawaii, Lanai, Molokai, Kauai, Kahoolawe, Maui.
(wasp). Oahu.
----------------------------------------------------------------------------------------------------------------
Furthermore, the arthropod community may differ from one area to
another, even on the same island, based upon elevation, temperature,
prevailing wind pattern, precipitation, or other factors (Nishida
1997). Conserving and restoring Blackburn's sphinx moth populations in
multiple locations should decrease the likelihood that the effect of
any single alien parasite or predator, or the combined pressure of such
species, could result in the diminished vigor or extinction of the
moth.
Because of the threats discussed above, we do not believe the
existing habitats containing Blackburn's sphinx moth populations are
sufficient to ensure the long-term survival of the species. A diverse
set of habitats and climates within its former range is necessary to
remove the long-term risk of rangewide extinction of the species.
Threats to the moth identified in the final listing rule include
vandalism and collection, predation/parasitism by alien arthropods, and
habitat alteration and loss from nonnative plant and ungulate invasion
(65 FR 4770; February 1, 2000). Considering the rarity of the moth,
small population size is also believed to be a factor that threatens
the long-term survival of the species, since random population
fluctuations and catastrophic events are more likely to result in the
extirpation of local populations. Wildfire and feral ungulate pressure
on the moth's habitat, along with direct pressure of alien predators
and parasites, are important factors currently reducing the moth's
range and abundance and threatening the species' continued existence
(Funasaki et al. 1988).
Previous Federal Action
A summary of previous Federal actions on this species up to the
time we proposed this critical habitat designation is found in the
Federal Register notice proposing designation of this critical habitat
(67 FR beginning page 40638).
On June 13, 2002, we published a proposed rule for designation of
critical habitat for Blackburn's sphinx moth on approximately 40,240 ha
(99,433 ac) of land on the islands of Hawaii, Kahoolawe, Maui, and
Molokai (67 FR 40633). The publication of the proposed rule opened a
60-day public comment period, which closed on August 12, 2002.
Subsequently, we determined that an additional extension of time
was needed to complete this designation process. On August 21, 2002,
the District Court in Hawaii approved another joint stipulation
extending the date for the final rule designating critical habitat for
Blackburn's sphinx moth to May 30, 2003.
On August 26, 2002, we published a notice (67 FR 54763) announcing
the reopening of the comment period until December 30, 2002, and notice
of a public hearing on the proposed rule to be held on the island of
Maui. On September 12, 2002, we held a public hearing at the Maui Arts
and Cultural Center Meeting Room, Kahului.
On October 10, 2002, we published a notice of a public hearing on
the proposed rule to be held on the island of Hawaii (67 FR 63064). On
October 29, 2002, we held a public hearing in Kailua-Kona, Hawaii.
On November 15, 2002, we published a notice of the availability of,
and invitation for, comments on the draft economic analysis (DEA) for
the proposed rule (67 FR 69179). The second public comment period
closed on December 30, 2002.
Summary of Comments and Recommendations
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited, during a prepublication peer review process,
independent opinions from 15 knowledgeable individuals with expertise
in one or several fields, including familiarity with the species, the
geographic region that the species occurs in, and the principles of
conservation biology. We received comments from five reviewers. After
publication of the proposed rule, we solicited independent opinions
from 27 knowledgeable individuals with similar expertise. We received 8
written responses from those 27 individuals. All eight reviewers
generally supported our methodology and conclusion, and supported the
proposed critical habitat designation, although they recognized the
limitations of scientific knowledge of life history and population
characteristics of the Blackburn's sphinx moth. All of the reviewers
supported including currently unoccupied habitat
[[Page 34715]]
within the designation. Several reviewers suggested specific locations
where critical habitat should have been expanded; in most cases this
was to include additional mesic habitat areas for the moth. Several
reviewers specifically expressed concern with the identified primary
constituent elements, particularly pertaining to the fact that
nonnative tree tobacco (Nicotiana glauca) was not identified as such.
We summarize and address comments received from the peer reviewers in
the following section. We considered all reviewers' comments in
developing the final rule.
In the June 13, 2002, proposed critical habitat designation (67 FR
40633), we requested all interested parties submit comments on the
specifics of the proposal, including information related to biological
justification, policy, economics, and proposed critical habitat
boundaries. We also contacted all appropriate Federal, State, and local
agencies, scientific organizations, and other interested parties and
invited them to comment. The comment period was scheduled to close on
August 12, 2002. To allow for additional comments on the proposed
designation and to allow for comments on the DEA of the proposed
critical habitat, we extended the comment period until December 30,
2002 (67 FR 54763). We received 30 individually written letters, from
10 designated peer reviewers, 4 State agencies, and 16 individuals or
organizations. Approximately 715 additional letters were submitted as
part of a mailing campaign, all of which supported the proposed
designation.
We received three requests for a public hearing. We announced the
date and time of the public hearings and invited comments in letters to
appropriate elected officials; Federal, State, and local agencies;
scientific organizations; and other interested parties. We also
published notices in several news sources, including the Federal
Register, Star Bulletin, West Hawaii Today, Hawaii Tribune Herald,
Honolulu Advertiser, Molokai Advertiser News, and the Maui News. Five
individuals at the October 2002 Kahului, Maui, public hearing and 5
individuals at the November 2002 Kailua-Kona, Hawaii, public hearing,
gave testimony on the Blackburn's sphinx moth critical habitat
proposal.
We provided notification of the DEA through letters and news
releases faxed and/or mailed to affected elected officials, media
outlets, local jurisdictions, and interest groups. We also published
notice of its availability in the Federal Register (67 FR 69179;
November 15, 2002), and the DEA and associated material were made
available on our Region 1 Fish and Wildlife Office Internet site
following its release on November 15, 2002.
We reviewed all comments received for substantive issues and new
information regarding the Blackburn's sphinx moth. Similar comments
were grouped into six general issue categories relating specifically to
the proposed critical habitat determination and DEA on the proposed
determination. Comments have been incorporated directly into the final
rule or final addendum to the economic analysis, and/or they have been
addressed in the following summary.
Issue 1: Biological Justification and Methodology
(1) Comment: Multiple commenters, including one official with HDOA,
stated that the Service should not designate unoccupied habitat for the
moth, and that unoccupied areas should be excluded from the
designation. However, all peer reviewers of the proposed rule,
including one with the Hawaii Division of Forestry and Wildlife (DOFAW)
and one with HDOA, were in support of the designation of unoccupied
habitat. Many of the peer reviewers stated that unoccupied habitat is
essential since currently occupied areas would be inadequate for
conservation of the species.
Our Response: Because of the comparatively limited current range of
this species, designating only occupied areas would not meet the
conservation requirements of the species. Many peer reviewers agreed
with this and stated that currently occupied areas, as well as the
similar habitat around them within the designated units of critical
habitat that may be occupied in the future, cannot provide all of the
essential life-cycle needs of the species, nor provide all of the
habitat components essential for the conservation (primary constituent
elements) of this species. Therefore, providing the opportunity for
expansion of this species to areas that were known to have been
historically occupied (i.e., Molokai) is essential to its conservation,
and should help to prevent the possibility of the species' extinction
in the event that some populations are extirpated by catastrophes such
as large wildfires or hurricanes.
When designating currently unoccupied habitat for this species, we
first evaluated lands that are suitable. Of this suitable habitat, we
then identified those areas essential for the conservation of the
species if they contained one or more of the primary constituent
elements; were either in acceptable condition for conservation efforts,
or could be made acceptable through appropriate management actions; and
would provide the space and distribution needed by the moth to sustain
itself in the future.
The one unoccupied area designated in this final rule is located on
the island of Molokai. Although currently unoccupied by the moth, the
area contains both larval stage and adult moth native host plants. The
area is close enough in proximity to the Maui moth population that many
peer reviewers stated it is feasible that the area may again be
repopulated by the moth on its own. However, because it is a separate
island, some additional protection from a potential natural catastrophe
affecting, for example, the Maui population, may be afforded a future
moth population on Molokai. Furthermore, as Molokai is the closest
island to Oahu, we believe that allowing for a future moth population
on Molokai may facilitate the species' dispersal and provide a flight
corridor for moths eventually dispersing to the island of Oahu, which
is also part of its historical range.
Molokai was designated as critical habitat in lieu of, or rather
than, other suitable unoccupied areas, because we determined, to the
best of our abilities, that it is the highest quality unoccupied
habitat essential to the conservation of the moth. Lastly, the
designated unoccupied area on Molokai may lack some of the serious
potential threats to the moth (see Table 1). Conserving and restoring
Blackburn's sphinx moth populations in multiple locations decreases the
likelihood that the effect of any single alien parasite or predator, or
the combined pressure of such species and other threats, could result
in the diminished vigor or extinction of the species.
(2) Comment: Critical habitat designation should consider the
following: (1) The importance of designating the best remaining
elements of ecosystems for multispecies conservation; (2) the
practicality of managing and protecting scattered units without
apparent physical boundaries; and (3) the importance of public/private
partnerships for species conservation.
Our Response: We agree that all these factors are important for the
conservation of listed species. We have designated only areas that are
essential for the conservation of the Blackburn's sphinx moth, and
which contain primary constituent elements within the highest quality
remaining habitats. We also agree that public/private partnerships are
often essential for species conservation. As an example,
[[Page 34716]]
we are excluding portions of proposed Units 1 and 2 because some
private landowners are managing portions of their lands for the
conservation benefit of the moth and numerous other listed species. We
believe that the benefits of exclusion outweigh the benefits of
including these areas as critical habitat because there is a higher
likelihood of beneficial conservation activities occurring in those two
areas without designated critical habitat. See- Exclusions Under
Section 4(b)(2) for a more detailed discussion of the excluded areas.
(3) Comment: The majority of peer reviewers noted the lack of
knowledge regarding basic biology of the species. They noted that
little peer-reviewed biological and ecological information is available
for the Blackburn's sphinx moth, and that much of the technical
information used for the critical habitat designation is based on
unpublished reports and field observations by Service staff, State
biologists, and university researchers. One peer reviewer with DOFAW
stated that the use of information from studies of other sphinx moths
or butterflies is probably not valid for Blackburn's sphinx moth.
Another peer reviewer suggested the use of studies for other
lepidopterans could be problematic. However, other peer reviewers
agreed that it was acceptable and appropriate for the Service to use
studies and information on other lepidopterans, especially since there
is limited information on the moth.
Our Response: As noted in the Background section of this rule, we
recognize the limited amount of scientific data available for this
species, especially the very limited amount of information that is
available in a peer-reviewed format. However, the Act requires us to
use the best available scientific and commercial information in
undertaking species listing and conservation actions, including the
designation of critical habitat as set forth in this rule.
Prior to the rulemaking process associated with listing the
Blackburn's sphinx moth as endangered, we participated in, led, or
sponsored a number of surveys and studies in numerous habitat areas on
several islands to document the presence or absence of the moth or its
essential host plant species at these locations. In addition, other
natural resource agencies and organizations, including the University
of Hawaii, USGS-BRD, DLNR, and the National Botanical Garden, provided
us with reports of field observations at many sites on several islands.
While we acknowledge the limited amount of peer-reviewed published
information regarding the Blackburn's sphinx moth, as required by law
we have used the best scientific and commercial data available to
identify and delineate the critical habitat boundaries. Furthermore, we
believe that we have been cautious in using information from studies of
other, similar lepidoptera in identifying critical habitat for this
moth species. For example, throughout this rule, we have explicitly
identified where we were making comparisons between Blackburn's sphinx
moth and related taxa rather than making assumptions outright about the
moth. We have also acknowledged throughout the rule that additional
studies are needed to confirm certain aspects of the species's biology,
including, but not limited to, its host plant co-interactions.
(4) Comment: Some commenters stated that the Service did not
adequately consider recovery science and management in its proposed
critical habitat designation.
Our Response: When developing the rule to designate critical
habitat for the moth, we have used the best scientific and commercial
data available. This included, but is not limited to, documented
locations of known Blackburn's sphinx moth populations and locations of
the primary constituent elements, including peer-reviewed scientific
publications; unpublished reports by researchers; the rule listing the
species (65 FR 4770); the Blackburn's sphinx moth Recovery Outline
(Service 2000); the HHP's current database; island-wide Geographic
Information System (GIS) coverages (e.g., vegetation, soils, annual
rainfall, elevation contours, landownership); information received
during the public comment periods and public hearings; recent
biological surveys and reports; information received in response to
outreach materials and requests for species and management information
that we sent to all landowners, land managers, and interested parties;
responses to the published Blackburn's sphinx moth critical habitat
proposed rule; and the DEA.
The critical habitat unit approach in this rule addresses the
numerous risks to the long-term survival and conservation of
Blackburn's sphinx moth by employing two widely recognized and
scientifically accepted methods for promoting viable populations of
imperiled species--(1) creation or maintenance of multiple populations
to reduce the possibility that a single or series of catastrophic
events could threaten to extirpate the species; and (2) increasing the
size of each population in the respective critical habitat units to a
level where the threats of genetic, demographic, and normal
environmental uncertainties are diminished (Tear et al. 1995; Meffe and
Carroll 1996; Service 1997a).
In general, the larger the number of populations and the larger the
size of each population, the lower the probability of extinction (Raup
1991; Meffe and Carroll 1996). This basic conservation principle of
redundancy applies to Blackburn's sphinx moth. By maintaining viable
populations in the designated critical habitat units, the threats
represented by a fluctuating environment are reduced and the species
has a greater likelihood of achieving conservation. Conversely, loss of
a Blackburn's sphinx moth critical habitat unit will result in an
appreciable increase in the risk that the species may not recover and
survive.
Re-establishing the species to a diverse set of habitats and
climates within its former range is necessary to remove the long-term
risk of rangewide extinction due to catastrophic events and the
numerous direct threats to the species and its habitat (Service 1997a).
We are keenly aware that simply designating an area as critical habitat
will not ensure its long-term conservation and recovery and, in fact,
we know and recognize that active management actions and proven
recovery science methods will be far more important in the long run for
the moth. In accordance with our policy on peer review published on
July 1, 1994 (59 FR 34270), we also solicited the expert opinions of
appropriate and independent specialists regarding the proposed rule.
The purpose of this peer review was to ensure that our designation
methodology of critical habitat for the Blackburn's sphinx moth was
based on scientifically sound data, assumptions, and analysis, and
recovery science. The comments of all of the peer reviewers were taken
into consideration in the development of this final designation.
Furthermore, we are in the process of developing a draft recovery plan
for the moth, and all peer reviewers, stakeholders, and other
interested parties will have an opportunity to provide input to ensure
that the best recovery science is outlined for the moth's long-term
conservation and recovery.
(5) Comment: Numerous comments were submitted regarding the
Service's identification of the Blackburn's sphinx moth's primary
constituent elements. Most peer reviewers stated that the Service had
properly identified the primary constituent elements for this species.
However, several reviewers,
[[Page 34717]]
including one with HDOA and one with DOFAW, expressed concern with the
Service's decision not to include tree tobacco (Nicotiana glauca) as a
primary constituent element because the adult moth often lays eggs on
this plant species, and the moth's larval stage appears to feed readily
and successfully on it. In addition, N. glauca is believed to be the
only larval stage host plant that the Kahoolawe island Blackburn's
sphinx moth population is utilizing.
Our Response: Although Blackburn's sphinx moth larvae feed on the
nonnative Nicotiana glauca, we do not consider this plant to be a
primary constituent element for the designation of critical habitat. As
previously discussed, the native Nothocestrum spp. are more stable and
persistent components of dry-to-mesic forest habitats than N. glauca.
Nicotiana glauca is a short-lived species that may disappear from areas
during prolonged drought (A. Medeiros, pers. comm. 1998) or during
successional changes in the plant community (F. Howarth, pers. comm.
2001; Simon 1999). Many studies have shown that insects, and
particularly lepidopteran larvae, consume more food when the food has a
relatively high water content (Murugan and George 1992). Relative
consumption rate and growth have been reported to decrease for many
sphingids closely related to the Blackburn's sphinx moth when raised on
host plants or diets with a relatively low water content (Murugan and
George 1992). The vulnerability of N. glauca to drought conditions
suggests that its water content frequently may not be suitable for
optimal growth of Blackburn's sphinx moth larvae.
Numerous conservation and restoration plans for particular areas
throughout the State of Hawaii have identified as primary goals the
restoration of native plants, including the native host plants for the
Blackburn's sphinx moth and other endangered species. Achieving these
restoration goals may also require the control or elimination of
nonnative vegetation, potentially including Nicotiana spp. (See also
Comment 22).
Additionally, unlike the Nothocestrum spp., Nicotiana glauca is
more likely to occur in habitats less suitable because of their
occupation by alien insect predators (D. Hopper, in litt. 2000, 2002;
Simon 1999). Therefore, in comparison with N. glauca, the native
Nothocestrum spp. better fulfill the primary biological needs of the
moth larvae. For all of these reasons, we are not considering N. glauca
as a primary constituent element for the designation of critical
habitat.
(6) Comment: Several reviewers stated that the native Nothocestrum
spp. host plant populations are currently very rare and most of them
are not demonstrating regeneration, so that reviewers questioned the
likelihood of the Blackburn's sphinx moth's eventual recovery. Several
reviewers also pointed out that the few existing Nothocestrum
populations are highly vulnerable to extirpation by catastrophic events
such as large wild fires or hurricanes. Reviewers recommended that
Nothocestrum populations be aggressively managed using techniques that
include fencing and weed and feral ungulate control; otherwise, the
decline of Nothocestrum populations would continue. Furthermore, it was
suggested that existing Nothocestrum populations be augmented and new
populations be established with techniques including outplanting and
propagation.
Our Response: We agree that active management of the remaining
Nothocestrum spp. populations will be necessary to prevent their
continued decline and thereby facilitate the moth's long-term
conservation. This critical habitat designation and the draft recovery
plan, which we are currently preparing, identify these needs.
(7) Comment: One peer reviewer questioned whether it was prudent to
identify nectar food source plants for the adult Blackburn's sphinx
moths as primary constituent elements because these plants, especially
Ipomea spp., are more widespread than the native larval stage host
plants identified as primary constituent elements, and they are found
outside of the boundaries of proposed critical habitat. The reviewer
noted that some areas proposed as critical habitat, i.e., proposed Unit
2, were selected partly because the areas are known to contain adult
moth primary constituent elements, even if currently devoid of native
Nothocestrum spp.
Our Response: We agree that known and likely native nectar food
sources for adult Blackburn's sphinx moths are more widespread and
abundant than known native food sources for larval moths. We included
native nectar food sources as primary constituent elements for the moth
to identify the specific habitat components needed for the species to
complete its entire life cycle. We determined that identifying critical
habitat based solely on the existing locations of larval stage primary
constituent elements, i.e., Nothocestrum spp., would not meet the
species' needs essential for its conservation. Some critical habitat
areas were selected because they are known to contain adult moth
primary constituent elements, even if currently devoid of native
Nothocestrum spp. We included such areas when we determined that the
areas were: (1) Within the moth's current or historic range; and/or (2)
known or believed to have been occupied by Nothocestrum spp. in the
past and capable of supporting Nothocestrum spp. again if properly
protected or restored.
(8) Comment: One peer reviewer suggested that some areas currently
occupied by the Blackburn's sphinx moth and proposed as critical
habitat may actually be suboptimal habitat for the species. It was
hypothesized that these same areas are occupied currently only because
some threats, such as ants or certain Trichogramma parasitic wasp
species, are either lacking or present in sufficiently low levels to
allow the moth to persist there. The same peer reviewer also suggested
that soil substrate is an important habitat component that may have
been overlooked in the proposed rule. It was noted that the moth has
often been found in areas with rocky, cinderlike, and relatively barren
substrate. It was hypothesized that the moth may prefer such a loose,
uncompacted substrate for the purpose of burrowing to complete
pupation. However, it was also noted that moth occurrences in these
areas may be due to the fact that such substrates are somewhat
comparatively abiotic and sparsely vegetated, and may thus yield lower
moth parasite and predator populations.
Our Response: The best available information, both historic and
current, was used from a variety of sources (see Methods section) to
determine the primary constituent elements for the Blackburn's sphinx
moth and its current and former range. As pointed out by reviewers,
historic information is extremely scant for the species, but the only
information currently available indicates the species is restricted to
somewhat dry and leeward areas. While we acknowledge that additional
studies are needed to better understand the moth's long-term
conservation needs, the designated lands represent, to the best of our
current knowledge, the areas essential to the species' conservation. We
are currently preparing a draft recovery plan for the moth, and this
plan identifies several priority research tasks such as the
investigation of substrate preferences and effects of various predators
and parasites on the species. We may revise this critical habitat
designation in the future if new information indicates revisions are
warranted.
(9) Comment: One peer reviewer recommended that the Service conduct
[[Page 34718]]
a genetic analysis of moth populations from both Kahoolawe and Maui to
determine if the moth has perhaps evolved either a preference for, or
an adaptation to, feeding on Nicotiana glauca. It was suggested that
the Service might learn whether the Kahoolawe moth population is
dependent upon Maui moth populations for recruitment. Furthermore,
genetic analysis might reveal that Nicotiana glauca raised moth
populations are dependent upon Nothocestrum spp. plants or that such
moth populations are genetically distinct from those moth populations
that appear to be Nothocestrum spp. dependent.
Our Response: We agree that a greater understanding of the moth's
genetics is needed to better address its long-term conservation needs.
However, researching this aspect of the moth's biology is beyond the
scope of this document. We are currently preparing a draft recovery
plan for the moth that will identify a genetics study, in addition to
other priority research objectives.
(10) Comment: Most of the peer reviewers stated that the proposed
critical habitat areas seem suitable in size and that they are
ecologically appropriate, provided that: (1) The proposed areas are
protected from their primary threats, and (2) the excluded lands are
properly managed and of large enough size to be ecologically
sustainable.
Our Response: We believe the core area of suitable habitat has been
demarcated by the critical habitat boundaries as presented in this
final rule. Moreover, the designated critical habitat units were chosen
to create an array of multiple discrete populations across the four
islands to reduce the risk of extinction resulting from catastrophic
natural events, such as hurricanes, and to enhance the likelihood of
conservation. Furthermore, the units were chosen because they are the
highest quality native habitats essential to the moth's conservation
and all are identified as manageable, restorable, and sufficient in
size to capably support self-sustaining moth populations. Our
conclusion is that 9 sites located within historic range on four
islands are sufficient to achieve these goals. If provided with new
information, we may revise the critical habitat designation in the
future.
(11a) Comment: Three peer reviewers and one commenter noted that
the proposed rule did not contain a great deal of information about the
distribution of the mesic habitat plant, Nothocestrum longifolium nor
its potential as a host plant for the larval stage of the moth. It was
recommended that the Service map the distribution of N. longifolium by
island. (11b) Comment: Two reviewers and one commenter, including one
with HDOA, noted that very little mesic habitat, other than on Molokai,
was proposed as critical habitat for the Blackburn's sphinx moth. They
recommended that the Service include more mesic habitat in the final
designation, especially in light of the fact that the islands have
undergone, and often undergo, long periods of drought. (11c) Comment:
One peer reviewer with HDOA provided additional observational data for
the moth at light traps located near Olinda, East Maui, and suggested
that the moths were either flying long distances from known habitat
areas, or represented adults from an undocumented population
potentially utilizing N. longifolium plants in mesic forests of
northwest Haleakala. (11d) Comment: Another peer reviewer with DOFAW
provided additional observational data for the moth on Maui that may
indicate a distinct seasonal pattern to its appearances on that island.
It was suggested that these respective periods of moth appearance
coincided with annual regional precipitation patterns, and might
indicate the moth was taking advantage of appropriate opportunities for
larval development and flower (e.g., nectar) foraging. (11e) Comment:
The same reviewer recommended the inclusion of an altogether new unit
on West Maui that was not proposed as critical habitat. The unit was
justified since it would include additional mesic habitat and was
persistently and strongly occupied by the moth. Additionally, the area
contained adult Blackburn's sphinx moth primary constituent elements,
specifically Plumbago spp. and Ipomea spp., as well as other potential
larval stage host plants (not identified as primary constituent
elements) such as Solanum nelsoni and Scaevola sericea. Lastly, it was
suggested that the new unit might provide an important corridor for
adult moths migrating toward the proposed Unit 7 on Molokai because of
its proximity to Molokai and the area's relative lack of strong winds
like those found in the isthmus area of Maui between West Maui and
Haleakala.
Our Response: We did not designate additional mesic land on East or
West Maui because those lands are not essential for the conservation of
the moth. This conclusion is based on available information concerning
the status of the Blackburn's sphinx species in specific areas and/or
the level of habitat degradation. We agree that some mesic forest areas
not designated as critical habitat, especially on Maui, may potentially
harbor undocumented populations of Blackburn's sphinx moth. We also
acknowledge that additional survey efforts are needed to ascertain the
existence of these moth populations or potential host plant
populations. In preparation of this rule, we did fund three surveys for
moth host plants within mesic habitats (Perry 2001; Wood 2001a; 2001b).
While new reports of moth sightings provided by reviewers will be
useful in focusing future survey efforts and research needs, the fact
remains that too little is known about the moth's potential mesic
habitat requirements. For example, the potential host plant suitability
of mesic habitat plants such as Nothocestrum longifolium, to warrant
the designation of additional mesic habitat for the moth beyond what we
have designated. Furthermore, the mesic habitat we designated on the
island of Molokai was identified as the best quality mesic habitat
essential for the conservation of the moth. Lastly, the two designated
units within the Maui isthmus, Units 5 and 6 are expected to adequately
serve as a corridor for moths migrating to the designated unit on
Molokai (Unit 9).
(12) Comment: Two peer reviewers noted that the quality of
`darkness' (i.e., absence of artificial lighting) could be an important
factor in the Blackburn's sphinx moth's biology, and suggested this
habitat quality be considered a primary constituent element. It was
stated that `darkness' may be important for the normal nocturnal
foraging, biology, and movement behavior of the adult Blackburn's
sphinx moth. Furthermore, it was noted that most of the proposed
critical habitat units are still in relatively dark areas, with the
exception of proposed Units 3, 5a, and 5b. One commenter provided
information about two occasions in which the moth was observed flying
to bright lights at the State Forestry Baseyard in Kahului, Maui.
During one of the occasions, the moth became disoriented and was killed
by a feral cat. Two reviewers and one commenter suggested that
management for darkness may be an important issue for Blackburn's
sphinx moth conservation, especially if specific critical habitat units
became more developed, such as in proposed Units 3, 5a, and 5b. One
reviewer suggested that low-intensity and/or shielded lighting
strategies might help reduce attraction and disorientation of
nocturnally migrating adult moths. One commenter recommended that
proposed Unit 3 not be included in the designation because
[[Page 34719]]
of the absence of `darkness.' Another reviewer with DOFAW questioned
whether future development within the two proposed Kailua-Kona units,
and the subsequent reduction of darkness, might negatively impact moth
behavior within that area.
Our Response: We agree that the quality of darkness might be an
important factor in the adult Blackburn's sphinx moth's behavior.
However, at this time the we are unaware of prior studies on this
issue. In the draft recovery plan for this species that we are
currently preparing, we will include a research objective to explore
the importance of the `darkness' habitat quality to the moth. If
provided with new information, we may revise the critical habitat
designation in the future.
(13) Comment: One peer reviewer recommended the identification of
additional primary constituent elements for the adult Blackburn's
sphinx moth, Scaevola sericea and S. coriacea, located within coastal
areas, and other Scaevola spp. located within montane areas. The
reviewer had documented several observations of similar sphingid
species taking nectar from Scaevola spp., although no Blackburn's
sphinx moths were observed feeding upon these species. Furthermore,
within coastal areas of proposed Unit 3, sphingid moths had been
documented foraging during crepuscular (twilight) hours on Scaevola
spp. within less than 50 m (164 ft) of Nicotiana glauca host plants
containing Blackburn's sphinx moth larvae. It was suggested it was
highly likely that some of the observed foraging adult moths could have
been Blackburn's sphinx moth adults.
Our Response: We agree that Scaevola spp. could potentially serve
as a nectar food source for foraging adult moths. Flowers produced by
this plant group share many of the characteristics of the flowers of
plants described as primary constituent elements in this rule. We will
include a research objective to explore the suitability of Scaevola
spp. as a moth nectar resource in the draft recovery plan for this
species that is currently being prepared.
Issue 2: Effects of Designation
(14) Comment: Multiple commenters stated that the designation of
critical habitat alone will not prevent the loss of remaining natural
habitats, and that funds would be better spent on natural resource
management activities. Additionally, some reviewers, including one with
DOFAW, stated that if management is not realistic, it makes little
sense to designate critical habitat.
Our Response: We are required under the Act to designate critical
habitat on the basis of best available information. Management needs
for the species will be addressed in the draft recovery plan that we
are currently preparing.
(15) Comment: Multiple commenters expressed concern about the
potential impacts to hunting activities and traditional gathering
rights of native Hawaiians as a result of the proposed critical habitat
designation. One commenter suggested the Service should involve hunter
groups in any relevant discussions should it be determined that game
animal management or hunting activities may be affected by the
designation.
Our Response: We agree that in many circumstances a well-designed
hunting program can be an important component in the conservation of
native ecosystems in Hawaii by helping to control excessive damage
caused by large populations of feral mammals. In preparation of this
rule, we did conduct public information meetings with State agencies
and hunting groups to address these kinds of concerns.
Unless there is Federal nexus to the activity, an activity by the
State or private landowner or individual, such as farming, grazing,
logging, and gathering, generally is not affected by a critical habitat
designation, even if the property is within the geographical boundaries
of the critical habitat. Recreational, commercial, and subsistence
activities on non-Federal lands, including hunting, are not regulated
by this critical habitat designation. These activities may be impacted
only where there is Federal involvement in the action and the action is
likely to destroy or adversely modify critical habitat.
(16) Comment: Some commenters stated that critical habitat should
be consistent with current and ongoing conservation efforts in priority
areas so that resources are not directed elsewhere in an uncoordinated
manner. It was suggested that the Service and landowners and managers
work together to develop approaches that are more likely to lead to
species conservation, rather than a passive designation lacking
management.
Our Response: We agree and recognize that the ultimate purpose of
critical habitat is to contribute to the conservation of listed
species, a purpose that can be best reached by cooperation between
ourselves and the community. As an example, we are excluding portions
of proposed Units 1 and 2 because some private landowners are managing
portions of their lands for the conservation benefit of Blackburn's
sphinx moth and numerous other listed species. We believe there is a
higher likelihood of beneficial conservation activities occurring in
those two areas without designated critical habitat than there would be
with designated critical habitat in those locations. See Exclusions
Under Section 4(b)(2) for a more detailed discussion of the excluded
areas.
Issue 3: Site-Specific Biological Comments
(17) Comment: One peer reviewer with DOFAW commented that the two
proposed Kailua-Kona Units (5a and 5b) may be too small and urbanized
to be effective for the long-term conservation of the Blackburn's
sphinx moth. One commenter with the Housing and Development Corporation
of Hawaii (HCDCH), a State agency, provided more recent survey data
that indicated the proposed Unit 5b no longer contained living
Nothocestrum brevifolium host plants. Another commenter questioned
whether the proposed Unit 5a was actually essential to the species. It
was suggested that the 1992 data used to indicate presence of the N.
brevifolium host plants was outdated, and at any rate, the presence of
only two known N. brevifolium host plants failed to prove the area
would be capable of supporting a viable moth population. Furthermore,
it was questioned whether inclusion of the area would actually
facilitate dispersal of the moth to other proposed areas, and
ultimately whether the unit would contribute to genetic exchange
between moth populations on the island of Hawaii. The commenter
inquired as to the number of past moth sightings within the unit. One
commenter requested that the proposed Units 5a and 5b be excluded from
the designation since the rule did not demonstrate that exclusion would
result in extinction of the moth.
Our Response: We have excluded proposed Units 5a and 5b from the
final designation. See the Summary of Changes from the Proposed Rule
section for additional detail concerning the exclusion of these units.
(18) Comment: One peer reviewer suggested that it may be difficult
to defend the inclusion of the Kahului Airport runway safety zone
within Unit 3 because the area does not currently support native
Nothocestrum spp. host plants. It is also unlikely to do so in the
future since any potentially outplanted Nothocestrum spp. may not
survive the strong winds and salt spray prevalent within the area.
However, it was noted that the area could possibly support other native
solanaceous plants such as
[[Page 34720]]
Solanum nelsoni, which may be suitable larval stage host plants.
Our Response: We were provided with additional information in the
form of recently completed surveys for portions of the proposed Unit 3.
The study, conducted by the Hawaii Biological Survey and the Bishop
Museum, showed that areas on the western edge of the proposed Unit 3,
encompassing and bordering some Kahului Airport lands, were in fact
relatively devoid of identified primary constituent elements, and the
area would therefore not appear to provide suitable long-term habitat
for the moth. As a result of receiving the additional information on
the proposed Unit 3, critical habitat in the area is now designated in
the form of two smaller units that do not encompass the Kahului Airport
runway safety zone, nor any other Kahului Airport lands other than that
contained within the Kanaha Pond Wildlife Sanctuary boundaries. See the
Summary of Changes from the Proposed Rule section for additional detail
on the changes that were made to this unit.
We agree that Solanum nelsoni could potentially serve as an
alternate coastal host plant food source for the moth's larval stage.
We will include a research objective to explore the suitability of
Solanum nelsoni as larval stage host plant in the draft recovery plan
for this species, currently under preparation.
(19) Comment: One commenter pointed out that approximately 4 ha (10
ac) of proposed Unit 3 overlapped with a private parcel under a grazing
lease. It was requested that the area in question be removed from the
designation if the primary constituent elements were not present, or if
the area did not warrant special management considerations.
Our Response: As a result of receiving additional information on
proposed Unit 3, we excluded several portions of this proposed unit,
including the area in question from critical habitat because we
determined that those areas lacked the moth's primary constituent
elements. See the Summary of Changes from the Proposed Rule section for
additional detail on the changes we made to this unit.
(20) Comment: One peer reviewer with HDOA suggested that the lack
of collection records for certain potential parasites and predators on
Molokai does not mean those organisms are not present on the island.
Rather it is possible that the lack of records is, in fact, an artifact
of limited prior collecting work there. It was recommended that
searches for these potential parasites and predators should be
conducted on Molokai before special effort is put forth to utilize the
island as a restoration site for the Blackburn's sphinx moth.
Our Response: We agree. The need to better document the presence of
potential predator and parasites within identified habitat conservation
areas for the Blackburn's sphinx moth will be addressed in the draft
recovery plan currently being prepared for the species.
(21) Comment: One peer reviewer with DOFAW suggested that the
proposed Units 1, 2, 6, and 7 would require fencing and large scale
feral ungulate management to ensure conservation of the moth and its
host plants in those areas. On a related note, one reviewer and one
commenter suggested that the use of managed grazing could potentially
aid moth habitat restoration through the suppression of invasive weeds
and fire fuels.
Our Response: We agree with the reviewer regarding the identified
fencing needs, yet we also acknowledge that managed grazing, and even
highly managed game animal populations, may potentially serve as tools
in the suppression of invasive weeds and fire fuels. Many of these
concepts are explored in greater detail within the draft recovery plan
currently being prepared for the moth. Furthermore, we look forward to
developing and implementing innovative strategies to restore identified
Blackburn's sphinx moth habitat conservation areas with our public and
private partners involved in the management of game or livestock.
(22) Comment: One peer reviewer with DOFAW stated that a potential,
but resolvable, conflict in land management could occur within proposed
Unit 3, specifically within the boundaries of the Kanaha Pond Wildlife
Sanctuary, based on current management plans to ultimately restore the
95 ha (235 ac) of sanctuary lands as much as possible to native pre-
contact conditions. The planned removal of all alien plant species may
entail the removal of all existing Nicotiana glauca plants, the
nonnative host plant for the moth. It was suggested that planned
experimental outplanting of native Nothocestrum spp. may be attempted
within the sanctuary. However, it was noted that if the attempts were
unsuccessful, there may then be a need to retain the N. glauca for the
moth, an important change in both the sanctuary's management and
management plans.
Our Response: We agree that the restoration of the Kanaha Pond area
to a more native and pre-contact condition will benefit the remaining
native components of that ecosystem, and that it should benefit the
Blackburn's sphinx moth as well. We look forward to developing and
implementing an innovative restoration strategy for this area with
DOFAW. Determining if there are suitable, native coastal host plants
that could be outflanked for the moth's larval stage is a research need
that we will address in the draft recovery plan.
(23) Comment: One commenter provided additional information about
the extent of grazing activities within proposed Unit 7 on Molokai, and
questioned whether the area actually contained the Blackburn's sphinx
moth's primary constituent elements. It was requested that the area be
excluded from the designation.
Our Response: As a result of receiving the additional information
on proposed Unit 7, several portions of the proposed unit were excluded
from critical habitat because new information revealed some lands in
that unit did not contain the primary constituent elements, or were
more seriously degraded than previously ascertained, and are therefore
not essential for the conservation of the species. See the Summary of
Changes from the Proposed Rule section for additional detail on the
changes that were made to this unit.
(24a) Comment: It was recommended by two commenters that some of
the areas within proposed Unit 1 be excluded since they did not contain
the moth's primary constituent elements. One peer reviewer suggested
that proposed Unit 1 could be extended eastward of the southern
Haleakala boundary to Kaupo, especially along the coast (e.g., Nui
coastline), to include additional areas containing the primary
constituent elements. (24b) Comment: Another peer reviewer with DOFAW
recommended that the boundaries of proposed Unit 3 be expanded by
extending the unit to the south and southeast to include the area
demarcated by Highway 36, and east along Highway 36 to the three-way
intersection of Highway 37 with Old Haleakala Highway and Hana Highway.
The reviewer noted that both Blackburn's sphinx moth adults and larvae
had been observed on numerous occasions, often in good numbers within
the area. Furthermore, the reviewer suggested that this expansion of
proposed Unit 3 would provide additional windward and mesic habitat for
the moth, a habitat type not highly represented in the proposed areas.
Our Response: As a result of receiving the additional information
on proposed Unit 1, critical habitat in the area is now designated in
the form of four smaller units. See the Summary of Changes from the
Proposed Rule section for additional detail on the changes that were
made to
[[Page 34721]]
this unit. In this final rule, several portions of proposed Unit 1 were
excluded from critical habitat it was determined that these areas
lacked the moth's primary constituent elements. Other portions of
proposed Unit 1 were excluded because we decided that the benefits of
excluding critical habitat outweighed the benefits of including
critical habitat. See Exclusions Under Section 4(b)(2) for a more
detailed discussion of the excluded areas.
We did not include these additional lands in critical habitat Units
1 and 3 because we concluded that they were not essential for the
conservation of the Blackburn's sphinx moth. This was based on
available information concerning the status of the species in specific
areas and the level of habitat degradation. We agree that some of these
additional lands may potentially harbor undocumented populations of
Blackburn's sphinx moth, and we also acknowledge that additional survey
efforts are needed to ascertain the existence of potential moth or host
plant populations in these areas and likely in other areas as well.
While new reports of moth sightings or other observations of
potentially suitable habitat provided by reviewers will be useful in
focusing future survey efforts and research needs, we believe we have
identified for designation, the best quality habitat essential for the
conservation of the moth.
Issue 4: Mapping
(25) Comment: Two commenters stated that greater precision is
needed to identify manmade structures and features such as roads,
houses, and buildings already present within the proposed critical
habitat designation areas. The DEA conceded that a lack of clarity
regarding excluded features and structures could force landowners to
incur costs to investigate the implications of the regulations.
Our Response: The maps in the Federal Register are meant to provide
a general location and shape of critical habitat. The legal
descriptions are readily plotted and transferable to a variety of
mapping formats, and are available electronically upon request for use
with GIS programs. At the two public hearings, the maps were expanded
to wall size to assist the public in better understanding the proposal.
These larger scale maps were also provided to individuals upon request.
Furthermore, we provided direct assistance in response to written or
telephone questions with regard to mapping and landownership within the
proposed designation.
As stated in the proposed rule and this final rule, existing
manmade features and structures within the boundaries of the mapped
areas. This includes features such as the following that do not contain
one or more of the primary constituent elements, and therefore, are not
included in the critical habitat designations: Buildings; roads;
aqueducts and other water system features, including but not limited to
pumping stations, irrigation ditches, pipelines, siphons, tunnels,
water tanks, gauging stations (section in a stream channel equipped
with facilities for obtaining streamflow data), intakes, and wells;
telecommunications towers and associated structures and equipment;
electrical power transmission lines and associated rights-of-way;
radars; telemetry antennas; missile launch sites; arboreta and gardens;
heiau (indigenous places of worship or shrines); airports; other paved
areas; lawns; and other rural residential landscaped areas.
To further address concerns with the potential costs of identifying
nondesignated areas, the Economic Analysis Addendum (Addendum)
revisited the hour estimates presented in the DEA. Chapter VI, section
4.I of the DEA indicated that the landowners may want to learn how the
designation may affect: (1) the use of their land (either through
restrictions or new obligations), and (2) the value of their land.
Since no commenters provided an estimate of time or cost incurred in
order to investigate implications of critical habitat, and because of
the reduction in acreage from proposed to designated, the Addendum
revised the number of landowners downward, which resulted in a cost for
landowners of $173,000 to $618,000 to investigate the implication of
critical habitat.
While some landowners may expend time and money to investigate the
implications of critical habitat on their land during the designation
process, many landowners may not do so until after final designation is
complete. Thus, the DEA and the Addendum treated these costs as a cost
attributable to the final designation.
Issue 5: Policy and Regulations
(26) Comment: One commenter stated that excluding any areas from
designation based on current management would violate 16 U.S.C.
1533(a)(3), and further stated that conservation efforts do not alter
the habitat's critical nature or the need to ensure its protection.
Multiple commenters stated that areas already subject to conservation
measures, or which may be the subject of conservation agreements in the
future, should not be excluded from critical habitat.
Our Response: In accordance with section 3(5)(A)(i) of the Act and
regulations at 50 CFR 424.12, in determining which areas to propose as
critical habitat, we are required to base critical habitat
determinations on the best scientific data available and to consider
those physical and biological features (primary constituent elements)
that are essential to the conservation of the species and that may
require special management considerations or protection. If an area is
covered by a plan that already provides adequate management, we believe
it does not constitute critical habitat as defined by the Act because
the primary constituent elements found there are not considered to be
in need of special management or protection. We considered a plan to be
adequate when it provides: (1) A conservation benefit to the species,
i.e., the plan must maintain or provide for an increase in the species'
population, or the enhancement or restoration of its habitat within the
area covered by the plan; (2) assurances that the management plan will
be implemented, i.e., those responsible for implementing the plan are
capable of accomplishing the objectives, have an implementation
schedule in place, and/or have adequate funding for the management
plan; and (3) assurances that the conservation plan will be effective,
i.e., it identifies biological goals, has provisions for reporting
progress, and is of a duration sufficient to implement the plan and
achieve the plan's goals and objectives. Therefore, if an area provides
physical and biological features essential to the conservation of the
species, and also is covered by a plan that meets these criteria, then
such an area would not have constituted critical habitat, as defined by
the Act, because the physical and biological features found there do
not require special management. However, in the case of the moth no
areas were found currently to be adequately managed, and therefore no
areas have been excluded on that basis.
As to future conservation agreement, several owners have indicated
that including their lands in a critical habitat designation would have
a negative impact on their existing and future voluntary conservation
efforts for the moth and other species. After weighing the benefits of
including these areas as critical habitat with the benefits of
excluding them, we concluded that the designation of critical habitat
would have a net negative conservation effect in some situations, and
we excluded some of these areas from the final designation of critical
habitat. See our
[[Page 34722]]
discussion under the Exclusions Under Section 4(b)(2) section.
(27) Comment: Multiple commenters, including DLNR, a State agency,
noted that the Service has stated critical habitat affects only
activities that require Federal permits or funding, and does not
require landowners to carry out special management or restrict use of
their land. However, the commenters stated that this fails to address
the breadth of Federal activities that affect private property in
Hawaii, and the extent to which private landowners are required to
obtain Federal approval before they can develop their property. Such
requirements extend to all State agencies using Federal funds in
connection with a proposed action, and community actions for which
Federal approval or review is necessary. The requirements also extend
to loan and grant programs such as Natural Resources Conservation
Service (NRCS) loans and grants.
Our Response: Under section 7 of the Act, all Federal agencies must
consult with the Service to insure that any action that they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of any endangered or threatened species or result in the destruction or
adverse modification of critical habitat. We have provided our best
assessment of what may be the effects of this consultation requirement
on private landowners as well as for State agencies. However, not every
project, land use, and activity that has a Federal involvement has
historically been subject to a formal or informal section 7
consultation with the Service. The draft economic analysis and Addendum
were confined to those projects, land uses, and activities that are, in
practice, likely to be subject to consultation and are based on review
of past consultations, current practices, and the professional
judgments of Service staff and other Federal agency staff.
If the Service finds that the proposed actions are likely to
jeopardize the continued existence of an endangered or threatened
species or result in destruction or adverse modification of critical
habitat, we suggest reasonable and prudent alternatives that would
allow the Federal agency to implement their proposed action without
such adverse consequences. Again, we have provided our best assessment
for what this may mean in terms of management actions or land uses and
any associated costs in the draft economic analysis and Addendum.
(28) Comment: Two commenters, including the Hawaii Department of
Transportation, Airports Division (DATA), stated that prudence cannot
be determined without an analysis of the economic impacts of critical
habitat. The prudence of critical habitat designation is a final
conclusion based on weighing all relevant factors, including economic
factors. While the Service promised to complete its economic impact
analysis before it promulgates its final determination of critical
habitat, it risks putting the decision before the analysis. The prior
determination that critical habitat is prudent and is therefore
required, is treated as a given, even though it ignored economic
factors. The Service should revisit (Sierra Club v. U.S. Fish and
Wildlife Service, 245 F.3d 434, 440-443 (5th Cir. 2001).
Our Response: We determine whether critical habitat designation is
prudent according to regulations found at 50 CFR 424.12(a)(1). In
accordance with these regulations and recent case law, critical habitat
designation is not prudent only when the species is threatened by
taking or other human activity, and identification of critical habitat
can be expected to increase the degree of such threat to the species.
To determine whether critical habitat would be prudent for the species,
we analyzed the potential threats and benefits to the species. The
economic analysis is conducted after critical habitat has been proposed
in a given area, as set forth in regulations found at 50 CFR 424.19. If
designation of critical habitat is prudent, we look at all of the
impacts of designating specific areas as critical habitat to see if the
benefits of designation outweigh the benefits of excluding it from
critical habitat. If we find that economic or other impacts outweigh
the benefit of designating critical habitat in a given area, that area
will be excluded. We concluded in the final rule listing the
Blackburn's sphinx moth as endangered that there may be benefits of
critical habitat designation that may outweigh the risks. Therefore,
critical habitat is prudent for the species.
(29a) Comment: Multiple commenters stated that the DEA fails to
consider economic impacts of critical habitat that result through
interaction with Hawaii Land Use Law. Critical habitat could result in
changes to zoning under State law.
Our Response: Chapter VI, section 4.e. of the DEA and section 4.b.
of the Addendum address costs involved in redistricting lands from the
Urban, Rural and Agricultural Districts to the Conservation District.
About 50,772 acres of Agricultural land, one acre of Rural land, and
430 acres of Urban land are included in the intended designation. Of
this, approximately 12,352 acres of Agricultural land is owned by
private landowners; one acre of Rural land is owned by private
landowners; and 32 acres of Urban land is owned by private landowners.
In the event that all of these private lands were redistricted to the
Conservation District, the total economic cost could range from $80
million to $249 million. However, as discussed in the economic
analysis, the redistricting of all lands to Conservation is not
envisioned for several reasons.
HRS section 195D-5.1 states that the Department of Land and Natural
Resources (DLNR) ``shall initiate amendments to the conservation
district boundaries consistent with section 205-4 in order to include
high quality native forests and the habitat of rare native species of
flora and fauna within the conservation district.'' HRS section 205-
2(e) specifies that ``conservation districts shall include areas
necessary for * * * conserving indigenous or endemic plants, fish and
wildlife, including those which are threatened or endangered * * *.''
Unlike the automatic conferral of State law protection for all
federally listed species (see HRS 195D-4(a)), these provisions do not
explicitly reference federally designated critical habitat and, to our
knowledge, DLNR has not proposed amendments in the past to include all
designated critical habitat in the Conservation District. Nevertheless,
according to the Land Division of DLNR, DLNR is required by HRS 195D-
5.1 to initiate amendments to reclassify critical habitat lands to the
Conservation District (Deirdre Mamiya, Administrator, Land Division, in
litt. 2002).
State law only permits other State departments or agencies, the
county in which the land is situated, and any person with a property
interest in the land to petition the State Land Use Commission (LUC)
for a change in the boundary of a district. HRS section 205-4. The
Hawaii Department of Business, Economic Development & Tourism's (DBEDT)
Office of Planning also conducts a periodic review of district
boundaries taking into account current land uses, environmental
concerns and other factors and may propose changes to the LUC.
The State Land Use Commission determines whether changes proposed
by DLNR, DBEDT, other state agencies, counties or landowners should be
enacted. In doing so, State law requires LUC to take into account
specific criteria, set forth at HRS 205-17. While the LUC is
specifically directed to consider the impact of the proposed
[[Page 34723]]
reclassification on ``the preservation or maintenance of important
natural systems or habitats,'' it is also specifically directed to
consider five other impacts in its decision: (1) ``Maintenance of
valued cultural, historical, or natural resources;'' (2) ``maintenance
of other natural resources relevant to Hawaii's economy, including, but
not limited to, agricultural resources;'' (3) ``commitment of state
funds and resources;'' (4) ``provision for employment opportunities and
economic development;'' and (5) ``provision for housing opportunities
for all income groups, particularly the low, low-moderate, and gap
groups.'' HRS 205.17. Approval of redistricting requires six
affirmative votes from the nine commissioners, with the decision based
on a ``clear preponderance of the evidence that the proposed boundary
is reasonable.'' HRS 205-4.
Thus, even if all federally designated critical habitat is
petitioned for redistricting, the likelihood of redistricting will vary
parcel by parcel. While the LUC may redistrict some parcels, it is
unlikely that lands with a high economic value to the community, such
as lands with significant State investments, prime agricultural land,
land planned for the economic and community development, and land
planned for the provision of housing, would be redistricted. By way of
illustration, in the last State district boundary review only five
privately owned parcels were redistricted to Conservation even though
several hundred parcels were proposed for redistricting. While concern
has been expressed that a third party would challenge a decision by the
LUC not to redistrict a critical habitat parcel in State court, State
courts have been deferential to the LUC decisions if they are supported
by the record, consistent with statutory provisions, and not affected
by errors. See, e.g., Kilauea Neighborhood Ass'n. v. Land Use Comm'n.
751 P.2d 1031, 1035 (Haw. Ct. App. 1988) (finding that, although LUC's
findings were poorly drawn, the record provided sufficient support for
the decision); Outdoor Circle v. Harold K.L. Castle Trust Estate, 675
P.2d 784, 793 (Haw. Ct. App. 1983) (upholding LUC's decision as
consistent with statutory provisions and not affected by errors).
In summary, while it is possible that the designation of critical
habitat could trigger a petition to redistrict land designated as
critical habitat to the Conservation District, the likelihood appears
small, absent litigation, that these lands would be redistricted.
(29b) Comment: Multiple commenters stated that the Service did not
adequately address the direct or indirect ``takings'' of private
property as a result of designating critical habitat for the
Blackburn's sphinx moth. If the proposed designation of critical
habitat precipitates conversion of agricultural lands to conservation
land that has no economically beneficial use, then the Federal and
State governments will have taken private property. Also, the
incremental impact of designating critical habitat, over and above the
original listing, is that it creates a presumption that modification of
the land will ``take'' members of the species. The Service is obliged
to calculate the impact of deterring landowners use of their land. If
any economic use of the land not already developed is prevented, the
Service is liable to compensate the private landowner for such losses.
Our Response: Any redistricting of land to Conservation and any
corresponding loss of economically beneficial use would be decided by
the State Land Use Commission, not the Service, based on an array of
state laws and other factors, including the extent to which the
proposed reclassification conforms to the applicable goals, objectives,
and policies of the Hawaii state plan (see our response to comment
29a); the extent to which the proposed reclassification conforms to the
applicable district standards; and the impacts of the proposed
reclassification on the following: preservation or maintenance of
important natural systems or habitats; maintenance of valued cultural,
historical, or natural resources; maintenance of other natural
resources relevant to Hawaii's economy; commitment of state funds and
resources; provision for employment opportunities and economic
development; and provision for housing opportunities for all income
groups; and the representations and commitments made by the petitioner
in securing a boundary change.
In chapter VI, section 4 of the November 2002 DEA under indirect
costs and in section 4 of the Addendum, they examined the indirect
costs of critical habitat designation, such as where critical habitat
triggers the applicability of a State or local statute. The economic
analysis did not conclude that designation of critical habitat on
Agricultural lands would prevent a rancher from using those lands.
Rather, the economic analysis recognized that many areas within the
critical habitat designation have been grazed for tens or hundreds of
years, yet still contain the primary constituent elements for
Blackburn's sphinx moth. The DEA concluded that sustainable grazing
does not adversely affect the moth, and in fact, may indirectly benefit
the species by reducing fire danger and controlling nonnative weeds.
Moreover, the DEA concluded that areas historically subject to grazing
were unlikely to meet the standards of a natural ecosystem required to
be put in the Protective Subzone (HAR Sec. 13-5-11). As a result, even
if Agricultural land within the critical habitat designation were
redistricted to Conservation, the DEA anticipated that agricultural
activities could continue because typical agricultural activities are
allowed in all subzones, except the Protective Subzone, with permission
of the State Board of Land and Natural Resources (BLNR).
(30) Comment: Multiple commenters stated the proposal fails to
properly consider the importance of cooperation and goodwill between
the Service and private landowners, and the impact critical habitat
designations will have in discouraging voluntary partnerships on
private lands.
Our Response: We recognize the importance of landowner cooperation
for conservation of listed species. This is true for many of the lands
designated for the Blackburn's sphinx moth that are under private
ownership. We also recognize that critical habitat designations could
potentially have a negative impact on voluntary partnerships with
private landowners. Conservation of the moth requires control of
threats from alien species and fire, and outplanting of host plant
species that have been extirpated from the wild. Several owners have
indicated that including their lands in a critical habitat designation
would have a negative impact on their existing and future voluntary
conservation efforts for the moth and other species. After weighing the
benefits of including these areas as critical habitat with the benefits
of excluding them, we concluded that the designation of critical
habitat would have a net negative conservation effect in some
situations, and we excluded some of these areas from the final
designation of critical habitat. See our discussion under the
Exclusions Under Section 4(b)(2) section.
(31) Comment: One commenter stated that although they support
protection for endangered species, they are also concerned about
protecting nonnative species. The current interpretation of critical
habitat allows the Federal government and its partners to utilize any
methodology they wish in dealing with feral animals, even though such
[[Page 34724]]
methods may be cruel and environmentally unsound.
Our Response: The designation of critical habitat does not give the
Federal government and its partners the authority to utilize any
methodology they wish in dealing with feral animals. Any potential
animal control program would be subject to all applicable State,
Federal, and local laws.
(32) Comment: DATA commented that the Service has provided
inadequate support for its decision to reverse its prior determination
that designation of critical habitat for the Blackburn's sphinx moth is
not ``prudent.''
Our Response: Our reasoning for determining that the designation of
critical habitat for the Blackburn's sphinx moth is prudent is
thoroughly discussed in the final rule listing the moth as an
endangered species (65 FR 4770), which was published in the Federal
Register on February 1, 2000, and is consistent with recent case law.
(33) Comment: DATA stated that the proposed rule does not contain
an analysis of the potential impacts to aviation safety that might
result from the designation of certain areas contained within proposed
Unit 3. The Service is required by law to analyze any relevant
potential impacts when proposing a specific area as critical habitat.
The commenter recommended that the proposed rule be withdrawn until an
analysis of the potential impacts to aviation safety has been
conducted.
Our Response: As discussed in the DEA (Chapter VI, section 3.h.
Hawaii Department of Transportation, Airports Division expressed
concern about designating critical habitat within the boundaries of
Kahului Airport, due to possible conflicts with safety requirements. In
this final rule, we have not included Kahului Airport lands from
critical habitat designation due to a lack of primary constituent
elements or because the areas were not essential to the moth's
conservation (see Summary of Changes from the Proposed Rule section).
We are unaware of any other areas in which aviation safety may be an
issue as a result of the designation of critical habitat for the
Blackburn's sphinx moth.
(34) Comment: The Service has misinterpreted the intent of the Act
with exclusion of areas under 3(5)(A)(I). If a specific area of
Blackburn's sphinx moth habitat is recognized to be critical to the
extent that management is already taking place, the notion that such
management renders designation unnecessary does not make sense. In
fact, designation of these areas would seem more urgent.
Our Response: Although we disagree with the commenter, we have not
found any areas that are currently adequately managed for the moth.
Therefore, we have not excluded areas on that basis. Please also refer
to our response to Comment 26.
(35) Comment: The proposal violates the ``commerce clause'' because
the Blackburn's sphinx moth is not related to interstate commerce.
Critical habitat designation, and the underlying decision to list the
species as endangered, are the subject of the designation and exceed
the constitutional limits of the Service's delegated authority.
Congress enacted the Act as an exercise of its Commerce Clause power
and delegated exercise of that Commerce Clause power to the Service to
apply the Act by regulation. The listed species exists only in Hawaii
and does not cross State lines. Nor is it in commerce as the subject of
any economic endeavor and it lacks any commercial value. Therefore, the
Service's regulations listing this species and designating critical
habitat for it within Hawaii exceed the Federal power to regulate
interstate commerce under the governing precedents interpreting the
Commerce Clause.
Our Response: The Federal government has the authority under the
Commerce Clause of the U.S. Constitution to apply the protections of
the Act to species that occur within a single State. A number of court
cases have specifically addressed this issue. The National Association
of Homebuilders v. Babbitt, 130 F. 3d 1041 (D.C. Cir. 1997), cert.
denied, 1185 S.Ct, 2340 (1998), involved a challenge to application of
Act's prohibitions to protect the listed Delhi Sands flower-loving fly
(Rhaphiomidas terminatus abdominalis). As with the species at issue
here, the Delhi Sands flower-loving fly is endemic to only one State.
The court held that application of the ESA to this fly was a proper
exercise of Commerce Clause power because it prevented loss of
biodiversity and destructive interstate competition. Similar
conclusions have been reached in other cases, see Gibbs v. Babbitt, No.
99-1218 (4th Cir. 2000) and Rancho Viejo v. Norton, No. 01-5373 (D.C.
Cir. 2003).
Issue 6: Economic Issues
(36) Comment: HDOA suggested that the Service is required to
conduct a cumulative impacts analysis to determine the economic impacts
resulting from all critical habitat designations on all the islands.
Our Response: The commenter appears to be using the term
``cumulative impacts'' in the context of the National Environmental
Policy Act (NEPA). We are required to consider only the effect of the
designation of critical habitat for Blackburn's sphinx moth. The
appropriate baseline for use in this analysis is the regulatory
environment without this regulation. Against this baseline, we attempt
to identify and measure the incremental costs and benefits associated
with this designation of critical habitat. When critical habitat for
other species has already been designated, it is properly considered
part of the baseline for this analysis. Proposed and future critical
habitat designations for other species in the area will be part of
separate rulemaking, and consequently, their economic effects will be
considered separately.
We have determined that an Environmental Assessment and/or an
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act, which includes critical habitat designations. A notice outlining
our reason for this determination was published in the Federal Register
on October 25, 1983 (48 FR 49244).
(37) Comment: The DEA lists economic impacts; however, there is no
indication that the Service has identified appropriate critical habitat
boundaries or modified the critical habitat boundaries in consideration
of these economic impacts.
Our Response: We considered the economic impacts that were analyzed
and summarized in the DEA, and addendum, and excluded two units
(proposed Units 5a and 5b) from critical habitat (see Exclusions Under
Section 4(b)(2)).
(38) Comment: The DEA fails to distinguish potential costs
resulting from the designation from those costs resulting from listing
the moth as endangered. Nowhere does the draft provide any analysis of
what impacts, if any, designating critical habitat for the moth would
impose above and beyond those associated with the species' listing.
Because the DEA does not distinguish between these costs, it cannot
exclude proposed critical habitat from a final critical habitat
designation pursuant to section 4(b)(2).
Our Response: Our draft economic analysis evaluated potential
future effects associated with the listing of Blackburn's sphinx moth
as an endangered species under the Act, as
[[Page 34725]]
well as any potential effect of the critical habitat designation above
and beyond those regulatory and economic impacts associated with
listing. To quantify the proportion of total potential economic impacts
attributable to section 7 implementation, including both the section 7
listing provisions and the proposed critical habitat designation, the
analysis evaluated a ``without section 7'' baseline and compared it to
a ``with section 7'' scenario. The ``without section 7'' baseline
represented the current and expected economic activity under all
modifications except those associated with section 7, including
protections afforded the species under Federal and State laws. The
difference between the two scenarios measured the net change in
economic activity attributable to the implementation of section 7 for
the Blackburn's sphinx moth. The categories of potential direct and
indirect costs considered in the analysis included the costs associated
with: (1) Conducting section 7 consultations associated with the
listing or with the critical habitat, including incremental
consultations and technical assistance; (2) modifications to projects,
activities, or land uses resulting from the section 7 consultations;
(3) potential delays associated with reinitiating completed
consultations after critical habitat is finalized; (4) uncertainty and
public perceptions resulting in loss of land value from the designation
of critical habitat; (5) potential effects on property values including
potential indirect costs resulting from the loss of hunting
opportunities and increased regulation related costs due to the
interaction of State and local laws; and (6) potential offsetting
benefits associated with critical habitat, including educational
benefits.
The majority of consultations resulting from the critical habitat
designation for the Blackburn's sphinx moth are likely to address land
development and road construction or road expansion activities. The
planned road projects (proposed Ane Keohokalole Highway) within
proposed Unit 5A is not in this designation. The final economic
analysis estimates that, over the next 10 years, the designation may
result in potential direct economic costs ranging from approximately
$1,183,800 to $1,739,000, and concludes that economic impacts from the
designation of critical habitat would not be significant.
A more detailed discussion of our analyses are contained in the
November 15, 2002, DEA and the Addendum to the DEA. Both documents are
available for inspection at the Pacific Islands Office (see ADDRESSES
section).
(39) Comment: The Service has failed to consider the cascading
impacts resulting from State-led regulatory activities that must, by
law, be implemented as a result of critical habitat designation.
Additional concerns include the broad interpretation of ``take'' under
Hawaii's Endangered Species Act (ESA) (HRS Ch. 195D); mandatary
``downzoning'' of private lands under Hawaii's Land Use Law (HRS Ch.
205); unreasonably frequent requirements for full environmental impact
statements for minor actions under Hawaii's Environmental Impact
Statement Law (HRS Ch. 343); unreasonable permit delays for County-
regulated Special Management Area permits under Hawaii's Coastal Zone
Management Law (HRS Ch. 205A); and uncertainty of interpretation of the
reach and extent of State regulatory authority under Hawaii's State
Water Code (HRS Ch. 174C) and implications for water quality standards
under Hawaii Administrative Rules Ch. 11-54, Water Quality Standards.
Our Response: Possible costs resulting from interplay of the Act
and Hawaii State laws were discussed in Chapter VI, section 4 of the
November 2002 DEA under indirect costs and in section 4 of the
Addendum. They examine the indirect costs of critical habitat
designation, such as where critical habitat triggers the applicability
of a State or local statute. Take prohibitions under Hawaii law are
attributable to a listing decision and they are not coextensively costs
of critical habitat designations. Where it is the listing of a species
that prompts action at the State or local level, the impacts are not
attributable to critical habitat designation and are not considered in
the economic analysis of critical habitat designation. Other possible
indirect impacts, such as the loss of development or loss in property
values due to State redistricting of land from agricultural or rural to
conservation were analyzed (see also our response to Comment 29a).
However, there is considerable uncertainty as to whether any or all of
these indirect impacts may occur since they depend on actions and
decisions other than the source statute, and there is only limited
history to serve as guidance.
(40) Comment: A commenter stated the following: The narrative
exclusion of areas underlying currently developed areas such as
buildings and driveways (``unmapped holes'') is too vague considering
the cryptic nature of the moth and its habitat. Although the DEA
concedes that the lack of clarity can force landowners to incur costs
to investigate the implications of the regulations, it fails to fully
consider the economic impacts of landowners' costs to properly
demarcate ``unmapped holes'' in the process of obtaining necessary
permits for development projects. The estimate that this will only take
15 to 40 hours is too low given the size of the designated areas, the
vagueness of the regulatory exclusion, and the real costs of obtaining
development approvals.
Another commenter also stated that the DEA's analysis of potential
costs expected to be incurred by private landowners to investigate the
implications of critical habitat on their lands was flawed, because the
analysis failed to recognize that the costs to investigate the
implications of critical habitat are associated with the designation
process, not additional costs that the final designation would impose.
The commenter further stated that any concerned party investigating the
proposed designation of critical habitat on their lands would have
already hired lawyers and consultants, and would have incurred the
costs associated with figuring out the implications of designation on
their lands. Moreover, were the private landowners' lands ultimately
excluded from the final critical habitat designation, the landowners
would still not recoup those costs; the money has already been spent.
Thus, the commenter concluded that these costs should not be included
in the analysis of future potential costs from designation since they
have already been incurred, and were incurred, regardless of the final
designation decision.
Our Response: Chapter VI, section 4.I of the DEA indicated that
landowners may want to learn how the designation may affect (1) the use
of their land (either through restrictions or new obligations), and (2)
the value of their land. It is recognized that some landowners may
spend a great deal of time investigating, while other landowners may
not conduct any investigation. The estimate contained in the DEA is a
range that reflects the total cost for all landowners based on an
average cost per landowner. Public comment did not provide an
alternative estimate of time or cost incurred in order to investigate
implications of critical habitat sufficient to require changes to the
estimated average cost per landowner. Thus, the Addendum does not
revise the number of hours that the DEA estimated the landowner and/or
his attorneys or professional staff would spend on investigating the
issues.
[[Page 34726]]
However, the Addendum does revise the number of affected landowners to
65 because of the intended modifications to the critical habitat
indicated by us. As described in section 4.e. of the Addendum, an
estimate of the costs involved with investigation for the intended
designation ranges from roughly $173,000 to $618,000.
While some landowners may expend time and money to investigate the
implications of critical habitat on their land during the designation
process, many landowners may not do so until after final designation is
complete. Thus, the DEA and the Addendum conservatively treat these
costs as costs attributable to the final designation.
(41) Comment: DOTA stated that project modification costs, such as
those to roads, are underestimated, particularly the cascading effect
of project realignment with the purpose of avoiding critical habitat.
Our Response: The project modification cost estimates were
developed considering a wide array of projects, locations, and
contingencies, as well as by examining the limited historical record of
project modifications regarding the Blackburn's sphinx moth. The
planned road project (proposed Ane Keohokalole Highway) within proposed
Unit 5A is not in this designation.
(42) Comment: HCDCH stated the following: The DEA only partially
considers the ``indirect impacts'' of critical habitat designation, and
instead focuses on ``direct impacts'' resulting primarily from
consultations under section 7 of the Act because of precedent set by
New Mexico Cattle Growers, the Service must fully consider both types
of impacts, and the DEA must present a thorough analysis of these
economic effects. Several other commenters stated the DEA
overemphasizes the direct costs attributable to critical habitat
designation and ignores or omits other indirect impacts, such as:
Impacts to housing supply, including affordable housing; decreases in
public revenues as a result of lost construction and reduced economic
activity; impacts to subsistence activities and their role in the local
economy; and impacts to public infrastructure such as roads and water
systems.
Our Response: An analysis of both direct and indirect impacts was
presented in chapter VI of the DEA and sections 3 and 4 of the
Addendum. With respect to indirect effects, there is considerable
uncertainty regarding whether any or all of the indirect impacts may
actually occur, because they depend upon actions and decisions by
entities other than the Service under circumstances for which there is
limited or no history that can be used to determine the likelihood of
different outcomes. Thus, based on the available information, indirect
impacts were discussed qualitatively in the DEA and Addendum. In
addition, where possible, estimates were given of worst-case scenarios
for illustrative purposes and a sense of the likelihood of occurrence
was provided.
The impact to the supply of affordable housing was discussed in the
DEA in chapter VI, section 4.e. The DEA recognized that some landowners
feared the possibility of redistricting land within the critical
habitat designation to the Conservation District, and discussed the
impact to the affordable housing supply should redistricting occur and
prevent planned development. Specifically, in regards to the planned
Villages at Laiopua (VOLA), affordable housing development planned by
the State in proposed Unit 5b (island of Hawaii), the DEA noted that
the County of Hawaii requires developers to provide a certain number of
affordable housing units, or pay $4,720 to the County for each unit not
built. Using this value as a proxy for the social value of affordable
housing, the DEA estimated that the loss of 570 affordable units in the
VOLA development equates to a loss of almost $2.7 million to the
community. We did not include this area in this designation (see
Exclusions Under Section 4(b)(2)).
Further, the DEA also addressed the potential impact on public
revenues as a result of lost construction. In chapter VI, section 4.e.,
the DEA recognized that a loss in development can lead to economic
losses due to the ``ripple-effect.'' For example, if a home cannot be
built, both the developer and construction company who would have built
the home would have reduced revenues. In addition, the lumber company
and other companies supplying the construction company would have
reduced revenues, an impact that would ``ripple'' through the regional
economy and could result in reduced public revenues. However, due to
the availability of suitable land outside the critical habitat
designation, the DEA concluded that any economic activity displaced
within critical habitat for the moth due to redistricting of land to
the Conservation District would still be expected to occur, just in
other locations. Thus, the DEA implicitly concluded that there would be
no appreciable impact on public revenues.
The DEA addressed the impacts to subsistence and their role in the
local economy in chapter VI, section 4.d. The DEA recognized that
subsistence not only plays an important role in community life, but
also provides important sustenance to many residents in communities on
Maui, the island of Hawaii, and Molokai. The DEA estimated that
restriction of access and prohibition of subsistence activities in all
areas proposed for critical habitat designation was extremely unlikely,
and that more likely to occur were restrictions in small, localized
areas of significant biological importance. Because of the strong
stewardship and conservation values associated with those practicing
subsistence activities within the proposed critical habitat, as well as
the traditional recognition of the value of protecting certain areas
through the kapu system, the DEA concluded that the impact of critical
habitat designation on subsistence activities would be minimal.
Finally, the economic analysis addressed impacts to public
infrastructure such as roads and water systems in chapter VI, sections
3.I and 3.j. of the DEA, and section 3.j. of the Addendum. These
sections addressed projects planned within the critical habitat
designation. Final estimated potential section 7 costs for planned road
projects are $32,600 for consultations and $985,000 to $1,230,000 for
project modifications. Final estimated potential section 7 costs for
planned water projects are $20,600 to $61,200 for consultations and up
to $6,200 for project modifications.
(43) Comment: A commenter stated that the DEA acknowledges some or
all lands designated as critical habitat may be redistricted/rezoned at
the State or county level to preclude further development, and that the
actual economic costs of redistricting could be very high. The
commenter noted that while these estimates are mentioned in the text,
they are not included in t