[Federal Register: April 9, 2003 (Volume 68, Number 68)]
[Rules and Regulations]
[Page 17429-17470]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap03-13]
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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 Kauai Cave Wolf Spider and Kauai Cave Amphipod; Final
Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH01
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Kauai Cave Wolf Spider and Kauai Cave Amphipod
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 Kauai cave wolf spider (Adelocosa anops) and
the Kauai cave amphipod (Spelaeorchestia koloana) pursuant to the
Endangered Species Act of 1973, as amended (Act). The critical habitat
designation consists of 14 units whose boundaries encompass an area of
approximately 110 hectares (ha)(272 acres (ac)) on the island of Kauai,
Hawaii. 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 the proposed rule,
including data on economic and other impacts of the designation.
DATES: This rule becomes effective on May 9, 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, 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:
Background
The Hawaiian archipelago consists of eight main islands and the
numerous shoals and atolls of the northwestern Hawaiian Islands. The
islands were formed sequentially by basaltic lava that emerged from a
hot spot in the earth's crust located near the current southeastern
coast of the island of Hawaii (Stearns 1985). Kauai is the oldest of
the main islands, with most of its land mass being formed between 3.6
and 5.6 million years ago (MYA) from a single, large shield volcano,
now represented by the Alakai Plateau and adjacent ridges. Younger,
secondary eruptions occurred over the eastern portion of the island as
recently as the Pleistocene era (approximately 0.6 MYA). Due to the age
of the island, the terrain is heavily eroded, with steep water-carved
valleys and gulches characterizing the slopes of the Alakai Plateau and
other isolated ridges. The Alakai Plateau is one of the wettest places
on earth, receiving an average of 1.3 meters (m) (444 inches (in)) of
rain annually (Juvik and Juvik 1998). Rain is delivered to the island
by prevailing trade winds which come from the northeast. Southern and
southwestern portions of the island lie in the rain shadow of the
Alakai Plateau, ridges, or other uplands, and receive relatively little
rain (NOAA 1990-1999).
The Koloa District lies in the southeast corner of Kauai and
includes the town of Koloa and the community and resort area of Poipu.
The area is dry to mesic (moderate rainfall), receiving an average of
107 to 223 centimeters (cm) (42 to 88 in) of rain annually. Although
the Koloa District includes upland areas such as ridge lines derived
from the Alakai Plateau and Haupu ridge, most human-occupied areas lie
between sea level and about 183 m (600 feet (ft)) in elevation.
The Koloa area is composed of the youngest rock on Kauai, the Koloa
Volcanics (MacDonald et al. 1960; Langenheim and Clague 1987), with
flows dating from between 0.6 and 1.4 million years. Younger,
consolidated marine deposits and lithified sand dunes lie on top of
some coastal portions of the older Koloa Volcanics. The great age and
subsequent weathering that has occurred on Kauai has resulted in most
lava tubes having been collapsed or filled with sediments (MacDonald et
al. 1960; Howarth 1973; Berger et al. 1981; Howarth 1987b), relative to
younger islands (e.g., Hawaii) where lava tubes are common features
(Howarth 1983a). It is only in portions of the Koloa District, with its
younger, cave-bearing rock, relative lack of developed soils, and
minimal rainfall and subsequent sedimentation, that caves are known to
be relatively common features on Kauai (Howarth 1981).
Kauai Cave Wolf Spider
The Kauai cave wolf spider (Adelocosa anops) is a member of the
wolf spider family (Lycosidae). Spiders in this family are
characterized by a distinctive eye pattern, including two particularly
large eyes located within the middle row of eight eyes (Foelix 1982).
While wolf spiders are typically visual predators, the most conspicuous
physical character of the Kauai cave spider is its complete lack of
eyes. This character is unique among wolf spiders and, in part,
provides justification for the recognition of a separate genus for this
taxon (Gertsch 1973). A few species of wolf spider have reduced eyes,
including another cave-adapted species on the island of Hawaii, but
only in the Kauai cave wolf spider are the eyes entirely absent. Adults
of the Kauai cave wolf spider are about 12.7 to 19.0 millimeters (mm)
(0.5 to 0.75 in) in total body length with a reddish-brown carapace,
pale to silvery abdomen, and beige to pale orange legs. The hind margin
of each chelicera (biting jaw) bears three large teeth, two situated
basally, and the third at the outer end of the chelicera. The tibiae
(the fifth segment of the leg) of the two front pairs of legs have four
pairs of ventral spines, and the tarsi (ultimate segments) and
metatarsi (penultimate segments) of all legs bear unusually long,
silky, and shiny trichobothria (sensory hairs) (Gertsch 1973).
Dr. Frank Howarth, of the Bishop Museum, first discovered the Kauai
cave wolf spider in Koloa in 1971, and it was formally described by
Willis Gertsch of the Bishop Museum (Gertsch 1973). The Kauai cave wolf
spider is a predator, and although blind, can detect the presence of
potential food items through chemo-tactile sensory organs and actively
stalks its prey (Howarth 1983a). Although predation has not been
observed in the field, the spider probably feeds on the Kauai cave
amphipod, other cave-inhabiting arthropods, and alien species of
arthropods that enter the cave system. Compared to most wolf spiders,
the reproductive capacity of the Kauai cave wolf spider is extremely
low, with only 15 to 30 eggs produced in each egg sac (Wells et al.
1983; Howarth 1991). Newly hatched spiderlings are unusually large for
wolf spiders, and are carried on the back of the female for only a few
days (Howarth 1991; Howarth and Mull 1992). Other species of wolf
spider may have in excess of 100 offspring per clutch and the newly
hatched spiderlings are relatively small (Foelix 1982; Howarth 1991;
Howarth and Mull 1992).
Kauai Cave Amphipod
The Kauai cave amphipod (Spelaeorchestia koloana) was discovered in
some of the same caves as
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the Kauai cave wolf spider in 1971 (Bousfield and Howarth 1976).
Because of the unusual attributes of a highly reduced pincher-like
condition of the first gnathopod (thoracic appendage) of the amphipod,
and the second gnathopod being mitten-like in both sexes, this taxon is
placed in its own unique genus (Spelaeorchestia) within the family
Talitridae (Bousfield and Howarth 1976). This species is also
distinctive in its lack of eye facets and pigmentation, and extremely
elongate, spiny, post-cephalic appendages. Adult cave amphipods are 7
to 10 mm (0.25 to 0.4 in) in length with a slender, laterally
compressed body and a hyaline (nearly transparent) cuticle, giving it a
shiny, translucent appearance. The second pair of antenna are slender
and elongate, with the flagellum (slender outer part of the antenna)
only slightly longer than the peduncle (narrow stalk attaching to the
body). Peraeopods (abdominal walking legs) are very elongate, with
slender, attenuated claws. All pleopods (swimming legs) are reduced,
with branches vestigial or lacking. Uropods (tail-like appendages) 1
and 2 have well-developed pre-peduncles, and brood plates in the mature
female are vestigial or entirely absent (Bousfield and Howarth 1976).
The Kauai cave amphipod is a detritivore and has been observed
feeding on the roots of Pithecellobium dulce (Manila tamarind) and
Ficus sp. (fig), rotting roots, sticks, branches, and other plant
material washed into, or otherwise carried into, the caves, as well as
the fecal material of other arthropods. In large cave passages, most
individuals are found in association with roots or rotting plant
debris. When disturbed, this cave amphipod typically moves slowly away
rather than jumping like other amphipods. Nothing is known of the
reproductive biology of this amphipod, but the vestigial brood plates
of the female suggest they give birth to a small number of large
offspring (Poulson and White 1969; Bousfield and Howarth 1976).
Cave Habitat
Cave habitats have a high degree of zonation which plays a major
role in the distribution of cave-dwelling organisms. Howarth and Stone
(1990) recognize five distinct zones, not all of which are always
present within any one cave. The first zone, the ``entrance zone,''
typically receives large amounts of solar radiation and is often
vegetated with surface plants. Within the second zone, the ``twilight
zone,'' ambient light levels decrease as one moves away from the
entrance and photosynthesizing plants that may be present in the
entrance decline. The third zone is referred to as the ``transition
zone.'' The transition zone lacks light penetrance from the entrance,
but other outside factors still greatly influence the cave habitat
(e.g., ample air movement and daily temperature fluctuations). All of
the above described zones (entrance, twilight, and transition) are
typically influenced by surface conditions, daily cycles of warming and
cooling, surface humidity, and a fair degree of air exchange occurring
between these zones and surface habitats over relatively short periods
of time (daily). The fourth cave zone, the ``dark zone,'' typically
exhibits a sharp climatological change from the three previously
described zones. The dark zone largely lacks daily air exchange with
the surface and the three previously described zones. The relatively
constant conditions encountered in the dark zone are often the result
of a narrowing cave passage or low ceiling(s) that serve as physical
barriers that restrict air exchange with other cave zones, or may be
due to an up-slope orientation into a dead-end passage that traps warm,
moist air. While the dark zone may undergo drastic changes in
temperature and relative humidity, this more often is associated with
seasonal rather than diurnal changes in air temperature. As a result of
this, dark zones are seasonally stable in their micro-climatic
conditions, remaining warm and humid during warm seasons. The final
recognized cave zone is that of the ``stagnant'' zone (Howarth and
Stone 1990). This zone lies deeper than the dark zone, receiving
significantly less air exchange. As a consequence, the composition of
gasses within this last zone is often largely controlled by the
decomposition of organic matter and maintains high concentrations of
carbon dioxide and low concentrations of oxygen. While considered
inhospitable by human standards, field observations have indicated that
obligate cave-dwelling species are highly tolerant of these conditions
and many may, in fact, thrive in the stagnant air zone of caves
(Howarth and Stone 1990).
Cave habitats almost always contain small voids, cracks, and
passages (mesocaverns) that cannot be accessed by researchers (Howarth
1983b), but remain readily accessible (or preferred) by small
troglobites (obligate cave-dwelling animals). Although such voids and
cracks can occur in any zone and possess characteristics of each of the
five zones, they frequently represent areas of reduced air flow and
consequently are most similar to the dark and stagnant air zones.
Passages and mesocaverns in limestone caves can form or be destroyed at
almost anytime in the life of the cave, depending on the chemical
characteristics of the rock and normal geologic processes. Limestone
caves often become larger over time as acidic waters from the surface
dissolve away the calcium carbonate bedrock. Since water flow enlarges
and creates caves in limestone by solution, subterranean voids do not
fill through erosion. If any do, the water quickly finds a different
path and enlarges a new void. Limestone caves grow deeper as the water
table sinks and the surface over the caves dissolves away. Limestone
caves improve with age because, although individual voids and passages
may be short-lived, limestone caves continuously reform so that habitat
can remain suitable for very long time spans. Caves derived from lava
tube systems are fundamentally different from limestone in that basalt
is not as readily soluble. Hence, lava tube passages and mesocaverns do
not typically dissolve away and become larger (formed), but are subject
to filling with sediments (destroyed).
The tendency for Hawaiian basalt to shrink and crack upon cooling
results in younger lava flows having an abundance of mesocaverns
throughout their structure that may serve as habitat or as corridors
between habitats. However, the cave-building process typically stops
some time after cave and crack formation, and is replaced by the cave-
filling processes as weathering and sedimentation begin filling in
mesocaverns and passages. On younger islands, the abundance of
mesocaverns may allow cave animals to move among and between larger,
adjacent lava tubes (Berger et al. 1981; Howarth 1991). However,
because these smaller voids become filled with erosional sediment in
older flows like the Koloa Volcanics, and as a result of surface
disturbance (Mueller-Dombois and Howarth 1981; Adam Asquith, Service,
in litt., 1994a), it is less likely that the Kauai cave animals can
readily move among separate lava tubes or other cave systems.
Cave ecosystems are typically regarded as being food limited, and
in most caves, the resident food-web communities require food input
which is derived from surface systems based upon a photo-autotrophic
(i.e., photosynthesizing plants) food base (Culver 1986). Nutrients may
enter caves via subterranean streams or other surface runoff; as guano
from bats, birds, rodents, or other cave visitors or residents; or from
plant roots that penetrate the cave (Culver 1986). Of these methods,
roots from surface plants
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are the primary means by which Hawaiian caves receive nutrient input
(Howarth 1973). Protection and restoration of surface plant communities
is, therefore, an extremely important consideration for cave
conservation in Hawaii, as it is elsewhere (Culver et al. 2000).
Factors or activities that impact or modify surface vegetation over
caves (e.g., fire, replacement of native or other perennial vegetation
with grasses or some nonnative plants) can damage or destroy the
underlying cave community.
Adaptations of Troglobitic Animals
As discussed in the species descriptions of the Kauai cave wolf
spider and cave amphipod, troglobites typically possess specialized
anatomical characters that represent adaptations to life in the cave
environment. Such anatomical adaptations include enlarged and/or
elongate tactile-sensory appendages (e.g., legs or other appendages,
antennae), and the lack of, or reduced, pigmentation and/or eyes (Barr
1968). Less obvious adaptations are also present in the physiology of
troglobites and this has the potential to restrict their distribution
within various cave zones (Huppop 1985). Laboratory studies with
Hawaiian crickets (Caconemobius spp.) were conducted that compared the
abilities of closely related surface and cave-dwelling forms to cope
with desiccation (Ahearn and Howarth 1982). Surface-dwelling species
exhibited considerably lower evaporation/desiccation rates than did the
troglobitic species, and in one case, the surface species became
dehydrated at half the rate of its cave-inhabiting relative. This low
desiccation threshold largely confines these troglobites to the high-
humidity environment of the deeper portions of caves, the dark and
stagnant air zones. While such tests have not been conducted on the
Kauai cave species, a logical assumption is that they have similar
humidity tolerances, and this has been supported by field studies and
observations conducted in the Kauai caves (see below). Similar
adaptations in other troglobitic faunas (Vandel 1965; Barr 1968; Huppop
1985) support the universality of these traits in troglobitic animals.
Given the great vulnerability of troglobites to desiccation,
adjacent mesocavern habitats will contain appropriate microclimate
conditions and provide habitat or serve as refugia for troglobites when
conditions in the main cave passages become drier or otherwise less
accommodating. For example, during a previous survey of one cave of the
Koloa area, the Kauai cave amphipod was not observed (Miura and Howarth
1978). However, on a subsequent survey, the floor of a small, dead end
passage was saturated with 40 liters (10 gallons) of water, and 24
hours later amphipods had moved into this area, presumably from the
surrounding mesocaverns (Howarth 1983a, 1983b). The foraging activities
of both the Kauai cave wolf spider and the Kauai cave amphipod are
restricted to dark, moist areas of large caverns and mesocaverns, and
it is possible that the majority of their time is spent within such
spaces.
Both Howarth (1983a) and Huppop (1985) have postulated that
troglobites may be adapted to cope with low levels of oxygen and/or
elevated concentrations of carbon dioxide, similar to conditions that
would be encountered in the stagnant air zone of caves. This ability
has been substantiated from observations in known stagnant air zones
(Howarth and Stone 1990), as well as under controlled laboratory
experiments. Hadley et al. (1981) conducted experiments with Hawaiian
wolf spiders, both troglobites (Lycosa howarthi) and a related surface-
dwelling species (Lycosa sp.). These researchers found the surface-
dwelling spider had a higher metabolic rate, requiring 2.5 times more
oxygen than its cave-dwelling relative. The reduced need for oxygen
would better allow these spiders to survive in stagnant air cave zones.
Given the ability of at least some troglobites to cope with reduced
oxygen and elevated carbon dioxide, as well as their ability to inhabit
inaccessible mesocaverns, it is assured that many troglobites will be
able to reside in areas not readily surveyed by biologists. Hence, cave
habitats will extend well beyond those areas accessible by researchers
(Howarth 1983a).
Species Distribution and Abundance
The Kauai cave wolf spider and Kauai cave amphipod are generally
restricted to cave dark and stagnant air zones, or other subterranean
habitats such as cracks, voids, and other mesocaverns containing
microclimate conditions similar to those zones. However, both the cave
wolf spider and amphipod may be found in sub-optimal cave habitats
(e.g., cave transition zone) when conditions are appropriate (e.g.,
elevated humidity during periods of increased rainfall). All of the
caves where the cave amphipod has been located contain penetrating
plant roots and/or other decomposing plant material, which serves as a
food source for this detritivore. Plant material upon which the
amphipods feed need not be from native plants, although nonnative toxic
or indigestible plants may be inappropriate or damaging for amphipod
foraging. The Kauai cave wolf spider can be found in caves where the
cave amphipod does not occur, but other nonnative arthropods (e.g.,
cockroaches, wood lice, small spiders) can be used as food for this
generalist predator.
Prior to the publication of the proposed rule to designate critical
habitat for the Kauai cave wolf spider (67 FR 14671, March 27, 2002),
the spider had been observed in only five caves in the Koloa area since
its discovery in 1971. Through mapping of one of the caves, the Service
considers two of the caves originally believed to be separate to
actually be one system with two entrances. Since 1996, Service
biologists have conducted annual surveys of the caves, and starting in
1998, we have conducted biannual monitoring visits to three of the
known occupied caves. Observations recorded in these visits include a
total count of animals within each cave, potential threats to the
listed cave organisms or their habitat, and the cave's condition (e.g.,
human disturbance, presence of standing water). The following
information is based on these monitoring visits.
In two of the four known occupied caves, wolf spiders have been
seen on only three occasions, but have been more often observed in two
other caves. Of the two more frequently occupied caves, in only one of
these wolf spiders have been encountered during every monitoring visit
with 14 to 28 individuals observed (USFWS data from January 18, 1996 to
November 20, 2002). The second cave contained a smaller number of wolf
spiders when they were found there (one to four per monitoring visit).
Since April 2000, no wolf spiders have been observed in this cave. The
decline of wolf spiders in this cave has been matched with a
corresponding increase in the number of resident brown violin spiders,
an alien, web-building species that likely preys upon both the Kauai
cave wolf spider and amphipod (A. Asquith, in litt. 1994b; David
Hopper, Service, in litt. 1999). Although these data are not
conclusive, the declining numbers of the Kauai cave wolf spider and
their increased absence in the second of the regularly occupied caves
warrants concern with regard to population persistence.
Since the publication of the proposed rule, more surveys have been
conducted and the spider has been verified to occur in two additional
caves (Tom Shigemoto, Vice President, Alexander and Baldwin, pers.
comm., 2002; Gordon Smith, Service, in litt. 2002), one of which was
previously unknown
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and the other was known only to be occupied by amphipods. Therefore,
the spider has verified occurrences in six caves.
The Kauai cave amphipod has been recorded from six caves in the
Koloa area but was only regularly encountered in only three of these
caves. In one of these three caves, where the amphipod was found with
the wolf spider, their numbers have ranged from 8 to 67 during the
biannual monitoring visits. In another regularly occupied cave,
amphipod numbers have increased steadily from 10 to 20 individuals per
visit in pre-1998 counts to over 300 individuals during a visit in
November 2000 (Service, unpub. data).
In the three caves less frequently occupied by the amphipod, the
lack of observations of the species is probably due to several factors.
In one of these caves, relative humidity is often below 100 percent,
which is a suboptimal condition for troglobites. Amphipods have been
found in this cave when humidity conditions are optimal, such as after
heavy rains which saturate the soil and increase the relative humidity
in the dark zone. In a second cave, amphipods appear to be resident but
were only observed during two visits that were conducted soon after the
cave had been exposed by heavy machinery, and prior to the cave being
re-closed for road construction (A. Asquith, in litt. 1999). The last
of these three caves has been visited infrequently and amphipods have
been observed during some, but not all, visits (Bousfield and Howarth
1976; D. Hopper, in litt. 1998a; D. Hopper, in litt., 2000a).
Since the publication of the proposed rule, the Service was
notified of a seventh cave where the amphipod's occurrence was
previously recorded (Bousfield and Howarth 1976). No additional
information has been provided on this particular cave nor do we know
the current status of the cave. Therefore, the amphipod has been known
from seven caves.
Despite the data obtained in our biannual monitoring counts, the
quantities of animals reported do not represent sound population
estimates. The methods needed to conduct non-damaging, mark-recapture
studies for accurate estimates of population size have not been
developed for these animals, and no attempt to conduct such studies
have been undertaken.
Cave systems may be separated by various physical barriers such as
subterranean streams, or areas with developed soils that have filled in
the mesocavern passages or habitats of these old caves (Mueller-Dombois
and Howarth 1981). The degradation and loss of naturally occurring
mesocavern habitats and corridors has likely been accelerated by
development or other land uses that often require clearing of
vegetation, blasting, and filling of trenches and construction sites.
These activities, as well as modern agricultural practices, exacerbate
the rates of sediment mobilization (Kirch 1982; Cuddihy and Stone
1990), resulting in the filling of caves and mesocaverns (Howarth 1973;
Mueller-Dombois and Howarth 1981; Burney et al. 2001).
Because distinct species can evolve in adjacent lava tubes even
when cave animals can move extensively through mesocaverns (Hoch and
Howarth 1993), it is reasonable to consider the separate localities of
these animals as different populations, even though intervening areas
of potential habitat cannot be surveyed. Thus, we have currently
verified a total of six spider populations and seven amphipod
populations that are distributed throughout the Koloa district as
follows: the Koloa Caves 1, 2, the newly discovered
spider cave, and adjacent areas west of Waikomo Stream are considered
to harbor three populations of the spider and two populations of the
amphipod; the seaward Kiahuna Caves 267 and 276
likely harbor two populations of the spider and one of the amphipod;
the Kiahuna Cave 210 harbors a separate population each of the
spider and amphipod; the Mahaulepu Cave harbors a separate population
each of the cave amphipod and the spider (Service, unpublished data,
1998-1999; G. Smith in litt. 2002); a small cave near the St. Raphael
church harbors a population of the cave amphipod; and a small cave near
the Koloa bypass road harbors a cave amphipod population.
Threats
Small populations are also demographically vulnerable to extinction
caused by random fluctuations in population size and sex ratio and to
catastrophes such as hurricanes (Soule 1983; Gilpin and Soule 1986). In
addition, the low reproductive potential of both cave species (less
than five percent of their surface relatives) means that they require
more time and space to recover from a disturbance than would similar
animals living on the surface (F. Howarth, in litt. 2001).
One of the major threats facing the Kauai cave wolf spider and the
Kauai cave amphipod is the introduction of invasive alien species (F.
Howarth, in litt. 2001). For example, an alien terrestrial nemertine
worm (Argonemertes dendyi) from Australia was discovered in the 1980s
on the island of Hawaii (Howarth and Moore 1983). This animal can live
and reproduce in caves and presumably feed on any invertebrates, such
as the Kauai cave wolf spider and the Kauai cave amphipod. The impact
on cave fauna is not known at this time (Howarth and Moore 1983). If
portions of the habitat are more or less isolated and protected, the
chances are greater that any one threat would not affect all occupied
caves at the same time and animals that survive may eventually re-
colonize their former habitat. This situation would also apply for
other surface disturbances, such as oil spills, pollution, and
pesticide application.
Human impacts in the Koloa caves, and resulting impacts on the
Kauai cave wolf spider and Kauai cave amphipod, are another concern.
Caves are frequently sought out by curiosity seekers, and over-use of
caves occurs readily due to their fragile nature (Howarth 1982; Culver
1986). In addition, both natural and cultural features (e.g., human
burials and associated artifacts) of caves are often damaged or
destroyed by collectors or vandals (Howarth 1982; N. McMahon, Hawaii
Dept. Historic Preservation, pers. comm., 2001). Unauthorized
visitation and vandalism is such an issue in caves that the Cave
Resources Protection Act (16 U.S.C. 4301 et seq.; 102 Stat. 4546) was
passed with the main intent of protecting cave-associated natural and
cultural resources. Unauthorized entry and vandalism of the Koloa caves
has been documented (D. Hopper, in litt., 1998b, 2000a), and public
interest in visiting caves is reflected in the publication of the
location of two of these caves in a recent tourist guide (Doughty and
Friedman 1998).
Human visitation to caves, even when not intentionally destructive,
often results in severe impacts to the resident troglobites or other
cave inhabitants. For example, nicotine is a potent insecticide that is
easily introduced into the cave environment through cigarette smoke or
discarded cigarette butts. Given the confined space and poor air
circulation in caves supporting suitable troglobite habitat, the
effects of cigarette smoke are far more pronounced in caves (Howarth
1982; Howarth and Stone 1993). The impacts of cigarette smoke are not
restricted to the main cavern; the smoke will also impact mesocavern
habitats, where its effects cannot be seen. Although less toxic than
cigarette smoke, wood fire smoke may be equally damaging since far more
smoke is produced and detrital food reserves may be burned. The use of
cigarettes, as well as fire activity, have been documented
[[Page 17434]]
in the Koloa caves (D. Hopper, in litt., 1998b, 2000a).
The narrow confines of most caves often result in focusing human
travel and associated impacts to a small area, and increase the
likelihood of troglobite mortality from unintentional trampling and the
destruction or disturbance of food resources (e.g., roots, detrital
matter). In addition, human use of caves frequently results in the
importation of garbage, which encourages the invasion of caves by
potential competitors and predators such as cockroaches (F. Howarth,
Bishop Museum, pers. comm., 1994; A. Asquith, in litt., 1994a).
The restricted area in which the Koloa cave animals occur is
rapidly undergoing development (KBGM Peat Marwick 1993). The shallow
cave habitat has been, and continues to be, degraded or destroyed
through surface alterations such as the removal of perennial
vegetation, soil fill, grading, paving, collapsing and filling of
caves, diversion of waste water into subterranean voids and spaces, and
other activities associated with development and agriculture.
The Kauai cave wolf spider and Kauai cave amphipod are also
increasingly at risk from predation and competition for space, water,
and nutrients by introduced, nonnative animals (Howarth 1985, pers.
comm., 1994; A. Asquith, in litt., 1994a, b; D. Hopper, in litt.,
1999), biological and chemical pest control activities associated with
residential and golf course development (Hawaii Office of State
Planning 1992); and an increased likelihood of extinction from
naturally occurring events due to the small number of remaining
individuals, populations, and their limited distribution.
Due to the small number of known caves inhabited by these animals,
we remain concerned that these threats may be exacerbated by the
publication of the exact locations of individual caves. Since
publication of the proposed listing rule for these animals in 1997 (62
FR 64340), we have found evidence of increased entry and vandalism in
these caves (D. Hopper, in litt. 1998b, 2000b). While direct and
intentional threats to these species from human take and collection are
not documented, the sensitive nature of these animals and their habitat
to increased human presence makes increased human awareness of these
caves a potential direct threat to the Kauai cave wolf spider and Kauai
cave amphipod.
Previous Federal Action
On June 16, 1978, we published in the Federal Register a proposal
to list the Kauai cave wolf spider as an endangered species and the
Kauai cave amphipod as threatened (43 FR 26084). That proposal was
withdrawn on September 2, 1980 (45 FR 58171) as a result of a provision
in the 1978 Amendments to the Endangered Species Act of 1973 that
required withdrawal of all pending proposals that were not made final
within 2 years of the proposal or within one year after passage of the
Amendments, which ever period was longer. An initial comprehensive
Notice of Review for invertebrate animals was published on May 22, 1984
(49 FR 21664), in which the Kauai cave wolf spider and Kauai cave
amphipod were treated as category 2 candidates for Federal listing.
Category 2 taxa were those for which conclusive data on biological
vulnerability and threats were not currently available to support
proposed rules to list the species as threatened or endangered.
We published an updated Notice of Review for animals on January 6,
1989 (54 FR 554). In this notice, the Kauai cave wolf spider and Kauai
cave amphipod were treated as category 1 candidates for Federal
listing. Category 1 taxa were those for which we had on file
substantial information on biological vulnerability and threats to
support preparation of listing proposals. However, in the Notice of
Review for all animal taxa published on November 21, 1991 (56 FR
58804), the two Kauai cave arthropods were listed as category 2
candidates. In the November 15, 1994, Notice of Review for all animal
taxa (59 FR 58982), the two Kauai cave arthropods were again elevated
to category 1 candidates. Upon publication of the February 28, 1996,
Notice of Review (61 FR 7596), we ceased using candidate category
designations and included the two cave arthropods as candidate species.
Candidate species are those for which we have on file sufficient
information on biological vulnerability and threats to support
proposals to list the species as threatened or endangered. The two cave
arthropods were included as candidate species in the September 19, 1997
(62 FR 49398), Notice of Review.
A proposed rule to list these two species as endangered was
published on December 5, 1997 (62 FR 64340), and the final rule to list
them was published on January 14, 2000 (65 FR 2348). Since that time,
we have conducted conservation efforts for the Kauai cave wolf spider
and Kauai cave amphipod through voluntary partnerships with two private
landowners in the Koloa area.
In the proposed listing rule, we indicated that designation of
critical habitat for the Kauai cave wolf spider and Kauai cave amphipod
was not prudent. Our concern was that publication of precise maps and
descriptions of critical habitat in the Federal Register could increase
human visitation to these highly sensitive cave habitats, which could
lead to incidents of vandalism, destruction of habitat, and
unintentional cases of take. Also, we believed that critical habitat
designation would not provide any additional benefit to these species
beyond that provided through listing as endangered.
However, in the final listing rule, we determined that critical
habitat designation was prudent as we did not find specific evidence of
taking, vandalism, collection, or trade of these species or any other
similarly situated species. Also, we found that there may also be some
educational or informational benefit to designating critical habitat.
Therefore, we found that the benefits of designating critical habitat
for these two species outweighed the benefits of not designating
critical habitat.
On June 2, 2000, we were ordered by the U.S. District Court for the
District of Hawaii (in Center for Biological Diversity v. Babbitt and
Clark, Civ. No. 99-00603 (D. Haw.)) to publish the final critical
habitat designation for both cave animals by February 1, 2002. The
plaintiffs and the Service entered into a consent decree in a separate
action agreeing to jointly seek an extension of this deadline (Center
for Biological Diversity v. Norton, Civ. No. 01-2063 (D.D.C. October 2,
2001)).
On February 14, 2001, we contacted landowners on the island of
Kauai, notifying them of our requirement to designate critical habitat
for the Kauai cave wolf spider and Kauai cave amphipod. We included a
copy of a fact sheet describing the two species and their habitat, and
a map showing the presumed historic and current range (based on
occupied habitat and the distribution of similar geology and soils) of
one or both of these species.
On January 30, 2002, the U.S. District Court in Hawaii approved a
joint stipulation to modify the terms of the June 2 order to extend the
deadline to August 10, 2002. Subsequently, the Service determined that
an additional extension of time was needed to complete this designation
process. On August 21, 2002, the U.S. District Court in Hawaii approved
another joint stipulation extending the date for the final rule
designating critical habitat for both cave animals to March 31, 2003.
The proposed rule published March 27, 2002, proposed to designate
four critical habitat units which collectively
[[Page 17435]]
amounted to approximately 1,697 ha (4,193 ac) (67 FR 14671). The public
comment period closed on May 28, 2002. On November 15, 2002, we
announced the availability of the draft economic analysis and reopened
the comment period until December 16, 2002 (67 FR 69177).
Summary of Comments and Recommendations
In the proposed rule published on March 27, 2002 (67 FR 14671), we
requested that all interested parties submit written comments on the
proposal. We also contacted all appropriate Federal, State, and local
agencies, scientific organizations, and other interested parties and
invited them to comment. We received no requests for a public hearing.
We received individually written letters from 43 parties, including
five designated peer reviewers. Approximately 417 additional letters
were submitted as part of a mailing campaign that supported
designation. Of the 43 commenters who were not part of the mailing
campaign, 16 supported the proposed designation, 26 were opposed, and 1
expressed neither support nor opposition. Of the 26 commenters who
opposed the proposal, 17 commenters specifically opposed designation of
critical habitat on lands they own or manage, and requested that these
areas be excluded from critical habitat designation.
We reviewed all comments received for substantive issues and new
information regarding critical habitat for both cave animals. Similar
comments were grouped into general issues and are addressed in the
following summary.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited, in writing, the review of the proposed critical
habitat designation from nine independent experts affiliated with
academic and research organizations or natural resource conservation
agencies. We also put in a request to Sustainable Ecosystems Institute.
All of the individuals contacted are recognized leaders in the field of
cave ecology and conservation, as demonstrated by a record of published
peer reviewed results of past and current research in this field. Four
parties responded with written reviews of the proposal, one provided a
letter citing his inability to participate due to the lack of
applicability to his state agency position, and the remaining four
parties either verbally declined to participate due to workload or
other constraints or simply did not respond.
The four scientific review responses were generally positive and in
support of the proposed designation on the basis of its technical
merits. Reviewers generally recognized the limitations on the extent of
specific knowledge regarding the cave species in terms of population
sizes, population dynamics, and distribution of occupied habitat.
However, a lack of knowledge is not unusual for troglobitic organisms
that only occur in areas where humans rarely go and that may primarily
inhabit mesocavern areas where humans are unable to enter at all. The
reviewers were in agreement that the primary constituent elements were
identified adequately. Three of the reviewers commented that additional
information, particularly detailed mapping, was needed regarding human
activities that may have eliminated one or more primary constituent
elements from the landscape, information which presumably would allow
some areas to be eliminated from consideration as critical habitat.
Comments received from the peer reviewers are summarized in the
following section and were considered in developing the final rule.
Issue 1: Biological Justification and Methodology
(1) Comment: One scientific reviewer commented that it was
difficult to justify inclusion of Units 2 and 3 on geological grounds
alone, considering that evidence of historical or current occupation by
the organisms was lacking. However, another reviewer stated that the
proposed designation on the basis of geology alone was indeed adequate,
and pointed out the ``plastic'' nature of the underlaying calcareous
substrates of Unit 2 and 3 over geologic time. Another scientific
reviewer did not feel that enough information was available to evaluate
the adequacy of the large size of Unit 1a without more detailed maps of
geology, cave locations, and past, present and future land use. Another
commenter noted that the proposed designation does not provide enough
connectivity between units, and recommended that there should be
continuity between Unit 1a and Unit 1b and to accomplish this, all of
Makahuena Point should be designated.
Our Response: Unit 2 has not been included in the designation on
geology alone. This unit lies only a short distance from a known
occupied site and as mentioned by another reviewer was likely connected
at an earlier time. Information provided during the comment period
shows that the large size of appropriate habitat is likely to sustain
the cave animals and is expected to provide the best type of habitat.
In determining adequacy of size of critical habitat, we have reviewed
the best scientific and commercial data available in making our final
designation. Units 1b and 3 have not been included in the designation.
A considerable amount of new information was provided to the Service
regarding site-specific conditions on lands that had previously never
been surveyed or had been incompletely surveyed. This includes new
information regarding occupied and unoccupied caves, and technical
information (e.g., drilling logs that include cross-section/
stratigraphy data of geologic core samples) regarding subsurface
geology of surrounding areas. The total number of known occupied caves
and caves with appropriate habitat has increased substantially, and
some of the intervening areas between caves has been shown not to
contain the primary constituent elements required to support adequate
habitat for the species. The new information has resulted in a
reformulation of the number of caves (and amount of above-ground area)
considered to be essential to the conservation of the species. The new
information has reduced, but not eliminated, the need for establishing
critical habitat boundaries on the basis of the underlying geology of a
given unit. Critical habitat boundaries have been modified to encompass
surface areas above known caves and mesocave-bearing geologic features.
These modifications and the rationale for the changes are described in
detail in the section ``Summary of Changes from the Proposed Rule.''
(2) Comment: One scientific reviewer stressed the importance of
environmental requirements of obligate cave-dwelling species, noting
that appropriate conditions (100 percent relative humidity) only occurs
in larger, longer caves, and may be most commonly found in mesocavern
spaces. Mesocavern areas may be limited in Koloa because of the
geologic age of the lava flow series; however, where they occur they
are important.
Our Response: As the reviewer points out, a variety of data
supports the existence and occupation of mesocavern habitats. This
includes the typically low, but variable, numbers of organisms observed
in cave surveys. Survey events that detect few individuals probably
occur during conditions of reduced humidity whereby the organisms
retreat into mesocaverns with suitable environmental conditions. Also,
two known occupied caves that tend to exhibit drier conditions have
been
[[Page 17436]]
surveyed numerous times with the wolf spider observed on only a few
occasions. This indicates that, despite careful searches by trained
observers, the organisms are able to move into areas of suitable
habitat that are too small for humans to enter. We note that the ``type
locality'' from where the initial specimens of the cave amphipod were
collected for scientific description (the ``sand chamber'' of the
Mahaulepu Sinkhole cave) appears to have a drier environmental regime
than during initial biological surveys there in the 1970s. No amphipods
have been seen in that chamber in recent years, likely due to this
alteration of conditions. The Service agrees with the scientific
reviewer that maintenance (and possibly enhancement) of suitable
environmental conditions of caves and voids is an important
consideration in conservation of the caves species.
(3) Comment: Two scientific reviewers recommended that the size of
the critical habitat areas should be sufficient to protect adequate
population numbers such that, in the event of local extirpations of the
species due to natural disaster or disease, recolonization of these
areas can occur.
Our Response: We agree, and we consider the issue of population
dynamics central to the concept of conservation of the species. The
cave species have characteristics that make estimates of population
sizes and dispersal capabilities difficult. In addition, the species
have naturally low reproductive potential. These characteristics
highlight the importance of ensuring that the populations do not slip
towards extinction due to demographic stochasticity (natural disaster,
disease, invasive species interactions) or suffer from the effects of
loss of genetic variability (inbreeding, genetic drift). We feel that
our revised critical habitat boundaries, based upon the incorporation
of new information regarding the number and locations of known occupied
sites and sites highly likely to be occupied, encompass a wide
distribution across the Koloa Basin, which will provide adequate
refugia despite the possibility that unforeseen events may eliminate
the entire population of a single cave or cave complex. These modified
critical habitat boundaries are described in detail in the section
``Summary of Changes from the Proposed Rule.''
(4) Comment: The proposed critical habitat designation is based
upon little specific data regarding the distribution of the cave
invertebrates and the caves they inhabit; this has resulted in an
overly broad ``blanket'' approach to the proposed critical habitat
boundaries. A more reasonable approach would be to designate critical
habitat around known population centers and known likely habitat.
Our Response: The proposed critical habitat designation was
developed using the best technical information available to the Service
at the time of preparation of the proposed rule. The majority of the
lands where these species are found is privately owned, which severely
limits and may prohibit the ability of the Service to survey caves and
analyze landforms exhibiting potential habitat in short timeframes.
Through ongoing outreach efforts and development of a series of
cooperative conservation programs with certain landowners, a reasonable
amount of scientific information had accumulated over time, and it was
this available information that was used in the development of the
proposed critical habitat designation. In response to Service requests
for additional relevant information, several parties, including
landowners and land managers, undertook surveys of their lands to
obtain and share new information with the Service. This information has
increased the level of specific knowledge about the species in terms of
distribution of occupied and unoccupied caves, locations of additional
areas with geologic features likely to contain habitat, and areas that,
because of natural processes or human-caused changes, do not contain
the primary constituent elements adequate for support of the species.
In particular, the number of individual caves where one or both of the
species are found has increased from six to nine. This has greatly
influenced the technical analysis leading to the ultimate conclusion of
which areas are necessary for the conservation of the species. As
described elsewhere, the identification of additional known occupied
habitat has resulted in refocusing critical habitat boundaries in
consideration of our better understanding of the cave species
populations, their distribution, the effects of habitat fragmentation,
protection of isolated populations, and potential for retaining areas
of habitat connectivity.
(5) Comment: A sand mining operation is located in Unit 2.
Significant portions of this unit have been disturbed and should be
excluded from designation.
Our Response: The sand mining operation is not included in the
designation of critical habitat. As described above, new information
regarding the geology and modification of potential habitat due to
human activities such as the sand-pit operation, agriculture, and past
and current land use patterns, have resulted in modification of the
boundaries of the proposed critical habitat. These modified critical
habitat boundaries are described in detail in the section ``Summary of
Changes from the Proposed Rule.''
(6) Comment: One scientific reviewer noted that the concern
regarding diseases and alien species invasions is warranted, but the
reference to Bacillus thuringinensis (Bt) toxin as a potential threat
is weak.
Our Response: The threat of profound ecological disturbance,
including species extinctions, due directly or indirectly to alien
species introduction is a common theme in the conservation of virtually
every native Hawaiian ecosystem. In addition to calling attention to
this immediate threat, our use of the Bt example was to demonstrate:
(1) That some disease and alien species threats are intentional
``biocontrol'' introductions that could have unintended effects upon
native ecosystems (this has occurred and continues to occur in Hawaii
and elsewhere); and (2) the rationale behind protecting multiple,
isolated portions of suitable occupied and unoccupied habitat in the
event of a catastrophic event, such as a pesticide spill or other
surface disturbance.
(7) Comment: Based upon existing and new information, there appear
to be four distinct populations of the cave invertebrates. They occur
at: Kukuiula, Kiahuna, Bypass Road/Civil Defense caves, and the
sinkhole area. Based upon other cave conservation efforts (including a
proposed critical habitat designation for cave organisms in Texas by
the Service), recovery goals can be achieved by protecting in
perpetuity three discrete populations of organisms. Considering the
cooperative conservation efforts of landowners at Kukuiula, Kiuahuna
(for caves), and at the sinkhole (presently for archeological
preservation), the requisite three faunal areas for each species has
been identified, which is sufficient for species protection.
Our Response: While the cave animals in Hawaii share some
similarities with cave animals in Texas, it is inappropriate to assume
recovery standards would be the same just because both occur in caves.
Caves in Texas and caves in Hawaii are formed through different
processes, have different food resources, and face different specific
threats. Recovery standards need to be determined by evaluating
individual species and their threats. Although there is no final
recovery plan for either the Kauai cave amphipod or the Kauai cave wolf
[[Page 17437]]
spider, we do not at this time believe the three areas mentioned above
adequately provide protection against catastrophic events. Therefore, a
designation limited to these three areas would not adequately provide
for the conservation of either species.
Issue 2: Legal and Regulatory Issues
(8) Comment: The Service has misinterpreted the intent of the Act
with exclusion of areas under 3(5)(A)(i) of the Act. If a specific area
of cave invertebrate 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: While we have not excluded any areas from this rule
because they are already sufficiently managed, we still believe this
interpretation of the definition is reasonable. Pursuant to the
definition of critical habitat in section 3 of the Act, the primary
constituent elements as found in any area so designated must also
require ``special management considerations or protections.''
(9) Comment: Areas that are merely capable of supporting the
species are proposed for designation, as opposed to areas that are
essential for the conservation of the species.
Our Response: Based on new information received during the public
comment period we have refined the proposed designation. All areas
designated as critical habitat are deemed essential to the conservation
of the species. Areas designated provide for areas known to be occupied
by the animals or provide for protection against catastrophic events by
contributing to a wide distribution throughout the Koloa Basin.
(10) Comment: The Service failed to consider the cascading impacts
resulting from the State-led regulatory activities that must, by law,
be implemented as a result of critical habitat designation. These
include the broad interpretation of ``take'' under Hawaii's Endangered
Species Act (HRS Ch. 195D); mandatory ``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);
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
Federal Endangered Species Act and Hawaii State laws were discussed in
sections 3 and 4 of the November 2002 Draft Economic Analysis of
Proposed Critical Habitat Designation for the Kauai Cave Wolf Spider
and the Kauai Cave Amphipod Island of Kauai, Hawaii (DEA) under direct
and indirect costs as modified by the Addendum. They consider the
economic impacts of section 7 consultations related to critical habitat
even if they are attributable co-extensively to the listing status of
the species. In addition, they examine any indirect costs of critical
habitat designation, such as where critical habitat triggers the
applicability of a State or local statute. The addendum to the DEA also
fully considered this issue.
(11) Comment: The proposal violates the ``commerce clause'' because
the spider and the amphipod are not related to interstate commerce.
Our Response: The Federal government has the authority under the
Commerce Clause of the U.S. Constitution to protect these species, for
the reasons given in Judge Wald's opinion and Judge Henderson's
concurring opinion in Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d
1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). See also
Gibbs v. Babbitt, No.99-1218 (4th Cir. 2000). The Home Builders case
involved a challenge to application of ESA prohibitions to protect the
listed Delhi Sands flower-loving fly. As with the species at issue
here, the Delhi Sands flower-loving fly is endemic to only one State.
Judge Wald 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.
(12) Comment: The Service must take into consideration the
completed economic analysis prior to designation of critical habitat.
Currently, the proposed critical habitat boundaries are proposed prior
to the completion of the economic analysis. This runs counter to the
requirement for determination of prudency under the ESA.
Our Response: We did not designate critical habitat before
conducting an economic analysis. The DEA was published and made
available for review on November 15, 2002 (67 FR 69177). The comment
period on the proposed rule to designate critical habitat for these two
species was extended until December 16, 2002, to allow interested and
affected parties the opportunity to review the DEA in conjunction with
the proposed critical habitat rule.
The Service determines whether critical habitat designation is
prudent according to regulations found at 50 CFR 424.12(a). In
accordance with these regulations, critical habitat designation is not
prudent only when one or both of the following two situations exist:
(1) The species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of such threat to the species; or, (2) such designation would
not be beneficial to the species. The economic analysis is generally
conducted after critical habitat has been proposed in a given area, as
set forth in regulations found at 50 CFR 424.19. If we find that
economic or other impacts outweigh the benefit of designating critical
habitat in a given area, that area will be excluded under section
4(b)(2) of the Act.
(13) Comment: Existing protections are adequate to conserve the
species. The additional action of designating critical habitat is
unnecessary.
Our Response: We are required to designate critical habitat to the
maximum extent prudent. Designation is not prudent only when the
species is threatened by taking or other human activity and designation
would increase that threat or designation would not be beneficial.
(14) Comment: Because the DEA indicates that there will be
substantial adverse impacts on small landowners, such as KG Kauai
Development, LLC, there should be a Regulatory Flexibility Analysis
performed on the designation of critical habitat.
Our Response: Small landowners and other entities potentially
impacted by the designation of critical habitat for the Kauai cave
arthropods were identified and discussed in section 5 of the November
2002 DEA and February 2003 addendum. As summarized in the addendum,
there are no small entities, as defined under the Regulatory
Flexibility Act (as amended by the Small Business Regulatory
Enforcement Fairness Act) (RFA/SBREFA) that may be impacted by
implementation of the section 7 provisions of the Act for the cave
animals. Therefore, we concluded that the designation of critical
habitat for the cave species is not likely to significantly impact a
substantial number of small entities. The final determination is much
smaller than that which was initially proposed, and the addendum
discusses impacts to
[[Page 17438]]
landowners but also concludes that no small entities will be impacted.
(15) Comment: In the context of Hawaii law, the designation
constitutes taking as it results in the loss of value to the property.
Our Response: To a property owner, the designation of critical
habitat becomes important when viewed in the context of section 7 of
the Act, which requires all Federal agencies to ensure, in consultation
with the Service, that any action that these aagencies authorize, fund,
or carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. If, after consultation,
our biological opinion concludes that a proposed action is likely to
result in the destruction or adverse modification of critical habitat,
we are required to suggest reasonable and prudent alternatives to the
action that would avoid the destruction or adverse modification of the
critical habitat. If we cannot suggest acceptable reasonable and
prudent alternatives, the agency (or the applicant) may apply for an
exemption, in accordance with section 7(e) through (p) of the Act.
The mere promulgation of a regulation, like the enactment of a
statute, does not take private property unless the regulation on its
face denies the property owners all economically beneficial or
productive use of their land (Agins v. City of Tiburon, 447 U.S. 255,
260-263 (1980); Hodel v. Virginia Surface Mining and Reclamation Ass'n,
452 U.S. 264, 195 (1981); Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1014 (1992)). The designation of critical habitat alone does
not deny anyone economically viable use of their property. The Act does
not automatically restrict all uses of critical habitat; it only
imposes restrictions under section 7(a)(2) of the Act on Federal agency
actions that may result in destruction or adverse modification of
designated critical habitat. Furthermore, as discussed above, if a
biological opinion concludes that a proposed action is likely to result
in destruction or modification of critical habitat, we are required to
suggest reasonable and prudent alternatives.
(16) Comment: Several commenters requested an extension of the
public comment period to enable more time for preparing and submitting
comments to the Service. This request was made in part to enable the
completion of scientific surveys of certain lands within proposed
critical habitat and to allow more time to develop voluntary
conservation agreements on some of these lands that might obviate the
need for critical habitat.
Our Response: The Service provided a total of 90 days of public
comment following publication of the proposed critical habitat rule and
draft economic analysis. The Service was unable to accomodate further
requests for an extension of the public comment period due to the
court-ordered deadline mandating completion of this final critical
habitat rule. However, the Service would be happy to receive and review
any new information, and if warranted will consider this information in
possible future revisions of this rule (see 16 U.S.C. 1533(a)(3)(B)).
In addition, interested parties may petition to revise a critical
habitat designation based on new information (16 U.S.C. 1533(b)(3)(D).
(17) 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 final addendum, and no critical habitat
units in the proposed rule were excluded or modified due to economic
impacts (see section ``Analysis of Impacts Under Section 4(b)(2)'').
However, several areas were excluded or modified because they lacked
primary constituent elements, or were more degraded than other
essential habitat areas, and therefore were not considered essential to
the conservation of the species (see ``Summary of Changes from the
Proposed Rule'' section).
(18) Comment: 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 lands. If any economic use of the land is
prevented, the Service is liable to compensate the private landowner
for losses.
Our Response: Under federal law, while critical habitat may provide
information to help a landowner identify where take through habitat
modification may occur, the take prohibition applies whether or not
critical habitat has actually been designated. The Act defines ``take''
to include ``harm.'' 16 U.S.C. 1532 (19). ``Harm is defined by
regulation to include significant habitat modification or degradation
where it actually kills or injures wildlife. 50 CFR 17.3. However, just
because an action occurs in critical habitat would not demonstrate a
take violation; the action must actually kill or injure the species.
Take of a listed wildlife species may occur inside or outside of
critical habitat if it causes death or injury to the species.
(19) Comment: A cost benefit and economic analysis pursuant to
Executive Order 12866 is required because the DEA indicates that there
may be an annual effect on the economy of over $100 million per year.
Our Response: While the DEA estimated potential costs greater than
$100 million, this was based on the proposed critical habitat acreage
of approximately 1,697 ha (4,193 ac). The final economic analysis
evaluated the revised acreage of 110 ha (272 ac) and concluded that
costs did not exceed $100 million.
(20) Comment: Portions of Unit 2 and the eastern portion of Unit 1
are planned but not permitted for major resort development; the
southern portion of Unit 1 is planned but not permitted for subdivision
into over 50 ``upscale'' houselots; a portion of Unit 3 is planned and
permitted for a future limestone and basalt quarry; the area
surrounding the old Koloa sugar mill will be expanded into an
industrial area; several water wells are located in Unit 1 and
additional water wells are expected. This development will create
residential and employment opportunities for over a thousand island
residents. In view of their economic importance, these areas should be
excluded from consideration.
Our Response: As indicated in the ``Summary of Changes from the
Proposed Rule'' section, large portions of the proposed critical
habitat Units 1 and 2 have been excluded in the final designation of
critical habitat due to biological, rather than economic,
considerations. Unit 3 has been completely removed from critical
habitat designation for biological reasons, as well.
(21) Comment: The Eric A. Knudsen Trust is seeking to subdivide or
otherwise participate in the development of at least 741 lots/resorts
units on 202 acres of trust-controlled lands [Tax Map Keys (TMKs): (4)
2-8-015:082; (4) 2-8-013:01; (4) 2-8-014:01, 02, 03, 04, 19, 30 {in
part{time} ; (4) 2-8-09:09; (4) 2-8-011:01, 18, 20, 35]. Because
critical habitat designation may impact these plans, the trust asks
that the lands be excluded from designation. Certain Eric A. Knudsen
Trust lands may not be suitable as critical habitat because of prior
urban and resort development [TMKs: (4) 2-8-01421, 26], and the trust
asks that these lands be excluded from designation.
[[Page 17439]]
Our Response: With the revised critical habitat boundaries, only
two critical habitat units fall within the TMKs listed. Both units
(unit 6 and 8) fall within TMK (4) 2-8-014:01. All other proposed areas
were excluded from final critical habitat designation for biological
reasons, as described in the ``Summary of Changes from the Proposed
Rule'' section.
(22) Comment: The DEA acknowledges that the proposed critical
habitat boundaries will change with the final designation; however, the
process by which final boundary determinations are made is not clear.
The lack of definitive boundaries under consideration makes it
impossible for anyone commenting on the economic impacts to be precise.
Our Response: The proposed critical habitat units were described
and depicted in the proposed rule (67 FR 14671), as were the methods
and criteria used in determining the proposed areas. We have described
our methods and criteria for designating final critical habitat
boundaries within this final rule.
(23) Comment: The DEA fails to distinguish potential costs due to
designation from costs due to listing the cave animals as endangered.
Nowhere does the draft provide any analysis of what impacts, if any,
designating critical habitat for the cave animals would impose above
and beyond those associated with the species' listing. Because the
draft economic analysis 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: The court, as per New Mexico Cattlegrowers
Association v. U.S. Fish and Wildlife Service, requires us to look at
co-extensive costs (consideration of the impact of all section 7
effects that could be a result of the designation, even if they are the
same as those that arise from the listing). This is the approach the
economic analysis and addendum take. The Service recognizes that if an
area is excluded under 4(b)(2), not all of the economic impacts may be
avoided.
Issue 3: Economic Issues
(24) Comment: Elements of the economic analysis are based upon
unsubstantiated and speculative development scenarios that greatly
exceed foreseeable, sustainable growth for the Koloa/Po'ipu region as
set by existing county zoning and State land use designations, as well
as other legally-binding planning guidelines such as the Kaua'i County
General Plan.
Our Response: The resort/residential development planned in Units 2
and 4 and the residential development planned in Unit 10 is consistent
with the 2000 Kaua'i General Plan (General Plan), current State land
use districts, and current county zoning. The resort/residential
development planned in Units 6 and 8 requires minor modifications in
the State land use districts and county zoning, but it is consistent
with the General Plan. All of this development is likely to occur
within the proposed critical habitat between 2003 and 2020 if no
consideration is given to the indirect impacts of the intended
designation.
The commercial development planned in Unit 10 is not in the General
Plan and is not included in the State Urban District. As mentioned in
the Indirect Costs section of the Addendum, this development may not
occur for reasons unrelated to the intended designation. However, since
the General Plan is updated every 10 years or so, the commercial
development may be added to the General Plan before 2020. The property
values used in the Addendum reflect the fact that the development is
not fully entitled, but that the land has development potential.
Barring a hurricane or a major recession that disrupts tourism and
resort/residential property sales, it is expected that, without the
intended designation, all or nearly all of the planned development in
the intended designation would occur by 2020.
(25) Comment: Most development can proceed with reasonable project
modifications that will reduce or eliminate damage to the cave
ecosystems, therefore the economic impacts are greatly overstated. The
economic analysis indicates that $1.9 billion of development may occur
in the region and that project modifications would cost $61.6 million.
This represents 3.2 percent of the cost of development, not an
unreasonable amount considering these species and their habitats are
highly endangered. Another commenter stated that direct costs of
consultation must actually be divided by the profits from the sales,
rentals, jobs, etc., produced by all the units of resort, residential,
commercial and light industrial development which are likely to be
built. Figured per saleable and rental unit and calculated over time,
the cost is not likely to be as staggering as portrayed.
Our Response: The estimates of direct and indirect costs in the
Draft Economic Analysis of Proposed Critical Habitat Deisgnation for
the Kaua'i Cave Wolf Spider and the Kaua'i Cave Amphipod, Island of
Kaua'i, Hawai'i (DEA) were revised based on new information from the
Service, resulting in a reduction in these estimates. For the larger
projects affected by the intended designation, the revised figures
represent a small percentage of the total development costs and
profits.
(26) Comment: Direct costs are summed with indirect costs to derive
a total impact estimate. Yet, direct costs are associated with
development put in place, while indirect costs are associated with
development foregone. The benefits of the former should be offset
against the costs of the latter, not summed. Also, direct cost
estimates do not include multiplier effects of these expenditures, yet
indirect costs do include multiplier effects. So we see the full impact
of development foregone, but only partial impacts of development
actually implemented.
Our Response: Since the DEA was published, the direct costs and
indirect costs have been modified to reflect new information gained
since the publication of the DEA and based on the intended critical
habitat designation. Direct costs include expenditures, on section 7
consultations and project modifications for assumed development.
Indirect costs include additional expenditures as well as lost income
benefits associated with lost development. The direct and indirect
costs are no longer summed; also, the direct costs are not benefits--
they do not offset indirect costs.
Indirect costs that reflect the multiplier effects of lost
development are no longer included in the analysis because they would
be generated in any case; to the extent that development is displaced
from the intended designation due to the implementation of section 7
for the cave animals, that development would still be expected to occur
but in another location of Koloa outside the critical habitat. This is
now expected because of the smaller area intended for designation.
(27) Comment: Total impact is based on a guess that between 25
percent (low) and 50 percent (high) of all proposed development will
not proceed due to habitat restrictions. [Sec 4.c] Also, Table VI-3
indicates that the ``Low Projection'' actually assumes a 33 percent
loss, not 25 percent as claimed in the text (pg. VI-57). Thus, the
``Low'' impact should be 25 percent lower than reported, or about $330
million in Net Present Value terms.
Our Response: Due to the Service's intended modifications to the
critical habitat designation, the cost estimates presented have been
revised. In particular, the indirect impacts on remaining parcels are
considered on a
[[Page 17440]]
parcel-by-parcel basis whereby the change in the likelihood of
development, if any, associated with the intended designation is
identified. The costs associated with these impacts are presented in
the Indirect Costs section of the Addendum.
(28) Comment: The State of Hawaii Department of Business, Economic
Development and Tourism (DBEDT) population and tourism growth
projections were used for this study. These estimates are higher than
the 2000 Kaua`i's General Plan projections. DBEDT's projections are
controversial and contested.
Our Response: The DBEDT projections are presented in Table II-1 of
the DEA, although both the DBEDT and General Plan projections are
discussed in Chapter II of the DEA. The General Plan projections and
information from developers are used to determine the amount of
development that is planned in the intended critical habitat
designation.
While the DBEDT projections are used in comparisons of lost
economic activity to projected island-wide economic activity in the
DEA, neither the DBEDT projections nor the General Plan projections are
directly used in the calculation of updated cost estimates presented in
the Addendum.
(29) Comment: It is erroneous to assume hotel and resort
development displaced at Po`ipu is not likely to be replaced by
equivalent projects elsewhere on Kauai. (V-57). In fact, there is
island-wide competition for the resort market, and new areas such as
Kapalawai have received Kauais General Plan resort designation. Also,
visitor accommodations on Kauai are diversified with significant
uncounted numbers of people staying in vacation rental homes, bed and
breakfasts and camping outside of planned visitor destination areas.
According to the Kauai General Plan analysis, the total number of
resort and residential units already permitted, as opposed to those
desired, is 5,836. (Appendices, Tables C and D). If the density
allotted to Kukui`ula is cut in half, that total number is 4,036.
Taking the HIGH number of baseline development (2,253, which includes
not permitted units desired by Grove Farm), it appears that there must
be 1,783 permitted units outside of the proposed critical habitat area.
Future growth opportunities in Koloa, not requiring cave species
mitigation construction, do exist in both the resort and residential
categories. Growth opportunities in the Koloa area are not foreclosed
by habitat designation.
Our Response: As a result of the Service's intended modifications
to critical habitat, the DEA's estimates of loss of resort/residential
development in the Po`ipu area and reduction in the amount of
islandwide development no longer reflect the impacts associated with
the intended designation. As discussed in the Indirect Costs section of
the Addendum, even if some of the development planned in critical
habitat does not take place, it is assumed that other development
projects in the Koloa/Po`ipu area will be able to be increased in
density or area to satisfy unmet demand for residential or resort/
residential development.
(30) Comment: The costs of public support of residential and
tourism development is not adequately identified or calculated. These
costs should be considered avoided costs for reductions in growth.
Among the missing estimates for the taxpayers ``growth subsidies'' are
the following: (1) Public expenditures for more schools or expansion of
existing schools, including teachers, staff and administrators; for
police, fire, ambulance, lifeguard personnel and equipment; solid
waste; recycling; governmental administrative services; etc. Public
subsidies of each unit of residential and of tourism development are
substantial; (2) Most of these costs, as well as those for water,
sewage, and roads (which the study states will not be affected by
habitat designation and do require consultations etc.), are increased
when development is sprawling rather than contiguous. Development of
Maha`ulepu and the Sugar Mill area would leap beyond current developed
areas; (3) Another avoided cost would be the cost to attain permits for
projects and project design costs, etc. To get permits needed to
develop, Grove Farm has previously estimated costs of over $5 million,
higher than numbers in the study.
Our Response: As discussed in the Indirect Costs section of the
Addendum, a reduction in islandwide development attributable to the
intended designation is no longer anticipated. Similarly, it is assumed
there will be no impacts to the Maha`ulepu development since the areas
planned for development are no longer in critical habitat. As such, any
avoided public-support costs for reductions in development are not
anticipated.
(31) Comment: Table ES-1 appears to present both the low and high
ends of the economic impacts estimated, implying that the low-end value
reflects the likely least cost that critical habitat designation would
impose. In fact, review of the DEA reveals that the ``low'' value
represents the low end of the possible worst-case scenario, not the low
end of all likely scenarios.
Our Response: The impact estimates have been revised in the
Addendum to include expected impacts for a number of possible scenarios
and the Service's intended modifications to critical habitat. As such,
the high and low estimates in Table Add-3 represent the range of
reasonably foreseeable direct costs associated with section 7
implementation for the cave animals and the indirect costs associated
with the intended designation.
(32) Comment: The DEA fails to recognize that the costs to
investigate the implications of critical habitat are sunk costs
associated with the designation process, not additional costs that
final designations would impose. Any concerned party investigating the
proposed designation of critical habitat on their lands have already
hired their lawyers and consultants, and incurred the costs associated
with figuring out the implications of designation on their lands. Even
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. 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: For completeness, estimated expenditures by
landowners to investigate the implications of the proposed critical
habitat were included in the DEA and Addendum, even if the funds have
already been expended and are not recoverable. In estimating costs, a
distinction is not made between the designation process and the final
designation.
(33) Comment: Project modification costs are underestimated,
particularly the cascading effect of project realignment with the
purpose of avoiding critical habitat. Also, the costs of avoiding
subsurface impacts to sewer lines, buried cables, etc., in addition to
roads, is underestimated.
Our Response: The project modification cost estimates take into
account a variety of projects, locations, and contingencies, and are
based on (1) discussions with the Service and construction contractors,
and (2) an examination of the historical record of project
modifications regarding the cave animals. The one historical case of a
road realignment due to the cave animals involved the Koloa Bypass
Road. In this case, the realignment was minor and was completed quickly
at
[[Page 17441]]
relatively low cost. The Service indicates that if a realignment is too
costly for a particular project, other alternatives are possible. These
include using post-tension concrete to bridge caves and mesocaverns, or
placing sewer lines and cables above ground. If none of these options
is economically or technically feasible, the Service indicates that a
portion of a cave could be sealed off and filled in, as long as
precautions are taken to minimize the impact to any cave animals that
may be present. The costs associated with these various scenarios are
considered in the project modification cost calculations in the
Addendum.
In situations where development is displaced because of critical
habitat, the cascading effect of project realignment is taken into
account (e.g., a school planned for a location in critical habitat
would be relocated to an area planned for residential development,
thereby resulting in a loss of planned housing).
(34) Comment: The DEA only partially considers the ``indirect
impacts'' of critical habitat designation, and instead focuses on
``direct impacts'' due primarily to consultations under section 7 of
the Act. Due to 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. Another commenter stated
that the DEA overemphasizes the direct costs attributable to critical
habitat designation, which are relatively minor, and ignores or omits
many indirect impacts, such as: Impacts to housing supply, especially
affordable housing required by State and local governments as permit
conditions associated with development of ``market-priced'' housing,
upscale housing, and resort development; impacts to public
infrastructure such as schools, parks, and roads, and decreases in
public revenues as a result of reduced economic activity;
disproportionate impacts to specific ethnic groups, and other social
impacts.
Our Response: Both direct and indirect impacts are analyzed in
Chapter VI and in the Addendum, and both are summarized in Table Add-2.
Regarding affordable housing, schools, parks and roads, the
developers are obligated to provide them regardless of critical
habitat. But if they cannot build them in critical habitat, then they
could be moved elsewhere within a project site, displacing market
housing or other project components. This displacement was assumed in
analyzing the economic impacts of the section 7 implementation for the
cave animals.
As discussed in the Indirect Costs section of the Addendum and in
responses to other comments, a reduction in islandwide development
attributable to the intended designation is no longer anticipated. As
such, any changes in the public revenues associated with reduced
economic activity are expected to be minimal.
No disproportionate economic or social impacts on specific ethnic
groups were identified.
(35) Comment: The DEA acknowledges that some or all lands
designated as critical habitat may be redistricted/rezoned at the State
or county level to preclude further development, and the actual
economic costs of redistricting could be very high ($1.54 billion to
$3.1 billion). These estimates are mentioned in the text but not in the
summaries of the economic impacts.
Our Response: Due to the Service's intended modifications to
critical habitat, economic impacts on the order of $1.54 billion to
$3.1 billion are no longer anticipated. The Indirect Costs section of
the Addendum considers the potential indirect impact of the intended
designation on each parcel in the intended designation to determine an
estimate of development impacts (including any associated with
potential redistricting, as applicable).
(36) Comment: The DEA does not account for investments and other
expenditures already made on lands with the expectation that rezoning
and redistricting will allow future development and hence a return on
investment, nor does it account for the potential lost recapture of
investment yields that may be foregone due to lost development
potential for lands that have successfully been rezoned and permitted
for development at a very high cost.
Our Response: The Indirect Costs section of the Addendum presents
an estimate of the loss in property values due to the cave animals
listing and critical habitat designation. The property values used in
the analysis reflect the current market value of the land, which
consists of real returns from existing uses and improvements as well as
any anticipated improvements or uses.
(37) Comment: The DEA fails to consider the more restrictive
Habitat Conservation Plan (HCP) guidelines under the Hawaii Endangered
Species Law (HRS 195D-4, HRS 195D-21) which require that the State HCP
permittee show a net benefit to the species. The DEA fails to analyze
impacts due to the circumstance in which a landowner qualifies for a
Federal HCP but is unable to obtain a State HCP.
Our Response: None of the landowners and developers remaining in
the intended designation are anticipated to seek an HCP as a result of
critical habitat designation. Section 4 of the Addendum discusses the
indirect impacts of the intended designation in greater detail.
(38) Comment: 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 organisms and their
habitats. The DEA 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.
Our Response: The intended critical habitat designation contains
few unmapped holes or developed areas. The costs to landowners to
demarcate these sites is expected to be minimal.
(39) Comment: The DEA does not take into account the loss of income
by Jas W. Glover Ltd., the operators of the quarry. The DEA should use
a figure of $31-35/ton for shipping of limestone to Kauai, not the $13
to $16 per ton due to costs of wharfage fees loading and unloading
costs, trucking, insurance, and other costs. In addition, the loss of
quarry materials will have impacts throughout the construction industry
on Kauai. Another commenter stated the siting of an additional quarry
in the area is no longer necessary because market conditions have
changed and products produced by the expanded quarry are not needed by
the local economy. Another commenter stated that the operator of the
quarry on Grove Farm lands (Jas W. Glover Ltd.) is a small entity, and
it is woman-owned and Native Hawiian-owned. Because this firm is one of
only two aggregate producers on the island the impacts to this economic
sector should be considered under ``Impacts to Small Entities.''
Our Response: The site planned for the future expansion of the
limestone quarry is no longer included in the intended critical habitat
designation, so the associated direct costs, indirect costs, and
impacts to small entities attributable to the intended designation are
zero.
(40) Comment: The DEA incorrectly lists Kobayashi Group LLC as the
owner of Kiahuna Golf Course and surrounding lands. The golf course
(225.063 acres) is owned by Kiahuna Golf Club, LLC; the adjacent lands
(95.412 acres) are owned by KG Kauai Development, LLC. These are
distinct entities and not subsidiaries
[[Page 17442]]
of Kobayashi Group LLC, although there are common elements of ownership
between various individuals. Kiahuna Golf Club, LLC, and KG Kau'i
Development, LLC believe they qualify as small businesses. Because the
DEA indicates that there will be substantial adverse impacts on small
landowners such as KG Kaua'i Development, LLC and Kiahuna Golf Club,
LLC there should be a Regulatory Flexibility Analysis performed on the
designation of critical habitat.
Our Response: The Addendum lists KG Kaua'i Development, LLC (KGKD)
as the owner of the land that is planned for the Kiahuna Golf Village
Expansion and the Kiahuna Golf Course Expansion. No impacts are
anticipated for the continued operation of the existing Kiahuna Golf
Course by Kiahuna Golf Club, LLC.
RFA/SBREFA regulations state that the Small Business Administration
(SBA) counts the receipts or employees of the business whose size is at
issue and those of all its affiliates in determining the business'
size. Businesses are affiliates of each other when one concern controls
or has the power to control the other, or a third party or parties
controls or has the power to control both. The SBA considers factors
such as ownership, management, previous relationships with or ties to
another business, and contractual relationships, in determining whether
affiliation exists. Finally, RFA/SBREFA regulations state that a firm
will not be treated as a separate business concern if a substantial
portion of its assets and/or liabilities are the same as those of a
predecessor entity. In such a case, the annual receipts and employees
of the predecessor will be taken into account in determining size (13
CFR part 121).
KGKD states that it is affiliated with Kobayashi Group LLC through
common ownership by certain individuals. In addition, KGKD was recently
established by the Kobayashi Group LLC for the purpose of acquiring the
properties surrounding the golf course. As such, Kobayashi may be
considered a predecessor entity of KGKD. Due to its affiliation with
Kobayashi Group LLC, KGKD is not considered separately in the RFA/
SBREFA analysis in the Addendum.
(41) Comment: The level of effort to document and analyze the
potential economic impacts resulting from critical habitat designation
greatly exceeded the level of effort to document and analyze potential
economic benefits due to designation, resulting in an unbalanced
overestimation of detrimental economic impacts, and an unfair
underestimation of economic benefits due to designation of critical
habitat.
Our Response: See response to comment 42 below.
(42) Comment: The benefits of species protection are overstated and
speculative. The DEA does not present the expected circumstances or
timeline for delisting the species, nor is there a quantifiable
estimate of the economic benefits of delisting. In addition, one
commenter states the species themselves have no economic value; any
estimate of economic benefit derived from not fully developing lands
proposed for critical habitat are speculative and unquantifiable.
Our Response: This responds to comments 41 and 42 above: Even
though the material presented in the DEA and in the Addendum regarding
benefits is not as extensive as the material on costs, this does not
result in overestimated costs and underestimated benefits. The less
extensive analysis of the benefits is due to (1) a lack of scientific
studies on environmental and biological changes that would be
attributable to the section 7 implementation for the cave animals, and
(2) the lack of existing economic studies on the economic value of
these changes. However, the Addendum presents an expanded discussion of
benefits, including the estimated value of retaining land in open space
due to critical habitat.
The expected circumstances and the potential timeline of delisting
the cave animals will be presented in the Service's final recovery plan
for the cave animals. The DEA does discuss the reduced costs due to
successful preservation and the existence value of the cave animals in
the Benefits section of Chapter VI; however, these benefits are not
quantified given the lack of information as described above.
(43) Comment: Based on 6,000 acres of undeveloped land bounded by
Haupu ridge, and using pro rata estimates of ecological values from a
University of Hawaii study of the value of the Koolau Range on Oahu
(http://www2.hawaii.edu/[sim]uhero/workingpaper/HawaiiEnviro
Evaluation.pdf Environmental Valuation and the Hawaiian Economy, by
Brooks Kaiser, Nancy Krause, and Jim Roumasset), the Koloa/Poipu
viewscape is worth $29 million per year (at $0.23 per acre per
household for Kauai's 21,000 households). Over 18 years (comparable to
FWS estimates), this sums to $521 million. The annual stream of
benefits from the conservation district is $10.1 million annually (at
$1,690 per acre), summing to another $182.5 million on a comparable
basis. The net present value of the undeveloped land is $456.9 million
(at the UH lower estimate of $76,146 per acre). Degradation scenarios
combining urban creep, invasive species, and human/animal disruption
resulting in recharge loss could cost another $3.6 million annually (at
$600 per acre), or a total of $65 million. That is only a start at
estimating the ecological benefits and savings associated with
preserving this undeveloped land, and we are at $1.225 billion already.
Our Response: The suggested benefits analysis would yield
inaccurate results for several reasons. First, the proposed critical
habitat for the cave animals as described in the proposed rule covers
4,193 acres. Since the publication of the proposed rule, the Service
has identified several areas of the proposed critical habitat that it
intends to remove for biological reasons, which would reduce the
critical habitat to 272 acres. Basing the benefits analysis on 6,000
acres would overstate the economic benefits attributable to the
implementation of section 7 for the cave animals.
Second, the commenter uses an incorrect value of open space. As
stated in the University of Hawaii study, a recent survey found that
Oahu residents are willing to pay $0.0023 per acre (0.23 cent per acre)
for the preservation of open agricultural land on O'ahu. The
commenter's use of $0.23 (23 cents) per acre overstates the benefits
associated with open space by a factor of 100. The Benefits section of
the Addendum uses the 0.23 cent per acre figure, corrected for (1)
inflation; (2) the income levels on Kauai; and (3) the amount of
existing open space on Kauai compared to Oahu. To calculate the value
of additional open space, the corrected figure is then applied to the
amount of land that may no longer be developed due to critical habitat.
Third, the University of Hawa'i (UH) study on the Koolau Range on
Oahu focuses on the economic benefits provided by a mountainous region
covered by dense forests and many native Hawaiian plants. The proposed
critical habitat is in a gradually sloping and relatively dry area that
contains many nonnative plant species. Since the ecosystems of these
two areas are vastly different, the ecosystem services provided by
these areas will also be different. As such, the economic valuation of
the ecosystem services provided by the Koolau Mountains is generally
not transferrable to the proposed or intended critical habitat. For
example, the value of water recharge in the UH study reflects projected
water supply and demand conditions on Oahu--an island which is nine
percent
[[Page 17443]]
larger than Kauai but has a population of more than twelve times that
of Kauai. Furthermore, neither the proposed nor the intended
designation is in an area of high rainfall. Also, the UH benefit
analysis of reducing soil runoff is unique to three valleys that drain
through partially channelized streams in urban areas into the manmade
Ala Wai Canal. Since this canal was designed with inadequate flushing
from stream or ocean currents, it functions as an unintended settling
basin so must be dredged periodically. The proposed critical habitat
drains into a portion of the ocean that has strong currents and
adequate flushing. And unlike the Koolaus, none of the proposed
critical habitat contains streams and aquatic life, and none of the
units are suitable for hunting wild pigs.
Finally, the commenter's summation of benefits to $1.225 billion is
flawed due to double-counting. For example, the $1,690 per acre figure
in the UH study includes the benefits of open space. So adding the
estimated open space benefit of $521 million to the ecosystem services
estimate of $182.5 million double-counts the benefits of open space.
Similarly, the two per-acre figures taken from the UH study ($1,690 per
acre and $76,146 per acre) are two different measures of the same
ecosystem benefits. The first figure refers to the annual stream of
benefits, while the second figure refers to the net present value.
Multiplying both of these figures by 6,000 acres and adding them
together clearly double-counts the ecosystem benefits.
(44) Comment: Assigning an economic value to preservation of
ecosystem functions that may result from the designation of critical
habitat (such as groundwater recharge, protection of coastal marine
waters and fisheries, and other ecosystem services) is now an
acceptable method of economic analysis. The dollar value of these
services is high. However, this analysis was done in a qualitative,
narrative manner in the draft economic analysis. Why was it not done
quantitatively?
Our Response: Quantitative estimates of the economic benefits of
the listed ecosystem services provided by critical habitat are not
presented in the DEA or in the Addendum because studies estimating the
change in the ecosystem associated with critical habitat designation
and the value of that change are not available.
However, such benefits are likely to be small. For example, the
proposed critical habitat is near the coast in an area of low rainfall,
and thus contributes little to groundwater recharge.
The reduction of development and grazing in critical habitat could
reduce soil runoff thereby protecting the coastal marine waters and
fisheries off the south shore of Kauai. However, as mentioned in the
DEA, this benefit is likely to be small because the affected marine
ecosystem has already been altered by over 150 years of sugarcane
cultivation in the area. Also, Koloa has an open coastline that is
exposed to surf and strong ocean currents that continually flush the
near-shore environment. Finally, any displaced development is likely to
occur elsewhere in Koloa. Thus, the net environmental benefit to Kauai
is likely to be small.
Additional environmental benefits, such as the preservation of open
space, changes to traffic congestion, and the promotion of native
plants, are discussed in the Benefits section of Chapter VI in the DEA
and in the Addendum.
(45) Comment: There was no attempt to quantify the value of open
space (parks, preserves, even golf courses) surrounding real estate.
Such increased property values are acknowledged, but there was no
attempt to estimate the corresponding increases in property values.
Understanding of this principle is a large driver in the DMB
Development Company's decision to halve the density of their joint
project with A&B at Kukuiula.
Our Response: The Indirect Costs section of the Addendum discusses
the possibility that the land planned for development in certain
critical habitat units will remain open as a result of the intended
designation. If this land is managed as a park or preserve, it could
increase the selling values of the home lots that are directly adjacent
to critical habitat. An estimate of the number of homes or lots
adjacent to the critical habitat units, as well as the potential
increase in selling values, is discussed for critical habitat Units 2,
6, and 8.
(46) Comment: Development in the Koloa/Poipu area is already
progressing at unsustainable levels, and future traffic, emergency
services, and possibly water supply are sources of uncertainty. It is
good that the critical habitat designation places additional mechanisms
to undertake reasonable slow-growth planning for the region. Also, some
tourists prefer less developed areas. The potential loss of revenues
due to people seeking less overbuilt resort area would be conjectural,
but no more so than the assumption that critical habitat designation
for cave species will reduce the number of visitors to Kauai.
Our Response: With the intended reduction in critical habitat, it
is now assumed that any loss in development due to the intended
designation will be replaced by development elsewhere in Koloa (see the
Indirect Costs section of the Addendum). Thus, critical habitat
designation for the cave animals, as intended by the Service, is
expected to result in little or no change to future traffic, emergency
services, water requirements, etc.
(47) Comment: Portions of Unit 2 and the eastern portion of Unit 1
are planned but not permitted for major resort development; the
southern portion of Unit 1 is planned but not permitted for subdivision
into over 50 ``upscale'' houselots; a portion of Unit 3 is planned and
permitted for a future limestone and basalt quarry; the area
surrounding the old Koloa sugar mill will be expanded into an
industrial area; several water wells are located in Unit 1 and
additional water wells are expected. This development will create
residential and employment opportunities for over a thousand island
residents.
Our Response: Most of the development projects and associated water
well projects mentioned by the commenter are no longer in the intended
critical habitat designation.
Summary of Changes From the Proposed Rule
Based on a review of public comments received on critical habitat,
we have reevaluated our proposed designations and included several
changes to the final designations of critical habitat. No specific
information on habitat conditions or species occurrence was provided.
At the time of the publication of the proposed rule, we were aware of
only six known cave locations where the animals occurred and did not
know the precise locations of other caves with suitable habitat. In
addition, in the proposed rule, we acknowledged two theories with
regard to intercave dispersal corridors (67 FR 14673 and 67 FR 14674).
One theory is that very limited, if any dispersal was occurring between
the cave systems, and the other that dispersal corridors needed to be
protected if these species are to be conserved. Because of the limited
verified occupied areas and the absence of other known suitable cave
locations, we believed it necessary to include areas in the proposal
that would provide for intercave dispersal corridors. In the absence of
more specific data, we proposed those areas that were most likely to
contain the primary constituent elements based on the best available
information at the
[[Page 17444]]
time. In our request for peer review and public comments on the
proposed rule, we asked for specific information on the number and/or
distribution of both animals and what areas were essential for the
conservation of the species.
During the comment periods on the proposed rule, a significant
amount of specific information was received on the presence or absence
of primary constituent elements, verified occupied cave locations, and
other locations of suitable caves. No additional information was
provided on either the location or importance of intercave dispersal
corridors. Although our peer review confirmed the importance of
protecting caves and surrounding mesocaverns for local dispersal, there
was no consensus or scientific clarity provided on intercave dispersal
corridors.
We only designate areas as final critical habitat if they contain
the physical and biological features essential to the conservation of
the species, and if unoccupied, they are essential to the conservation
of the species. In the case of the intercave dispersal corridors, we
suspect connectivity may be important, but we do not know where they
are, to what degree they are used, or how to map these corridors to be
consistent with the legal requirements in designating critical habitat.
Therefore, we have not included such areas in the final rule.
Based on a review of the public comments received on the proposed
critical habitat, we have reevaluated our proposed designations and
included several changes to the final designations of critical habitat.
These changes include the following:
(1) The final designation went from three proposed units
encompassing an area of approximately 1,697 ha (4,193 ac) to 14 units
encompassing a total of 110 ha (272 ac).
(2) We received new information on the presence of the Kauai cave
wolf spider in two caves in the Koloa region and updated their verified
occurrence from four caves to six caves.
(3) We received information indicating we missed a cave from which
the Kauai cave amphipod was previously recorded and updated their
verified occurrence from six caves to seven caves.
(4) We received information from a survey conducted by Dr. Frank
Howarth which identified areas required to maintain the persistence of
both animals on Alexander and Baldwin property. The information
contained numbers of caves discovered and the amount of areas
surrounding them to incorporate sufficient protection and inclusion of
mesocaverns connected to the caves. Areas not identified in Dr.
Howarth's survey were excluded from the designation. This information
also assisted us in refining the amount of needed habitat surrounding
other caves.
(5) We received substantial data from various parties such as
drilling records, photographs, archeological surveys, and biological
surveys indicating the lack of primary constituent elements in certain
portions of proposed critical habitat. These data provided information
as to the current depths of dirt, clay, and other soils. Soil deposits
greater than a foot deep begin to degrade and fill the meoscaverns and
caves necessary for the cave animals' survival and indicate a lack of
the primary constituent elements, or at a minimum the primary
constituent elements are likely to be severely degraded (Dr. F.
Howarth, pers. comm., 2002). These areas have been removed from the
designation.
(6) We received additional information from Dr. Frank Howarth on
areas of higher quality habitat with a high likelihood of containing
occupied caves on Grove Farm property and a Civil Defense map
indicating a large cave previously used as a fall-out shelter. These
areas have been mapped and retained in the designation.
(7) We received information from various parties on surveys done on
their properties indicating the likelihood of suitable cave habitat.
Areas found to have a low likelihood of suitability have been removed
from the designation.
(8) We made revisions to the unit boundaries based on information
supplied by commenters, as well as information gained from field visits
to some of the sites, that indicated that the primary constituent
elements were not present in certain portions of the proposed unit,
that certain changes in land use had occurred on lands within the
proposed critical habitat that would preclude those areas from
supporting the primary constituent elements, or that the areas may not
be essential to the conservation of the species in question.
This final critical habitat designation addresses the conservation
of the species by protecting a number of discrete cave systems (i.e.,
eight caves occupied by one or both species and associated mesocaverns,
six caves where occupancy status is unknown with associated
mesocaverns, and three areas containing higher quality habitat likely
to be occupied by one or both species) that represent a widely
distributed pattern throughout the highest quality habitat in the Koloa
Basin. Designating only the known occupied caves themselves would only
provide extremely small areas with several of the caves in close
proximity to one another. A designation such as this would leave the
species vulnerable to extinction due to a single catastrophic event and
therefore not provide for the conservation of the species. As
previously discussed in this rule under ``Adaptations of troglobitic
animals,'' given the great vulnerability of these species to
desiccation, adjacent mesocavern habitats that contain appropriate
microclimate conditions will provide habitat or serve as refugia for
both animals when conditions in the main cave passages become drier or
otherwise less accommodating. It is within these mesocaverns where it
is likely that the majority of their time is spent. Therefore,
designating surrounding mesocaverns incorporates the area where the
majority of the animals are likely to occur and provides for refugia
from fluctuating conditions in caves which makes them essential to the
conservation of the species. The remaining areas designated where
occupancy by either species has not been verified are essential to the
conservation of the species for the following reasons. The areas
chosen, are known to contain caves or mesocaverns where the animals are
most likely to occur. The designated spatter cones are the type of
volcanic formations that produce rock with mesocaverns and likely
produce cave structures as well. If animals do no currently occupy
these areas, if dispersal is occurring, it can allow for areas for the
species to disperse into, and if dispersal is not occurring, it can
allow for reintroduction. These areas are deemed essential to the
conservation of the species because they provide for a widely
distributed pattern throughout the highest quality habitat available in
the Koloa Basin. This wide distribution will protect the species from
extinction from a single catastrophic event and therefore is essential
to the conservation of the species. If new and additional scientific
information shows that these areas are not essential, the critical
habitat designation can then be revised.
Intervening areas between identified units of critical habitat may
still be important to the recovery of the species although at this time
we do not have information to identify them as essential to the
conservation of the species. However, because either animal may be
present at any given time in these intervening areas with suitable
habitat, section 7 consultation requirements to ensure Federal actions
are not likely to jeopardize the species and section 9 prohibitions,
which preclude the
[[Page 17445]]
unauthorized taking of listed animals, may apply.
Absent any scientific data on the issue of intercave dispersal
corridors, we applied a basic conservation strategy that protects all
of the known cave locations and surrounding mesocaverns and identified
high quality habitat where the animals are most likely to be found in a
pattern that maximizes distribution across the basin. This wide
distribution of cave systems should provide for the long term
conservation of these two species if they are adequately protected and
managed by reducing the vulnerability to diseases and other
catastrophic events.
We are currently working on a draft recovery plan for the cave
animals which will identify the need for genetic studies to determine
the relationships between animals in verified occupied caves and
continued study into ways to determine the importance and location of
intercave dispersal corridors. In the event that new information is
made available and indicates the necessity, we will consider amending
the critical habitat designation.
A brief summary of the modifications made to each unit is given
below.
Former Unit 1 Waikomo--subunit 1a
This unit has been redesignated into 13 separate units. All of
Alexander and Baldwin property has been surveyed by Dr. Frank Howarth,
the recognized expert on Hawaiian caves. Along with data that a
significant portion of their land has been dynamited and therefore
highly unlikely to contain the primary constituent elements, Dr.
Howarth has indicated where the primary cave habitats are and the
surrounding buffer area (61 m) (200 ft) necessary to maintain the
species in this area. Units 1, 2, and 3 represent the areas identified
by Dr. Howarth. All other areas surveyed either do not contain the
primary constituent elements or are not believed to be necessary to the
conservation of the species because they were not identified by Dr.
Howarth as necessary to maintain the species in the area and have been
removed from the designation.
Areas above the Old Railroad Grade have been surveyed and the caves
found to contain these animal species have been retained in the
designation. Service biologists have mapped these caves.
The southern cave found in this area is one of the caves where the
spider's occurrence has been verified. This cave and a 61 m (200 ft)
buffer area to capture the surrounding mesocaverns to provide for a
protective area from the development that may occur outside the buffer
area comprise Unit 4.
The northern cave which occurs on the Kiahuna golf course has been
gated, informational signs have been posted, and the area above the
cave has been planted with native vegetation that is likely to provide
food for the Kauai cave amphipod. This cave was mapped and a 30 m (100
ft) buffer placed around to capture the mesocaverns surrounding the
cave. The golf course has been fully developed, therefore an additional
buffer to protect against additional development is not believed to be
necessary. The cave located within the golf course and the buffer area
comprise Unit 5.
Additional information was provided indicating large soil deposits
on the southern end of the property owned by Kiahuna Golf Club, LLC and
KG Kauai Development LLC. In addition, archaeological information was
provided indicating a large portion of the property was once used as
fish ponds and terraced agricultural fields that were routinely left
flooded. The use of land in this manner is likely to have caused a
buildup of silt and other deposits that would either eliminate any
primary constituent elements or degrade them. Therefore, these areas
have been removed from the designation.
Drilling information obtained near areas proposed on the south side
of Poipu Road near Koloa Landing and Poipu Beach Park indicate large
deposits of sand and therefore no appropriate primary constituent
elements. It is unlikely that the three small areas proposed south of
Poipu Road, which likely contain similar deposits, contain the primary
constituent elements. In addition, drilling information provided just
north of Poipu Road, next to Poipu Village Shopping Center indicate a
settling basin where large deposits of silt, clay, and soil have
accumulated, indicating a lack of primary constituent elements. These
areas have been removed from the designation.
Information obtained on the area north of the private road above
Alexander and Baldwin property and east of Waikomo Stream indicates
that far more homes and other structures have been built than
previously believed. It is unlikely that primary constituent elements
will be found in this area, and therefore it has been removed from the
designation.
Additional information provided by the Eric Knudsen Trust shows two
caves located within their property. These caves were identified during
an archeological survey. Because the caves have not been surveyed by
anyone familiar with the Kauai cave animals, we do not know whether
they are occupied by either species. However, given that many of the
caves found in the same area contain the animals, if all the primary
constituent elements are present, it is highly likely that the animals
will be present in these caves. Therefore, the area mapped for these
caves including a 61 m (200 ft) buffer around them to include
surrounding mesocaverns and protection from potential development are
included in this designation as Units 6 and 8. Other archaeological
finds indicate an extensive irrigation system, and it is likely that
the rest of Eric Knudsen Trust property was used as terraced
agricultural land that would have been routinely flooded. The use of
land in this manner is likely to have caused a buildup of silt and
other deposits that would either eliminate any primary constituent
elements or degrade them. These areas have been deemed not essential to
the conservation of the species and removed from the designation.
Unit 7 comprises an area that has not been surveyed recently, but
the cave located on the property had a verified occurrence of the Kauai
cave amphipod. The property is owned by the Roman Catholic Church, and
no new information was provided on it. Since we did not have
information on the exact location of the cave, we viewed satellite
imagery and designated the area where the cave is most likely located.
If new information on the exact location of the cave is gathered in the
future, we will consider it in possible future revisions of this rule.
The Koloa bypass cave which is now a park and has a verified
occurrence of the Kauai cave amphipod has been retained in the
designation as Unit 9. This cave is completely surrounded by previously
disturbed areas. The area above the cave was planted with plants to
provide food for the Kauai cave amphipod and the entrance sealed over
to prevent human intrusion. This unit comprises the open field of the
park, which incorporates the cave and mesocaverns surrounding the cave.
Unit 10 includes the area containing the cave indicated on the
civil defense map. The civil defense map does not outline the extent of
the cave, but gives a general location. The entrance to the cave has
also been sealed making it difficult to locate its exact location. This
unit also includes the surrounding areas containing mesocaverns. In
addition, further refinement was made by reviewing drilling records
provided during the comment period. These records showed large deposits
of clay
[[Page 17446]]
north of Mahaulepu Road, along Kaluahono Road, and below Waita
Reservoir. These areas are unlikely to contain the primary constituent
elements and have been removed from the designation.
Site visits by Service biologists and Dr. Frank Howarth were made
in the remaining areas of proposed Unit 1a. Units 11 and 12 represent
Puu Wanawana and Puu Hunihuni, areas that are most likely to contain
suitable cave habitat where animals are likely to be present. Both are
spatter cones which are volcanic formations that are comprised of
exposed barren rock that contain mesocaverns, limited soil deposits,
and limited prior disturbance, and are likely to contain larger voids
or caves. Information was provided by consultants hired by Grove Farm
who were able to further investigate the area and have indicated it is
the place most likely to be occupied by either species. Since we do not
know of an exact cave location, the entire area of barren rock has been
included in the designation. Areas surrounding the barren rock are less
likely to contain the primary constituent elements and were deemed not
essential to the conservation of either species. Puu Hi Reservoir is
less likely to contain suitable habitat since these areas have a
greater build up of soil and water does not seem to percolate through
the rock, suggesting a lack of unfilled mesocaverns and caves (Dr. F.
Howarth, pers. comm., 2002).
Unit 13 incorporates the limestone cave with verified occurrences
of the Kauai cave amphipod. A recent visit to the cave by Service
biologist Gordon Smith, Dr. Frank Howarth, and Grove Farm consultants
Dr. Steven Carothers and Kemble White verified the presence of the
Kauai cave wolf spider in the cave (G. Smith in litt., 2002). This
record is the first of the Kauai cave wolf spider occurring in
limestone caves. Although the cave has been extensively surveyed, the
remaining limestone bearing rock has not been surveyed. Dr. Howarth did
look at the area near Makawehi and indicated that the area north of the
limestone bench, outside of the conservation zoned area, was not likely
to contain the primary constituent elements as little barren rock was
seen and the soil layer appeared to be significant. Unit 13
incorporates the limestone cave with verified occurrences of both the
Kauai cave wolf spider and the Kauai cave amphipod as well as adjoining
limestone bench area that is most likely to contain suitable habitat.
All other surrounding areas were deemed not essential to the
conservation of either species.
Former Unit 1 Waikomo--subunit 1b
No new information specific to proposed Unit 1b was provided during
the comment period. However, when this was evaluated in light of the
information provided on the proposed rule, this unit was found to be of
lower quality habitat due to its small size and greater isolation from
occupied areas, and because of the identification of suitable caves and
likely higher quality habitat in other areas, this unit was deemed not
essential to the conservation of either species.
Former Unit 2--Haula
Additional information was provided in and adjacent to Unit 2 in
the form of survey information indicating a lack of primary constituent
elements in parts of the unit. Areas less likely to contain the
appropriate habitat were excluded and the remaining area is included in
the designation. This unit lies only a short distance (approximately
350 m (1,100 ft)) from Unit 13 which is occupied, and it was likely
once connected to that unit in the geologic past (Pleistocene Era) by
deposits that have since eroded away or have been covered by
unconsolidated sediments. The large size of appropriate habitat in this
area is most likely to be able to sustain a population of either the
Kauai cave amphipod or the Kauai cave spider. Information provided by
Grove Farm confirms a large drainage system that empties into the
limestone formation expected to provide the best type of habitat for
the cave animals. Inclusion of this area with Units 1 through 13
provides a diverse geographic distribution that will increase the
likelihood the species will survive stochastic or catastrophic impacts.
This unit has been renamed Unit 14 of the designation and includes all
the limestone bench area most likely to contain the primary constituent
elements and therefore the animals themselves.
Former Unit 3--Puu Keke
Drilling logs were provided around and in the proposed Unit 3 which
showed a mixture of limestone, rock, dirt, and mud. Based on the number
of areas elsewhere verified to be occupied or found to be highly likely
to contain the animals, this area was deemed not essential to the
conservation of either species.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and, (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation,'' as defined by the Act, means the use of all methods
and procedures that are necessary to bring an endangered or a
threatened species to the point at which listing under the Act is no
longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires conferences on
Federal actions that are likely to result in the destruction or adverse
modification of proposed critical habitat. In our regulations at 50 CFR
402.02, we define destruction or adverse modification as ``* * * the