Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), determine the Newcomb's snail (
This rule takes effect February 25, 2000.
The complete file for this rule is available for inspection, by appointment, during normal business hours at the Pacific Islands Ecoregion, U.S. Fish and Wildlife Service, 300 Ala Moana Boulevard, Room 3–122, Box 50088, Honolulu, HI 96850.
Robert Smith, Pacific Islands Manager, Pacific Islands Ecoregion (see
The Hawaiian archipelago comprises eight main islands (Niihau, Kauai, Oahu, Molokai, Lanai, Kahoolawe, Maui, and Hawaii) and their offshore islets, plus the shoals and atolls of the Northwest Hawaiian Islands. The main islands and the northwestern chain were formed sequentially by basaltic lava that emerged from a crustal hot spot currently located near the southeast coast of the island of Hawaii (Stearns 1985). Hawaii is the youngest island in the chain and is characterized by gently sloping shield volcanoes and currently active lava flows. Volcanoes on the other islands are either dormant or extinct. Ongoing erosion has formed steep-walled valleys with well developed soils and stream systems throughout the chain. Kauai, the oldest and most northwesterly of the main islands, is characterized by high rainfall, deep valleys, numerous perennial streams, and luxuriant vegetation.
Four species of Lymnaeidae snails are native to Hawaii (Morrison 1968 and Hubendick 1952). Three of these species are found on two or more of the eight main islands. The fourth species, Newcomb's snail, is restricted to the island of Kauai. Newcomb's snail is unique among the Hawaiian lymnaeids in that the slender, tapering shape typically associated with the shells of lymnaeids has been completely lost. The result is a smooth, black shell formed by a single, oval whorl, 6 millimeters (mm) (0.25 inches (in.)) long and 3 mm (0.12 in.) wide. A similar shell shape is found in a Japanese lymnaeid (Burch 1968), but Burch's study of chromosome number shows that Newcomb's snail has evolutionary ties to the rest of the Hawaiian lymnaeids, all of which are derived from North American ancestors (Patterson and Burch 1978). This parallel evolution of similar shell
At the present time, there is no generally accepted nomenclature for the genera of Hawaiian lymnaeids, although each of these snail species, including Newcomb's snail, is recognized as a well defined species. Newcomb's snail was originally described as
Newcomb's snail is an obligate freshwater species. While the details of its ecology are not well known, Newcomb's snail probably has a life history similar to other members of the family. These snails generally feed on algae and vegetation growing on submerged rocks. Eggs are attached to submerged rocks or vegetation, and there are no dispersing larval stages; the entire life cycle is tied to the stream system in which the adults live (Baker 1911). Dispersal of Newcomb's snail among stream systems is probably very infrequent due to their obligate freshwater habitat requirements. Historic dispersal probably relied on long-term erosional events that captured adjacent stream systems. This life history differs greatly from the freshwater Hawaiian neritid snails (
The specific habitat requirements of Newcomb's snail include fast flowing perennial streams with stable overhanging rocks, springs, rock seeps, and waterfalls (Michael Kido, University of Hawaii,
The present known range of Newcomb's snail is limited to six stream systems. Each stream supports a single population of Newcomb's snail (A. Asquith, pers. obs. 1994; M. Kido,
Since 1990, surveys of at least 46 streams, tributaries and springs on Kauai have located 4 previously unknown populations of Newcomb's snail (A. Asquith, pers. obs. 1994; D. Heacock,
No historic information is available on the population sizes of Newcomb's snail. However, recent reports indicate that two of the six known populations of Newcomb's snail are relatively large, the Kalalau and Lumahai populations. The high density of individuals in the Kalalau population may be indicative of an undisturbed natural condition. The estimated maximum density at the base of the upper permanent waterfall, including the area behind the falling water, is approximately 800 snails/square meter (m
The population in Makaleha Stream is divided into two subpopulations. One subpopulation is estimated at 30 snails/m
The sizes of the three other populations of Newcomb's snail have been characterized as small. The population in the Waipahee Stream is estimated to cover 5 to 10 m
Based on these data, we estimate that the six known populations of Newcomb's snail have a total of approximately 6,000 to 7,000 individuals. The great majority of these snails, perhaps over 90 percent, are located in the two populations at Kalalau and Lumahai.
The February 28, 1996,
Based on all available information including comments received in response to the proposal (see Comments and Recommendations Section of this final rule), we have now determined Newcomb's snail to be threatened. The processing of this final rule conforms with our Listing Priority Guidance published in the
In the July 21, 1997, proposed rule (62 FR 38953) and associated notifications, we requested interested parties to submit factual reports or information that might contribute to a final determination. The comment period was reopened and extended until December 15, 1997, to accommodate a request for a public hearing (62 FR 60676). We sent announcements of the proposed rule and notice of public hearings to appropriate Federal and State agencies, county governments, scientific organizations, and other interested parties and requested comments. We also published announcements of the proposed rule in the
We received a total of 10 written comments on the proposed rule, 6 by mail and 4 at the public hearing. One Federal agency commented but neither supported nor opposed the proposal. Four Hawaii State agencies provided comments, two that supported the proposal, and two that were neutral. One Kauai County agency indicated support for our efforts in the identification of species habitat areas and in maintaining a census of species but was concerned that the development or maintenance of current or future water resources could be unnecessarily restricted by listing of the Newcomb's snail. The proposal was supported by one individual, one conservation organization and one scientific museum, and opposed by one nonprofit legal foundation. In addition, three commentors expressed support for the designation of critical habitat.
In accordance with our peer review policy promulgated July 1, 1994 (59 FR 34270), we solicited the expert opinions of three appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for the Newcomb's snail. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis, including input of appropriate experts and specialists. We received from these experts written comments that provided additional information on numbers of populations and individuals, distribution, and editorial changes. We incorporated peer review comments into this final rule as appropriate.
A public hearing was requested by Hawaii's Department of Land and Natural Resources (DLNR). The hearing was held at the Outrigger Kauai Beach Hotel in Lihue, Kauai on December 3, 1997, with 13 attendees. Nine oral statements and four written comments were received during the hearing, and, with one exception, all commentors supported the listing. In addition, five commentors expressed support for the designation of critical habitat.
We considered all comments, including oral testimony presented at the public hearing, and also the comments from the peer reviewers who responded to our request to review the proposed rule. We grouped comments of a similar nature by issue and summarized as follows:
The Service routinely has solicited comments from parties interested in, and knowledgeable of, species that have been proposed for listing as threatened or endangered species. The July 1, 1994, Peer Review Policy (59 CFR 34270) established the formal requirement that a minimum of three independent peer reviewers be solicited to review the Service's listing decisions. During the July 21, 1997, to December 15, 1997, comment period, the Service solicited the expert opinions of three biologists having recognized expertise in malacology and/or conservation biology to review the proposed rule. The Service received comments from all three reviewers within the comment period. All concurred with the Service on factors relating to the taxonomy, population models, and biological and ecological information.
After a thorough review and consideration of all information available, we have determined that Newcomb's snail should be classified as a threatened species. We followed procedures found at section 4(a)(1) of the Act and regulations (50 CFR part 424) implementing the listing provisions of the Act. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors and their application to Newcomb's snail (
A.
B.
C.
Predation on the eggs and adults of native Hawaiian lymnaeid snails by two non native species of
Predation by several introduced aquatic species is also a possible threat to populations of Newcomb's snail (D. Heacock,
D.
Furthermore, current State and Federal regulatory mechanisms are inadequate to protect the species. All six of the known extant populations of Newcomb's snail occur in streams in conservation areas that are managed by the State of Hawaii primarily for watershed protection, including uses such as public drinking water, and cultural and agricultural activities. In 1987, the State of Hawaii established a Commission on Water Resource Management (CWRM) which, among other things, was responsible for issuing stream alteration permits for activities, such as water diversion and channelization, that impact Hawaii's streams and springs (State of Hawaii 1993). Since 1987, the State assumed control over all water in the State. Therefore, a State of Hawaii water permit is required for all aquatic activities such as withdrawal of water for public consumption, agricultural purposes (
Protection of the streams in which Newcomb's snail occurs is inadequate under the existing State permitting process because it lacks requirements for the protection and conservation of sensitive aquatic biota. In 1992, the Hawaii State legislature passed a resolution that called for the CWRM to finalize, adopt, and implement a stream protection system, and in 1993, the CWRM appointed the Stream Protection and Management Task Force (Sierra Club Legal Defense Fund 1994). The task force made a series of recommendations on the information that should be included in stream permit applications and the types of activities that might be allowed in streams. In addition, the task force recommended for several streams, including some of the Kauai streams in which Newcomb's snail occurs, “heritage” status, which would have provided them with additional protection. The task force recommendations have not been adopted.
Under section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill material into waters of the United States (33 CFR parts 320–330). Waters of the United States include navigable waters and other waters, their headwaters (streams with an average annual flow of less than 5 cubic feet per second), and wetlands. Section 404 regulations require that applicants obtain a permit for projects that involve the discharge of fill material into waters of the United States. Projects may qualify for authorization under several nationwide permits if the project falls below certain thresholds, such as affecting less than 1.2 hectares (ha) (3 acres (ac)) or less than 152 linear m (500 linear ft) of stream bed. Projects meeting the criteria for a nationwide permit are normally permitted with minimal environmental review by the Corps. However, if any listed species might be affected or is in the vicinity of the project, a prospective permittee may not begin work under the nationwide permit until the Corps satisfies the requirements of the Act. No activity is authorized by any nationwide permit if that activity is likely to jeopardize the continued existence of any listed species (see 33 CFR 330.4(f)).
Individual permits are required for the discharge of fill material into wetlands above the thresholds established by the nationwide permits. The review process for the issuance of individual permits is more rigorous than for nationwide permits. Unlike nationwide permits, individual permit applications require alternative analysis and an assessment of cumulative wetland impacts is required for and there is a 30-day public review period. Resulting permits may include special conditions that require the avoidance or mitigation of environmental impacts. If a listed species is affected, the Corps must consult with us under section 7 of the Act.
Most of the Newcomb's snail populations are fairly small, and the habitat they occupy tends to be small seeps covering less than 1.2 ha (3 ac). Projects that may potentially impact this species could be permitted under the nationwide permit process with limited environmental review or notification because they generally fall under the nationwide permit thresholds. No other federally protected species found within the same or adjacent habitat would invoke a formal environmental review. Unless this species is listed, requiring the Corps to comply with section 7 of the Act, entire populations of the Newcomb's snail, or portions thereof, could conceivably be eliminated if fill material were discharged into the streams and seeps they occupy.
Federal regulations for the introductions of biocontrol agents have not adequately protected Newcomb's snail in the past. As a result, several non-native aquatic species and two non native fly species, which may be the most serious present threats to the Newcomb's snail's continued existence, were purposefully introduced by the State of Hawaii's Department of Agriculture or other agricultural agencies (Funasaki
E.
Reduced stream flow due to water development projects, droughts, or other natural or human causes may have several potential negative effects on the ability of Newcomb's snail to complete its life cycle. Loss of water could reduce
Intentional or accidental introductions of snail predators constitute a significant threat to Newcomb's snail. The State of Hawaii continues to carry out an active program of introductions of biological control agents. These organisms are primarily introduced to control agricultural pests, and their impacts on native species have only recently been considered in evaluating release programs. The marsh flies and the rosy glandina snail are examples of biological control agents that were introduced to Hawaii without adequate assessment of their impact on Newcomb's snail or other native Hawaiian species.
Finally, the combined effects of numerous factors can degrade stream ecosystems, leading to a decline in snail population size and an increase in the likelihood of extinction from naturally occurring or human caused events.
We have carefully assessed the best scientific and commercial information regarding the past, present, and future threats faced by this species in determining to make this rule final. Based on this evaluation, the preferred action is to list the Newcomb's snail (
Critical habitat is defined in section 3 of the Act as: (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) Essential to the conservation of the species and (II) That may require special management considerations or protection and; (ii) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.
In the proposed rule, we indicated that designation of critical habitat was not prudent for
In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent (e.g.,
Due the small number of populations,
In the absence of a finding that critical habitat would increase threats to a species, if there are any benefits to critical habitat designation, then a prudent finding is warranted. In the case of this species, there may be some benefits to designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. There may also be some educational or informational benefits to designating critical habitat. Therefore, we find that critical habitat is prudent for
The Final Listing Priority Guidance for FY 2000 (64 FR 57114) states, the processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. Critical habitat determinations, which were previously included in final listing rules published in the
We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. We will develop a proposal to designate critical habitat for the
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing results in public awareness and conservation actions by Federal, State, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is listed as endangered or threatened and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified in 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer informally with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. If a species is subsequently listed, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.
Federal agency actions that may require conference and/or consultation as described in the preceding paragraph include the Corps authorization of projects such as the construction of drainage diversions, roads, bridges, and dredging projects subject to section 404 of the Clean Water Act (33 U.S.C. 1344
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened wildlife. The prohibitions, codified at 50 CFR 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import or export, transport in interstate or foreign commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.
The Act and 50 CFR 17.32 also provide for the issuance of permits to carry out otherwise prohibited activities involving threatened animal species under certain circumstances. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in connection with otherwise lawful activities. For threatened species, you may also obtain permits for zoological exhibition, educational purposes, or special purposes consistent with the purposes of the Act.
As published in the
(1) Scientific or recreational activities within the main channel of streams that support populations of Newcomb's snail, but exclusive of the specific sites known to support populations of this snail;
(2) Activities authorized, funded, or carried out by Federal agencies (if the species were found on Federal lands), (e.g., grazing management, agricultural conversions, wetland and riparian habitat modification, flood and erosion control, residential development, recreational trail development, road construction, hazardous material containment and cleanup activities, prescribed burns, pesticide/herbicide application, pipelines or utility lines crossing suitable habitat) when such activity is conducted in accordance with any reasonable and prudent measures given by the Service in a consultation conducted under section 7 of the Act;
Potential activities involving Newcomb's snail that we believe will likely be considered a violation of section 9 include, but are not limited to, the following:
(1) Release, diversion, or withdrawal of water that results in displacement, disruption of breeding or feeding, or death of individual snails;
(2) Actions that lead to the destruction or alteration of the occupied habitat of Newcomb's snail (e.g., in-stream dredging, rock removal, channelization, discharge of fill material, actions that result in siltation of the habitat, and diversion of ground water flow required to maintain the habitat).
(3) Introduction of species that are predators or competitors of aquatic snails, especially non native snails in the family Lymnaeidae and the closely related family Physidae.
(4) Interstate and foreign commerce (commerce across State lines and international boundaries) and import/export (as discussed earlier in this section).
You should direct questions regarding whether specific activities will constitute a violation of section 9 of the Act to the Manager of the Pacific Islands Ecoregion (see
As previously stated, Federal listing will automatically invoke listing under the State's endangered species act. State law prohibits taking of listed wildlife and plants in the State and encourages conservation of such species by State agencies and triggers other State regulations to protect the species (HRS, sect. 195AD–4 and 5).
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the
This rule does not contain any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501
A complete list of all references cited in this rule, as well as other references, is available upon request from the Pacific Islands Ecoregion office (see
The primary authors of this final rule are Dr. Steve Miller and Christa Russell, with contributions from Christine Willis, at telephone 808/541–3441 or facsimile 808/541–3470 (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500, unless otherwise noted.
(h) * * *