[Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
[Proposed Rules]
[Pages 38953-38958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19057]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-
Endangered and Threatened Wildlife and Plants; Proposed
Threatened Status for Newcomb's Snail From the Hawaiian Islands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes
threatened status pursuant to the Endangered Species Act of 1973, as
amended, for Newcomb's snail (Erinna newcombi). This freshwater snail
is restricted to the Hawaiian Island of Kaua'i. The distribution of
this snail has greatly decreased from the known historic distribution
and extant populations are presently limited to restricted habitats
within five perennial streams on State land. The five known populations
of this snail and its habitat are currently threatened by predation by
a species of non-native predatory snail and two species of non-native
marsh flies. These populations are also subject to an increased
likelihood of extirpation from naturally occurring events, including
natural disasters such as hurricanes and landslides. Comments and
materials related to this proposal are solicited.
DATES: To ensure consideration in the final rule for this species,
comments from all interested parties should be received by September
19, 1997. Public hearing requests must be received by September 4,
1997.
ADDRESSES: Comments and materials concerning this proposal should be
sent to Robert P. Smith, Manager, Pacific Islands Ecoregion, U.S. Fish
and Wildlife Service, 300 Ala Moana Boulevard, Room 3108, Box 50088,
Honolulu, Hawaii 96850. Comments and material received will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Robert P. Smith, Pacific Islands
Ecoregion Manager, at the above address (808/541-2749; facsimile 808/
541-2756).
SUPPLEMENTARY INFORMATION:
Background
The Hawaiian archipelago is comprised of eight main islands
(Ni'ihau, Kaua'i, O'ahu, Moloka'i, Lana'i, Kaho'olawe, Maui, and
Hawaii) and their offshore islets, plus the shoals and atolls of the
Northwest Hawaiian Islands. The main islands and the northwestern chain
were formed sequentially by basaltic lava that emerges from a crustal
hot spot currently located near the southeast coast of the island of
Hawaii (Stearns 1985). Hawaii is the youngest island in the chain and
is characterized by gently sloping shield volcanoes and currently
active lava flows. Volcanoes on the other islands are either dormant or
extinct. Ongoing erosion has formed steep-walled valleys with well
developed soils and stream systems throughout the chain. Kaua'i, the
oldest and most northwesterly of the main islands, is characterized by
high rainfall, deep valleys, numerous perennial streams, and luxuriant
vegetation.
Four species of Lymnaeidae snails are native to Hawaii (Morrison
1968, Hubendick 1952). Three of these species are found on two or more
of the eight main islands. The fourth species, Newcomb's snail, is
restricted to the island of Kaua'i. Newcomb's snail is unique among the
Hawaiian lymnaeids in that the shell spire typically associated with
lymnaeids has been completely lost. The result is a smooth, black shell
formed by a single, oval whorl, 6 millimeters (mm) (0.25 inches (in.))
long and 3 mm (0.12 in.) wide. A similar shell shape is found in a
Japanese lymnaeid (Burch 1968), but Burch's study of chromosome number
shows that Newcomb's snail has evolutionary ties to the rest of the
Hawaiian lymnaeids, all of which are derived from North American
ancestors (Patterson and Burch 1978). This parallel evolution of
similar shell morphology in Japan and Hawaii from two distinct lineages
of lymnaeid snails is of particular scientific interest.
At the present time, there is no generally accepted nomenclature
for the genera of Hawaiian lymnaeids, although each of these snail
species, including Newcomb's snail, is recognized as a well defined
species. Newcomb's snail was originally described as Erinna newcombi in
1855 by H. & A. Adams (see Hubendick 1952). Hubendick (1952) did not
feel that the distinctive shell form (described above) and reduced
structures of the nervous system of Newcomb's snail warranted a
monotypic genus. In fact, Hubendick included all Hawaiian lymnaeids in
the genus Lymnaea. Morrison (1968) opposed Hubendick, and argued that
the distinctive shell characters of Newcomb's snail supported the
generic name Erinna. Burch (1968), Patterson and Burch (1978), Taylor
(1988), and Cowie (1995) all followed Morrison and referred to
Newcomb's snail as Erinna newcombi. This is the currently accepted
scientific name for Newcomb's snail.
Newcomb's snail is an obligate freshwater species. While the
details of its ecology are not well known, Newcomb's snail probably has
a life history similar to other members of the family. These snails
generally feed on algae and vegetation growing on submerged rocks. Eggs
are attached to submerged rocks or vegetation and there are no
dispersing larval stages; the entire life cycle is tied to the stream
system in which the adults live (Baker 1911). Dispersal of Newcomb's
snail between stream systems is probably very infrequent due to their
obligate freshwater habitat requirements. Historic dispersal probably
relied on long-term erosional events that captured adjacent stream
systems. It should be noted that this life history differs greatly from
the freshwater Hawaiian neritid snails (Nertinana sp.), which have
marine larvae that colonize streams following a period of oceanic
dispersal (Kinzie 1990). It is likely that larvae of these neritid
snails can disperse across the oceanic expanses that separate the
Hawaiian Islands and colonize streams
[[Page 38954]]
on any or all of these islands. This dispersal capacity is not
available to Newcomb's snail.
The specific habitat requirements of Newcomb's snail include fast
flowing perennial streams with stable overhanging rocks, springs, rock
seeps (rheocrenes), and waterfalls (Michael Kido, University of Hawaii
in litt. 1994; Stephen Miller, U.S. Fish and Wildlife Service in litt.
1994; Polhemus 1992; Burch 1968; Hubendick 1952). Surveys of main
stream channels of many of the perennial streams of Kaua'i indicate
that Newcomb's snail is rarely found in this habitat (Adam Asquith,
U.S. Fish and Wildlife Service in litt. 1994a; Don Heacock, State of
Hawaii, Department of Land and Natural Resources, Division of Aquatic
Resources in litt. 1995; M. Kido in litt. 1994, 1995; S. Miller in
litt. 1994a, b; Timbol 1983). The limited occurrence of this snail in
main stream channels may be due to scouring by sediment, rocks, and
boulders that are moved downstream during heavy rains. Consequently,
available suitable habitat is generally associated with small feeder
streams, seeps, and waterfalls.
The present known range of Newcomb's snail is limited to five
stream systems. Each stream supports a single population of Newcomb's
snail (A. Asquith in litt. 1994a; M. Kido in litt. 1994; S. Miller in
litt. 1994a, b; Hubendick 1952). These populations are located in the
Hanalei River, Kalalau Stream, the Lumahai River, Makaleha Stream, and
Waipahe'e Stream. Makaleha and Waipahe'e Streams both flow into Kapa'a
Stream. The populations fall into two groups--populations first
observed prior to 1925 and populations observed since 1993. Five
populations were identified prior to 1925. Three of these populations
(Wainiha, Hanakapi`ai, and Hanakoa) no longer exist. Of the two
remaining pre-1925 populations, one (Waipahe'e) is small and the other
(Kalalau) is relatively large (see below). These data indicate that the
number of populations of Newcomb's snail has been greatly reduced since
1925, perhaps by as much as 60 percent.
Since 1990, surveys of at least 46 streams, tributaries and springs
on Kaua'i have located three previously unknown populations of
Newcomb's snail (A. Asquith in litt. 1994a, b; D. Heacock in litt.
1995; M. Kido in litt. 1994, 1995; S. Miller in litt. 1994a, b; Timbol
1983). Two of these populations are small (see below), and the third
population has been described as large.
No historic information is available on the population sizes of
Newcomb's snail. However, recent reports indicate that two of the five
known populations of Newcomb's snail are relatively large: The Kalalau
and Lumahai populations. The Kalalau population is found in the
northeastern tributary on two permanent waterfalls and in the section
of intervening stream between the waterfalls. The high density of
individuals in this population may be indicative of an undisturbed
natural condition. The estimated maximum density at the base of the
upper permanent waterfall, including the area behind the falling water,
is approximately 800 snails/square meter (m2) (75 snails/
square foot (ft2)) (S. Miller in litt. 1994b). The total
area occupied by these snails could not be accurately evaluated due to
the extreme vertical orientation of the waterfall. Habitat used by
these snails is probably limited to the lower section of the waterfall.
Little information on specific size or area is currently available for
the population of Newcomb's snail from the Lumahai River, although this
population has been reported to be large (M. Kido in litt. 1995).
The population in Makaleha Stream is divided into two
subpopulations. The subpopulation at the waterfall that forms the head
of the main channel of Makaleha Stream is estimated at 30 snails/
m2 (2 to 3 snails/ft2) distributed over 2 to 3
m2 (21 to 32 ft2) (M. Kido in litt. 1994). This
is considerably smaller than the previously described waterfall
population in Kalalau Stream. The reasons for differences in these two
populations are not known with certainty, but may be due to the
presence or absence of non-native predators and biocontrol agents that
feed on lymnaeid snails. The subpopulation that occupies Makaleha
Springs and its small feeder stream covers approximately 20 to 30
m2 (212 to 318 ft2) (S. Miller in litt. 1994a).
Snail densities at this site are difficult to estimate but may be as
high as 20 to 30 snails/m2 (1 to 3 snails/ft2)
(S. Miller in litt. 1994a).
The sizes of two other populations of Newcomb's snail have been
characterized as small. The population in the Waipahe'e branch of
Kealia Stream is estimated to cover 5 to 10 m2 (53 to 106
ft2) with a density of approximately 50 to 80 snails/
m2 (4 to 8 snails/ft2) (A. Asquith in litt.
1994a). The population of Newcomb's snail in the Hanalei River is
divided into four subpopulations in the upper reach of this river (M.
Kido in litt. 1994, 1995). One subpopulation has approximately 10 to 20
snails/m2 (1 to 2 snails/ft2) and occupies 2 to 3
m2 (21 to 32 ft2) (M. Kido in litt. 1994). A
second subpopulation supports approximately 25 snails. The two
remaining subpopulations are reported to be small with very few snails
(M. Kido in litt. 1995).
Based on these data, the Service estimates that the five known
populations of Newcomb's snail have a total of approximately 6,000 to
7,000 individuals. The great majority of these snails, perhaps over 90
percent, are located in the two populations at Kalalau and Lumahai.
Previous Federal Action
The February 28, 1996, Notice of Review of Plant and Animal Taxa
That Are Candidates for Listing as Endangered or Threatened Species (61
FR 7596) included Newcomb's snail as a candidate species. Candidates
are those species for which the Service has on file sufficient
information on biological vulnerability and threat(s) to support
issuance of a proposed rule to list, but issuance of the proposed rule
is precluded.
The processing of this proposed listing rule conforms with the
Service's final listing priority guidance for fiscal year 1997,
published in the Federal Register on December 5, 1996 (61 FR 64475-
64481). The guidance clarifies the order in which the Service will
process rulemakings following two related events: (1) The lifting, on
April 26, 1996, of the moratorium on final listings imposed on April
10, 1995 (Pub. L. 104-6), and (2) the restoration of significant
funding for listing through passage of the omnibus budget
reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for giving highest
priority to handling emergency situations (Tier 1) and second highest
priority (Tier 2) to resolving the listing status of the outstanding
proposed listings. Tier 3 includes the processing of new proposed
listings for species facing high magnitude threats. This proposed rule
for Newcomb's snail falls under Tier 3. The Pacific Islands Ecoregion
currently has no outstanding Tier 1 or 2 species, therefore processing
of Tier 3 activities is encouraged under the listing priority guidance
(61 FR 64480). This rule has been updated by the Pacific Islands
Ecosystem Office to reflect any changes in distribution, status and
threats since the effective date of the listing moratorium.
Summary of Factors Affecting the Species
Section 4 of the Endangered Species Act and regulations (50 CFR
part 424) promulgated to implement the listing
[[Page 38955]]
provisions of the Act set forth the procedures for adding species to
the Federal lists. A species may be determined to be an endangered or
threatened species due to one or more of the five factors described in
section 4(a)(1). These factors and their application to Newcomb's snail
(Erinna newcombi H. and A. Adams 1855) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Although modification of habitat is not an immediate threat, water
development projects have been proposed within Newcomb's snail habitat
in the past. For example, in 1994, a proposed water development project
at Makaleha Springs (State of Hawai`i 1994a) threatened to destroy the
population of Newcomb's snail at this site. This project was ultimately
rejected by the State of Hawai`i, Commission of Water Resource
Management (Michael Wilson in litt. 1995). However, the State of
Hawai`i Department of Water and Land Development can submit a new
application for future development of the water resources at Makaleha
Springs.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization is not known to be a factor affecting Newcomb's
snail, and future overutilization of this species is not anticipated.
C. Disease and Predation
Predation by the non-native rosy glandina snail (Euglandina rosea)
is a serious threat to the survival of Newcomb's snail. This predatory
snail was introduced into Hawaii in 1955 (Funasaki et al. 1988), and
has established populations throughout the main islands. The rosy
glandina feeds on snails and slugs, and field studies have established
that it will readily feed on native snails found in Hawaii (Hadfield et
al. 1994). Furthermore, Kinzie (1992) demonstrated that the rosy
glandina snail can fully submerge itself under water and feed on
aquatic snails such as Newcomb's snail. The rosy glandina has been
observed on the wet, algae-covered rocks of the Makaleha Springs stream
very near individuals of Newcomb's snail (S. Miller in litt. 1994a),
and is believed to prey on them. The rosy glandina snail has caused the
extinction of many populations and species of native snails throughout
the Pacific islands (Hadfield et al. 1994, Miller 1993, Hopper and
Smith 1992, Murray et al. 1988, Tillier and Clarke 1983), and
represents a significant threat to the survival of Newcomb's snail.
Predation on the eggs and adults of native Hawaiian lymnaeid snails
by two non-native species of Sciomyzidae flies also represents a
significant threat to the survival of Newcomb's snail. Two species of
marsh flies (Sepedomerus macropus and Sepedon aenescens) that feed on
lymnaeid snails (Davis 1960) were introduced into Hawaii in 1958 and
1966, respectively, as biological control agents for a non-native
lymnaeid snail, Galba viridis (Funasaki et al. 1988). Galba viridis was
targeted for biocontrol because it is an intermediate host of the
cattle liver fluke (Fasciola gigantica) (Alicata 1938, Alicata and
Swanson 1937). These authors misidentified Galba viridis as Fossaria
ollula, as discussed in Morrison (1968). The non-native lymnaeid and
the two biocontrol flies occur on Kauai as well as on other islands in
Hawaii (Funasaki et al. 1988, Davis and Chung 1969, Davis 1960,
Hubendick 1952). One of the marsh fly species has been observed at a
site (Hanakoa stream) where Newcomb's snail was historically recorded
but is no longer present (S. Miller in litt. 1994b). Another marsh fly
was observed near the waterfall of a Kauai stream (Manoa) that had many
dead lymnaeids in the waterfall plunge pool (S. Miller in litt. 1994b).
These biocontrol agents represent a significant threat to Newcomb's
snail and other native lymnaeid snails.
D. The Inadequacy of Existing Regulatory Mechanisms
All of the five known extant populations of Newcomb's snail are
located on watershed lands of the State of Hawaii. Currently, there are
no State or Federal laws that afford protection for Newcomb's snail.
Recent recommendations by the Stream Protection and Management Task
Force (State of Hawaii 1994b) may lead to some protection for some of
the populations of Newcomb's snail. All of the stream systems that
currently support populations of Newcomb's snail or have supported
populations in the past have been identified as streams with
outstanding aquatic resources (National Park Service 1990). All but one
of these stream systems have been recommended as candidate streams for
protection (National Park Service 1990). Kapaa Stream was not included
in these recommendations, yet this stream system supports the Makaleha
and Waipahee populations of Newcomb's snail.
Newcomb's snail is not currently listed as an endangered or
threatened species in Hawaii. If Newcomb's snail is listed under the
Federal Endangered Species Act, the State of Hawaii Endangered Species
Act (HRS, Sect. 195D-4(a)) will automatically be invoked. The State
statue reads as follows:
``Any species of aquatic life, wildlife, or land plant that has
been determined to be an endangered species pursuant to the [Federal]
Endangered Species Act shall be deemed to be an endangered species
under the provisions of this chapter and any indigenous species of
aquatic life, wildlife, or land plant that has been determined to be a
threatened species pursuant to the [Federal] Endangered Species Act
shall be deemed to be a threatened species under the provisions of this
chapter.''
Under section 404 of the Clean Water Act, the U.S. Army Corps of
Engineers (Corps) regulates the discharge of fill material into waters
of the United States (33 CFR parts 320-330). Waters of the United
States include navigable waters and other waters, their headwaters
(streams with an average annual flow of less than 5 cubic feet per
second), and wetlands (either isolated or adjacent to other waters).
Section 404 regulations require that applicants obtain a permit for
projects that involve the discharge of fill material into waters of the
United States. Projects may qualify for authorization to place fill
material into headwaters and isolated waters, including wetlands, under
Nationwide Permit 26 (NWP 26) if ``[t]he discharge does not cause the
loss of more than 3 acres of waters of the United States nor cause the
loss of waters of the United States for a distance greater than 500
linear feet of stream bed'' (61 FR 65916). These projects can normally
be permitted with minimal environmental review by the Corps. Projects
that qualify for authorization under NWP 26 and ``caus[e] a loss of \1/
3\ acre or less of waters of the United States the permittee must
submit a report within 30 days of completion of the work * * *'' Formal
predischarge evaluation of the impacts of such projects is thus
precluded under the section 404 permit process. An individual permit
may be required by the Corps if a project otherwise qualifying under
NWP 26 would have greater than minimal adverse environmental impacts.
No activity which is likely to jeopardize the continued existence of a
threatened or endangered species, or which is likely to destroy or
adversely modify the critical habitat of such species, is authorized
under any NWP (61 FR 65920). Candidate species receive no special
consideration under section 404, regardless of the type of permit
deemed
[[Page 38956]]
necessary. Thus, this taxon currently receives no protection under
section 404 of the Clean Water Act.
E. Other Natural or Manmade factors Affecting Its Continued Existence
Naturally occurring events may affect the continued existence of
Newcomb's snail. As indicated above, the five known populations of
Newcomb's snail cover very small areas in settings that may be
subjected to extreme effects associated with exceptionally heavy
rainfall or hurricanes. Hurricanes struck the island of Kauai in 1983
and 1992. Rainfall associated with these hurricanes can wash out
streams (Polhemus 1993) and create landslides that can alter stream
flow (Jones et al. 1984). Events such as these could destroy the
habitat of Newcomb's snail or physically displace individuals into
areas where they cannot survive.
Reduced stream flow due to water development projects, droughts, or
other natural or human causes may have several potential negative
effects on the ability of Newcomb's snail to complete its life cycle.
Loss of water could reduce or eliminate the habitat of Newcomb's snail
and possibly lead to increased resource competition or desiccation and
death. Reduced water flow could also lead to increased predation by
non-native predators. Low flows may allow marsh flies or the rosy
glandina snail easier access to individual snails that are otherwise
protected by the force of water movement. Droughts are not uncommon in
the Hawaiian Islands. Between 1860 and 1986 the island of Kauai was
affected by 33 droughts, 20 of which significantly affected the
available water supply on the island (Giambelluca et al. 1991). The
development of water resources also is a continuing issue. These
projects divert water from streams, springs and aquifers that may
otherwise maintain habitats for Newcomb's snail.
Intentional or accidental introductions of snail predators
constitute a significant threat to Newcomb's snail. The State of Hawaii
continues to carry out an active program of introductions of biological
control agents. These introduced organisms are meant to control
agricultural pests, and the impacts on native species have only
recently been considered in evaluating a release program. The marsh
flies and the rosy glandina snail are examples of biological control
agents that were introduced to Hawaii without adequate assessment of
their impact on Newcomb's snail or other native Hawaiian species.
Finally, the combined effects of numerous factors can degrade
stream ecosystems, leading to a gradual decline in snail population
size and an increase in the likelihood of negative stochastic or
biological effects.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in determining to propose this
rule. Based on this evaluation, the preferred action is to list
Newcomb's snail (Erinna newcombi) as threatened. Critical habitat is
not being designated at this time for reasons addressed in the
``Critical Habitat'' section of this proposed rule.
Critical Habitat
Critical Habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means that use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. The Service
finds that designation of critical habitat is not prudent for Newcomb's
snail at this time. Service regulations (50 CFR 424.12(a)(1)) state
that designation of critical habitat is not prudent when one or both of
the following situations exist: (1) The species is threatened by taking
or other human activity, and identification of critical habitat can be
expected to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
Given the very restricted range of this species, the Service is
concerned that the disclosure of the location of the species may lead
to purposeful vandalism of known populations. The Service has received
letters from a landowner on the island of Kaua`i that threaten such
vandalism for other listed species. The publication of precise maps and
descriptions of critical habitat in the Federal Register, as required
for the designation of critical habitat, would increase the degree of
threat to this snail due to vandalism.
In addition, the species proposed herein is known to occur, at
least in part, on non-federally owned lands. Critical habitat
designation provides protection only on Federal lands or on private or
State owned lands when there is Federal involvement through
authorization or funding of, or participation in, a project or
activity. All Federal and state agencies and local planning agencies
involved, have been notified of the location and importance of
protecting Erinna newcombi habitat. Protection of this species' habitat
will be addressed through the recovery process and through the section
7 consultation process. Section 7(a)(2) of the Act requires Federal
agencies, in consultation with the Service, to ensure that any action
authorized, funded, or carried out by such agency, does not jeopardize
the continued existence of a federally listed species, or does not
destroy or adversely modify designated critical habitat. Newcomb's
snail is confined to small geographic areas and each population is
composed of so few individuals that the determinations for jeopardy and
adverse modification would be essentially the same. Therefore,
designation of critical habitat provides no additional benefit beyond
those that the species would receive by virtue of its listing as a
threatened species and likely would increase the degree of threat from
vandalism, collecting, or other human activities. The Service finds
that designation of critical habitat for Newcomb's snail is not prudent
at this time.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing results in
public awareness and conservation actions by Federal, State, and local
agencies, private organizations, and individuals. The Act provides for
possible land acquisition and cooperation with the States and requires
that recovery actions be carried out for all listed species. The
protection required of Federal agencies and the prohibitions against
taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being
[[Page 38957]]
designated. Regulations implementing this interagency cooperation
provision of the Act are codified in 50 CFR part 402. Section 7(a)(4)
requires Federal agencies to confer with the Service on any action that
is likely to jeopardize the continued existence of a species proposed
for listing or result in destruction or adverse modification of
proposed critical habitat. If a species is listed subsequently, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or destroy or adversely modify its
critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible federally agency must enter into
formal consultation with the Service.
Federal agency actions that may require conference and/or
consultation as described in the preceding paragraph include Army Corps
of Engineers authorization of projects such as the construction of
drainage diversions, roads, bridges, and dredging projects subject to
section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.) and section
10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.), U.S.
Environmental Protection Agency authorized discharges under the
National Pollutant Discharge Elimination System (NPDES), and U.S.
Housing and Urban Development or Natural Resource Conservation Service
funded projects.
The Act and its implementing regulations set forth a series of
general trade prohibitions and exceptions that apply to all threatened
wildlife. The prohibitions, codified in 50 CFR 17.21 and 17.31, in
part, make it illegal for any person subject to the jurisdiction of the
United States to take (includes harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect; or to attempt any of these),
import or export, ship in interstate commerce in the course of
commercial activity, or sell or offer for sale in interstate or foreign
commerce any listed species. It is also illegal to possess, sell,
deliver, carry, transport, or ship any such wildlife that has been
taken illegally. Certain exceptions apply to agents of the Service and
State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits are codified in 50 CFR 17.32. Such permits are
available for scientific purposes, to enhance the propagation or
survival of the species, and/or for incidental take in the course of
otherwise lawful activities. For threatened species, permits are also
available for zoological exhibition, educational purposes, or special
purposes consistent with the purposes of the Act.
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable at the time a species is listed those activities that would
or would not constitute a violation of section 9 of the Act. The intent
of this policy is to increase public awareness of the effect of the
listing on proposed and ongoing activities within a species' range. The
Service believes that, based on the best available information, the
following activities will not result in a violation of section 9 of the
Act:
(1) Scientific or recreational activities within the main channel
of streams that support populations of Newcomb's snail, but exclusive
of the specific sites known to support populations of this snail.
Activities that the Service believes could potentially result in
``take'' of Newcomb's snail include, but are not limited to the
following:
(1) Release, diversion, or withdrawal of water that results in
displacement, disruption of breeding or feeding, or death of individual
snails.
(2) Actions that lead to the destruction or alteration of the
occupied habitat of Newcomb's snail (e.g., in stream dredging, rock
removal, channelization, discharge of fill material, actions that
result in siltation of the habitat, diversion of ground water flow
required to maintain the habitat).
(3) Introduction of non-native species that are predators or
competitors of aquatic snails and especially those snails in the family
Lymnaeidae and the closely related family Physidae.
Questions regarding whether specific activities will constitute a
violation of section 9 of the Federal Endangered Species Act should be
directed to the Manager of the Pacific Islands Ecoregion (see ADDRESSES
section). Requests for copies of the regulations regarding listed
wildlife and inquiries about prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911
N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-6241; facsimile
503/231-6243).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial, or other relevant data concerning any
threat (or lack thereof) to this species;
(2) The location of any addition populations of this species and
the reasons why habitat should or should not be determined to be
critical habitat pursuant to section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species;
(4) Current or planned activities in the subject area and their
possible impacts on this species.
Final promulgation of the regulation(s) on this species will take
into consideration the comments and any additional information received
by the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Endangered Species Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days of the date of publication of the proposal in the Federal
Register. Such requests must be made in writing and addressed to the
Pacific Islands Ecoregion Manager (See ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from Pacific Islands Ecoregion (see ADDRESSES
section).
Author: The primary author of this document is Dr. Stephen E.
Miller, U.S. Fish and Wildlife Service, Pacific Islands Ecoregion,
Ecological Services, 300 Ala Moana Boulevard, Room 3108, P.O. Box
50088, Honolulu, Hawaii 96850 (808/541-3441; facsimile 808/541-3470).
Recent data on the
[[Page 38958]]
distribution of Newcomb's snail were contributed by Dr. Adam Asquith,
U.S. Fish and Wildlife Service, Pacific Islands Ecoregion; Mr. Michael
Kido, Environmental Research Laboratory, University of Hawaii, Kaua'i;
and Mr. Don Heacock, Kaua'i District Aquatic Biologist, State of
Hawaii, Department of Land and Natural Resources, Division of Aquatic
Resources.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under SNAILS, to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
--------------------------------------------------------------- population
where Critical Special
Historic range endangered Status When listed habitat rules
Common name Scientific name or
threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
SNAILS:
* * * * * * *
Snail, Newcomb's..................... Erinna newcombi........ U.S.A. (HI)............ NA T NA NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: June 9, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 97-19057 Filed 7-18-97; 8:45 am]
BILLING CODE 4310-55-U
