Browse: Departments   Dates   Agencies  

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AH01

NOTICE: Part II

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Kauai Cave Wolf Spider and Kauai Cave Amphipod

DATES: This rule becomes effective on May 9, 2003.

DOCUMENT 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.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

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 watercarved 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 19901999).

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 humanoccupied 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, cavebearing 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 caveadapted 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 reddishbrown 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 chemotactile 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 caveinhabiting 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
[[Page 17431]]
the Kauai cave wolf spider in 1971 (Bousfield and Howarth 1976). Because of the unusual attributes of a highly reduced pincherlike condition of the first gnathopod (thoracic appendage) of the amphipod, and the second gnathopod being mittenlike 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, postcephalic 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 (taillike appendages) 1 and 2 have welldeveloped prepeduncles, 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 cavedwelling 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 upslope orientation into a deadend 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 microclimatic 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 cavedwelling 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 cavedwelling 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 shortlived, 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 cavebuilding 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 (MuellerDombois 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 foodweb communities require food input which is derived from surface systems based upon a photoautotrophic (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
[[Page 17432]]
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 tactilesensory 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 cavedwelling forms to cope with desiccation (Ahearn and Howarth 1982). Surfacedwelling 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 caveinhabiting 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 cavedwelling 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 suboptimal 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, webbuilding 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
[[Page 17433]]
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 pre1998 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 reclosed 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 nondamaging, markrecapture 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 (MuellerDombois 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; MuellerDombois 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, 19981999; 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 overuse 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 caveassociated 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. 9900603 (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. 012063 (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 sitespecific 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 crosssection/ 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 aboveground 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 mesocavebearing 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 cavedwelling 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 humancaused 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 sandpit 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 Stateled 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 countyregulated 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. 1154, 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 coextensively 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.991218 (4th Cir. 2000). The Home Builders case involved a challenge to application of ESA prohibitions to protect the listed Delhi Sands flowerloving fly. As with the species at issue here, the Delhi Sands flowerloving 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, 260263 (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 courtordered 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,
consi

FOR FURTHER INFORMATION CONTACT Paul Henson, Field Supervisor, Pacific Islands Office, at the above address (telephone: 808/5413441; facsimile: 808/5413470).