[Federal Register: January 26, 2000 (Volume 65, Number 17)]
[Rules and Regulations]               
[Page 4162-4169]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE27

Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for Newcomb's Snail From the Hawaiian Islands

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Final rule.


SUMMARY:  We, the U.S. Fish and Wildlife Service (Service), determine 
the Newcomb's snail (Erinna newcombi) to be a threatened species under 
the authority of the Endangered Species Act of 1973, as amended (Act). 
This freshwater snail is restricted to the Hawaiian Island of Kauai. 
The distribution of this snail has greatly decreased from the known 
historic distribution, and the existing populations are presently 
limited to restricted habitats within six perennial streams on State 
land. The six known populations of Newcomb's snail and its habitat are 
currently threatened by predation by a non native predatory snail, two 
species of non native marsh flies, a non native fish, and two species 
of non native frogs. These populations are also subject to an increased 
likelihood of extirpation from naturally occurring events, including 
natural disasters such as hurricanes and landslides. This final rule 
implements the Federal protection provisions provided by the Act for 
Newcomb's snail.

EFFECTIVE DATE:  This rule takes effect February 25, 2000.

ADDRESSES:  The complete file for this rule is available for 
inspection, by appointment, during normal business hours at the Pacific 
Islands Ecoregion, U.S. Fish and Wildlife Service, 300 Ala Moana 
Boulevard, Room 3-122, Box 50088, Honolulu, HI 96850.

FOR FURTHER INFORMATION CONTACT:  Robert Smith, Pacific Islands 
Manager, Pacific Islands Ecoregion (see ADDRESSES section) (808/541-
2749; facsimile: 808/541-2756).



    The Hawaiian archipelago comprises eight main islands (Niihau, 
Kauai, Oahu, Molokai, Lanai, Kahoolawe, Maui, and Hawaii) and their 
offshore islets, plus the shoals and atolls of the Northwest Hawaiian 
Islands. The main islands and the northwestern chain were formed 
sequentially by basaltic lava that emerged from a crustal hot spot 
currently located near the southeast coast of the island of Hawaii 
(Stearns 1985). Hawaii is the youngest island in the chain and is 
characterized by gently sloping shield volcanoes and currently active 
lava flows. Volcanoes on the other islands are either dormant or 
extinct. Ongoing erosion has formed steep-walled valleys with well 
developed soils and stream systems throughout the chain. Kauai, the 
oldest and most northwesterly of the main islands, is characterized by 
high rainfall, deep valleys, numerous perennial streams, and luxuriant 
    Four species of Lymnaeidae snails are native to Hawaii (Morrison 
1968 and Hubendick 1952). Three of these species are found on two or 
more of the eight main islands. The fourth species, Newcomb's snail, is 
restricted to the island of Kauai. Newcomb's snail is unique among the 
Hawaiian lymnaeids in that the slender, tapering shape typically 
associated with the shells of lymnaeids has been completely lost. The 
result is a smooth, black shell formed by a single, oval whorl, 6 
millimeters (mm) (0.25 inches (in.)) long and 3 mm (0.12 in.) wide. A 
similar shell shape is found in a Japanese lymnaeid (Burch 1968), but 
Burch's study of chromosome number shows that Newcomb's snail has 
evolutionary ties to the rest of the Hawaiian lymnaeids, all of which 
are derived from North American ancestors (Patterson and Burch 1978). 
This parallel evolution of similar shell

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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. and A. Adams (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 et al. (1995) all followed Morrison and referred to 
Newcomb's snail as Erinna newcombi. This scientific name is currently 
accepted 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 among stream systems is probably very infrequent due to their 
obligate freshwater habitat requirements. Historic dispersal probably 
relied on long-term erosional events that captured adjacent stream 
systems. This life history differs greatly from the freshwater Hawaiian 
neritid snails (Neritina spp.), which have marine larvae that colonize 
streams following a period of oceanic dispersal (Kinzie 1990). Larvae 
of these neritid snails can likely disperse across the oceanic expanses 
that separate the Hawaiian Islands and colonize streams on any or all 
of these islands. This dispersal capacity is not available to Newcomb's 
    The specific habitat requirements of Newcomb's snail include fast 
flowing perennial streams with stable overhanging rocks, springs, rock 
seeps, and waterfalls (Michael Kido, University of Hawaii, in litt. 
1994; Stephen Miller, U.S. Fish and Wildlife Service (Service), pers. 
obs. 1994; Polhemus et al. (1992); Burch 1968; Hubendick 1952). Surveys 
of main stream channels of many of the perennial streams of Kauai 
indicate that Newcomb's snail is rarely found in these main channels 
(Adam Asquith, Service, pers. obs. 1994; Don Heacock, State of Hawaii, 
Department of Land and Natural Resources, in litt. 1995; M. Kido, in 
litt. 1994, 1995; S. Miller, pers. obs. 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 six stream 
systems. Each stream supports a single population of Newcomb's snail 
(A. Asquith, pers. obs. 1994; M. Kido, in litt. 1994; S. Miller, pers. 
obs. 1994a, b; Hubendick 1952). These populations are located in the 
Hanalei River, Kalalau Stream, the Lumahai River, the North Fork of the 
Wailua River, Makaleha Stream, and Waipahee Stream. Makaleha and 
Waipahee Streams both flow into Kapaa 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, Hanakapiai, and Hanakoa) no longer 
exist. Of the two remaining pre-1925 populations, one (Waipahee) 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 Kauai have located 4 previously unknown populations of Newcomb's 
snail (A. Asquith, pers. obs. 1994; D. Heacock, in litt. 1995; M. Kido, 
in litt. 1994, 1995; S. Miller, pers. obs. 1994a, b; Timbol 1983). 
Three of these populations are small (see below), and the fourth 
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 six 
known populations of Newcomb's snail are relatively large, the Kalalau 
and Lumahai populations. The high density of individuals in the Kalalau 
population may be indicative of an undisturbed natural condition. The 
estimated maximum density at the base of the upper permanent waterfall, 
including the area behind the falling water, is approximately 800 
snails/square meter (m\2\) (75 snails/square foot (ft \2\)) (S. Miller, 
pers. obs. 1994b). The total area occupied by these snails could not be 
accurately evaluated due to the extreme vertical orientation 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. One subpopulation is estimated at 30 snails/m\2\ (2 to 
3 snails/ft \2\) distributed over 2 to 3 m\2\ (21 to 32 ft2 \2\) (M. 
Kido, in litt. 1994). This is considerably smaller than the previously 
described 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 the deliberate use 
by humans of one species of organism to feed on lymnaeid snails. The 
subpopulation that occupies Makaleha Springs covers approximately 20 to 
30 m\2\ (212 to 318 ft \2\) (S. Miller, pers. obs. 1994a). Snail 
densities at this site are difficult to estimate but may be as high as 
20 to 30 snails/m\2\ (1 to 3 snails/ft \2\) (S. Miller, pers. obs. 
    The sizes of the three other populations of Newcomb's snail have 
been characterized as small. The population in the Waipahee Stream is 
estimated to cover 5 to 10 m\2\ (53 to 106 ft \2\) with a density of 
approximately 50 to 80 snails/m\2\ (4 to 8 snails/ft \2\) (A. Asquith, 
pers. obs. 1994). The population of Newcomb's snail in the Hanalei 
River is divided into four subpopulations (M. Kido, in litt. 1994, 
1995). One subpopulation has approximately 10 to 20 snails/m\2\ (1 to 2 
snails/ft \1\) and occupies 2 to 3 m\2\ (21 to 32 ft \2\) (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). The population found in the North Fork 
of the Wailua River, is best described as short-lived.
    Based on these data, we estimate that the six known populations of 
Newcomb's snail have a total of approximately 6,000 to 7,000 
individuals. The great majority of these snails, perhaps over 90 
percent, are located in the two populations at Kalalau and Lumahai.

Previous Federal Action

    The February 28, 1996, Federal Register 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

[[Page 4164]]

we have 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 by other higher priority listing 
actions. We published a proposed rule on July 21, 1997 (62 FR 38953), 
to list this species as threatened.
    Based on all available information including comments received in 
response to the proposal (see Comments and Recommendations Section of 
this final rule), we have now determined Newcomb's snail to be 
threatened. The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will no longer be subject to 
prioritization under Listing Priority Guidance. This final rule is a 
Priority 2 action. We have updated this rule to reflect any changes in 
information concerning distribution, status and threats since the 
publication of the proposed rule.

Summary of Comments and Recommendations

    In the July 21, 1997, proposed rule (62 FR 38953) and associated 
notifications, we requested interested parties to submit factual 
reports or information that might contribute to a final determination. 
The comment period was reopened and extended until December 15, 1997, 
to accommodate a request for a public hearing (62 FR 60676). We sent 
announcements of the proposed rule and notice of public hearings to 
appropriate Federal and State agencies, county governments, scientific 
organizations, and other interested parties and requested comments. We 
also published announcements of the proposed rule in the Honolulu Star-
Bulletin, Honolulu Advertiser (Oahu), and the Garden Island (Kauai) on 
August 8, 1997. We held a public hearing on December 3, 1997, in Lihue, 
Kauai, Hawaii. We accepted comments on the proposed rule until the 
extended comment period closed.
    We received a total of 10 written comments on the proposed rule, 6 
by mail and 4 at the public hearing. One Federal agency commented but 
neither supported nor opposed the proposal. Four Hawaii State agencies 
provided comments, two that supported the proposal, and two that were 
neutral. One Kauai County agency indicated support for our efforts in 
the identification of species habitat areas and in maintaining a census 
of species but was concerned that the development or maintenance of 
current or future water resources could be unnecessarily restricted by 
listing of the Newcomb's snail. The proposal was supported by one 
individual, one conservation organization and one scientific museum, 
and opposed by one nonprofit legal foundation. In addition, three 
commentors expressed support for the designation of critical habitat.
    In accordance with our peer review policy promulgated July 1, 1994 
(59 FR 34270), we solicited the expert opinions of three appropriate 
and independent specialists regarding pertinent scientific or 
commercial data and assumptions relating to the taxonomy, population 
models, and supportive biological and ecological information for the 
Newcomb's snail. The purpose of such review is to ensure listing 
decisions are based on scientifically sound data, assumptions, and 
analysis, including input of appropriate experts and specialists. We 
received from these experts written comments that provided additional 
information on numbers of populations and individuals, distribution, 
and editorial changes. We incorporated peer review comments into this 
final rule as appropriate.
    A public hearing was requested by Hawaii's Department of Land and 
Natural Resources (DLNR). The hearing was held at the Outrigger Kauai 
Beach Hotel in Lihue, Kauai on December 3, 1997, with 13 attendees. 
Nine oral statements and four written comments were received during the 
hearing, and, with one exception, all commentors supported the listing. 
In addition, five commentors expressed support for the designation of 
critical habitat.
    We considered all comments, including oral testimony presented at 
the public hearing, and also the comments from the peer reviewers who 
responded to our request to review the proposed rule. We grouped 
comments of a similar nature by issue and summarized as follows:
    Issue 1: Critical habitat should be designated.
    Response: This issue is addressed under the ``Critical Habitat'' 
section of this final rule.
    Issue 2: Current or future water resources development or 
maintenance could be unnecessarily restricted by listing of the 
Newcomb's snail.
    Response: Section 4(b)(1)(A) of the Act requires us to make listing 
decisions solely on the basis of the best scientific and commercial 
data available, without regard to economics or other similar impacts. 
The legislative history of this statutory provision makes clear that 
economic impacts may not be considered in determining whether a species 
should be listed as endangered or threatened: ``The addition of the 
word ``solely'' is intended to remove from the process of the listing 
or delisting of species any factor not related to the biological status 
of the species. The committee strongly believes that economic 
considerations have no relevance to determinations regarding the status 
of species * * *'' (H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 19, 
(1982). Therefore, we have not considered the impacts of listing on 
economic development in making this listing determination.
    Issue 3: Listing of Newcomb's snail is premature at this time 
because further research is needed to provide information on how best 
to protect it.
    Response: We believe that listing of Newcomb's snail is warranted 
at this time due to the factors addressed under the ``Summary of 
Factors Affecting the Species'' section of this final rule. The 
requirement that section 4 listing determinations be based on the 
``best'' scientific and commercial data available requires us to 
consider the best information available at the time of the listing 
decision. Therefore, the threats facing the species and its habitat, 
the limited range, and relatively small population size are good 
indicators that this species warrants listing. Additional information, 
that may be needed to determine how best to protect the species, may be 
developed and used in the recovery planning process.
    Issue 4: There are significant water resource and habitat-related 
questions that should be evaluated prior to imposing blanket 
restrictions on development in habitat areas.
    Response: Again, it is not appropriate to consider impacts on 
economic development in making a determination to list a species (see 
response to Issue 2). Further, implementing the Act would not 
necessarily result in blanket land use restrictions. Under section 7 of 
the Act, Federal actions including funding,

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licensing, and permitting that may affect the species will require 
consultation between the Federal action agency and us to insure the 
Federal action is not likely to jeopardize the continued existence of 
Newcomb's snail. Section 9 of the Act prohibits persons from ``taking'' 
listed species. Taking is defined to include significant habitat 
modification where it actually kills or injures the listed species. 
However, these provisions do not amount to ``blanket'' prohibitions on 
development. Section 10 of the Act provides for the issuance of permits 
for the incidental take of listed species resulting from otherwise 
lawful activities when sufficient protection for the species is 
    Issue 5: One respondent asserted that listing this species would 
exceed the scope of the Federal commerce power under the Commerce 
Clause of Article I, section 8 of the U.S. Constitution.
    Our Response: The Federal Government has the authority under the 
Commerce Clause of the U.S. Constitution to protect this species, for 
the reasons given in Judge Wald's opinion and Judge Henderson's 
concurring opinion in National Association of Home Builders v. Babbitt, 
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). 
That case involved a challenge to application of the Act's prohibitions 
to protect the listed Delhi Sands flower-loving fly (Rhaphiomidas 
terminatus abdominalis). As with Newcomb's snail, the Delhi Sands 
flower-loving fly is endemic to only one State. Judge Wald held that 
application of the Act's prohibition against taking of endangered 
species to this fly was a proper exercise of Commerce Clause power to 
regulate: (1) Use of channels of interstate commerce; and (2) 
Activities substantially affecting interstate commerce, because it 
prevented loss of biodiversity and destructive interstate competition. 
Judge Henderson upheld protection of the fly because doing so prevents 
harm to the ecosystem upon which interstate commerce depends, and 
because doing so regulates commercial development that is part of 
interstate commerce.

Peer Review

    The Service routinely has solicited comments from parties 
interested in, and knowledgeable of, species that have been proposed 
for listing as threatened or endangered species. The July 1, 1994, Peer 
Review Policy (59 CFR 34270) established the formal requirement that a 
minimum of three independent peer reviewers be solicited to review the 
Service's listing decisions. During the July 21, 1997, to December 15, 
1997, comment period, the Service solicited the expert opinions of 
three biologists having recognized expertise in malacology and/or 
conservation biology to review the proposed rule. The Service received 
comments from all three reviewers within the comment period. All 
concurred with the Service on factors relating to the taxonomy, 
population models, and biological and ecological information.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that Newcomb's snail should be classified 
as a threatened species. We followed procedures found at section 
4(a)(1) of the Act and regulations (50 CFR part 424) implementing the 
listing provisions of the Act. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Newcomb's snail (Erinna newcombi) 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 and diversion 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 Hawaii 1994) threatened to destroy the population of 
Newcomb's snail at this site. This project was ultimately rejected by 
the State of Hawaii, Commission on Water Resource Management. However, 
the County of Kauai, Department of Water 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 at the present time.
    C. Disease or 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. 1993). Furthermore, Kinzie 
(1992) demonstrated that the rosy glandina snail can fully submerge 
itself under water and feed on aquatic snails such as the Newcomb's 
snail. The rosy glandina has been observed on wet, algae-covered rocks 
of the Makaleha Springs Stream very near individuals of Newcomb's snail 
(S. Miller, pers. obs. 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. 1993; 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, Fossaria viridis (Funasaki et al. 1988). Fossaria 
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 Fossaria 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 Chong 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, pers. obs. 
1994b). Another marsh fly was observed near the waterfall of a Kauai 
stream that had many dead lymnaeids in the waterfall plunge pool (S. 
Miller, pers. obs. 1994b). These biocontrol agents represent a 
significant threat to Newcomb's snail and other native lymnaeid snails.
    Predation by several introduced aquatic species is also a possible 
threat to populations of Newcomb's snail (D. Heacock, in litt. 1997). 
These non native aquatic species include the green swordtail 
(Xyphophorus helleri), a fish introduced in 1922 for mosquito control; 
and two accidental introductions, the American bullfrog (Rana 
catesbiana), which was first recorded in 1867, and the wrinkled frog 
(Rana rugosa), which was first recorded in 1896 (State of Hawaii 1995).
    D. The inadequacy of existing regulatory mechanisms. Newcomb's 
snail is not currently listed as an endangered or threatened species in

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Hawaii. When this rule becomes effective and the species is listed 
under the Act, the State of Hawaii Endangered Species Act (HRS, sect. 
195D-4(a)) will automatically be invoked. The State statute reads ``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 pursuant under the 
provisions of this chapter.'' Further, the State may enter into 
agreements with Federal agencies to administer and manage any area 
required for the conservation, management, enhancement, or protection 
of endangered species (HRS, sect. 195D-5(c)). Funds for these 
activities could be made available under section 6 of the Federal Act 
(State Cooperative Agreements). However, without listing, none of these 
provisions would apply to Newcomb's snail.
    Furthermore, current State and Federal regulatory mechanisms are 
inadequate to protect the species. All six of the known extant 
populations of Newcomb's snail occur in streams in conservation areas 
that are managed by the State of Hawaii primarily for watershed 
protection, including uses such as public drinking water, and cultural 
and agricultural activities. In 1987, the State of Hawaii established a 
Commission on Water Resource Management (CWRM) which, among other 
things, was responsible for issuing stream alteration permits for 
activities, such as water diversion and channelization, that impact 
Hawaii's streams and springs (State of Hawaii 1993). Since 1987, the 
State assumed control over all water in the State. Therefore, a State 
of Hawaii water permit is required for all aquatic activities such as 
withdrawal of water for public consumption, agricultural purposes 
(i.e., irrigation), and stream modifications (channelization and 
    Protection of the streams in which Newcomb's snail occurs is 
inadequate under the existing State permitting process because it lacks 
requirements for the protection and conservation of sensitive aquatic 
biota. In 1992, the Hawaii State legislature passed a resolution that 
called for the CWRM to finalize, adopt, and implement a stream 
protection system, and in 1993, the CWRM appointed the Stream 
Protection and Management Task Force (Sierra Club Legal Defense Fund 
1994). The task force made a series of recommendations on the 
information that should be included in stream permit applications and 
the types of activities that might be allowed in streams. In addition, 
the task force recommended for several streams, including some of the 
Kauai streams in which Newcomb's snail occurs, ``heritage'' status, 
which would have provided them with additional protection. The task 
force recommendations have not been adopted.
    Under section 404 of the Clean Water Act, the U.S. Army Corps of 
Engineers (Corps) regulates the discharge of fill material into waters 
of the United States (33 CFR parts 320-330). Waters of the United 
States include navigable waters and other waters, their headwaters 
(streams with an average annual flow of less than 5 cubic feet per 
second), and wetlands. Section 404 regulations require that applicants 
obtain a permit for projects that involve the discharge of fill 
material into waters of the United States. Projects may qualify for 
authorization under several nationwide permits if the project falls 
below certain thresholds, such as affecting less than 1.2 hectares (ha) 
(3 acres (ac)) or less than 152 linear m (500 linear ft) of stream bed. 
Projects meeting the criteria for a nationwide permit are normally 
permitted with minimal environmental review by the Corps. However, if 
any listed species might be affected or is in the vicinity of the 
project, a prospective permittee may not begin work under the 
nationwide permit until the Corps satisfies the requirements of the 
Act. No activity is authorized by any nationwide permit if that 
activity is likely to jeopardize the continued existence of any listed 
species (see 33 CFR 330.4(f)).
    Individual permits are required for the discharge of fill material 
into wetlands above the thresholds established by the nationwide 
permits. The review process for the issuance of individual permits is 
more rigorous than for nationwide permits. Unlike nationwide permits, 
individual permit applications require alternative analysis and an 
assessment of cumulative wetland impacts is required for and there is a 
30-day public review period. Resulting permits may include special 
conditions that require the avoidance or mitigation of environmental 
impacts. If a listed species is affected, the Corps must consult with 
us under section 7 of the Act.
    Most of the Newcomb's snail populations are fairly small, and the 
habitat they occupy tends to be small seeps covering less than 1.2 ha 
(3 ac). Projects that may potentially impact this species could be 
permitted under the nationwide permit process with limited 
environmental review or notification because they generally fall under 
the nationwide permit thresholds. No other federally protected species 
found within the same or adjacent habitat would invoke a formal 
environmental review. Unless this species is listed, requiring the 
Corps to comply with section 7 of the Act, entire populations of the 
Newcomb's snail, or portions thereof, could conceivably be eliminated 
if fill material were discharged into the streams and seeps they 
    Federal regulations for the introductions of biocontrol agents have 
not adequately protected Newcomb's snail in the past. As a result, 
several non-native aquatic species and two non native fly species, 
which may be the most serious present threats to the Newcomb's snail's 
continued existence, were purposefully introduced by the State of 
Hawaii's Department of Agriculture or other agricultural agencies 
(Funasaki et al. 1988). Currently, our Pacific Islands Office reviews 
proposals to release biocontrol agents by the Hawaii State Department 
of Agriculture for potential effects on listed species. However, since 
post-release biology and host range are difficult to predict from 
laboratory studies (Gonzalez and Gilstrap 1992; Roderick 1992), the 
release or augmentation of non native species may pose threats to 
Newcomb's snail in the future.
    E. Other natural or manmade factors affecting its continued 
existence. Because of the small, isolated nature of occurrences of 
Newcomb's snail, and the few individuals present in most of them, this 
species is also more susceptible to random events that may affect its 
continued existence. As indicated above, the six 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 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

[[Page 4167]]

or eliminate the habitat of Newcomb's snail and possibly lead to 
increased intraspecific 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 organisms are primarily introduced to control 
agricultural pests, and their impacts on native species have only 
recently been considered in evaluating release programs. The marsh 
flies and the rosy glandina snail are examples of biological control 
agents that were introduced to Hawaii without adequate assessment of 
their impact on Newcomb's snail or other native Hawaiian species.
    Finally, the combined effects of numerous factors can degrade 
stream ecosystems, leading to a decline in snail population size and an 
increase in the likelihood of extinction from naturally occurring or 
human caused events.
    We have carefully assessed the best scientific and commercial 
information regarding the past, present, and future threats faced by 
this species in determining to make this rule final. Based on this 
evaluation, the preferred action is to list the Newcomb's snail (Erinna 
newcombi) as threatened. All populations are threatened or potentially 
threatened by predation by non native snails, flies, frogs, and fish; 
habitat destruction or modification from water development or diversion 
projects; habitat destruction or displacement of individuals by stream 
wash outs from heavy rainfall or landslides that can alter stream flow; 
and inadequate existing regulatory mechanisms. Currently, the 6 
populations support 6,000 to 7,000 individuals but historical 
information indicates that the number of populations has been greatly 
reduced since 1925, perhaps by as much as 60 percent. Perhaps over 90 
percent of the individuals are located in only two populations. The 
small sizes of four of the six populations and limited distribution 
make these populations vulnerable to extinction from reduced 
reproductive vigor or from random environmental events. Because this 
species is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range, this species fits the definition of threatened as defined in the 
Act. Therefore, the determination of threatened status for Newcomb's 
snail is warranted.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) Essential to the conservation 
of the species and (II) That may require special management 
considerations or protection and; (ii) Specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Erinna newcombi because of a concern that 
publication of precise maps and descriptions of critical habitat in the 
Federal Register could increase the vulnerability of this species to 
incidents of collection and vandalism. We also indicated that 
designation of critical habitat was not prudent because we believed it 
would not provide any additional benefit beyond that provided through 
listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 
1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions, we have reexamined the question of whether critical 
habitat for Erinna newcombi would be prudent.
    Due the small number of populations, Erinna newcombi is vulnerable 
to unrestricted collection, vandalism, or other disturbance. We remain 
concerned that these threats might be exacerbated by the publication of 
critical habitat maps and further dissemination of locational 
information. However, we have examined the evidence available for 
Erinna newcombi and have not found specific evidence of taking, 
vandalism, collection, or trade of this species or any similarly 
situated species. Consequently, consistent with applicable regulations 
(50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the 
identification of critical habitat will increase the degree of threat 
to this species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if there are any benefits to critical habitat 
designation, then a prudent finding is warranted. In the case of this 
species, there may be some benefits to designation of critical habitat. 
The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by this species 
would not be likely to change the section 7 consultation outcome 
because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species, 
there may be instances where section 7 consultation would be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. There may also be some educational or informational 
benefits to designating critical habitat. Therefore, we find that 
critical habitat is prudent for Erinna newcombi.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states, the processing of critical habitat determinations (prudency and 
determinability decisions) and proposed or final designations of 
critical habitat will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 as allowed by our funding allocation for 
that year. As explained in detail in the Listing Priority Guidance, our 
listing budget is currently insufficient to allow us to immediately

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complete all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Erinna newcombi will allow us to 
concentrate our limited resources on higher priority critical habitat 
and other listing actions, while allowing us to put in place 
protections needed for the conservation of Erinna newcombi without 
further delay.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for the Erinna newcombi as soon 
as feasible, considering our workload priorities.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against taking and harm are 
discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified in 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer informally with us 
on any action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. If a species is subsequently listed, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of a listed species or to destroy or adversely 
modify its critical habitat. If a Federal action may affect a listed 
species or its critical habitat, the responsible Federal agency must 
enter into formal consultation with us.
    Federal agency actions that may require conference and/or 
consultation as described in the preceding paragraph include the Corps 
authorization of projects such as the construction of drainage 
diversions, roads, bridges, and dredging projects subject to section 
404 of the Clean Water Act (33 U.S.C. 1344 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 authorization of discharges under the 
National Pollutant Discharge Elimination System, and projects funded by 
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 prohibitions and exceptions that apply to all threatened 
wildlife. The prohibitions, codified at 50 CFR 17.31, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these), import or export, 
transport in interstate or foreign commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It is also illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    The Act and 50 CFR 17.32 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
animal species under certain circumstances. Such permits are available 
for scientific purposes, to enhance the propagation or survival of the 
species, and/or for incidental take in connection with otherwise lawful 
activities. For threatened species, you may also obtain permits for 
zoological exhibition, educational purposes, or special purposes 
consistent with the purposes of the Act.
    As published in the Federal Register on July 1, 1994 (59 FR 34272), 
our policy is 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 effects of the listing on proposed and 
ongoing activities within a species' range. We believe that, based on 
the best available information, the following activities will not 
result in a violation of section 9, provided these activities are 
carried out in accordance with existing regulations and permit 
    (1) Scientific or recreational activities within the main channel 
of streams that support populations of Newcomb's snail, but exclusive 
of the specific sites known to support populations of this snail;
    (2) Activities authorized, funded, or carried out by Federal 
agencies (if the species were found on Federal lands), (e.g., grazing 
management, agricultural conversions, wetland and riparian habitat 
modification, flood and erosion control, residential development, 
recreational trail development, road construction, hazardous material 
containment and cleanup activities, prescribed burns, pesticide/
herbicide application, pipelines or utility lines crossing suitable 
habitat) when such activity is conducted in accordance with any 
reasonable and prudent measures given by the Service in a consultation 
conducted under section 7 of the Act;
    Potential activities involving Newcomb's snail that we believe will 
likely be considered a violation of section 9 include, but are not 
limited to, the following:
    (1) Release, diversion, or withdrawal of water that results in 
displacement, disruption of breeding or feeding, or death of individual 
    (2) Actions that lead to the destruction or alteration of the 
occupied habitat of Newcomb's snail (e.g., in-stream dredging, rock 
removal, channelization, discharge of fill material, actions that 
result in siltation of the habitat, and diversion of ground water flow 
required to maintain the habitat).
    (3) Introduction of species that are predators or competitors of 
aquatic snails, especially non native snails in the family Lymnaeidae 
and the closely related family Physidae.
    (4) Interstate and foreign commerce (commerce across State lines 
and international boundaries) and import/export (as discussed earlier 
in this section).
    You should direct questions regarding whether specific activities 
will constitute a violation of section 9 of the Act to the Manager of 
the Pacific Islands Ecoregion (see 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).

[[Page 4169]]

Hawaii State Law

    As previously stated, Federal listing will automatically invoke 
listing under the State's endangered species act. State law prohibits 
taking of listed wildlife and plants in the State and encourages 
conservation of such species by State agencies and triggers other State 
regulations to protect the species (HRS, sect. 195AD-4 and 5).

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
for which Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An 
information collection related to the rule pertaining to permits for 
endangered and threatened species has OMB approval and is assigned 
clearance number 1018-0094. For additional information concerning 
permits and associated requirements for threatened species, see 50 CFR 

References Cited

    A complete list of all references cited in this rule, as well as 
other references, is available upon request from the Pacific Islands 
Ecoregion office (see ADDRESSES section).


    The primary authors of this final rule are Dr. Steve Miller and 
Christa Russell, with contributions from Christine Willis, at telephone 
808/541-3441 or facsimile 808/541-3470 (see ADDRESSES section). Recent 
data on the distribution of Newcomb's snail was contributed by Dr. Adam 
Asquith, US Fish and Wildlife Service, Pacific Islands Ecoregion.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend, part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:


    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. Amend section 17.11(h) 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 or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened

                   *                  *                  *                  *                  *                  *                  *
Snail, Newcomb's.................  Erinna newcombi.....  U.S.A. (HI)........  NA.................  T                       680           NA           NA

                   *                  *                  *                  *                  *                  *                  *

    Dated: December 31, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-1828 Filed 1-25-00; 8:45 am]