35990 Federal Register / Vol. 75, No. 121 / Thursday, June 24, 2010 / Rules and Regulations

SUMMARY: The FCC published a pacificum) on the islands of Hawaii, group, which began its evolution document in the Federal Register of Maui, and Molokai. This final rule perhaps as long as 10 million years ago June 15, 2010, (75 FR 33729), clarifying implements the Federal protections (Jordan et al. 2003, p. 89), is the narrow- the requirements necessary for provided by the Act for these species. winged Hawaiian damselfly genus Broadband Radio Service (BRS) and We also determine that critical habitat Megalagrion. This genus appears to be Educational Broadband Service (EBS) for these two Hawaiian damselflies is most closely related to species of licensees to demonstrate substantial prudent, but not determinable at this Pseudagrion elsewhere in the Indo- service and ensure that BRS licensees of time. Pacific (Zimmerman 1948a, pp. 341, new initial licenses are given a DATES: This rule becomes effective July 345). The Megalagrion species of the reasonable period of time to deploy 26, 2010. Hawaiian Islands have evolved to occupy as many larval breeding niches service, while ensuring that spectrum is ADDRESSES: This final rule is available (different adaptations and ecological rapidly placed in use. The document on the Internet at http:// conditions for breeding and contained an incorrect page number in www.regulations.gov and http:// development of larvae, including reference to the BRS/EBS Third Further www.fws.gov/pacificislands. Comments chemical, physical, spatial, and Notice of Proposed Rulemaking citation. and materials received, as well as temporal factors) as all the rest of the DATES: Effective July 15, 2010. supporting documentation used in the world’s damselfly species combined, FOR FURTHER INFORMATION CONTACT: preparation of this rule, will be and in terms of the number of insular- available for public inspection, by Nancy M. Zaczek, Wireless endemic (native to only one island) appointment, during normal business Telecommunications Bureau, species, are exceeded only by the hours at: U.S. Fish and Wildlife Service, Broadband Division, Federal radiation of damselfly species of Fiji in Pacific Islands Fish and Wildlife Office, Communications Commission, 445 12th the Pacific (Jordan et al. 2003, p. 91). Street, SW., Washington, DC 20554, at 300 Ala Moana Boulevard, Room 3-122, Native Hawaiians apparently did not (202) 418–0274 or via the Internet to Box 50088, Honolulu, HI 96850; differentiate the various species, but [email protected]. telephone, 808-792-9400; facsimile, 808- referred to the native damselflies (and 792-9581. Correction dragonflies) collectively as ‘‘pinao,’’ and FOR FURTHER INFORMATION CONTACT: to the red-colored damselflies In the Federal Register 75 FR 33729 Loyal Mehrhoff, Field Supervisor, specifically as ‘‘pinao ula.’’ There has published on Tuesday, June 15, 2010, Pacific Islands Fish and Wildlife Office been no traditional European use of a the following correction is made: On (see ADDRESSES). If you use a common name for species in the genus page 33730, second column, paragraph telecommunications device for the deaf Megalagrion. In his 1994 taxonomic 3, first sentence, remove the phrase ‘‘74 (TDD), call the Federal Information review of the candidate species of FR 49335’’ and insert ‘‘74 FR 49356.’’ Relay Service (FIRS) at 800-877-8339. insects of the Hawaiian Islands, Nishida Marlene H. Dortch, SUPPLEMENTARY INFORMATION: (1994, pp. 4-7) proposed the name ‘‘Hawaiian damselflies’’ as the common Secretary, Federal Communications Background Commission. name for species in the genus Damselflies are insects in the order [FR Doc. 2010–15348 Filed 6–23–10; 8:45 am] Megalagrion. Because this name reflects Odonata, and are close relatives of the restricted distribution of these BILLING CODE 6712–01–P dragonflies, which they resemble in insects and is nontechnical, the appearance. Damselflies, however, are common name ‘‘Hawaiian damselflies’’ slender-bodied and fold their wings is adopted for general use here, and we DEPARTMENT OF THE INTERIOR parallel to the body while at rest, which use the common names flying earwig readily distinguishes them from their Fish and Wildlife Service Hawaiian damselfly and Pacific dragonfly relatives, which hold their Hawaiian damselfly to identify the two wings out perpendicular to the body 50 CFR Part 17 species addressed in this final rule. while not in flight. The general biology of Hawaiian [Docket No. FWS-R1-ES-2009-0036] The flying earwig Hawaiian damselfly damselflies is typical of other narrow- [MO 92210-0-0008] and the Pacific Hawaiian damselfly are winged damselflies (Polhemus and unique, endemic insects found only in Asquith 1996, pp. 2-7). The males of RIN 1018-AV47 the Hawaiian Islands. Historically found most species are territorial, guarding Endangered and Threatened Wildlife on the islands of Hawaii and Maui, the areas of habitat where females lay eggs and Plants; Listing the Flying Earwig flying earwig Hawaiian damselfly has (Moore 1983a, p. 89). During copulation, Hawaiian Damselfly and Pacific not been seen on the island of Hawaii and often while the female lays eggs, the Hawaiian Damselfly As Endangered for over 80 years. Currently, the species male grasps the female behind the head Throughout Their Ranges is known only from one location on with terminal abdominal appendages to Maui. The Pacific Hawaiian damselfly guard the female against rival males; AGENCY: Fish and Wildlife Service, was historically found on all of the main thus males and females are frequently Interior. Hawaiian Islands except Kahoolawe and seen flying in tandem. ACTION: Final rule. Niihau. Currently, the Pacific Hawaiian Female damselflies lay eggs in damselfly is known only from the submerged aquatic vegetation or in mats SUMMARY: We, the U.S. Fish and islands of Hawaii, Maui and Molokai. of moss or algae on submerged rocks, Wildlife Service (Service), determine The Hawaiian Islands are well known and hatching occurs in about 10 days endangered status under the for several spectacular evolutionary (Williams 1936, pp. 303, 306, 318; Endangered Species Act of 1973, as radiations (the rapid evolution of new Evenhuis et al. 1995, p. 18). In most amended (Act), for two species of species from a single ancestral type, as species of Hawaiian damselflies, the Hawaiian damselflies, the flying earwig a result of adaptation and divergence in immature larval stages (naiads) are Hawaiian damselfly (Megalagrion response to new ecological conditions) aquatic, breathing through three nesiotes) on the island of Maui and the resulting in unique insect fauna found flattened abdominal gills, and are Pacific Hawaiian damselfly (M. nowhere else in the world. One such predaceous, feeding on small aquatic

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invertebrates or fish (Williams 1936, p. Previous Federal Actions In fiscal year 2007, we determined 303). Naiads may take up to 4 months that funding was available to initiate to mature (Williams 1936, p. 309), after Both the flying earwig Hawaiian work on listing determinations for these which they crawl out of the water onto damselfly and the Pacific Hawaiian two species. On July 8, 2009, we rocks or vegetation to molt into winged damselfly were first designated as published a proposed rule to list the adults, typically remaining close to the candidate species on May 22, 1984 (49 flying earwig Hawaiian damselfly and aquatic habitat from which they FR 21664). Candidate species are those the Pacific Hawaiian damselfly as emerged. The Pacific Hawaiian taxa for which the Service has sufficient endangered (74 FR 32490). We solicited damselfly exhibits this typical aquatic information on their biological status data and comments from the public on life history. and threats to propose them for listing the proposed rule for 60 days, ending under the Act (16 U.S.C. 1531 et seq.), In contrast, the naiads of a few species September 8, 2009. To allow the public but for which the development of a and interested parties additional time to of Hawaiian damselflies are terrestrial or listing regulation has been precluded by semiterrestrial, living on wet rock faces submit comments on the proposed rule, other higher-priority listing activities. we reopened the comment period on or in damp terrestrial conditions, The flying earwig Hawaiian damselfly November 19, 2009 (74 FR 59956), and inhabiting wet leaf litter or moist leaf was removed from the candidate list on accepted comments until December 21, axils (the angled juncture of the leaf and November 21, 1991 (56 FR 58804), 2009. stem) of native plants up to several feet whereas the Pacific Hawaiian damselfly above ground (Zimmerman 1970, p. 33; retained its status as a candidate Species Information Simon et al. 1984, p. 13; Polhemus and species. On November 15, 1994 (59 FR Flying Earwig Hawaiian Damselfly Asquith 1996, p. 17). The naiads of 58982), the flying earwig Hawaiian The flying earwig Hawaiian damselfly these terrestrial and semiterrestrial damselfly was added back onto the species have evolved short, thick, hairy was first described from specimens candidate list. In the Candidate Notice collected in the 1890s in Puna on gills and in many species are unable to of Review (CNOR) published on swim (Polhemus and Asquith 1996, p. Hawaii Island by R.C.L. Perkins (1899, February 28, 1996 (61 FR 7595), we p. 72). Kennedy (1934, pp. 343-345) 75). The flying earwig Hawaiian announced a revised list of plant and damselfly is believed to exhibit this described what was believed at the time animal taxa that we regarded as to be a new species of damselfly based terrestrial or semiterrestrial naiad life candidates for possible addition to the history. on specimens from Maui; these were Lists of Threatened and Endangered later determined to be synonymous with The Hawaiian damselflies are Wildlife and Plants. This revision also the specimens collected by Perkins. The represented by 23 species and 5 included a new ranking system, flying earwig Hawaiian damselfly is a subspecies, and are currently found on whereby each candidate species was comparatively large and elongated 6 of the Hawaiian Islands (Kauai, Oahu, assigned a Listing Priority Number species. The males are blue and black in Molokai, Maui, Lanai, and Hawaii). (LPN) from 1 to 12. Both the flying color and exhibit distinctive, greatly There are more species of Megalagrion earwig Hawaiian damselfly and the enlarged, pincer-like cerci (paired on the geologically older islands (12 Pacific Hawaiian damselfly were appendages on the rearmost segment of species on Kauai) than on the assigned an LPN of 2 on February 28, the abdomen used to clasp the female geologically youngest island (8 species 1996 (61 FR 7595). during mating). It is for the males’ on Hawaii), and there are more single- On May 4, 2004, the Center for elongated abdominal appendages and island endemic species on the older Biological Diversity petitioned the their resemblance to those found on islands (10 on Kauai) than on the Secretary of the Interior to list 225 earwigs (order Dermaptera) that the youngest island (none on Hawaii) species of plants and animals that were species is named. Females are (Jordan et al. 2003, p. 91). Historically, already candidates, including these two predominantly brownish in color. The Megalagrion damselflies were among Hawaiian damselfly species, as adults measure from 1.8 to 1.9 inches the most common and conspicuous endangered or threatened under the (in) (46 to 50 millimeters (mm)) in native Hawaiian insects. Some species provisions of the Act. In our annual length and have a wingspan of 1.9 to 2.1 commonly inhabited water gardens in CNOR, dated May 11, 2005 (70 FR in (50 to 53 mm). The wings of both residential areas, artificial reservoirs, 24870), we retained a listing priority sexes are clear except for the tips, which and watercress farms, and were even number of 2 for both of these species in are narrowly darkened along the front abundant in the city of Honolulu, as accordance with our listing priority margins. Naiads of this species have noted by early collectors of this group guidance published on September 21, never been collected or found (Perkins 1899, p. 76; Perkins 1913, p. 1983 (48 FR 43098). A listing priority (Polhemus and Asquith 1996, p. 69), but clxxviii; Williams 1936, p. 304). number of 2 reflects threats that are both they are believed to be terrestrial or Beginning with the extensive stream imminent and high in magnitude, as semiterrestrial in habit (Kennedy 1934, and wetland conversion, alteration, and well as the taxonomic classification of p. 345; Preston 2007a). modification, and degradation of native each of these two Hawaiian damselflies The biology of the flying earwig forests through the 20th century, as distinct species. At the time, we Hawaiian damselfly is not well Hawaii’s native damselflies, including determined that publication of a understood, and it is unknown if this the two species that are the subject of proposed rule to list these species was species is more likely to be associated this final listing action, experienced a precluded by our work on higher with standing water or flowing water tremendous reduction in available priority listing actions. Since then, we (Kennedy 1934, p. 345; Polhemus 1994, habitat. In addition, predation by a have published our annual findings on p. 40). The only confirmed population number of nonnative species that have the May 4, 2004, petition (including our found in the last 6 years occurs along a been both intentionally and, in some findings on these two candidate species) single East Maui stream and the cases, inadvertently introduced into the in the CNORs dated September 12, 2006 adjacent steep, moist, riparian talus Hawaiian Islands is a significant and (71 FR 53756), December 6, 2007 (72 FR slope (a slope formed by an ongoing threat to all native Hawaiian 69034), and December 10, 2008 (73 FR accumulation of rock debris), which is damselflies. 75176). densely covered with Dicranopteris

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linearis (uluhe), a native fern. Adults of uluhe habitat located upslope, where of the breeding pools, perching on the flying earwig Hawaiian damselfly the habitat is predominantly native bordering vegetation and flying only have been observed to perch on shrubs and matted fern understory short distances when disturbed vegetation and boulders, and to fly (Foote 2007; Hawaii Biodiversity and (Polhemus and Asquith 1996, p. 83). slowly for short distances above this Mapping Program (HBMP) 2006). This species is rarely seen along main particular stream within the one known Unsurveyed areas containing potentially stream channels, and its ability to remaining habitat site. When disturbed, suitable habitat for this species include disperse long distances over land or the adults fly downward within nearby the Hana coast of east Maui, and the east water is suspected to be poor compared vegetation or between rocks, rather than rift zone of Kilauea and the Kona area to other Hawaiian damselflies (Jordan et up and away as is usually observed with on the island of Hawaii (Foote 2007). al. 2007, p. 254). aquatic Hawaiian damselfly species. Pacific Hawaiian Damselfly The Pacific Hawaiian damselfly is Although immature individuals have now believed to be extirpated from the not been located, based on the habitat The Pacific Hawaiian damselfly was islands of Oahu, Kauai, and Lanai and the behavior of the adults, it is first described by McLachlan (1883, p. (Polhemus and Asquith 1996, p. 83). On believed that the naiads may be 234), based on specimens collected by the island of Oahu, due to its terrestrial or semiterrestrial, occurring R.C.L. Perkins from streams on the occupation of particularly vulnerable among damp leaflitter (Kennedy 1934, islands of Lanai and Maui. This habitat within sidepools of lowland p. 345) or possibly within moist soil or damselfly is a relatively small, dark- streams, the Pacific Hawaiian damselfly seeps between boulders in suitable colored species, with adults measuring was rare by the 1890s and appears to habitat (Preston 2007a). The highest 1.3 to 1.4 in (34 to 37 mm) in length and have been extirpated from this island by elevation at which this species has been having a wingspan of 1.3 to 1.6 in (33 1910 (Liebherr and Polhemus 1997, p. recorded is 3,000 feet (ft) (914 meters to 42 mm). Both adult males and 494). It is unknown when the Kauai and females are mostly black in color. Males (m)), but its close association with uluhe Lanai populations of the Pacific exhibit brick-red striping and patterns, habitat suggests that its range may Hawaiian damselfly disappeared. Until while females exhibit light-green extend upward to close to 4,000 ft 1998, it was believed that the species striping and patterns. The only (1,212 m) (Foote 2007). was extirpated from the island of immature individuals of this species Historically, the flying earwig Hawaii. That year, one population was that have been collected were early- Hawaiian damselfly was known from discovered within a small stream instar (an intermoult stage of the islands of Hawaii and Maui. On located just above, but isolated from, development) individuals, and they Hawaii, it was originally known from Maili Stream, which is known to be exhibit flattened, leaf-like gills seven or more general localities. The occupied by nonnative fish (Englund (Polhemus and Asquith 1996, p. 83). species has not been seen on Hawaii for 1998, pp. 15-16). On Maui and Molokai, over 80 years, although extensive This species is most easily fewer than six populations of the Pacific surveys within apparently suitable distinguished from other Hawaiian Hawaiian damselfly could be located by habitat in the Kau and Olaa areas were damselflies by the extremely long lower the 1970s (Harwood 1976, pp. 251-253; conducted from 1997 to 2008 (Polhemus abdominal appendages of the male, Gagne 1980, pp. 119, 125; Moore and 2008). On Maui, the flying earwig which greatly exceed the length of the Gagne 1982, p. 1). The conservation of damselfly was historically reported from upper appendages. this species was identified as a priority five general locations on the windward Historically, the Pacific Hawaiian by the International Union for the side of the island (Kennedy 1934, p. damselfly was known from lower Conservation of Nature and Natural 345). Since the 1930s, however, the elevations (below 2,000 ft (600 m)) on Resources (Moore 1982, p. 209). flying earwig Hawaiian damselfly has all of the main Hawaiian Islands except only been observed in a single area Kahoolawe and Niihau (Perkins 1899, p. The Pacific Hawaiian damselfly is along a particular stream on the 64). This species was known to breed currently found in at least seven streams windward side of east Maui, despite primarily in lentic (standing water) on Molokai and may possibly be extant surveys from 1993 through 2008 at systems such as marshes, seepage-fed in other unsurveyed streams on several of its historically occupied sites. pools, large ponds at higher elevations, Molokai’s northern coast that have not Although presumed extant, the last and small, quiet pools in gulches that been invaded by nonnative fish observation of the species was in 2005 have been cut off from the main stream (Englund 2008). On the island of Maui, (Foote 2008); the species was not channel (Moore and Gagne 1982, p. 4; the species is currently known from 14 observed during the last survey at this Polhemus and Asquith 1996, p. 83). The streams. The Pacific Hawaiian damselfly location in 2008. No quantitative Pacific Hawaiian damselfly is no longer is no longer found along the entire estimate of the size of this remaining found in most lentic habitats in Hawaii, reaches of these Maui streams, but only population is available. such as ponds and taro (Colocasia in restricted areas along each stream It is hypothesized that the flying esculenta) fields, due to predation by where steep terrain prevents access by earwig Hawaiian damselfly may now be nonnative fish that now occur in these nonnative fish, which inhabit degraded, restricted to what is perhaps suboptimal systems (Moore and Gagne 1982, p. 4; lower stream reaches (Polhemus and habitat, where periodic absences of the Englund et al. 2007, p. 215). Asquith 1996, p. 13; Englund et al. species due to drought may be expected Observations have confirmed that the 2007, p. 215). The species is known and might explain the lack of Pacific Hawaiian damselfly is now from a single population on the island observations of the species (Foote 2007). restricted almost exclusively to seepage- of Hawaii, last observed in 1998. Some researchers also believe that fed pools along overflow channels in the No quantitative estimates of the size overcollection of this species by terminal reaches of perennial streams, of the extant populations are available. enthusiasts may have impacted some usually in areas surrounded by thick Howarth (1991, p. 490) described the populations in the past (Polhemus vegetation (Moore and Gagne 1982, pp. Pacific Hawaiian damselfly as the most 2008). It is further possible that the 3-4; Polhemus 1994, p. 54; Englund common and most widespread of the individuals observed in this area are 1999, p. 236; Englund et al. 2007, p. native damselfly species at the end of actually part of a larger population that 216; Polhemus 2007, p. 238). Adults the 19th century, and yet a decline in may be located in the extensive belt of usually do not stray far from the vicinity this species was observed as early as

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1905 due to the effects of nonnative fish two damselflies as endangered (Conry Our response: In preparing both the introduced for control of mosquitoes. 2009, pers. comm.; Namu’o 2009, pers. proposed and final rules for these comm.). species, we reviewed the best scientific Summary of Comments and and commercial data available, Recommendations Public Comments including technical reports, published In our proposed rule published on (1) Comment: One commenter stated journal articles, and numerous other July 8, 2009 (74 FR 32490), we that there appears to be little, if any, documents, including unpublished requested that all interested parties empirical data indicating water reports and surveys. In addition, we submit written comments on the diversions have any potential impact on consulted with several species experts. proposal by September 8, 2009. We also the flying earwig Hawaiian damselfly. We based our listing determination for contacted appropriate Federal and State Our response: While we acknowledge the flying earwig Hawaiian damselfly agencies, scientific experts and that the larval stage of the flying earwig and the Pacific Hawaiian damselfly on organizations, and other interested Hawaiian damselfly has never been the best available information regarding parties and invited them to comment on observed within stream water, repeated the species’ current known population the proposal. Newspaper notices observations of the adults along the status, the known condition of their inviting general public comment were stream adjacent to its only known habitat, and the current factors affecting published on the islands of Hawaii, population site on east Maui indicate a the species, along with ongoing Maui, Molokai, and Oahu. On strong biological association of an conservation efforts, as described in the November 19, 2009 (74 FR 59956), we unknown nature with flowing stream Summary of Factors Affecting the reopened the comment period for an water. This association is likely related Species (below) in this final rule. The additional 30 days, ending December to the species’ natural history and may Act neither provides for, nor requires, 21, 2009. include the need for sufficient space or additional research effort prior to a We received a total of five written a stream setting for mating adults and listing decision. We acknowledge that comments and no requests for public territorial behavior of males. uncertainties exist; however, under hearings. Three comments were from Additionally, the species’ larval habitat section 4 of the Act, we must make a State of Hawaii agencies and two were is undoubtedly dependent on localized listing determination based on the best from the same nongovernmental area hydrology. For example, should a scientific and commercial available at organization. We received three stream experience either reduced flow the time of our determination. comments supporting the listing of the or complete dewatering for an extended (4) Comment: One commenter two Hawaiian damselflies. Two period of time, it is expected that the disagreed with our analysis that stream comments neither supported nor impact to surrounding soils and diversions for agriculture have reduced opposed the listings, and one of these associated vegetation, including the stream habitat available to the Pacific comments provided additional uluhe ferns that are believed to be the Hawaiian damselfly, and currently pose information on the two damselflies. We species’ likely larval-stage habitat, will a threat to this species. Our response: Historically, the also requested peer review from be soil desiccation and concomitant impacts of the plantation-era sugarcane potential peer reviewers. prolonged vegetation dieback, resulting irrigation system reduced stream habitat in degraded habitat conditions for the Peer Review Comments available to this species. The Pacific flying earwig Hawaiian damselfly. In accordance with our peer review Hawaiian damselfly was once among policy published on July 1, 1994 (59 FR (2) Comment: One commenter stated the most commonly observed aquatic 34270), we solicited expert opinion the reduction or modification of water insects in the islands (Zimmerman from seven knowledgeable individuals flow in a stream should not be 1948, p. 377). Because this species with scientific expertise that included identified as an activity that could breeds in lentic habitats or stream familiarity with the two Hawaiian potentially result in violation of section terminal reaches, which experienced damselflies and their habitat, biological 9 of the Act pertaining to the flying significant modification for agriculture needs, and threats. We received no earwig Hawaiian damselfly. beginning as early as the 19th century, written comments from any of the seven Our response: As discussed in the the Pacific Hawaiian damselfly was peer reviewers, although several offered previous response (see Comment 1), we extirpated from many of its historical their opinion that the two Hawaiian believe there is a strong association with habitat sites (Polhemus 2007, p. 236). By damselfly species meet the definition of stream water flow and the species’ life the 1930s, water diversions had been an endangered species (A. Asquith, history requirements. Stream flow is developed on all of the main Hawaiian Hawaii Sea Grant, pers. comm. 2009; F. likely essential to the adult damselfly’s Islands, and by 1978, the stream flow in Howarth, Bishop Museum, pers. comm. breeding requirements and is also over one-half of all of the 366 perennial 2009; K. Magnacca, University of essential to maintaining localized soil streams in Hawaii had been altered in Hawaii at Hilo, pers. comm. 2009; D. hydrology necessary for persistence of some manner (Brasher 2003, p. 1055). Polhemus, State of Hawaii Division of uluhe ferns, which are known foraging All or most of the low or average flow Aquatic Resources, pers. comm. 2009; and mating sites for the adults and may of the stream was, and often still is, D. Preston, Bishop Museum, pers. provide habitat for the larval stage. diverted into fields or reservoirs, leaving comm. 2009). Therefore, any permanent or prolonged many stream channels completely dry reduction or modification of stream flow (Takasaki et al. 1969, pp. 27-28; Harris Comments from the State of Hawaii in a stream utilized by this species may et al. 1993, p. 12; Wilcox 1996, p. 56). The State of Hawaii’s State Historic result in a violation of section 9 of the With the nearly complete cessation of Preservation Division concurred that no Act. this industry in the Hawaiian Islands, it historic properties would be affected by (3) Comment: One commenter stated is unlikely that new irrigation-related the listing of the two Hawaiian that distribution of both species is not water diversion activities will be damselflies (McMahon 2009, pers. fully known and recommended that the initiated in the remaining streams that comm.). The State’s Division of Forestry Service conduct additional surveys for currently provide habitat for the Pacific and Wildlife (DOFAW) and Office of both species prior to proceeding with Hawaiian damselfly. However, most of Hawaiian Affairs supported listing the listing. the historical water diversions remain in

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place. The historical loss of stream proposal to list the Pacific Hawaiian as current. Because the new standards habitat, resulting in the present damselfly (1984), and elevated it to have not yet been implemented, we are curtailment of habitat available to the candidate status, it had been extirpated unable to determine their effectiveness Pacific Hawaiian damselfly, combined from Kauai, Oahu, and Lanai, and was in enhancing damselfly habitat. with the threat of predation by also considered extirpated from the Should the proposed IIFS be nonnative fish in the remaining stream island of Hawaii. Subsequently in 1998, approved as the new standard, we will habitat, continues to restrict and reduce a single population was discovered on strongly support a collaborative the amount of habitat potentially an isolated portion of a Hilo stream on conservation effort between our agency; available to this species. Should some of the island of Hawaii. However, since the State; the CWRM; and affected this water be returned to stream then, the Pacific Hawaiian damselfly landowners, leaseholders, and other systems, the amount of habitat available has not been reobserved on Kauai, entities, to analyze the potential return to this species may increase if the water Lanai, or Oahu, and remains only on of water flow into currently diverted return were to be implemented carefully Molokai and Maui, and one location on streams on a case-by-case basis, to to prevent the spread of nonnative fish Hawaii Island. We do not consider the ensure the protection of the Pacific species upstream. discovery of a single population on the Hawaiian and the flying earwig (5) Comment: One commenter noted island of Hawaii to represent a Hawaiian damselflies and their stream the Pacific Hawaiian damselfly, significant broadening of the range of or stream-associated habitat. although historically known from lower the species. (9) Comment: One commenter elevations, is now known to have (7) Comment: One commenter disagreed with our assessment that the established successfully breeding observed that water diversions may damselflies were threatened by populations at higher elevations above enhance the damselflies’ chances for inadequate regulatory protections. The existing stream diversions. survival by isolating them from commenter stated that the State Water Our response: Prior to the predatory, nonnative fish species. Code requires that the economic establishment of widespread stream Our response: We agree that existing benefits of stream water removal be diversions, the Pacific Hawaiian diversions on some streams function as balanced against in-stream benefits, damselfly was considered one of the a manmade barrier and prevent the including benefits to aquatic fish and most abundant and frequently observed egress of nonnative, predatory fish into wildlife. The commenter further stated insects in Hawaii and was known from currently isolated, upstream damselfly that the CWRM’s IIFS standards provide all of the main Hawaiian Islands, except habitat sites. However, existing adequate protection for aquatic wildlife, Kahoolawe and Niihau. Previously diversions also alter the historical and the CWRM has, in the past, given known from suitable portions of many amount and flow rate of water within considerable deference to in-stream streams and water bodies from sea level many lower stream sections because the benefits over stream water removal in to some higher elevation sites diversions either reduce the amount of setting IIFS. (Zimmerman 1948, p. 377), the Pacific water flow at the point of diversion or Our response: We believe that the Hawaiian damselfly is now extirpated capture all stream water during times of CWRM’s stated requirements to provide from at least 18 known population sites drier weather or drought. Therefore, the protection for aquatic wildlife are on the islands of Hawaii, Kauai, Lanai, net impact of stream diversions in the insufficiently specific to adequately Oahu, Maui, and Molokai. Diversions Hawaiian Islands has been and protect the damselflies or their habitat. changed the amount and flow rate of continues to be an overall reduction in The CWRM’s IIFS standards do not water within many lower stream the amount of suitable stream habitat include provisions that address the sections, because the diversions either available to both the Pacific Hawaiian needs of the species. Additionally, we reduced the amount of water flow at the damselfly and the flying earwig lack specific examples of past CWRM point of diversion, or captured all Hawaiian damselfly. deference to in-stream benefits, and are stream water (as they were designed to (8) Comment: One commenter noted thus unable to determine whether do) during times of drier weather or that the recently mandated interim in- CWRM’s IIFS standards have drought. The Pacific Hawaiian stream flow standards (IIFS) established specifically benefited these damselflies. damselfly is currently found in by the Commission for Water Resource (10) Comment: One commenter approximately 22 streams on the islands Management (CWRM) for 10 east Maui explained that several of the State’s of Hawaii, Maui, and Molokai, across a streams diverted by the East Maui existing hydroelectric plants do not variety of elevations. All known Irrigation Company (EMI) may either operate directly on streams but are populations are located within streams benefit existing damselfly populations located some distance away and are or bodies of water free of nonnative, or allow entry of nonnative fish species powered by water diverted from predatory fish. We lack sufficient into currently fish-isolated damselfly streams. information to determine whether all habitat. The commenter further stated Our response: In this final rule, we stream reaches occupied by this that the proposed rule incorrectly have clarified that water is diverted to damselfly species are now above identifies the 1988 IIFS as current while power hydroelectric facilities regardless manmade diversions, but we know the newer standards have been mandated. of their location. species is largely absent from areas Our response: We agree that the (11) Comment: One commenter noted below manmade diversions. potential release of additional water into that some of the hydroelectric projects (6) Comment: One commenter stated streams that are currently being diverted identified as proposed may be that the current known range of the is a complex issue, and that the outcome developed without diverting additional Pacific Hawaiian damselfly appears to may be beneficial to damselflies or may water from streams. be broader than the species’ known increase the threat from nonnative Our response: We have modified the range at the time it became a candidate predatory fish. As of the date of appropriate section of this final rule to for listing. publication of this final rule, it is our clarify that in some cases, for some of Our response: We acknowledged in understanding that the recently the State’s proposed hydroelectric our proposed rule that at the time we proposed IIFS have yet to be approved facilities, no additional water might be determined we had sufficient and implemented by the CWRM, and we diverted beyond what is currently information on file to support a therefore recognize the 1988 standards removed for agriculture or other

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purposes. However, the threats to the that the sites have been identified as economically developable, and that damselflies below the point of diversion economically developable for none of the 10 proposed sites includes within a given stream remain the same hydroelectric use. Populations of the streams with Pacific Hawaiian due to the existing diversion, and we Pacific Hawaiian damselfly are located damselfly populations. We have added believe that any additional increased upon three of these streams identified the information regarding the proposed water diversion for hydroelectric power only as potentially economically hydroelectric development on the could possibly impact damselfly developable for hydroelectric use. stream site associated with the only populations. Our response: We have modified the known location of the flying earwig (12) Comment: One commenter noted appropriate section of this final rule to Hawaiian damselfly to our threats that water currently being diverted from correct the information that 28, not 38, analysis (see Factor A). streams to generate power for some sites have been identified as potentially Summary of Factors Affecting the hydroelectric projects is often returned economically developable for Species downstream within the same stream hydroelectric use and that three of the system. Therefore, the potential to streams harboring Pacific Hawaiian Section 4 of the Act (16 U.S.C. 1531 impact damselfly habitat will vary damselfly populations are not proposed et seq.) and its implementing depending on location of the diversion for development but rather are regulations (50 CFR part 424) set forth and location of damselfly habitat within identified as only potentially the procedures for adding species to the the respective stream system. developable. Federal Lists of Endangered and Our response: We have modified the (14) Comment: One commenter Threatened Wildlife and Plants. A appropriate section of this final rule to observed that the HSA identifies 10 sites species may be determined to be an clarify that, in some streams, water where hydropower developments have endangered or threatened species due to diverted for the generation of power is been proposed, several of which overlap one or more of the five factors described returned to the same stream system. with sites identified as potentially in section 4(a)(1) of the Act. These five However, the threats to the damselflies developable (see Comment 13). The listing factors are: (A) The present or below the point of diversion remain, commenter further noted that the list of threatened destruction, modification, or and may depend upon the difference (if 10 sites actually proposed for curtailment of its habitat or range; (B) any) of the volume and quality of water hydroelectric development does not overutilization for commercial, returned and the point at which the include streams known to be occupied recreational, scientific, or educational water is returned to the stream system. by the Pacific Hawaiian damselfly; purposes; (C) disease or predation; (D) The commenter did not provide specific therefore, future hydropower the inadequacy of existing regulatory examples or elaborate upon specific development is unlikely to impact this mechanisms; and (E) other natural or streams. species. However, one proposed site manmade factors affecting its continued (13) Comment: One commenter does include the only known existence. Listing actions may be clarified that the Hawaii Stream population of the flying earwig warranted based on any of the above Assessment (HSA) (CWRM 1990) Hawaiian damselfly. threat factors, singly or in combination. identifies 28, not 38, sites that have Our response: We have modified the The threats to the flying earwig and potential to be developed for appropriate section of this final rule to Pacific Hawaiian damselfly species are hydropower. The commenter further clarify that some of the 10 sites summarized according to the five listing noted that these sites have not been proposed for development in the HSA factors in Table 1, and discussed in proposed for development, but rather overlap with those sites identified as detail below. TABLE 1. SUMMARY OF THREATS TO THE FLYING EARWING HAWAIIAN DAMSELFLY AND PACIFIC HAWAIIAN DAMSELFLY.

SPECIES 5 FACTORS CATEGORY THREATS Flying Earwig Pacific Hawaiian Hawaiian Damselfly Damselfly

FACTOR A Agriculture/urban development X X

Stream alteration P X

Habitat modification by pigs X —

Habitat modification by nonnative plants X X

Stochastic events X X

Climate change P P

FACTOR B Overcollection P —

FACTOR C Predation A, BF (P) A, B, F, BF

FACTOR D Inadequate habitat protection X X

Inadequate protection from nonnative aquatic species X X

FACTOR E Limited populations X X A = ants

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B = backswimmers F = fish BF = bullfrogs P = potential threat X = known threat

Factor A. The Present or Threatened and connectivity, resulting in an through the year, rather than Destruction, Modification, or increased probability of local continuously flood them (Handy and Curtailment of Its Habitat or Range extirpation or even extinction of the two Handy 1972, pp. 58-59). The advent of Hawaiian damselfly species. plantation sugarcane cultivation led to Freshwater habitats used by the flying Although extensive filling of far more extensive stream diversions, earwig and Pacific Hawaiian damselflies freshwater wetlands is rarely permitted with the first diversion built in 1856 on on all of the main Hawaiian Islands are today, loss of riparian or wetland Kauai (Wilcox 1996, p. 54). These severely altered and degraded because habitats utilized by the Pacific and systems were designed to tap water at of past and present land and water flying earwig Hawaiian damselflies, upper elevations (above 984 ft (300 m)) management practices, including: such as smaller areas of moist slopes, by means of a concrete weir in the agriculture and urban development; emergent vegetation, and narrow strips stream (Wilcox 1996, p. 54). All or most development of groundwater, perched of freshwater seeps within anchialine of the low or average flow of the stream aquifer (aquifer sitting above main water pool complexes (landlocked bodies of was, and often still is, diverted into table), and surface water resources; and water with a subterranean connection to fields or reservoirs, leaving many stream the deliberate and accidental the ocean), still occurs. In addition, channels completely dry (Takasaki et al. introductions of nonnative animals marshes have been, and continue to be, 1969, pp. 27-28; Harris et al. 1993, p. 12; (Harris et al. 1993, pp. 12-13; Meier et slowly filled and converted to meadow Wilcox 1996, p. 56). al. 1993, pp. 181-183). habitat due to increased sedimentation As noted above, by the 1930s, water Habitat Destruction and Modification by resulting from increased storm water diversions had been developed on all of Agriculture and Urban Development runoff from upslope development, the the main Hawaiian Islands, and by accumulation of uncontrolled growth of 1978, the stream flow in over one-half Although there has not been a invasive vegetation, and blockage of of all of the 366 perennial streams in comprehensive, site-by-site assessment downslope drainage (Wilson Okamoto & Hawaii had been altered in some of wetland loss in Hawaii (Erikson and Associates, Inc. 1993, pp. 3-4 to 3-5). manner (Brasher 2003, p. 1055). Some Puttock 2006, p. 40), Dahl (1990, p. 7) The effects of future conversion of stream diversion systems are extensive, estimated that at least 12 percent of wetland and other aquatic habitat for such as the Waiahole Ditch, which lowland to upper-elevation wetlands in agriculture and urban development are diverts water from 37 streams within the Hawaii had been converted to non- immediate and significant for the range of the Pacific Hawaiian damselfly wetland habitat by the 1980s. If only following reason: As noted above, an on the windward side of Oahu to the coastal plain (below 1,000 ft (305 m) estimated 30 percent of all coastal plain dry plains on the leeward side of the elevation) wetlands are considered, it is wetlands in Hawaii have already been island via a tunnel cut through the estimated that 30 percent have been lost to agriculture and urban Koolau mountain range (Stearns and converted for agricultural and urban development, while the loss of lowland Vaksvik 1935, pp. 399-403). On west development (Kosaka l990, p. 1). These freshwater habitat in Hawaii already Maui, as of 1978, over 49 miles (mi) (78 marshlands and wetlands provided approaches 80 to 90 percent (Kosaka kilometers (km)) of stream habitat in 12 habitat for several damselfly species, 1990, p. 1). Lacking the aquatic habitat streams had been lost due to diversions, including the Pacific Hawaiian features that the damselflies require for and all of the 17 perennial streams on damselfly. essential life history needs, such as west Maui are dewatered to some extent By the 1930s, water diversions had marshes, ponds, and sidepools along (Maciolek 1979, p. 605). This loss of been developed on all of the main streams (Pacific Hawaiian damselfly) stream habitat may have contributed to Hawaiian Islands, and by 1978, the and riparian habitat (flying earwig the extirpation of the Pacific Hawaiian stream flow in over one-half of all of the Hawaiian damselfly), these modified damselfly population on west Maui. 366 perennial streams in Hawaii had areas no longer support populations of Given the affiliation of the flying earwig been altered in some manner (Brasher these two Hawaiian damselflies. Hawaiian damselfly with riparian 2003, p. 1055). All or most of the low Agriculture and urban development habitats, this loss of stream habitat may or average flow of the stream was, and have thus contributed to the present also potentially account for its absence often still is, diverted into fields or curtailment of the habitat of these two on west Maui. Most lower-elevation reservoirs, leaving many stream Hawaiian damselflies, and we have no stream segments on west Maui are now channels completely dry (Takasaki et al. indication that this threat is likely to be completely dry, except during storm- 1969, pp. 27-28; Harris et al. 1993, p. 12; significantly ameliorated in the influenced flows (Maciolek 1979, p. Wilcox 1996, p. 56). The historical foreseeable future. 605). destruction and modification of habitat The maintenance of natural hydrology continues to impact the two Hawaiian Habitat Destruction and Modification by is closely tied to the life history damselflies, by restricting them to Stream Diversion requirements of the Hawaiian curtailed or isolated habitat areas that Stream modifications began with the damselflies, as the presence of standing are often degraded in quality (for early Hawaiians, who diverted water to or running water is essential to example, by the presence of predatory irrigate taro. However, unlike modern reproduction of the two species. In nonnative fishes). The present stream diversions which often addition to providing breeding habitat curtailment of the habitat or range of the completely dewater streams all year for the adults, the aquatic larval stage of flying earwig Hawaiian damselfly and around, early diversions often took no the Pacific Hawaiian damselfly is Pacific Hawaiian damselfly due to past more than half the stream flow, and entirely dependent on water, and the habitat destruction or modification in typically were periodic to occasionally maintenance of local soil hydrology is turn limits population size, distribution, flood taro ponds at different times necessary for the persistence of uluhe

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ferns, which provide habitat for the Stream on Molokai has reduced flow (Stearns 1940, p. 88). This allows water larval stage of the flying earwig due in part to groundwater withdrawal in aquifers normally feeding the stream Hawaiian damselfly. The reduced flow (Brasher 2003, p. 1,056), which may to be diverted elsewhere underground. or complete dewatering of streams thus have reduced stream habitat available to Dewatering of the streams by tunneling results in the destruction or degradation the Pacific Hawaiian damselfly. and earlier, less-informed well of habitat conditions for both the Pacific Likewise, on Maui, streams in the west placement near or in streams was a and flying earwig Hawaiian damselflies. Maui Mountains that flow into the significant cause of habitat loss, and The extensive diversion of streams on Lahaina District are fed by groundwater these effects continue today. Maui island-wide has reduced the leaking from breached high-elevation Historically, for example, there was amount of stream habitat available to dikes. Downstream of the dike sufficient surface flow in Makaha and the Pacific Hawaiian damselfly, and compartments, stream diversions are Nanakuli streams on Oahu to support potentially to the flying earwig designed to capture all of the low stream taro loi in their lower reaches, but this Hawaiian damselfly as well. flow, causing the streams downstream flow disappeared subsequent to In addition to diverting water for to be frequently dry (U.S. Geological construction of vertical wells upstream agriculture and domestic water supply, Survey 2008a, p. 1), likely impacting (Devick 1995, p. 1). The inadvertent streams in Hawaii have also been available habitat for the Pacific dewatering of streams through the diverted for use in hydroelectric power. Hawaiian damselfly, and potentially for piercing of their aquifers (which are In some cases, the water used for power the flying earwig Hawaiian damselfly, in normally separated from adjacent water- generation is already being diverted for the Honolua and Honokohau streams. another use; in other cases the water is The island of Lanai lies within the bearing layers by an impermeable layer), returned to the stream of origin. There rain shadow of the west Maui by tunneling or through placement of are a total of 18 active hydroelectric Mountains, which reach 5,788 ft (1,764 vertical wells, caused the loss of Pacific plants operating on Hawaiian streams m) in elevation. Lower in elevation than Hawaiian damselfly habitat, and on the islands of Hawaii, Kauai, and Maui, annual rainfall on Lanai’s summit contributed to the Pacific Hawaiian Maui, only one of which is located on is 30 to 40 in (760 to 1,015 mm), but is damselfly’s extirpation on the islands of a stream where a historical population much less over the rest of the island Oahu, Kauai, and Lanai (Polhemus and of the Pacific Hawaiian damselfly was (University of Hawaii Department of Asquith 1996, pp. 23-24). Such known on Kauai (Waimea). Another 28 Geography 1998, p. 13). Flows of almost activities also reduced the extent of sites have been identified as feasible for every spring and seep on Lanai have stream habitat for the Pacific Hawaiian hydroelectric development on the been diverted (Stearns 1940, pp. 73-74, damselfly on the islands of Maui, islands of Hawaii, Kauai, Maui, and 85, 88, 95). Surface waters in streams Molokai, and Hawaii. Most lower- Molokai (Hawaii Stream Assessment have also been diverted by tunnels in elevation stream segments on west Maui 1990, pp. xxi, 96-97). Three of the sites stream beds. Historically, Maunalei and leeward east Maui are now identified as developable include Stream was the only perennial stream completely dry, except during storm- current populations of the Pacific on Lanai, and Hawaiians constructed influenced flows (Maciolek 1979, p. Hawaiian damselfly. A total of 10 taro loi (ponds for cultivation of taro) in 605). The flow of nearly every seep and streams have actually been proposed for the lower portions of this stream system. spring on Lanai has been captured or development, with some overlap In 1911, a tunnel was constructed at bored with wells (Stearns 1940, pp. 73- between the 28 streams identified as 1,100 ft (330 m) elevation that undercuts 74, 85, 88, 95). The inadvertent drying feasible. Notably, the stream adjacent to the stream bed, diverting both the of streams from earlier, uninformed well the single current remaining population surface and subsurface flows and placement and other activities has site for the flying earwig Hawaiian dewatering the stream from this point to contributed to the decline of the Pacific damselfly on Maui is included among its mouth (Stearns 1940, pp. 86-88). The Hawaiian damselfly by reducing its those proposed for hydroelectric Pacific Hawaiian damselfly, which habitat on all of the islands from which development. Any additional diversion depends on stream habitat, was it was historically known. It should be of stream flow for use in hydroelectric historically known from Lanai but is no noted that the Pacific Hawaiian power could contribute to further loss of longer extant on this island. The Pacific damselfly was once among the most stream habitat for the Pacific Hawaiian Hawaiian damselfly was most likely commonly observed aquatic insects in damselfly and for the flying earwig impacted by the dewatering of this the islands (Howarth 1991, p. 40). The Hawaiian damselfly. stream because it was the only dewatering of streams on Maui and permanent stream on Lanai prior to its Habitat Modification and Destruction by Hawaii may also have impacted habitat dewatering. This example of the Dewatering of Aquifers of the flying earwig Hawaiian damselfly. negative impact of dewatering leads us In addition to the diversion of stream to conclude that dewatering poses a Although the State of Hawaii’s water and the resultant downstream threat to the Pacific Hawaiian damselfly Commission on Water Resource dewatering, many streams in Hawaii and the flying earwig Hawaiian Management is now more cognizant of have experienced reduced or zero damselfly on the remaining islands the effects that groundwater removal has surface flow as a result of the where the species persist. on streams via injudicious placement of dewatering of their source aquifers. wells, the Commission still routinely Often these aquifers, which previously Habitat Modification and Destruction by reviews new permit applications for fed the streams, were tapped by Vertical Wells wells (Hardy 2009, p. 1). Thus, the tunneling or the injudicious placement Surface flow of streams has also been potential for additional well-drilling of wells (Stearns and Vaksvik 1935, pp. affected by vertical wells drilled in the continues to be a threat (see further 386-434; Stearns 1985, pp. 291-305). past, because the basal aquifer (lowest discussion under Factor D, The These groundwater sources were groundwater layer) and alluvial caprock Inadequacy of Existing Regulatory captured for both domestic and (sediment-deposited harder rock layer) Mechanisms, below), and the ongoing agricultural use and in some areas have through which the lower sections of effects of previously constructed vertical completely depleted nearby stream and streams flow can be pierced and wells continue to be an ongoing threat spring flows. For example, the Waikolu hydraulically connected by wells to the Hawaiian dragonflies.

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Habitat Modification and Destruction by during storms, or leaving many streams spread through the excrement of the Channelization completely dry year-round, thus pigs and by transport in their hair In addition to the destruction of most reducing or eliminating stream habitat; (Stone 1985, p. 263). In nitrogen-poor of the stream habitat of the Pacific and (3) they indirectly lead to an soils, feral pig excrement increases Hawaiian damselfly and the flying increase in water temperature that leads nutrient availability, enhancing earwig Hawaiian damselfly, much of the to the loss of Pacific Hawaiian damselfly establishment of nonnative weeds that remaining stream habitat has been, and naiads due to direct physiological stress. are more adapted to richer soils than are continues to be, seriously degraded Because the probability of species native plants (Cuddihy and Stone 1990, throughout the Hawaiian Islands. extinction increases when ranges are p. 65). In this manner, largely nonnative Stream degradation has been restricted, habitat decreases, and forests replace native forest habitat particularly severe on the island of population numbers decline, the Pacific (Cuddihy and Stone 1990, p. 65). In Oahu where, by 1978, 58 percent of all Hawaiian damselfly is particularly addition, feral pigs will root and dig for vulnerable to extinction due to such plant tubers and worms in wetlands, the perennial streams had been changes in its stream habitats. including marshes, on all of the main channelized (lined, partially lined, or In addition, stream diversion, Hawaiian Islands (Erikson and Puttock altered) to control flooding (Brasher dewatering, and vertical wells have the 2006, p. 42). 2003, p. 1055; Polhemus and Asquith potential to negatively impact, and in In a study conducted in the 1980s on 1996, p. 24), and 89 percent of the total some cases may have impacted, the feral pig populations in Kipahulu Valley length of these streams had been flying earwig Hawaiian damselfly. on Maui, the deleterious effects of feral channelized (Parrish et al. 1984, p. 83). Stream flow is essential to the adult pig rooting on native forest ecosystems The channelization of streams creates flying earwig damselfly’s breeding was documented (Diong 1982, pp. 150, artificial, wide-bottomed stream beds requirements and is also essential to 160-167). Rooting by feral pigs was and often results in removal of riparian maintaining localized soil hydrology observed to be related to the search for vegetation, increased substrate necessary for persistence of uluhe ferns, earthworms, with rooting depths homogeneity, increased temporal water which are known foraging and mating averaging 8 in (20 cm), and rooting was velocity (increased water flow speed sites for the adults and may provide found to greatly disrupt the leaf litter during times of higher precipitation, habitat for the larval stage. Should the and topsoil layers, and contribute to including minor and major flooding), species’ population site stream erosion and changes in ground increased illumination, and higher experience either reduced flow or topography. The feeding habits of pigs water temperatures (Parrish et al. 1984, complete dewatering for an extended were observed to create seed beds, p. 83; Brasher 2003, p. 1052). Natural period of time, it is expected that the enabling the establishment and spread streams meander and are lined with impact to surrounding soils and of invasive weedy species such as rocks, trees, and natural debris, and associated vegetation, including the Clidemia hirta (Koster’s curse). The during times of flooding, jump their uluhe ferns that are believed to be the study concluded that all aspects of the banks. Channelized streams are species’ likely larval-stage habitat, will feeding habits of pigs are damaging to straightened and often lack natural be soil desiccation and prolonged the structure and function of the obstructions, and during times of higher vegetation dieback, respectively. Hawaiian forest ecosystem (Diong 1982, precipitation or flooding, facilitate a pp. 160-167). higher water flow velocity. Hawaiian Habitat Destruction and Modification by It is likely that pigs similarly impact damselflies are largely absent from Feral Pigs the native vegetation used for perching channelized portions of streams One of the primary threats to the by adult flying earwig Hawaiian (Polhemus and Asquith 1996, p. 24). In flying earwig Hawaiian damselfly is the damselflies. On Maui, feral pigs inhabit contrast, undisturbed Hawaiian stream ongoing destruction and degradation of the uluhe-dominated riparian habitat of systems exhibit a greater amount of its riparian habitat by nonnative the flying earwig Hawaiian damselfly. riffle habitat, canopy closure, higher animals, particularly feral pigs (Sus Through their rooting and digging consistent flow velocity, and lower scrofa) (Polhemus and Asquith 1996, p. activities, they have significantly water temperatures that are 22; Erickson and Puttock 2006, p. 42). degraded and destroyed the habitat of characteristic of streams to which the Pigs of Asian descent were first the adult flying earwig Hawaiian Hawaiian damselflies, in general, are introduced to Hawaii by the Polynesian damselfly (Foote 2008, p. 1). adapted (Brasher 2003, pp. 1054-1057). ancestors of Hawaiians around 400 A.D. In addition to creating conditions that Channelization of streams has not (Kirch 1982, pp. 3-4). Western enable the spread of nonnative plant been restricted to lower stream reaches. immigrants, beginning with Captain species, Mountainspring (1986, p. 98) For example, there is extensive Cook in 1778, repeatedly introduced surmised that rooting by pigs depresses channelization of the Kalihi Stream, on European strains (Tomich 1986, pp. insect populations that depend upon the the island of Oahu, above 1,000-ft (300- 120-121). The pigs escaped ground layer at some life stage or that m) elevation. Extensive stream domestication and successfully invaded exhibit diel (day and night) movements. channelization has contributed to the all areas, including wet and mesic As a result, it is likely that the presumed extirpation of the Pacific Hawaiian forests and grasslands, on all of the habitat (seeps or damp leaf litter) of the damselfly on Oahu (Englund 1999, p. main Hawaiian Islands. naiads of the flying earwig Hawaiian 236; Polhemus 2008, pp. 45-46). High pig densities and expansion of damselfly is negatively impacted by Stream diversion, channelization, and their distribution have caused feral pig activity, including the dewatering represent significant and indisputable widespread damage to uprooting and denuding of native immediate threats to the Pacific native vegetation on the Hawaiian vegetation (Foote 2008, p. 1; Polhemus Hawaiian damselfly for the following Islands (Cuddihy and Stone 1990, p. 2008, p. 48). reasons: (1) They reduce the amount 63). Feral pigs create open areas within Feral pigs are managed as a game and distribution of stream habitat forest habitat by digging up, eating, and animal for public hunting in the more available to this species; (2) they reduce trampling native plant species (Stone accessible regions of the east Maui stream flow, leaving lower elevation 1985, p. 263). These open areas become watershed (Jokiel 2008, p. 1). This stream segments completely dry except fertile ground for nonnative plant seeds management makes it likely that feral

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pigs will continue to exist on Maui, and replace the native plant community Hawaiian damselfly. These threats are thus likely that pigs will continue to (Cuddihy and Stone 1990, p. 74; expected to continue or increase destroy and degrade habitat of the flying Vitousek 1992, pp. 33-35). As C. hirta without control or elimination of earwig Hawaiian damselfly on the can outcompete the native uluhe fern, invasive nonnative plants in these island of Maui. this invasive nonnative species poses a habitats. The effects from introduced feral pigs threat by altering and degrading the Habitat Destruction and Modification by are immediate and ongoing because pigs native plant community utilized by the Hurricanes, Landslides, and Drought currently occur in the uluhe-dominated flying earwig Hawaiian damselfly. riparian habitat of the flying earwig Presently, the most significant threat Stochastic (random, naturally Hawaiian damselfly. The threat of to natural ponds and marshes in Hawaii occurring) events, such as hurricanes, habitat destruction or modification from is the nonnative species Urochloa landslides, and drought, alter or degrade feral pigs is significant for the following mutica (California grass). This the habitat of Hawaiian damselflies reasons: (1) Trampling and grazing sprawling perennial grass is likely from directly by modifying and destroying directly impact the vegetation used by Africa (Erickson and Puttock 2006, p. native riparian, wetland, and stream adult flying earwig Hawaiian 270). It was first noted on Oahu in 1924 habitats (e.g., rocks and debris falling in damselflies for perching and by the and now occurs on all of the main a stream, by mechanical damage to terrestrial or semiterrestrial naiads; (2) Hawaiian Islands (O’Connor 1999, p. riparian and wetland vegetation), and by increased soil disturbance leads to 1,504), where it is considered an indirectly by creating disturbed areas mechanical damage to plants used by aggressive invasive weed of marshes conducive to invasion by nonnative adults for perching and by the terrestrial and wetlands (Erickson and Puttock plants that outcompete the native plants or semiterrestrial naiads; (3) creation of 2006, p. 270). Found from sea level to used by damselflies for perching. We open, disturbed areas, conducive to 3,610 ft (1,100 m) in elevation (Erickson presume these events also alter weedy plant invasion and establishment and Puttock 2006, p. 270), this plant microclimatic conditions (e.g., opening of alien plants from dispersed fruits and forms dense, monotypic stands that can the tree canopy, leading to an increase seeds, results over time in the completely eliminate any open water by in streamwater temperature; increasing conversion of a community dominated layering trailing stems (Smith 1985, p. stream sedimentation) so that the by native vegetation to one dominated 186). Marshlands eventually convert to habitat no longer supports damselfly by nonnative vegetation (leading to all meadowland when invaded by U. populations. Both the flying earwig of the negative impacts associated with mutica (Polhemus and Asquith 1996, p. Hawaiian damselfly and the Pacific nonnative plants, detailed below); and 23). At Kawainui Marsh, the most Hawaiian damselfly may also be (4) increased watershed erosion and extensive marsh system remaining on affected by temporary habitat loss (e.g., sedimentation upstream may degrade Oahu, control of U. mutica to prevent desiccation of streams, die-off of uluhe) adult breeding habitat for the flying conversion of the marsh to meadowland associated with droughts, which are not earwig Hawaiian damselfly. These is an ongoing management activity uncommon on the Hawaiian Islands. threats are expected to continue or (Wilson, Okamoto and Associates, Inc. With populations that have already been increase without control or elimination 1993, pp. 3-4; Hawaii Ecosystems at severely reduced in both abundance and of pig populations in these habitats. Risk (HEAR) 2008, p. 1). The preferred geographic distribution, and particularly habitat of the Pacific Hawaiian in the case of the flying earwig Habitat Destruction and Modification by damselfly (primarily lowland, stagnant Hawaiian damselfly, with only one Nonnative Plants water, large ponds, and small pools) on known population, even such a The invasion of nonnative plants, all of the Hawaiian Islands has likely temporary loss of habitat can have a including Clidemia hirta (Koster’s declined and continues to decline due severe negative impact on the species. curse), further contributes to the to the spread of U. mutica (Polhemus Natural disasters such as hurricanes degradation of Hawaii’s native forests, and Asquith 1996, p. 23). and drought, and local, random including the riparian habitat of the In conclusion, nonnative plants environmental events (such as flying earwig Hawaiian damselfly on represent a significant and immediate landslides), represent a significant Maui (Foote 2008, p. 1). Clidemia hirta and ongoing threat to the flying earwig threat to native riparian, wetland, and is the most serious nonnative plant Hawaiian damselfly through habitat stream habitat and the two damselfly invader within the uluhe-dominated destruction and modification for the species addressed in this final rule. riparian habitat where the flying earwig following reasons: (1) They adversely These types of events are known to Hawaiian damselfly occurs on Maui and impact microhabitat by modifying the cause significant habitat damage where it formerly occurred on the island availability of light; (2) they alter soil- (Polhemus 1993, p. 86). Because the two of Hawaii (Foote 2008, p. 1). A noxious water regimes; (3) they modify nutrient species addressed in this final rule now shrub first cultivated in Wahiawa on cycling processes; and (4) they persist in low numbers or occur in Oahu before 1941, this plant is now outcompete, and possibly directly restricted ranges, they are more found on all of the main Hawaiian inhibit the growth of, native plant vulnerable to these events and less Islands (Wagner et al. 1985, p. 41). species; ultimately, native-dominated resilient to such habitat disturbances. Clidemia hirta forms a dense plant communities are converted to Hurricanes, drought, and landslides, understory, shading out native plants nonnative plant communities (Cuddihy even though unpredictable as to exact and hindering their regeneration; it is and Stone 1990, p. 74; Vitousek 1992, timing, have been and are expected to considered a major nonnative plant pp. 33-35). This conversion negatively continue to be threats to the Hawaiian threat in wet forest areas because it impacts and threatens the flying earwig damselflies. Therefore, they pose inhibits and eventually replaces native Hawaiian damselfly, which depends immediate and ongoing threats to the plants (Wagner et al. 1985, p. 41; Smith upon native plant species, particularly two damselfly species and their habitat. 1989, p. 64). Invasive nonnatives such uluhe, for essential life history needs. In as C. hirta are capable of modifying the addition, conversion of habitat from Habitat Destruction and Modification by natural environment at the microhabitat marshlands to meadowlands caused by Climate Change level by altering light availability and the encroachment of the nonnative Currently available information on soil-water regimes, and may eventually Urochloa mutica threatens the Pacific global climate change is not sufficiently

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precise to predict detailed changes in Pounds et al. 1999, pp. 611-612; Still et each of these species especially the habitats and ecosystems upon which al. 1999, p. 610; Benning et al. 2002, pp. vulnerable to extinction. Thus we these species rely. Consequently, the 14,246 and 14,248). We believe changes consider the present or threatened exact nature of the impacts of climate in environmental conditions that may destruction, modification, or change on the aquatic and riparian result from climate change will likely curtailment of the habitat and range of habitats of the flying earwig Hawaiian impact these two species and, according the flying earwig Hawaiian damselfly damselfly and the Pacific Hawaiian to current climate projections, we do not and the Pacific Hawaiian damselfly to damselfly, are unknown. However, anticipate a reduction in this threat any pose an immediate and significant increasing temperatures and altered time in the near future; however, the threat to these species. patterns of precipitation may affect magnitude of this potential threat Factor B. Overutilization for aquatic habitats through reduced stream cannot be determined at this time. Commercial, Recreational, Scientific, or flow, evaporation of standing water, Summary of Factor A Educational Purposes increased streamwater temperature, and the loss of native riparian and wetland The effects of past, present, and Individuals from what may be the plants that comprise the habitat in potential future destruction, single remaining population of the which these two species occur (Pounds modification, and degradation of native flying earwig Hawaiian damselfly were et al. 1999, pp. 611-612; Still et al. 1999, riparian, wetland, and stream habitats collected by amateur collectors as p. 610; Benning et al. 2002, pp. 14,246 threaten the continued existence of the recently as the mid-1990s (Polhemus and 14,248). flying earwig Hawaiian damselfly and 2008, pp. 14-15). Although it is not Oki (2004, p. 4) noted long-term the Pacific Hawaiian damselfly, which known how many individuals were evidence of decreased precipitation and depend on these habitats throughout collected at that time, Polhemus (2008, stream flow in the Hawaiian Islands, their respective ranges. These effects pp. 14-15) inferred that this collection based upon evidence collected by have been or continue to be caused by: resulted in a noticeable decrease in the stream gauging stations. This long-term Agriculture and urban development; population size. Furthermore, if there is drying trend, coupled with existing stream diversion, well-drilling, only one population of the species left, ditch diversions and periodic El Nin˜ o– channelization, and dewatering; the decreased reproduction that would caused drying events, has created a introduced feral pigs; introduced plants; result from the removal of potential pattern of severe and persistent stream and hurricanes, landslides, and drought. breeding adults would have a significant dewatering events (Polhemus 2008, p. The ongoing and likely increasing negative impact on the species. 52). Future changes in precipitation and effects of global climate change, while There is a market for damselflies that the forecast of those changes are highly currently unquantifiable, are also likely may serve as an incentive to collect uncertain because they depend, in part, to adversely impact, directly or them. There are internet websites that on how the El Nin˜ o–La Nin˜ a weather indirectly, the habitat of these two offer damselfly specimens or parts (e.g., cycle (a disruption of the ocean species. wings) for sale. In addition, the internet atmospheric system in the tropical Agriculture and urban development, abounds with ‘‘how to’’ guides for Pacific having important global to date, have caused the loss of 30 collecting and preserving damselfly consequences for weather and climate) percent of Hawaii’s coastal plain specimens (e.g., Abbott 2000, pp. 1-3; might change (Hawaii Climate Change wetlands and 80 to 90 percent of van der Heijden 2005). After butterflies Action Plan 1998, pp. 2-10). lowland freshwater habitat in Hawaii. and large beetles, dragonflies and The flying earwig Hawaiian damselfly Extensive stream diversions and the damselflies are probably the most and the Pacific Hawaiian damselfly may ongoing dewatering of remaining frequently collected insects in the world be especially vulnerable to extinction wetland habitats continue to degrade (Polhemus 2008, pp. 14-15). A rare due to anticipated environmental the quality of Pacific Hawaiian specimen such as the flying earwig change that may result from global damselfly habitat and its capability to Hawaiian damselfly may be particularly climate change. Environmental changes support viable populations of this attractive to potential collectors that may affect these species are species and may also negatively affect (Polhemus 2008, pp. 14-15)). Based on expected to include habitat loss or the habitat of the flying earwig the history of collection of the flying alteration and changes in disturbance Hawaiian damselfly. Ongoing habitat earwig Hawaiian damselfly, the market regimes (e.g., storms and hurricanes), in destruction and degradation caused by for damselfly specimens or parts, and addition to direct physiological stress feral pigs in remaining tracts of uluhe- the vulnerability of this small caused by increased streamwater dominated riparian habitat promote the population to the negative impacts of temperatures to which the native establishment and spread of nonnative any collection, we consider the Hawaiian damselfly fauna are not plants which, in turn, lower or destroy potential overutilization of the flying adapted. The probability of a species the capability of the habitat to support earwig Hawaiian damselfly to pose an going extinct as a result of these factors viable populations of the flying earwig immediate and significant threat to this increases when its range is restricted, Hawaiian damselfly. The invasive species. habitat decreases, and population nonnative grass Urochloa mutica Unlike the flying earwig Hawaiian numbers decline (Intergovernmental threatens to destroy the habitat of the damselfly, which is restricted to one Panel on Climate Change 2007, p. 8). Pacific Hawaiian damselfly through remaining population site and which is Both of these damselfly species have conversion of marshlands to known to have previously been of limited environmental tolerance ranges, meadowlands. interest to odonata enthusiasts restricted habitat requirements, small The above threats have caused the (collectors of insects in the order population size, and a low number of extirpation of many flying earwig Odonata, including damselflies) individuals. Therefore, we would expect Hawaiian damselfly and Pacific (Polhemus 2008, pp. 14-15), we do not these species to be particularly Hawaiian damselfly populations; as a believe overcollection is currently a vulnerable to projected environmental result, their current ranges are very threat to the Pacific Hawaiian damselfly, impacts that may result from changes in restricted. The combination of restricted because it is comparatively more climate, and subsequent impacts to their range, limited habitat quantity and widespread across several population aquatic and riparian habitats (e.g., quality, and low population size makes sites on three islands and we are

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unaware of hobbyist collection of this Hawaiian damselfly and the Pacific Hardy (1979, p. 34) documented the species. Hawaiian damselfly is amplified by the apparent eradication of native insects fact that most ant species have winged within the Kipahulu area on Maui after Factor C. Disease or Predation reproductive adults (Borror et al. 1989, this area was invaded by the long-legged The geographic isolation of the p. 738) and can quickly establish new ant. Although only cursory observations Hawaiian Islands restricted the number colonies in suitable habitats (Staples exist, long-legged ants are thought to be of original successful colonizing and Cowie 2001, p. 55). These attributes a threat to populations of the Pacific arthropods and resulted in the allow some ants to destroy otherwise Hawaiian damselfly in mesic areas development of Hawaii’s unusual fauna. geographically isolated populations of within its elevation range due to their Only 15 percent of the known families native arthropods (Nafus 1993, pp. 19, particularly aggressive nature and large of insects are represented by native 22-23). colony sizes (Foote 2008, p. 1). Hawaiian species (Howarth 1990, p. 11). At least 47 species of ants are known Solenopsis papuana is the only Some groups of insects that often to be established in the Hawaiian abundant, aggressive ant that has dominate continental arthropod fauna, Islands (Hawaii Ants 2008, pp. 1-11), invaded intact mesic to wet forest from including social Hymenoptera (e.g., ants and at least 4 particularly aggressive sea level to over 2,000-ft (600-m) and wasps), were absent during the species have severely impacted the elevation on all of the main Hawaiian evolution of Hawaii’s unique arthropod native insect fauna, likely including Islands, and is still expanding its range fauna. Commercial shipping and air native damselflies (Zimmerman 1948b, (Reimer 1993, p. 14). Gillespie and cargo, as well as biological p. 173; Reimer et al. 1990, pp. 40-43; Reimer (1993, p. 30) found a negative introductions to Hawaii, have resulted HEAR database 2005, pp. 1-2): The big- correlation between native spider in the establishment of over 3,372 headed ant (Pheidole megacephala), the diversity and areas invaded by this ant species of nonnative insects (Howarth long-legged ant (also known as the species. It is likely, based on our 1990, p. 18; Staples and Cowie 2001, p. yellow crazy ant) (Anoplolepis knowledge of the expanding range of 52), with an estimated continuing gracilipes), Solenopsis papuana (no this invasive ant, its aggressive nature, establishment rate of 20 to 30 new common name), and Solenopsis and dense populations (Reimer 1993, p. species per year (Beardsley 1962, p. 101; geminata (no common name). 14), that it may threaten populations of Beardsley 1979, p. 36; Staples and Numerous other species of ants are the Pacific Hawaiian damselfly in mesic Cowie 2001, p. 52). recognized as threats to Hawaii’s native areas up to 2,000-ft (600-m) elevation as Nonnative arthropod predators and invertebrates, with a trend of new well (Foote 2008, p. 1). parasites have also been intentionally species of ants being established every The rarity or disappearance of native imported and released by individuals few years (Staples and Cowie 2001, pp. damselfly species, including the two and governmental agencies for 53). Due to their preference for drier species in this final rule, from historical biological control of insect pests. habitat sites, ants are less likely to occur observation sites over the past 100 Between 1890 and 1985, 243 nonnative in high densities in the riparian and years, is likely due to a variety of species were introduced, sometimes aquatic habitat currently occupied by factors. There is no documentation that with the specific intent of reducing the flying earwig Hawaiian damselfly conclusively ties the decrease in populations of native Hawaiian insects and the Pacific Hawaiian damselfly. damselfly observations to the (Funasaki et al. 1988, p. 105; Lai 1988, However, some species of ants (e.g., the establishment of nonnative ants in low pp. 186-187). Nonnative arthropods, long-legged ant and Solenopsis to montane, and mesic to wet, habitats whether purposefully or accidentally papuana) have increased their range on the Hawaiian Islands. However, we introduced, pose a serious threat to into these areas. do have evidence that introduced ants Hawaii’s native insects, including the The presence of ants in nearly all of prey on Hawaiian damselflies. In 1998, flying earwig Hawaiian damselfly and the lower elevation habitat sites during a survey of an Oahu stream, the Pacific Hawaiian damselfly, through historically occupied by the flying researchers observed predation by ants direct predation (Howarth and Medeiros earwig Hawaiian damselfly and the upon another damselfly species, the 1989, pp. 82-83; Howarth and Ramsay Pacific Hawaiian damselfly may orangeblack Hawaiian damselfly 1991, pp. 81-84; Staples and Cowie preclude the future recolonization of (Megalagrion xanthomelas) (Englund 2001, pp. 54-57). these areas by these two species. 2008, pp. 56-57). The presence of In addition to the problems posed by Damselfly naiads may be particularly nonnative ants in these habitats and nonnative arthropods, the establishment susceptible to ant predation when they parallel decline of damselfly of various nonnative fish, frogs, and crawl out of the water or seek a observations in these habitats suggest toads that act as predators on native terrestrial location for their that nonnative ants may have played a Hawaiian damselflies has also had a metamorphosis into the adult stage. role in the decline of some populations serious negative impact on the Pacific Likewise, newly emerged adult of the flying earwig Hawaiian damselfly Hawaiian damselfly and flying earwig damselflies are susceptible to predation and Pacific Hawaiian damselfly. Hawaiian damselfly, as discussed until their wings have sufficiently In summary, observations and reports below. hardened to permit flight, or when the have documented that ants are adults are simply resting on vegetation particularly destructive predators Predation by Nonnative Ants at night (Polhemus 2008, p. 59). because of their high densities, broad Ants are not a natural component of The long-legged ant appeared in range of diet, and ability to establish Hawaii’s arthropod fauna, and the Hawaii in 1952, and now occurs on new colonies in otherwise native species of the islands evolved in Kauai, Oahu, Maui, and Hawaii (Reimer geographically isolated locations, the absence of predation pressure from et al. 1990, p. 42). It inhabits low to because the reproductive adult ants are ants. Ants can be particularly mid-elevation (less than 2,000 ft (600 able to fly. Damselfly naiads are destructive predators because of their m)) rocky areas of moderate rainfall (less particularly vulnerable to ant predation high densities, recruitment behavior, than 100 in (250 cm) annually) (Reimer when they crawl out of water or seek a aggressiveness, and broad range of diet et al. 1990, p. 42). Direct observations terrestrial location for metamorphosis (Reimer 1993, pp. 17-18). The threat of indicate that Hawaiian arthropods are into adults, and newly emerged adults ant predation on the flying earwig susceptible to predation by this species. are susceptible to predation until they

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can fly. In particular, the long-legged ant expect this threat to continue or habitats of Hawaii (Freshwater Fishes of and Solenopsis papuana are two increase over time. Hawaii 2008, p. 1). The initial aggressive species reported from sea introduction of nonnative fish to Hawaii Predation by Nonnative Fish level to 2,000-ft (610-m) elevation on all began with the release of food stock of the main Hawaiian Islands. Since Predation by nonnative fish is a species by Asian immigrants at the turn their range overlaps that of both the significant threat to Hawaiian damselfly of the 20th century; however, the impact flying earwig and Pacific Hawaiian species with aquatic life stages, such as of these first introductions to Hawaiian damselfly species, we consider these the Pacific Hawaiian damselfly. The damselflies cannot be assessed because introduced ants to pose an immediate aquatic naiads tend to rest and feed near they predated the initial collection of and significant threat to both damselfly or on the surface of the water, or on damselflies in Hawaii (Perkins 1899, pp. species. Unless these aggressive rocks where they are exposed and 64-76). nonnative ant predators are eliminated vulnerable to predation by nonnative In 1905, three species of fish within or controlled, we expect this threat to fish. Hawaii has only five native the Poeciliidae family, including the continue or increase. freshwater fish species, comprised of mosquito fish (Gambusia affinis) and gobies (Gobiidae) and sleepers the sailfin molly (Poecilia latipinna), Predation by Nonnative Backswimmers (Eleotridae), that occur on all of the were introduced for biological control of Backswimmers, so called because major islands. Because these native fish mosquitoes (Van Dine 1907, p. 9; they swim upside down, are aquatic are benthic (bottom) feeders (Kido et al. Englund 1999, p. 225; Brasher 2003, p. ‘‘true bugs’’ (Heteroptera). 1993, pp. 43-44; Ego 1956, p. 24; 1054). In 1922, several additional Backswimmers are voracious predators Englund 1999, pp. 236-237), Hawaii’s species were introduced for mosquito and frequently feed on prey much larger stream-dwelling damselfly species control, including the green swordtail than themselves, such as tadpoles, small probably experienced limited natural (Xiphophorus helleri), the moonfish fish, and other aquatic insects, predation pressure due to their (Xiphophorus maculatus), and the avoidance of benthic areas in preference including damselfly naiads (Heads guppy (Poecilia reticulata). By 1935, for shallow side channels, sidepools, 1985, p. 559; Heads 1986, p. 369). some Oahu damselfly species, including and higher velocity riffles and seeps Backswimmers are not native to Hawaii, the orangeblack Hawaiian damselfly, (Englund 1999, pp. 236-237). While fish but several species have been were becoming less common, and fish predation has been an important factor introduced. Notonecta indica (no introduced for mosquito control were in the evolution of behavior in common name) was first collected on the suspected cause of their decline damselfly naiads in continental systems Oahu in the mid-1980s and is presently (Williams 1936, p. 313; Zimmerman (Johnson 1991, pp. 8), it is speculated known from Oahu, Maui, and Hawaii. 1948b, p. 341). The literature clearly that Hawaii’s stream-dwelling Species of Notonecta are known to prey indicates that the extirpation of the damselflies adapted behaviors to avoid on damselfly naiads and the mere Pacific Hawaiian damselfly from the the benthic feeding habits of native fish majority of its historical habitat sites on presence of this predator in the water species. Additionally, some species of the main Hawaiian Islands is the result can cause naiads to reduce foraging damselflies, including some of the of predation by nonnative fish (Moore (which can reduce naiad growth, native Hawaiian species, are not and Gagne 1982, p. 4; Liebherr and development, and survival) (Heads adapted to cohabitate with some fish Polhemus 1997, p. 502; Englund 1999, 1985, p. 559; Heads 1986, p. 369). While species, and are found only in bodies of pp. 235-237; Brasher 2003, p. 1,055; there is no documentation that water without fish (Henrikson 1988, p. Englund et al. 2007, p. 215; Polhemus conclusively ties the decrease in 179; McPeek 1990a, p. 83). The naiads 2007, pp. 238-239). From 1946 through damselfly observations to the of the aquatic Pacific Hawaiian 1961, several additional nonnative fish establishment of nonnative damselfly tend to occupy more exposed were introduced for the purpose of backswimmers in Hawaiian streams and positions and engage in conspicuous controlling nonnative aquatic plants, other aquatic habitat, the presence of foraging behavior, thereby increasing and for angling (Brasher 2003, p. 1,054). backswimmers in these habitats, the their susceptibility to fish predation In the early 1980s, several additional documented predation of (Englund 1999, p. 232), unlike species of nonnative fish began backswimmers on the naiads of other damselflies that coevolved with appearing in stream systems, likely damselfly species, and the concurrent predaceous fish (Macan 1977, p. 48; originating from the aquarium fish trade decline of damselfly observations in McPeek 1990b, p. 1,714). In laboratory (Devick 1991, p. 189; Brasher 2003, p. some areas suggest that these nonnative studies, Englund (1999, p. 232) found 1,054). By 1990, there were an aquatic insects may have played a role that naiads of the orangeblack Hawaiian additional 14 species of nonnative fish in the decline of some damselfly damselfly and the Pacific Hawaiian established in waters on Hawaii, Maui, populations, including those of the damselfly invariably were eaten due to and Molokai. By 2008, there were at Pacific Hawaiian damselfly. their behavior of swimming to the water least 17 nonnative freshwater fish We consider predation by nonnative surface when exposed to two nonnative established on one or more of these backswimmers to pose a significant and freshwater fish. In the same study, islands, including several aggressive immediate threat to the Pacific naiads of nonnative damselfly species predators and habitat-altering species Hawaiian damselfly, because this avoided predation by the same fish such as the channel catfish (Ictalurus species has an aquatic naiad life stage. species by remaining still and avoiding punctatus) and cichlids (Tilapia sp.) In addition, the presence of these surface waters (Englund 1999, p. 232). (Devick 1991, pp. 191-192; FishBase predators in damselfly aquatic habitat Over 70 species of nonnative fish 2008). causes naiads to reduce foraging, which have been introduced into Hawaiian The Pacific Hawaiian damselfly is in turn reduces their growth, freshwater habitats (Devick 1991, p. 190; currently found only in portions of development, and survival. Englund 1999, p. 226; Staples and stream systems without nonnative fish Backswimmers are reported on all of the Cowie 2001, p. 32; Brasher 2003, p. (Liebherr and Polhemus 1997, pp. 493- main Hawaiian Islands except 1,054; Englund 2004, p.27; Englund et 494; Englund 1999, p. 228; Englund Kahoolawe. Without elimination or al. 2007, p. 232); at least 53 species are 2004, p. 27; Englund et al. 2007, p. 215). control of nonnative backswimmers, we now established in the freshwater There is a strong correlation between

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the absence of nonnative fish species damselfly remains extant are not secure Geological Survey 2008b, p. 8). This and the presence of Hawaiian from the threat of predation by species is flexible in both habitat and damselflies in streams on all of the main introduced fish species. There are many food requirements (Bury and Whelan Hawaiian Islands (Englund 1999, p. 225; documented cases of people moving 1985 in Earlham College 2002, p. 11), Englund et al. 2007, p. 215), suggesting nonnative fish from one area to another and can utilize any water source within that the damselflies cannot coexist with (Brock 1995, pp. 3-4; Englund 1999, p. its temperature range (60 to 75 degrees nonnative fish. The distribution of some 237). Once nonnative fish species are Fahrenheit (°F)) (16 to 24 degrees Hawaiian damselfly species is now introduced to aquatic habitats Celsius (°C)) (DesertUSA 2008). reduced to stream reaches less than 312 previously free of nonnative fish, they Introduced to areas outside its native ft (95 m) in length where invasive fish often become permanently established range, the bullfrog’s primary impact is species do not occur (Englund 1999, p. (Englund and Filbert 1999, p. 151; typically the elimination of native frog 229; Englund 2004, p. 27). In 2007, a Englund 1999, pp. 232-233; Englund et species (Moyle 1973, p. 21). In Hawaii, Statewide survey including 15 streams al. 2007). An example of facilitated fish where there are no native frogs, the on the islands of Hawaii, Maui, and movement occurred in 2000, when an bullfrog has not been definitively Molokai found the flying earwig uninformed maintenance worker implicated in the extirpation of any Hawaiian damselfly was not observed in introduced Tilapia sp. into pools particular native aquatic invertebrate streams where the introduced Mexican located on the grounds of Tripler species, but Englund et al. (2007, pp. molly (Poecilia mexicana) was present Hospital that were maintained for the 215, 219) found a strong correlation (Englund et al. 2007, pp. 214-216, 228). benefit of the remaining Oahu between the presence of bullfrogs and On Oahu, researchers found that the population of the orangeblack Hawaiian the absence of Hawaiian damselflies in Oahu-endemic Hawaiian damselflies damselfly (Englund 2000). their 2006 study of streams on all of the only occupied habitat sites without The continued introduction and main Hawaiian Islands. As the bullfrog nonnative fish. For two of these species, establishment of new species of prefers habitats with dense vegetation a geologic or manmade barrier (e.g., predatory nonnative fish in Hawaiian and relatively calm water (Moyle 1973, waterfalls, steep gradient, dry stream waters, and the possible movement of p. 19; Bury and Whelan 1985 in midreaches, or constructed diversions) these nonnative species to new streams Earlham College 2002, p. 9), it is likely appears to prevent access by the and other aquatic habitat, is an of particular threat to the Pacific nonnative fish species. For this reason, immediate and significant threat to the Hawaiian damselfly because this species researchers have recommended that survival of the aquatic Pacific Hawaiian also prefers calm water habitat that is geologically isolated sites inaccessible damselfly. Unless nonnative predatory surrounded by dense vegetation. to nonnative fishes, such as isolated fish are eradicated or effectively Capable of breeding within small pools anchialine ponds, high-gradient streams controlled in the habitats utilized by the of water, bullfrogs are also a potential interrupted by manmade diversions, Pacific Hawaiian damselfly, we have no threat to the flying earwig Hawaiian and streams entering the coast as reason to believe that there will be any damselfly within its uluhe-covered, waterfalls, be used as restoration sites significant reduction in this threat at steep, riparian, and moist talus-slope for damselflies on all of the Hawaiian any time in the near future. The flying habitat on Maui. Islands (Englund 2004, p. 27). earwig Hawaiian damselfly is not Because the effects of possible Of the two damselfly species known to be threatened by predation predation by the cane toad and the considered in this final rule, the aquatic from nonnative fish species, due to the Japanese wrinkled frog on the flying Pacific Hawaiian damselfly appears to apparent absence of the larval stage earwig Hawaiian damselfly and the have had the greatest range contraction within stream habitats. Pacific Hawaiian damselfly are due to predation by nonnative fish unknown at this time, the magnitude or Predation by Introduced Frogs and (Englund 1999, p. 235; Polhemus 2007, significance of this potential threat Toads p. 234, 238-240). Once found on all of cannot be determined. the main Hawaiian Islands, it is now Currently, there are three species of We consider predation by bullfrogs to found only on Molokai, Maui, and one introduced aquatic amphibians known pose a significant and immediate threat stream on the island of Hawaii below in the Hawaiian Islands: The North to the Pacific Hawaiian damselfly, since 2,000 ft (600 m) in elevation; all are in American bullfrog (Rana catesbeiana), Englund et al. (2007, pp. 215, 219) stream reaches free of nonnative fish. the cane toad (Bufo marinus), and the found a strong correlation between the The Pacific Hawaiian damselfly was Japanese wrinkled frog (Rana rugosa). presence of predatory nonnative extirpated from Oahu by 1910 (Liebherr The bullfrog is native to the eastern bullfrogs and the absence of Hawaiian and Polhemus 1997, p. 502), although United States and the Great Plains damselflies, and the preferred habitat of Englund (1999, p. 235) found that Oahu region (Moyle 1973, p. 18; Bury and the bullfrog overlaps with that of the still has abundant and otherwise Whelan 1985 in Earlham College 2002, Pacific Hawaiian damselfly. Within its suitable lowland and coastal water p. 10), and was first introduced into riparian habitat, the flying earwig habitat to support this species. Hawaii in 1899 (Bryan 1931, p. 63) to Hawaiian damselfly may also be However, this aquatic habitat is infested help control insects, specifically the threatened by the bullfrog, which is with nonnative fish, with some nonnative Japanese beetle (Popillia capable of breeding within small pools nonnative species occurring up to 1,300- japonica), a significant pest of of water. In the absence of the ft (400-m) elevation. In contrast, ornamental plants (Bryan 1931, p. 62). elimination or control of nonnative Englund (1999, p. 236) found that even Bullfrogs were first released and quickly bullfrogs, we expect that this threat will at sea level, artificial wetlands (resulting became established in the Hilo region continue or increase in the future. from taro cultivation) on the island of on the island of Hawaii (Bryan 1931, p. Molokai can support populations of the 63). Bullfrogs have demonstrated great Summary of Factor C Pacific Hawaiian damselfly because success in establishing new populations Predation by nonnative animal nonnative fish are absent. wherever they have been introduced species (ants, backswimmers, fish, and Even the geographically isolated (Moyle 1973, p. 19), and now occur on bullfrogs) poses an immediate and stream headwaters and other aquatic the islands of Hawaii, Kauai, Lanai, significant threat to the Pacific and habitats where the Pacific Hawaiian Maui, Molokai, and Oahu (U.S. flying earwig Hawaiian damselflies

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throughout their ranges for the threatened within its riparian permit to drill a well within proximity following reasons: habitat by the bullfrog, which is of streams or dike rock located at the • Damselfly naiads are vulnerable to capable of breeding within small headwaters of streams automatically predation by ants, and the ranges of pools of water. triggers additional review (Hardy 2009). both the Pacific and flying earwig Permits to drill wells near streams or Factor D. The Inadequacy of Existing Hawaiian damselflies overlap that within dike complexes are now unlikely Regulatory Mechanisms of particularly aggressive, to be granted because a new well would nonnative, predatory ant species Inadequate Habitat Protection require the amendment of in-stream that currently occur from sea level Currently, there are no Federal, State, flow standards for the impacted stream. to 2,000 ft (610 m) elevation on all or local laws, treaties, or regulations that However, such amendments are of the main Hawaiian Islands. We specifically conserve or protect the sometimes approved. One example is consider both the Pacific and flying flying earwig Hawaiian damselfly or the the long-contested case involving the earwig Hawaiian damselflies to be Pacific Hawaiian damselfly from the Waiahole Ditch on the island of Oahu threatened by predation by these threats described in this final rule. The (Hawaii Department of Agriculture nonnative ants. 2002, p. 3). In that case, the Commission • Nonnative backswimmers prey on State of Hawaii considers all natural flowing surface water (streams, springs, supports the removal of several million damselfly naiads in streams and gallons of water daily from windward other aquatic habitat, and are and seeps) as State property (Hawaii Revised Statutes 174c 1987), and the Oahu streams (Hawaii Department of considered a threat to the Pacific Agriculture 2002). Although a Hawaiian damselfly since this Hawaii Department of Land and Natural Resources (DLNR), Division of Aquatic regulatory process is in place that can species has an aquatic naiad life potentially address the effects of new stage. In addition, the presence of Resources has management responsibility for the aquatic organisms requests for groundwater removal on backswimmers inhibits the foraging streams, this process includes behavior of damselfly naiads, with in these waters (Hawaii Revised Statutes Annotated, 1988, Title 12; 1992 provisions for amendments that would negative consequences for result in adverse effects to groundwater development and survival. Cumulative Supplement). Thus, damselfly populations associated with that supports streamside habitat for the Backswimmers are reported on all Pacific Hawaiian damselfly, and of the main Hawaiian Islands streams, seeps, and springs are under the jurisdiction of the State of Hawaii, potentially for the flying earwig except Kahoolawe. Hawaiian damselfly. • The absence of Hawaiian damselflies, regardless of the ownership of the including the aquatic Pacific property across which the stream flows. The maintenance of instream flow, Hawaiian damselfly, in streams and This includes all populations of the which is needed to protect the habitat other aquatic habitat on the main Pacific Hawaiian damselfly and the of damselflies and other aquatic Hawaiian Islands, is strongly flying earwig Hawaiian damselfly. wildlife, is regulated by the correlated with the presence of The State of Hawaii manages the use establishment of standards on a stream- predatory nonnative fish as of surface and groundwater resources by-stream basis (State Water Code, documented in numerous through the Commission on Water Hawaii Revised Statutes Chapter 174C- observations and reports (Englund Resource Management (Water 71, and Administrative Rules of the 1999, p. 237; Englund 2004, p. 27; Commission), as mandated by the 1987 State Water Code, Title 13, Chapter Englund et al. 2007, p. 215), thereby State Water Code (State Water Code, 169). Currently, the interim instream suggesting that nonnative predatory Hawaii Revised Statutes Chapter 174C- flow standards represent the existing fishes eliminated native Hawaiian 71, 174C-81-87, and 174C-9195, and flow conditions in streams in the State damselflies from these aquatic Administrative Rules of the State Water (as of June 15, 1988, for Molokai, habitats. There are over 51 species Code, Title 13, Chapters 168 and 169). Hawaii, Kauai and east Maui; and of nonnative fishes established in In the State Water Code, there are no October 19, 1988, for west Maui and freshwater habitats on the Hawaiian formal requirements that project leeward Oahu) (Administrative Rules of Islands from sea level to over 3,800- proponents or the Water Commission the State Water Code, Title 13, Chapter ft (1,152-m) elevation (Devick 1991, protect the habitats of fish and wildlife 169-44-49). However, the State Water p. 190; Staples and Cowie 2001, p. prior to issuance of a permit to modify Code does not provide permanent or 32; Brasher 2003, p. 1054; Englund surface or groundwater resources. minimal instream flow standards for the 1999, p. 226; Englund and As noted above in Factor A, the Water protection of aquatic wildlife. Instead, Polhemus 2001; Englund 2004, p. Commission is now more cognizant of modification of instream flow standards 27; Englund et al. 2007, p. 232). the effects that groundwater removal has and stream channels can be undertaken Predation by nonnative fishes is on streams via injudicious placement of at any time by the Water Commission or considered to pose a significant and wells. The Commission routinely via public petitions to revise flow immediate threat to the Pacific reviews new permit applications for standards or modify stream channels in Hawaiian damselfly. wells (Hardy 2009, p. 1). All requests for a specified stream (Administrative Rules • Englund et al. (2007, pp. 215, 219) new wells require a drilling permit, and, of the State Water Code, Title 13, found a strong correlation between in some cases, a use permit is Chapter 169-36). Additionally, the the presence of nonnative bullfrogs additionally required, depending upon Water Commission must consider and the absence of Hawaiian the intended allocation and anticipated economic benefits gained from out-of- damselflies. Bullfrogs are reported amount of water to be pumped from the stream water uses, but is not required to on all of the main Hawaiian Islands, well. Water Management Areas have balance these benefits against instream except Kahoolawe and Niihau. The been designated over much of Oahu and benefits or impacts to aquatic fish and Pacific Hawaiian damselfly is likely in some areas on other neighboring wildlife. Consequently, any stabilization threatened by bullfrogs, due to their islands. Within these areas, a use permit of stream flow for the protection of any shared preference for similar for a new well is also required, which native Hawaiian damselfly species habitat, and the flying earwig automatically triggers a greater review of habitat is subject to modification at a Hawaiian damselfly may also be the potential impacts. Any request for a future date.

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The natural value of Hawaii’s stream complexity of the impacts on Hawaiian or regulations that adequately conserve systems has been recognized under the damselflies from stream modifications or protect habitat of the flying earwig State of Hawaii Instream Use Protection and surface water diversions, the Hawaiian damselfly or the Pacific Program (Administrative Rules of the remoteness of project sites, and the Hawaiian damselfly from the threats State Water Code, Title 13, Chapter 169- types of studies necessary to determine described in this final rule, and the 20(2)). In the Hawaii Stream Assessment project impacts and mitigation, this regulations currently in place are Report (1990), prepared in coordination limited comment period does not allow inadequate to maintain stream and with the National Park Service, the State time for an adequate assessment of riparian habitats and protect the two Water Commission identified high- impacts. This regulation is inadequate damselfly species from stream quality rivers or streams, or portions of to protect the damselflies because the modifications and surface water rivers or streams, that may be placed Corps is under no obligation to modify diversions, all of these threats remain within the Federal Wild and Scenic the project based upon comments immediate and significant. The habitat River system. This report recommended received. of both species continues to be reduced, that streams meeting certain criteria be However, if the stream is degraded, and altered by past and protected from further development. jurisdictional and impacts are expected present manmade alterations to streams However, there is no formal or to exceed the thresholds for a and riparian zones. institutional mechanism within the nationwide permit, the Corps can issue Inadequate Protection from Introduction State’s Water Code to designate and set individual permits under section 404 of of Nonnative Species aside these streams, or to identify and the Clean Water Act (33 U.S.C. 1251 et protect stream habitat for Hawaiian seq.). These permits are subject to As discussed above (see Factor C. damselflies. Furthermore, the setting of public review, and must comply with Disease or Predation), predation by instream flow standards sufficient to the Environmental Protection Agency’s nonnative species (fish, insects, and conserve Hawaiian damselflies is 404(b)(1) guidelines and public bullfrogs) is one of the most significant currently not a condition that would be comment requirements under the Clean threats to the survival of the flying considered or included in a Hawaii Water Act. Compensatory mitigation earwig Hawaiian damselfly and the Department of Agriculture individual may also be required to offset lost Pacific Hawaiian damselfly. permit (DLNR, Commission on Water stream functions. However, in issuing Based on historical and current rates Resource Management 2006, p. 2). these permits, the Corps does not of aquatic species introductions (both Existing Federal regulatory establish instream flow standards as a purposeful and accidental), existing mechanisms that may protect Hawaiian matter of policy. The Corps normally State and Federal regulatory damselflies and their habitat are also considers that the public interest for mechanisms are not adequately inadequate. The Federal Energy instream flow is represented by the preventing the spread of nonnative Regulatory Commission (FERC) has very State water allocation rights or species between islands and watersheds limited jurisdiction in Hawaii. Hawaii’s preferences (U.S. Army Corp of in Hawaii. The Hawaii Department of streams are isolated on individual Engineers’ Regulatory Guidance Letter Agriculture has administrative rules in islands and run quickly down steep No 85-6), and project alternatives that place that address importation of volcanic slopes. There are no interstate supersede, abrogate, or otherwise impair nonnative species and establish a permit rivers in Hawaii, few if any streams the State water quantity allocations are process for such activities (Hawaii crossing Federal land, and no Federal not normally addressed as alternatives Administrative Rules sec. 4-71). The dams. Many of Hawaii’s streams are during permit review. Division of Aquatic Resources within generally intermittent, or if perennial, In cases where the Corps district the Hawaii Department of Land and not navigable. Thus, licensing of engineer does propose to impose Natural Resources (HDLNR) has hydroelectric projects in Hawaii instream flow standards on an authority to seize, confiscate, or destroy generally does not come under the individual permit, this flow standard as a public nuisance, any fish or other purview of FERC, although hydropower must reflect a substantial national aquatic life found in any waters of the developers in Hawaii may voluntarily interest. Additionally, if this instream State and whose importation is seek licensing under FERC. flow standard is in conflict with a State prohibited or restricted under rules of In contrast, the U.S. Army Corps of water quantity allocation, then it must the Department of Agriculture (Section Engineers (Corps) has some regulatory be reviewed and approved by the Office 187A-2(4 H.R.S. sec. 187A-6.5)). control over modifications of freshwater of the Chief Engineer in Washington, Although State and Federal regulations streams in the United States, yet may D.C. (Regulatory Guidance Letter No 85- are now firmly in place to prevent the assert discretion relative to 6). unauthorized entry of nonnative aquatic jurisdictional determinations depending One population of the Pacific species into the State of Hawaii, on the surface water connection of the Hawaiian damselfly occurs in Palikea movement of species between islands stream to a tangible water of the United Stream on Maui, which flows through and from one watershed to the next States. If the Corps finds the stream to Haleakala National Park. On Molokai, remains problematic even while be jurisdictional, certain activities such populations of this damselfly species prohibited (HDAR 2003, pp. 2/12 – 2/ as road crossings for streams and bank occur at the mouth of Pelekunu Stream, 14). For example, while unauthorized stabilization can be subject to a which flows through a preserve movement of an aquatic species from streamlined permitting process (33 CFR managed by The Nature Conservancy, one watershed to the next may be 330). This process, called the and in lower Waikolu Stream, which prohibited, there simply is not enough nationwide permits program, can flows through Kalaupapa National government funding to adequately involve only limited public review if Historic Park. However, the landowners enforce such regulation or to provide for impacts are anticipated to be minimal, do not own the water rights to any of the sufficient inspection services and both individually and cumulatively. streams, and thus cannot fully manage monitoring, although this priority need The Service and the Hawaii DLNR the conservation of any of these is recognized (Cravalho 2009, p. 1). have 15 days to provide substantive site- damselfly populations. Furthermore, due to the complexity of specific comments prior to the issuance Because there are currently no the pathways of invasion by aquatic of a nationwide permit. Given the Federal, State, or local laws or treaties species (i.e., intentional, inadvertent,

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and by forces of nature), many for the damselflies and to regulate the historical processes responsible for components contributing to the problem spread of nonnative species, the genetic divergence within a species) of may be better addressed through greater inadequacy of existing regulatory four Megalagrion species that the Pacific public outreach and education mechanisms is considered to be a Hawaiian damselfly may be more (Montgomery 2009, p. 1). significant and immediate threat. susceptible to problems linked to low On the basis of the above information, genetic diversity compared to other we find that existing regulatory Factor E. Other Natural or Manmade Hawaiian damselfly species. Both Maui mechanisms do not adequately protect Factors Affecting the Species’ Continued and Molokai populations of this species the flying earwig Hawaiian damselfly or Existence were analyzed, and results suggested the Pacific Hawaiian damselfly from the Small Numbers of Populations and that the Pacific Hawaiian damselfly may threat of established nonnative species Individuals not disperse well across both land and (particularly fish and insect species) Species that are endemic to single water, which may have led to the low spreading between islands and genetic diversity observed in the two islands or known from few, widely watersheds, where they may prey upon populations sampled. The authors dispersed locations are inherently more or directly compete with the two proposed that populations of the Pacific vulnerable to extinction than damselfly species for food and space. Hawaiian damselfly be monitored and widespread species because of the Because current Federal, State, and local managed to help understand the higher risks from genetic bottlenecks, laws and treaties and regulations are conservation needs of this species and random demographic fluctuations, inadequate to prevent the spread of the threat of population bottlenecks climate change, and localized nonnative aquatic animals between (Jordan et al. 2007, p. 258). This study catastrophes such as hurricanes, islands and watersheds, the impacts did not include an analysis of the flying landslides, and drought (Lande 1988, p. from these introduced threats remain earwig Hawaiian damselfly. However, immediate and significant. From 1,455; Mangel and Tier 1994, p. 607; given that this species may now be habitat-altering, nonnative plant species Pimm et al. 1988, p. 757). These reduced to a single population, the to predation or competition caused by problems are further magnified when potential loss of genetic diversity and introduced frogs, nonnative fish, and populations are few and restricted to a threat of inbreeding depression is a insect species, the Pacific Hawaiian limited geographic area, and the number concern for the flying earwig Hawaiian damselfly and the flying earwig of individuals is very small. Populations damselfly as well. Hawaiian damselfly are immediately with these characteristics face an The small number of remaining and significantly threatened by former increased likelihood of stochastic populations of the flying earwig and new plant and animal introductions extinction due to changes in Hawaiian damselfly (now possibly within the damselflies’ remaining demography, the environment, genetics, reduced to a single remaining habitat. or other factors, in a process described population) puts this species at as an ‘‘extinction vortex’’ by Gilpin and significant risk of extinction from Summary of Factor D Soul´e (1986, pp. 24-25). Small, isolated stochastic events, such as hurricanes, The aquatic habitat of the flying populations often exhibit a reduced landslides, or prolonged drought (Jones earwig and the Pacific Hawaiian level of genetic variability or genetic et al. 1984, p. 209). For example, damselflies is under the jurisdiction of depression due to inbreeding, which Polhemus (1993, p. 87) documented the the State of Hawaii, which also has diminishes the species’ capacity to extirpation of a related damselfly management responsibility for aquatic adapt and respond to environmental species, Megalagrion vagabundum, from organisms. However, the State Water changes, thereby lessening the the entire Hanakapiai Stream system on Code has no regulatory mechanism in probability of long-term persistence Kauai as a result of the impacts from place to protect these species or their (Soul´e 1987, pp. 4-7). The problems Hurricane Iniki in 1992. Such stochastic habitat. The State Water Code does not associated with small population size events thus pose the threat of immediate currently provide for permanent or and vulnerability to random extinction of a species with a very small minimum instream flow standards for demographic fluctuations or natural and geographically restricted the protection of aquatic ecosystems catastrophes are further magnified by distribution, as in the case of the flying upon which these damselfly species synergistic interactions with other earwig Hawaiian damselfly. depend, and does not contain a threats, such as those discussed above regulatory mechanism for identifying (Factors A–C). Summary of Factor E and protecting damselfly habitat under Historically, the two damselfly The threat to the flying earwig and a Wild and Scenic River designation. species were more widespread, present Pacific Hawaiian damselflies from To date, administration of the Clean on several Hawaiian islands. An limited numbers of populations and Water Act permitting program by the important benefit of this greater individuals is significant and immediate U.S. Army Corps of Engineers has not historical range, especially the fact they for the following reasons: provided substantive protection of were on several islands from which they • Each of these species is subject to damselfly habitat, including any are now extirpated, resulted in an potentially reduced reproductive requirements for retention of adequate advantage of redundancy: Additional vigor due to inbreeding depression, instream flows. populations separated by some distance particularly the flying earwig Existing State and Federal regulatory likely allowed some populations to be Hawaiian damselfly, which is now mechanisms are not adequately spared the impacts of localized or more apparently restricted to one regulating the spread of nonnative discrete catastrophic events, such as population; animal species between islands and narrow-track hurricanes or mud slides. • Each of these species is subject to watersheds. Predation by nonnative However, this advantage of redundancy reduced levels of genetic variability animal species poses a major ongoing has been lost with the great reduction in that may diminish their capacity to threat to the flying earwig and the the damselflies’ ranges. adapt and respond to Pacific Hawaiian damselflies. Because Jordan et al. (2007, p. 247) showed in environmental changes, thereby existing regulatory mechanisms are their genetic and comparative lessening the probability of their inadequate to maintain aquatic habitat phylogeography analysis (study of long-term persistence;

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• The potential benefits of redundancy temperatures) are also likely to listing if it is endangered or threatened resulting from the wider historical threaten these two damselfly throughout all or a significant portion of distribution of the species, in which species (compounded because of its range. Each of the two endemic some populations might survive the two species’ small population damselfly species designated as stochastic events that impact other sizes and limited distributions), endangered in this final rule is highly populations of the damselflies, has although currently there is limited restricted in its range, and the threats to been lost as a result of the extreme information on the exact nature of its survival occur throughout its range reduction in the ranges of the two these impacts (see discussion under and are not restricted to any particular species; Factor A). significant portion of that range. • As there may be only one remaining • The only known population of the Therefore, we assessed the status of population of the flying earwig flying earwig Hawaiian damselfly is each species throughout its entire range. Hawaiian damselfly that occurs in a immediately and significantly Accordingly, our assessment and final relatively restricted geographic threatened by potential recreational determination apply to each species location, a single catastrophic collection (see Factor B). throughout its entire range. event, such as a hurricane or • Both the flying earwig Hawaiian landslide, could result in the damselfly and the Pacific Hawaiian Available Conservation Measures extinction of the species. Likewise, damselfly are subject to an Conservation measures provided to the Pacific Hawaiian damselfly, immediate and significant threat of species listed as endangered or with several small, widely predation by nonnative insects threatened under the Act include dispersed populations, would be (ants) and bullfrogs. The Pacific recognition, recovery actions, vulnerable to the extirpation of Hawaiian damselfly is also requirements for Federal protection, and remaining populations; and similarly threatened by prohibitions against certain activities. • Species with few populations and a backswimmers and nonnative fish Recognition through listing results in small number of individuals, such (see Factor C). public awareness and conservation by as the Pacific Hawaiian damselfly • The inadequacy of existing regulatory Federal, State, Tribal, and local and flying earwig Hawaiian mechanisms (e.g., inadequate agencies, private organizations, and damselfly, are less resilient to protection of stream habitat and individuals. The Act encourages threats that might otherwise have a inadequate protection from the cooperation with the States and requires relatively minor impact on a larger introduction of nonnative species) that recovery actions be carried out for population. For example, the poses a threat to both species of all listed species. The protection reduced availability of breeding Hawaiian damselfly, as discussed required by Federal agencies, and the habitat or an increase in predation under Factor D above. prohibitions against certain activities of naiads, which might be absorbed • Both of these species face an are discussed, in part, below. in a relatively large population, immediate and significant threat The primary purpose of the Act is the could result in a significant from extinction due to factors conservation of endangered and decrease in survivorship or associated with small numbers of threatened species and the ecosystems reproduction of a relatively small, populations and individuals as upon which they depend. The ultimate isolated population. The small discussed under Factor E above. goal of such conservation efforts is the population size of these two species All of the above threats are recovery of these listed species, so that thus magnifies the severity of the exacerbated by the inherent they no longer need the protective impact of the other threats vulnerability of the flying earwig measures of the Act. Subsection 4(f) of discussed in this final rule. Hawaiian damselfly and the Pacific the Act requires the Service to develop Hawaiian damselfly to extinction from and implement recovery plans for the Determination stochastic events at any time because of conservation of endangered and We have carefully assessed the best their endemism (indigenousness), small threatened species. The recovery scientific and commercial information numbers of individuals and planning process involves the available regarding the past, present, populations, and restricted habitats. identification of actions that are and future threats to the flying earwig The Act defines an endangered necessary to halt or reverse the species’ Hawaiian damselfly and the Pacific species as any species that is ‘‘in danger decline by addressing the threats to its Hawaiian damselfly. We find that both of extinction throughout all or a survival and recovery. The goal of this of these species face immediate and significant portion of its range’’ and a process is to restore listed species to a significant threats throughout their threatened species as any species ‘‘that point where they are secure, self- ranges: is likely to become endangered sustaining, and functioning components • Both the Pacific Hawaiian damselfly throughout all or a significant portion of of their ecosystems. and the flying earwig Hawaiian its range within the foreseeable future.’’ Recovery planning includes the damselfly face threats from past, We find that each of these two species development of a recovery outline present, and potential future endemic to Hawaii is presently in shortly after a species is listed, destruction, modification, and danger of extinction throughout its preparation of a draft and final recovery curtailment of their habitats, entire range, based on the immediacy, plan, and revisions to the plan as primarily from: Agriculture and severity, and scope of the threats significant new information becomes urban development; stream described above. Therefore, on the basis available. The recovery outline guides diversion, well-drilling, of the best available scientific and the immediate implementation of urgent channelization, and dewatering; commercial information, we are listing recovery actions and describes the feral pigs and nonnative plants; and the flying earwig Hawaiian damselfly process to be used to develop a recovery from stochastic events like and the Pacific Hawaiian damselfly as plan. The recovery plan identifies site- hurricanes, landslides, and drought. endangered in accordance with sections specific management actions that will The changing environmental 3(6) and 4(a)(1) of the Act. achieve recovery of the species, conditions that may result from Under the Act and our implementing measurable criteria that determine when climate change (particularly rising regulations, a species may warrant a species may be downlisted or delisted,

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and methods for monitoring recovery Act are codified at 50 CFR part 402. scientific purposes, to enhance the progress. Recovery plans also establish Section 7(a)(2) of the Act requires propagation or survival of the species, a framework for agencies to coordinate Federal agencies to ensure that activities and for incidental take in connection their recovery efforts and provide they authorize, fund, or carry out are not with otherwise lawful activities. estimates of the cost of implementing likely to jeopardize the continued It is our policy, as published in the recovery tasks. Recovery teams existence of a listed species or destroy Federal Register on July 1, 1994 (59 FR (comprised of species experts, Federal or adversely modify its critical habitat. 34272), to identify to the maximum and State agencies, nongovernment If a Federal action may affect a listed extent practicable at the time a species organizations, and stakeholders) are species or its critical habitat, the is listed, those activities that would or often established to develop recovery responsible Federal agency must enter would not constitute a violation of plans. When completed, the recovery into consultation with the Service. section 9 of the Act. The intent of this outline, draft recovery plan, and the Federal agency actions within the policy is to increase public awareness of final recovery plan will be available species’ habitat that may require the effect of a proposed listing on from our website (http://www.fws.gov/ consultation as described in the proposed and ongoing activities within endangered), or from our Pacific Islands preceding paragraph include, but are the range of species proposed for listing. Fish and Wildlife Office (see not limited to: Army Corps of Engineers The following activities could ADDRESSES). involvement in projects, such as the potentially result in a violation of Implementation of recovery actions construction of roads, bridges, and section 9 of the Act; this list is not generally benefits from the participation dredging projects, subject to section 404 comprehensive: of a broad range of partners, including of the Clean Water Act (33 U.S.C. 1251 (1) Unauthorized collecting, handling, other Federal agencies, States, et seq.) and section 10 of the Rivers and possessing, selling, delivering, carrying, nongovernmental organizations, Harbors Act of 1899 (33 U.S.C. 401 et or transporting of the species, including businesses, and private landowners. seq.); U.S. Environmental Protection import or export across State lines and Examples of recovery actions include Agency–authorized discharges under international boundaries, except for habitat restoration (e.g., restoration of the National Pollutant Discharge properly documented antique native vegetation), research, captive Elimination System (NPDES); U.S. specimens of these taxa at least 100 propagation and reintroduction, and Department of Agriculture involvement years old, as defined by section 10(h)(1) outreach and education. The recovery of in the release or permitting of the of the Act; many listed species cannot be release of biological control agents (2) Introduction of nonnative species accomplished solely on Federal lands under the Federal Plant Pest Act (7 that compete with or prey upon the two because their range may occur primarily U.S.C. 150aa-150jj); military training damselflies, such as the introduction of or solely on non-Federal lands. To and related activity carried out by the competing nonnative insects or achieve recovery of these species U.S. Department of Defense; and predatory fish to the State of Hawaii; requires cooperative conservation efforts projects by the Natural Resources (3) The unauthorized release of on private and State lands. Conservation Service, National Park biological control agents that attack any Upon listing, funding for recovery Service, U.S. Fish and Wildlife Service, life stage of these species; actions will be available from a variety Federal Highways Administration, and (4) Unauthorized modification of the of sources, including Federal budgets, the U.S. Department of Housing and channel or water flow of any stream or State programs, and cost-share grants for Urban Development. removal or destruction of emergent non-Federal landowners, the academic The Act and its implementing aquatic vegetation in any body of water community, and nongovernmental regulations set forth a series of general in which the flying earwig Hawaiian organizations. In addition, under section prohibitions and exceptions that apply damselfly and the Pacific Hawaiian 6 of the Act, the State of Hawaii is to all endangered and threatened damselfly are known to occur; and eligible for Federal funds to implement wildlife. The prohibitions of section (5) Unauthorized discharge of management actions that promote the 9(a)(2) of the Act, codified at 50 CFR chemicals or fill material into any protection and recovery of the flying 17.21 for endangered wildlife, in part, waters in which the flying earwig earwig Hawaiian damselfly and the make it illegal for any person subject to Hawaiian damselfly and the Pacific Pacific Hawaiian damselfly. Information the jurisdiction of the United States to Hawaiian damselfly are known to occur. on our grant programs that are available take (includes harass, harm, pursue, Questions regarding whether specific to aid species recovery can be found at: hunt, shoot, wound, kill, trap, capture, activities would constitute a violation of http://www.fws.gov/grants. or collect, or attempt any of these), section 9 of the Act should be directed Please let us know if you are import, export, ship in interstate to the Pacific Islands Fish and Wildlife interested in participating in recovery commerce in the course of a commercial Office (see ADDRESSES). Requests for efforts for the flying earwig Hawaiian activity, or sell or offer for sale in copies of the regulations concerning damselfly and the Pacific Hawaiian interstate or foreign commerce any listed animals and general inquiries damselfly. Additionally, we invite you listed species. It is also illegal to regarding prohibitions and permits may to submit any new information on these possess, sell, deliver, carry, transport, or be addressed to the U.S. Fish and species whenever it becomes available ship any such wildlife that has been Wildlife Service, Endangered Species and any information you may have for taken illegally. Certain exceptions apply Permits, 911 N.E. 11th Avenue, recovery planning purposes (see to our agents and State conservation Portland, OR 97232-4181 (telephone ADDRESSES). agencies. 503-231-2063; facsimile 503-231-6243). Section 7(a) of the Act, as amended, We may issue permits to carry out Upon listing under the Act, the State requires Federal agencies to evaluate otherwise-prohibited activities of Hawaii’s Endangered Species Act their actions with respect to any species involving endangered and threatened (HRS, Sect. 195D–4(a)) is automatically that is proposed or listed as endangered wildlife species under certain invoked, which would also prohibit take or threatened and with respect to its circumstances. Regulations governing of these species and encourage critical habitat, if any is designated. permits are codified at 50 CFR 17.22 for conservation by State government Regulations implementing this endangered species. A permit must be agencies. Further, the State may enter interagency cooperation provision of the issued for the following purposes: For into agreements with Federal agencies

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to administer and manage any area lands. Such designation does not generally the information developed required for the conservation, require implementation of restoration, during the listing process for the management, enhancement, or recovery, or enhancement measures by species. Additional information sources protection of endangered species (HRS, the landowner. Where a landowner may include the recovery plan for the Sect. 195D–5(c)). Funds for these seeks or requests Federal agency species, if available; articles in peer- activities could be made available under funding or authorization that may affect reviewed journals; conservation plans section 6 of the Act (Cooperation with a listed species or critical habitat, the developed by States and counties; the States). Thus, the Federal protection consultation requirements of section scientific status surveys and studies; afforded to these species by listing them 7(a)(2) of the Act would apply, but even biological assessments; or other as endangered species will be reinforced in the event of a destruction or adverse unpublished materials and expert and supplemented by protection under modification finding, the Federal action opinion or personal knowledge. State law. agency’s and landowner’s obligation is Habitat is often dynamic, and species not to restore or recover the species, but Critical Habitat may move from one area to another over to implement reasonable and prudent time. Furthermore, we recognize that Background alternatives to avoid destruction or critical habitat designated at a particular adverse modification of the critical Critical habitat is defined in section 3 point in time may not include all of the habitat. of the Act as: habitat areas that we may later For inclusion in a critical habitat determine are necessary for the recovery (1) The specific areas within the designation, the habitat within the geographical area occupied by the of the species. For these reasons, a geographical area occupied by the critical habitat designation does not species, at the time it is listed in species at the time of listing must accordance with the provisions of signal that habitat outside the contain the physical and biological designated area is unimportant or may section 4 of the Act, on which are found features essential to the conservation of those physical or biological features not be required for recovery of the the species, and be included only if species. (a) Essential to the conservation of the those features may require special Areas that are important to the species; and management considerations or conservation of the species, but are (b) Which may require special protection. Critical habitat designations outside the critical habitat designation, management considerations or identify, to the extent known using the will continue to be subject to protections; and best scientific data available, habitat (2) Specific areas outside the areas that provide essential life cycle conservation actions we implement geographical area occupied by a species needs of the species (i.e., areas on which under section 7(a)(1) of the Act. Areas at the time it is listed in accordance are found the primary constituent that support populations are also subject with the provisions of section 4 of the elements (PCEs) laid out in the to the regulatory protections afforded by Act, upon a determination by the appropriate quantity and spatial section 9 prohibitions and the section Secretary of the Interior that such areas arrangement for the conservation of the 7(a)(2) jeopardy standard, as determined are essential for the conservation of the species). Under the Act, we can on the basis of the best available species. designate critical habitat in areas scientific information at the time of the Conservation, as defined under outside the geographical area occupied agency action. Federally funded or section 3 of the Act, means to use and by the species at the time it is listed permitted projects affecting listed the use of all methods and procedures only when we determine that those species outside their designated critical that are necessary to bring an areas are essential for the conservation habitat areas may still result in jeopardy endangered or threatened species to the of the species. findings in some cases. Similarly, point at which the measures provided Section 4 of the Act requires that we critical habitat designations made on the under the Act are no longer necessary. designate critical habitat on the basis of basis of the best available information at Such methods and procedures include, the best scientific and commercial data the time of designation will not control but are not limited to, all activities available. Further, our Policy on the direction and substance of future associated with scientific resources Information Standards Under the recovery plans, habitat conservation management such as research, census, Endangered Species Act (published in plans, or other species conservation law enforcement, habitat acquisition the Federal Register on July 1, 1994 (59 planning efforts if new information and maintenance, propagation, live FR 34271)), the Information Quality Act available at the time of these planning trapping, and transplantation, and, in (section 515 of the Treasury and General efforts warrants otherwise. the extraordinary case where population Government Appropriations Act for Prudency Determination pressures within a given ecosystem Fiscal Year 2001 (Pub. L. 106-554; H.R. cannot be otherwise relieved, may 5658)), and our associated Information Section 4(a)(3) of the Act, as include regulated taking. Quality Guidelines issued by the amended, and implementing regulations Critical habitat receives protection Service, provide criteria, establish (50 CFR 424.12) require that, to the under section 7 of the Act through the procedures, and provide guidance to maximum extent prudent and prohibition against Federal agencies ensure that our decisions are based on determinable, the Secretary designate carrying out, funding, or authorizing the the best scientific data available. They critical habitat at the time a species is destruction or adverse modification of require our biologists, to the extent determined to be endangered or critical habitat. Section 7(a)(2) of the Act consistent with the Act and with the use threatened. Our regulations (50 CFR requires consultation on Federal actions of the best scientific data available, to 424.12(a)(1)) state that designation of that may affect critical habitat. The use primary and original sources of critical habitat is not prudent when one designation of critical habitat does not information as the basis for or both of the following situations exist: affect land ownership or establish a recommendations to designate critical (1) The species is threatened by taking refuge, wilderness, reserve, preserve, or habitat. or other human activity, and other conservation area. Such When we are determining which areas identification of critical habitat can be designation does not allow the should be designated as critical habitat, expected to increase the degree of threat government or public access to private our primary source of information is to the species, or (2) such designation of

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critical habitat would not be beneficial essential to the survival and recovery of (1) Space for individual and to the species. the species, they may be proposed for population growth, and for normal In the absence of finding that the designation of critical habitat. This behavior; designation of critical habitat would would alert the public that these areas (2) Food, water, air, light, minerals, or increase threats to a species, if there are are important for the future recovery of other nutritional or physiological any benefits to a critical habitat the species, as well as invoke the requirements; designation, then we would determine protection of these areas under section (3) Cover or shelter; that the designation of critical habitat is 7 of the Act with regard to any possible (4) Sites for breeding, reproduction, prudent. We find that the designation of Federal actions in that area. rearing (or development) of offspring; critical habitat for the two damselfly These aspects of critical habitat and species addressed in this rule will designation would potentially benefit (5) Habitats that are protected from benefit them by: (1) Triggering the conservation of both the flying disturbance or are representative of the consultation under section 7 of the Act earwig Hawaiian damselfly and the historical geographical and ecological for Federal actions where consultation Pacific Hawaiian damselfly. Although distributions of a species. would not otherwise occur because, for collection has been identified as a threat We are currently unable to identify example, the affected area has become to the flying earwig Hawaiian damselfly, the physical and biological features that unoccupied by the species or the we believe that collection poses a are considered essential to the occupancy is in question; (2) focusing potential threat to this rare species conservation of either damselfly species, conservation efforts on the most regardless of the designation of critical because necessary information is not essential habitat features and areas; (3) habitat. Therefore, since we have available at this time. Key features of the providing educational benefits about the determined that the identification of life histories of these damselfly species, species to State or County governments critical habitat will not increase the such as longevity, larval stage or private entities; and (4) preventing degree of threats to these species and requirements, and fecundity, remain people from causing inadvertent harm because the designation may provide unknown. The aquatic and associated to the species. some measure of benefit, we find that upland habitats where the populations The primary regulatory effect of designation of critical habitat is prudent of the Pacific Hawaiian damselfly are critical habitat is the section 7(a)(2) for both the flying earwig Hawaiian found have been modified and altered requirement that Federal agencies damselfly and the Pacific Hawaiian by development and agriculture; stream refrain from taking any action that damselfly. diversions, channelization, and destroys or adversely modifies critical dewatering; and nonnative plants. In habitat. On the island of Maui, one Critical Habitat Determinability addition, introduced ants, population of the Pacific Hawaiian As stated above, section 4(a)(3) of the backswimmers, bullfrogs, and predatory damselfly occurs in a stream that flows Act requires the designation of critical nonnative fish have altered and through Haleakala National Park, and on habitat concurrently with the species’ degraded the habitat for the Pacific the island of Molokai, one population of listing ‘‘to the maximum extent prudent Hawaiian damselfly. Likewise, the this species occurs in the lower section and determinable.’’ Our regulations at 50 uluhe-dominated, moist talus-slope of a stream that flows through CFR 424.12(a)(2) state that critical habitats where populations of the flying Kalaupapa National Historical Park. The habitat is not determinable when one or earwig Hawaiian damselfly once National Park Service regulations and both of the following situations exist: occurred have been modified and Federal laws protect native animals in (i) Information sufficient to perform altered by agriculture; stream National Parks from harassment or required analyses of the impacts of the diversions, channelization, and destruction. Nevertheless, lands that designation is lacking, or dewatering; and the presence of feral may be designated as critical habitat in (ii) The biological needs of the species pigs, nonnative plants, and introduced the future for this species may be are not sufficiently well known to ants and bullfrogs. Historically, both of subject to Federal actions that trigger the permit identification of an area as these damselfly species were much section 7 consultation requirement, critical habitat. more widespread and occurred in such as the granting of Federal monies When critical habitat is not habitats found on several different for conservation projects or the need for determinable, the Act provides for an islands. Because over a century has Federal permits for projects, such as the additional year to publish a critical elapsed since these species were construction and maintenance of habitat designation (16 U.S.C. observed in an unaltered environment, aqueducts and bridges subject to section 1533(b)(6)(C)(ii)). the optimal natural conditions that 404 of the Clean Water Act (33 U.S.C. In accordance with section 3(5)(A)(i) provide the biological or ecological 1251 et seq.). of the Act and regulations at 50 CFR requisites of these species are not There may also be some educational 424.12, in determining which areas known. As described above, we can or informational benefits from the occupied by the species at the time of surmise that habitat degradation from a designation of critical habitat. listing to designate as critical habitat, variety of factors and predation by a Educational benefits include the we consider those physical and number of nonnative species has notification of landowners, land biological features essential to the contributed to the decline of these managers, and the general public of the conservation of the species that may species; however, we do not know the importance of protecting the habitat of require special management physical or biological features that are these species. considerations or protection. We essential for either of the two Critical habitat may play a role in consider the physical or biological damselflies addressed in this final rule. protecting habitat for future features essential to the species’ As we are unable to identify the reintroductions of a species as well. For conservation to be the primary physical and biological features example, although the flying earwig constituent elements laid out in the essential to the conservation of these Hawaiian damselfly formerly inhabited appropriate quantity and spatial species, we are unable to identify areas areas that are not currently occupied by arrangement for the conservation of the that contain these features. the species, if those currently species. The primary constituent Although we have determined that unoccupied areas are determined to be elements include, but are not limited to: the designation of critical habitat is

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prudent for the flying earwig Hawaiian approval by Office of Management and Authors damselfly and the Pacific Hawaiian Budget (OMB) under the Paperwork damselfly, the biological needs of these Reduction Act. This rule will not The primary authors of this document species are not sufficiently well known impose recordkeeping or reporting are the staff members of the Pacific to permit identification of the physical requirements on State or local Islands Fish and Wildlife Office. and biological features that may be governments, individuals, businesses, or List of Subjects in 50 CFR Part 17 essential for the conservation of the organizations. An agency may not species, or those areas essential to the conduct or sponsor, and a person is not Endangered and threatened species, conservation of the species. Therefore, required to respond to, a collection of Exports, Imports, Reporting and we find that critical habitat for the information unless it displays a recordkeeping requirements, flying earwig Hawaiian damselfly and currently valid OMB control number. Transportation. the Pacific Hawaiian damselfly is not determinable at this time. Over the next National Environmental Policy Act (42 Regulation Promulgation year, we intend to continue gathering U.S.C. 4321 et seq.) information regarding the essential life ■ Accordingly, we amend part 17, history requirements of the flying We have determined that subchapter B of chapter I, title 50 of the earwig Hawaiian damselfly and the environmental assessments and Code of Federal Regulations, as follows: Pacific Hawaiian damselfly to facilitate environmental impact statements, as identification of essential features and defined under the authority of the PART 17—[AMENDED] areas. We also will evaluate the needs National Environmental Policy Act of of the flying earwig Hawaiian damselfly 1969, need not be prepared in ■ 1. The authority citation for part 17 and the Pacific Hawaiian damselfly connection with regulations adopted continues to read as follows: within the ecological context of the under section 4(a) of the Act. We Authority: 16 U.S.C. 1361-1407; 16 U.S.C. broader ecosystems in which they published a notice outlining our reasons 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- occur, similar to the approach that we for this determination in the Federal 625, 100 Stat. 3500; unless otherwise noted. recently used in our designation of Register on October 25, 1983 (48 FR ■ critical habitat for 47 species endemic to 49244). 2. Amend § 17.11(h) by adding entries the island of Kauai (April 13, 2010; 75 for ‘‘Damselfly, flying earwig Hawaiian’’ FR 18959), and will consider the utility References Cited and ‘‘Damselfly, Pacific Hawaiian’’ in of using this approach for these alphabetical order under Insects to the damselfly species as well. A complete list of all references cited List of Endangered and Threatened in this rule is available on the Internet Wildlife to read as follows: Required Determinations at http://www.regulations.gov or upon Paperwork Reduction Act of 1995 (44 request from the Field Supervisor, §17.11 Endangered and threatened U.S.C. 3501 et seq.) Pacific Islands Fish and Wildlife Office wildlife. This rule does not contain any new (see ADDRESSES). * * * * * collections of information that require (h) * * *

Species Vertebrate population Historic range where endangered or Status When listed Critical Special Common name Scientific name threatened habitat rules

*******

INSECTS

*******

Damselfly, flying Megalagrion U.S.A. (HI) NA E 271 NA NA earwig nesiotes Hawaiian

Damselfly, Megalagrion U.S.A. (HI) NA E 271 NA NA Pacific pacificum Hawaiian

*******

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* * * * * Compliance Guide are available from dogfish stock can be considered rebuilt Dated: June 11, 2010 the Regional Administrator, Northeast for the purposes of U.S. management. In Jeffrey L. Underwood, Regional Office, NMFS, 55 Great addition, the peer reviewers agreed on Republic Drive, Gloucester, MA 01930– a new fishing mortality rate target Acting Director, U.S. Fish and Wildlife Service. 2276, and are also available via the (Ftarget) of 0.207 (previously 0.28), which internet at http://www.nero.nmfs.gov. allows 1.5 pups per recruit, and a [FR Doc. 2010–15237 Filed 6–23– 10; 8:45 am] fishing mortality rate threshold BILLING CODE 4310–55–S FOR FURTHER INFORMATION CONTACT: Lindsey Feldman, Fisheries (Fthreshold) of 0.325 (previously 0.39). Management Specialist, phone: 978– Based on the updated stock status DEPARTMENT OF COMMERCE 675–2179, fax: 978–281–9135. determination criteria, NMFS sent a letter to the Councils that the spiny SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric dogfish stock is rebuilt. Administration Background The Ftarget of 0.207 could allow the 2010 quota to be specified as high as A proposed rule for this action was 21.5 million lb (9,752.24 mt). However, 50 CFR Part 648 published in the Federal Register on the Mid-Atlantic and New England April 2, 2010 (75 FR 16716), with public [Docket No. 100201058–0260–02] Fishery Management Councils’ Joint comment accepted through May 3, 2010. RIN 0648–AY50 Spiny Dogfish Committee (Committee) NMFS proposed to establish a submitted a comment on the proposed Fisheries of the Northeastern United commercial quota of 12 million lb rule that supported increasing the FY States; 2010 Specifications for the (5,443.11 mt), the level calculated to 2010 commercial quota to a level that Spiny Dogfish Fishery achieve the fishing mortality rate (F) employs a constant catch management that would rebuild the stock (Frebuild) approach and avoids dramatic AGENCY: National Marine Fisheries after accounting for other sources of fluctuations in annual quota levels. In Service (NMFS), National Oceanic and fishing mortality. NMFS also proposed addition, there are still a number of Atmospheric Administration (NOAA), maintaining the possession limit of concerns about the spiny dogfish stock Commerce. 3,000 lb (1.36 mt) for FY 2010. As noted condition. The 2009 updated stock ACTION: Final rule. in the preamble to the proposed rule, assessment shows evidence of strong the proposed commercial quota of 12 SUMMARY: NMFS announces recruitment; however, low pup million lb (5,443.11 mt) was consistent production from 1997 through 2003 has specifications and management with the rebuilding F level (Frebuild = measures for the spiny dogfish fishery been implicated by survey catches of 0.11) in existence at that time. As also pups and is further supported by for the 2010 fishing year (FY) (May 1, noted, the Transboundary Resource 2010, through April 30, 2011). NMFS is subsequent low survey catches of the Assessment Committee (TRAC) size categories these age classes have implementing a spiny dogfish quota of conducted a benchmark stock 15 million lb (6,803.89 mt) for FY 2010, grown into. As such, a decline in the assessment for spiny dogfish in stock is expected when these small and maintaining the possession limit of February 2010, and planned to re- 1997–2003 year-classes recruit into the 3,000 lb (1.36 mt). These measures are examine biological reference points. The SSB (in approximately 2015). In consistent with the Spiny Dogfish proposed rule explained that the FMP addition, the current survival rate of Fishery Management Plan (FMP) and provides a mechanism to allow updated pups may be lower than historic levels based on new biological reference stock status determination criteria to be due to reduced maternal size and a points announced by peer reviewers of used in setting final specifications. skewed male-to-female sex ratio in the the Transboundary Resource Details about the proposed measures population. A harvest scenario of 21.6 Assessment Committee (TRAC), which were included in the preamble of the million lb (9,797.6 mt) over the next 5 indicated the stock is rebuilt. proposed rule and are not repeated here. years has only a 27 percent chance of DATES: Effective July 26, 2010 through 1 The TRAC met in early February exceeding the biomass target ( ⁄2 Bmsy) April 30, 2011. 2010, and determined that additional when the small year classes from years ADDRESSES: Copies of supporting analysis would be conducted by a group of low pup production recruit into the documents used by the Mid-Atlantic of selected peer reviewers to further fishery. Fishery Management Council (MAFMC), define biological reference points, in including the Environmental particular to determine the status of the 2010 Specifications and Management Assessment (EA) and Regulatory Impact spiny dogfish stock for the purposes of Measures Review (RIR)/Initial Regulatory U.S. management. The commercial spiny dogfish quota Flexibility Analysis (IRFA), are for FY 2010 is 15 million lb (6,803.89 Revised Stock Status Determination available from: Richard Seagraves, mt), the level that equates to an F of Criteria Acting Deputy Director, Mid–Atlantic 0.167 when discard mortality and Fishery Management Council, Room On April 6, 2010, the group of peer Canadian harvest estimates are 2115, Federal Building, 300 South New reviewers selected by the TRAC accounted for. In setting the FY 2010 Street, Dover, DE 19904–6790. The accepted a newly defined biomass target commercial quota at 15 million lb revised EA/RIR/IRFA updated after the of 159,288 mt, based on analysis of (6,803.89 mt), there is a 98–percent announcement of new biological information in the TRAC assessment. chance that the stock will not decline to reference points is also accessible via The reviewers concluded that the the level where it would once again be the Internet at http:// updated stochastic estimate of spawning deemed overfished, and a significant www.nero.noaa.gov. stock biomass (SSB) for 2009 (163,256 decrease in annual quota levels will not NMFS prepared a Final Regulatory mt) exceeded the newly defined be necessary when the small year- Flexibility Analysis (FRFA), which is biomass target, and that estimates of classes from years of low pup contained in the Classification section SSB have been above the new biomass production recruit into the fishery. of the preamble of this rule. Copies of target since 2008, consistent with a As specified in the FMP, quota Period the FRFA and the Small Entity rebuilt stock. Therefore, the spiny 1 (May 1 through October 31) would be

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