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Final Designation and Nondesignation of Critical Habitat for 46 Plant Species from the Island of Hawaii, HI; Final Rule

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Final Designation and Nondesignation of Critical Habitat for 46 Plant Species from the Island of Hawaii, HI; Final Rule Wednesday, July 2, 2003 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Designation and Nondesignation of Critical Habitat for 46 Plant Species From the Island of Hawaii, HI; Final Rule VerDate Jan<31>2003 19:21 Jul 01, 2003 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\02JYR2.SGM 02JYR2 39624 Federal Register / Vol. 68, No. 127 / Wednesday, July 2, 2003 / Rules and Regulations DEPARTMENT OF THE INTERIOR Designation of Critical Habitat Provides court orders and court-approved Little Additional Protection to Species settlement agreements, compliance with Fish and Wildlife Service In 30 years of implementing the ESA, which now consumes nearly the entire the Service has found that the listing program budget. This leaves the 50 CFR Part 17 designation of statutory critical habitat Service with little ability to prioritize its activities to direct scarce listing provides little additional protection to resources to the listing program actions RIN 1018–AH02 most listed species, while consuming with the most biologically urgent significant amounts of available Endangered and Threatened Wildlife species conservation needs. conservation resources. The Service’s and Plants; Final Designation and The consequence of the critical present system for designating critical Nondesignation of Critical Habitat for habitat litigation activity is that limited habitat has evolved since its original 46 Plant Species From the Island of listing funds are used to defend active statutory prescription into a process that Hawaii, HI lawsuits, to respond to Notices of Intent provides little real conservation benefit, (NOIs) to sue relative to critical habitat, AGENCY: Fish and Wildlife Service, is driven by litigation and the courts and to comply with the growing number Interior. rather than biology, limits our ability to of adverse court orders. As a result, fully evaluate the science involved, listing petition responses, the Service’s ACTION: Final rule. consumes enormous agency resources, own proposals to list critically and imposes huge social and economic imperiled species, and final listing SUMMARY: We, the U.S. Fish and costs. The Service believes that determinations on existing proposals are Wildlife Service (Service), designate additional agency discretion would all significantly delayed. critical habitat pursuant to the allow our focus to return to those The accelerated schedules of court Endangered Species Act of 1973, as actions that provide the greatest benefit ordered designations have left the amended (Act), for 41 of 58 listed plant to the species most in need of Service with almost no ability to species known historically from the protection. provide for adequate public island of Hawaii. A total of Role of Critical Habitat in Actual participation or to ensure a defect-free approximately 84,200 hectares (208,063 rulemaking process before making acres) of land on the island of Hawaii Practice of Administering and Implementing the Act decisions on listing and critical habitat fall within the boundaries of the 99 proposals due to the risks associated critical habitat units designated for While attention to and protection of with noncompliance with judicially- these 41 species. This critical habitat habitat is paramount to successful imposed deadlines. This in turn fosters designation requires the Service to conservation actions, we have a second round of litigation in which consult under section 7 of the Act with consistently found that, in most those who fear adverse impacts from regard to actions carried out, funded, or circumstances, the designation of critical habitat designations challenge authorized by a Federal agency. Section critical habitat is of little additional those designations. The cycle of 4 of the Act requires us to consider value for most listed species, yet it litigation appears endless, is very economic and other relevant impacts consumes large amounts of conservation expensive, and in the final analysis when specifying any particular area as resources. [Sidle (1987) stated, ‘‘Because provides relatively little additional critical habitat. This rule also the ESA can protect species with and protection to listed species. determines that designating critical without critical habitat designation, The costs resulting from the habitat would not be prudent for four critical habitat designation may be designation include legal costs, the cost species, Cyanea copelandii ssp. redundant to the other consultation of preparation and publication of the copelandii, Ochrosia kilaueaensis, requirements of section 7.’’ designation, the analysis of the Pritchardia affinis, and Pritchardia Currently, only 306 species or 25% of economic effects and the cost of schattaueri. We solicited data and the 1,211 listed species in the U.S. requesting and responding to public comments from the public on all aspects under the jurisdiction of the Service comment, and in some cases the costs of the proposed rule, including data on have designated critical habitat. We of compliance with NEPA, all are part economic and other impacts of the address the habitat needs of all 1,211 of the cost of critical habitat designation. listed species through conservation designation. None of these costs result mechanisms such as listing, section 7 DATES: in any benefit to the species that is not This rule becomes effective on consultations, the Section 4 recovery August 1, 2003. already afforded by the protections of planning process, the Section 9 the Act enumerated earlier, and they ADDRESSES: Comments and materials protective prohibitions of unauthorized directly reduce the funds available for received, as well as supporting take, Section 6 funding to the States, direct and tangible conservation actions. documentation, used in the preparation and the Section 10 incidental take Sidle, J.G. 1987. Critical Habitat of this final rule will be available for permit process. The Service believes Designation: Is it Prudent? public inspection, by appointment, that it is these measures that may make Environmental Management 11(4):429– during normal business hours at U.S. the difference between extinction and 437. Fish and Wildlife Service, Pacific survival for many species. Islands Office, 300 Ala Moana Blvd., Background Procedural and Resource Difficulties in Room 3–122, P.O. Box 50088, Honolulu, In the List of Endangered and Designating Critical Habitat HI 96850–0001. Threatened Plants (50 CFR 17.12(h)), We have been inundated with there are 58 plant species that, at the FOR FURTHER INFORMATION CONTACT: Paul lawsuits for our failure to designate time of listing, were reported from the Henson, Field Supervisor, Pacific critical habitat, and we face a growing island of Hawaii. Islands Office at the above address number of lawsuits challenging critical Twenty-seven of these species are (telephone 808/541–3441; facsimile habitat determinations once they are endemic to the island of Hawaii, while 808/541–3470). made. These lawsuits have subjected the 31 species are reported from the island SUPPLEMENTARY INFORMATION: Service to an ever-increasing series of of Hawaii and one or more other VerDate Jan<31>2003 19:21 Jul 01, 2003 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\02JYR2.SGM 02JYR2 Federal Register / Vol. 68, No. 127 / Wednesday, July 2, 2003 / Rules and Regulations 39625 Hawaiian islands. Each of these species State of Hawaii, giving rise to its represent viable populations, and the is described in more detail below in the common name, the ‘‘Big Island.’’ We number of recovery populations (e.g., 8 section named, ‘‘Discussion of Plant provided a detailed physical description to 10 with 100, 300, or 500 reproducing Taxa.’’ Although we considered for the island of Hawaii in the proposed individuals). For those species where designating critical habitat on the island critical habitat designation (67 FR we have substantial new or corrected of Hawaii for each of the 58 plant 36970). information, including revisions to the species, for reasons described below, the Species Endemic to Hawaii number occurrence, we list that final designation includes critical information below by species. For all habitat for 41 of 58 plant species. These species and their distribution by island are identified in Table 1 in the other species and additional species Species that also occur on other specific background information on the Hawaiian islands may have critical Federal Register notice proposing this species listed below please refer to the habitat designated on those other critical habitat designation (67 FR proposed rule (May 28, 2002, 67 FR islands in previous rulemakings. 36969). However, it is important to note that in this final rule we are using the 36968). The Island of Hawaii word ‘‘occurrence’’ rather than A summary of occurrences and This largest island of the Hawaiian ‘‘population’’ in most cases. This was landownership for the 58 plant species archipelago comprises 10,458 square done to avoid confusion regarding the on the island of Hawaii appears given in kilometers (sq km) (4,038 sq miles (mi)) number of location occurrences for each Table 1. or two-thirds of the land area of the species, which do not necessarily TABLE 1.—SUMMARY OF EXISTING OCCURRENCES ON THE ISLAND OF HAWAII AND OF LANDOWNERSHIP FOR 58 SPECIES REPORTED FROM THE ISLAND OF HAWAII Number of Landownership/jurisdiction Species current occurrences Federal State Private Achyranthes mutica ..........................................................................................
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