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DEPARTMENT OF THE INTERIOR Fish and Wildlife Service, Pacific micrantha ssp. ctenophylla, Isodendrion Islands Fish and Wildlife Office, 300 pyrifolium, and Mezoneuron kavaiense, Fish and Wildlife Service Ala Moana Boulevard, Room 3–122, and was made available for public Honolulu, HI 96850; by telephone at review during three comment periods. 50 CFR Part 17 808–792–9400; or by facsimile at 808– Following the close of the comment [Docket Number FWS–R1–ES–2013–0028; 792–9581. If you use a periods, we reviewed and evaluated all 4500030113] telecommunications device for the deaf information submitted during the (TDD), call the Federal Relay Service at comment periods, including RIN 1018–AZ38 800–877–8339. information that pertains to our consideration of the possible Endangered and Threatened Wildlife SUPPLEMENTARY INFORMATION: incremental economic impacts of this and Plants; Designation of Critical Executive Summary critical habitat designation. We have Habitat for Three Plant Species on Why we need to publish a rule. This incorporated the comments as Hawaii Island is a final rule to designate critical appropriate and have completed the AGENCY: Fish and Wildlife Service, habitat for the following endangered final economic analysis (FEA). Interior. plants: Bidens micrantha ssp. Peer review and public comment. We ACTION: Final rule. ctenophylla (listed in 2013), sought comments from independent Isodendrion pyrifolium (listed in 1994), specialists to ensure that our SUMMARY: We, the U.S. Fish and and Mezoneuron kavaiense (listed in designation is based on scientifically Wildlife Service (Service), designate 1986). These three plants occur in the sound data and analyses. We obtained critical habitat for Bidens micrantha same ecosystem and have not had opinions from two knowledgeable ssp. ctenophylla (kookoolau), designated critical habitat on Hawaii individuals with scientific expertise to Isodendrion pyrifolium (wahine noho Island. Under the Act, species that are review our technical assumptions and kula), and Mezoneuron kavaiense determined to be endangered or analysis, and whether or not we had (uhiuhi) respectively, under the threatened species generally require used the best available scientific Endangered Species Act (Act). In total, critical habitat to be designated, to the information. These peer reviewers approximately 11,640 acres (ac) (4,711 maximum extent prudent and generally concurred with our methods hectares (ha)) in North Kona and South determinable. Designations of critical and conclusions, and they provided Kohala on Hawaii Island fall within the habitat can only be completed by additional information, clarifications, boundaries of the critical habitat issuing a rule. and suggestions to improve this final designation. Approximately 72 percent Section 4(b)(2) of the Act states that rule. Information we received from peer of this area is already designated as the Secretary shall designate critical review is incorporated into this final critical habitat for 42 plants and the habitat on the basis of the best available designation. We also considered all Blackburn’s sphinx moth (Manduca scientific data after taking into comments and information received blackburni). We are excluding, under consideration the economic impact, from the public during the comment section 4(b)(2) of the Act, approximately national security impact, and any other periods. relevant impact of specifying any 7,027 ac (2,844 ha) of land on the island Previous Federal Actions of Hawaii that meet the definition of particular area as critical habitat. The critical habitat from this final critical critical habitat areas we are designating We listed Mezoneuron kavaiense as an endangered species on July 8, 1986 habitat designation. in this rule constitute our current best assessment of the areas that meet the (51 FR 24672) and Isodendrion DATES: This rule is effective on definition of critical habitat for the pyrifolium as an endangered species on September 20, 2018. plants Bidens micrantha ssp. March 4, 1994 (59 FR 10305). On ADDRESSES: This final rule, the final ctenophylla, Isodendrion pyrifolium, October 17, 2012, we published in the economic analysis, and some supporting and Mezoneuron kavaiense. Here we are Federal Register a proposed rule to list documentation used in preparing this designating approximately 11,640 acres 15 species, including Bidens micrantha final rule are available on the internet at (ac) (4,711 hectares (ha)) in five multi- ssp. ctenophylla, as endangered, and to http://www.regulations.gov. All of the species critical habitat units for these designate critical habitat for Bidens comments, materials, and species. The five units are in North micrantha ssp. ctenophylla, Isodendrion documentation that we considered in Kona and South Kohala on Hawaii pyrifolium, and Mezoneuron kavaiense this rulemaking are available, by Island, on lands owned by the National on Hawaii Island (77 FR 63928). On appointment, during normal business Park Service, State of Hawaii, and October, 29, 2013, we listed Bidens hours, at U.S. Fish and Wildlife Service, private entities. Approximately 72 micrantha ssp. ctenophylla as an Pacific Islands Fish and Wildlife Office, percent, or 8,443 ac (3,417 ha), of the endangered species (78 FR 64638). 300 Ala Moana Boulevard, Box 50088, area designated as critical habitat We accepted public comments on our Honolulu, HI 96850; telephone 808– overlaps with areas already designated October 17, 2012, proposed rule to 792–9400; or facsimile 808–792–9581. as critical habitat for listed plant and designate critical habitat for Bidens The coordinates or plot points or both animal species. Therefore, 27 percent, or micrantha ssp. ctenophylla, Isodendrion from which the maps are generated are 3,197 ac (1,294 ha), of the area is new pyrifolium, and Mezoneuron kavaiense included in the administrative record critical habitat. on Hawaii Island (77 FR 63928) for 60 for this critical habitat designation and We have prepared an economic days, ending December 17, 2012. In are available at http://www.fws.gov/ analysis of the designation of critical addition, we published a public notice pacificislands, at http:// habitat. In order to consider economic of the proposed rule on October 20, www.regulations.gov under Docket No. impacts, we prepared an analysis of the 2012, in the local Honolulu Star FWS–R1–ES–2013–0028, and at the economic impacts of the critical habitat Advertiser, Hawaii Tribune Herald, and Pacific Islands Fish and Wildlife Office designations and related factors. The West Hawaii Today newspapers, at the (address above). draft economic analysis (DEA) beginning of that comment period. On FOR FURTHER INFORMATION CONTACT: addressed possible economic impacts of April 30, 2013, we announced the Mary Abrams, Field Supervisor, U.S. critical habitat designation for Bidens availability of the DEA on the proposed

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designation of critical habitat, and comment period on the proposed designation, ending June 6, 2016 (81 FR reopened the comment period on our designation of critical habitat and the 31900). proposed rule, the DEA, and amended DEA for an additional 60 days, ending required determinations for another 30 September 3, 2013 (78 FR 39698). In Background days, ending May 30, 2013 (78 FR that July 2, 2013, document, we also Hawaii Island Species Addressed in 25243). On April 30, 2013, we also announced a public information This Final Rule announced a public information meeting in Kailua-Kona, Hawaii, which meeting in Kailua-Kona, Hawaii, which we held on August 7, 2013. On May 20, The table below (Table 1) provides the we held on May 15, 2013, followed by 2016, we announced an additional scientific name, common name, listing a public hearing on that same day (78 reopening of the comment period on the status, and critical habitat status for the FR 25243). On July 2, 2013, we proposed critical habitat designation, plant species that are the subjects of this announced the reopening of the including the economic impacts of the final rule.

TABLE 1—THE HAWAII ISLAND SPECIES ADDRESSED IN THIS FINAL RULE

Scientific name Common name Listing status Critical habitat status

Bidens micrantha ssp. ctenophylla ... kookoolau ...... Listed as an endangered species, Designated in this rule. 2013. Isodendrion pyrifolium ...... wahine noho kula ...... Listed as an endangered species, Designated in this rule. 1994. Mezoneuron kavaiense ...... uhiuhi ...... Listed as an endangered species, Designated in this rule. 1986.

Critical Habitat Unit Map Corrections 64638); Isodendrion pyrifolium, which those individual species that occupied We designated critical habitat for was listed as an endangered species on that particular unit at the time of listing, Cyanea shipmanii, Phyllostegia March 4, 1994 (59 FR 10305); and or in the case of areas that were not racemosa, Phyllostegia velutina, and Mezoneuron kavaiense, which was occupied at the time of listing, contains Plantago hawaiensis in 2003 (68 FR listed as an endangered species on July areas essential for the conservation of 39624; July 2, 2003). In this final rule, 8, 1986 (51 FR 24672). These three those species identified. These we correct the critical habitat unit maps species share occupied and unoccupied unoccupied areas are essential for the published at 50 CFR 17.99(k)(1) for critical habitat on Hawaii Island. conservation of that species because the these four species to accurately reflect On February 11, 2016, we published designation allows for the expansion of their designated critical habitat units. a final rule in the Federal Register (81 the species’ range and reintroduction of We amend 50 CFR 17.99(k)(1) by FR 7414) to amend our regulations individuals into areas where the species removing four maps (Map 97, Unit 30— concerning the procedures and criteria occurred historically, and provides area Cyanea stictophylla—d; Map 100, Unit we use to designate and revise critical for recovery in the case of stochastic 30—Phyllostegia hawaiiensis—c; Map habitat, including the identification of events that otherwise hold the potential 101, Unit 30—Phyllostegia racemosa— primary constituent elements (PCEs). to eliminate the species from the one or c; and Map 102, Unit 30—Phyllostegia That rule became effective on March 14, more locations where it is presently velutina—b) that are either a duplicate 2016, but, as stated in that rule, the found. Under current conditions, some of another unit map or labeled with the amendments it sets forth apply to ‘‘rules of these species are so rare in the wild incorrect species name. We replace for which a proposed rule was that they are at high risk of extirpation these four maps, using the same map published after March 14, 2016.’’ We or even extinction from various numbers, with correctly labeled maps published our proposed critical habitat stochastic events, such as hurricanes or that accurately represent the geographic designation for the three plant species landslides. Therefore, building up location of each species’ critical habitat on October 17, 2012 (77 FR 63928); resilience and redundancy in these unit. We also remove the textual therefore, the amendments set forth in species through the establishment of descriptions of critical habitat the February 11, 2016, final rule (81 FR multiple robust populations is a key boundaries from the entries with 7414) do not apply to this final component of recovery. corrected maps, in accordance with our designation of critical habitat for Bidens Each of the areas designated rule published on October 27, 2017 (82 micrantha ssp. ctenophylla, Isodendrion represents critical habitat for more than FR 49751). pyrifolium, and Mezoneuron kavaiense. one species, based upon shared habitat In this final rule, we designate critical requirements (i.e., physical or biological Determining Primary Constituent habitat for three species in five features) essential for their conservation. Elements of Critical Habitat multiple-species critical habitat units. The identification of critical habitat also Under section 4(a)(3)(A) of the Act (16 Although critical habitat is identified for takes into account any species-specific U.S.C. 1531 et seq.), we are required to Bidens micrantha ssp. ctenophylla, conservation needs as appropriate. designate critical habitat to the Isodendrion pyrifolium, and Bidens micrantha ssp. ctenophylla, maximum extent prudent and Mezoneuron kavaiense individually, we Isodendrion pyrifolium, and determinable concurrently with the have found that the conservation of each Mezoneuron kavaiense co-occur in the publication of a final determination that depends on the successful functioning same lowland dry ecosystem on the a species is an endangered or threatened of certain physical or biological features island of Hawaii. These three plant species. In this final rule, we are shared by all three of these species in species share many of the same physical designating critical habitat for the plant the lowland dry ecosystem. Each critical or biological features (e.g., elevation, Bidens micrantha ssp. ctenophylla, habitat unit identified in this rule annual rainfall, substrate, and which was listed as an endangered contains the physical or biological associated native plant genera), as well species on October 29, 2013 (78 FR features essential to the conservation of as the same threats from development,

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fire, and nonnative ungulates and scattered individuals at Kaupulehu Facility (Hawaii), the Lyon Arboretum’s plants. (HBMP 2010a; Giffin 2011, pers. Seed Conservation Lab (Oahu), and the Please refer to the proposed rule (77 comm.). Bidens micrantha ssp. National Tropical Botanical Garden FR 63928; October 17, 2012) or our ctenophylla is under propagation for (Kauai). Thirteen Isodendrion supporting document ‘‘Supplemental outplanting at the Future Forest Nursery pyrifolium plants have been outplanted Information for the Designation and (Hawaii). Seed banking of this at the Kaloko-Honokohau NHP, 20 Non-designation of Critical Habitat for subspecies is occurring at the Harold L. plants were outplanted in Puu Waawaa Bidens micrantha ssp. ctenophylla, Lyon Arboretum Seed Conservation and Kaupulehu, and another 15 plants Isodendrion pyrifolium, and Laboratory (Oahu), and the Hawaii in the Kaloko area (Wagner 2011c, in Mezoneuron kavaiense’’ available at Island Seed Bank at the Hawaii Forest litt.; Wagner 2013a, in litt.; Wagner http://www.regulations.gov (see Institute (Hawaii). Bidens micrantha 2013b, in litt.). Critical habitat has been ADDRESSES), for a description of the ssp. ctenophylla has been outplanted designated for this species on Oahu (77 island of Hawaii and associated map, within fenced exclosures at Kaloko- FR 57648; September 18, 2012), and on and for a description of the lowland dry Honokohau NHP (49 individuals), Koaia the islands of Maui and Molokai (81 FR ecosystem that is designated as critical Tree Sanctuary (1 individual), Puu 17790; March 30, 2016). habitat for the three species addressed Waawaa (5 individuals), Kealakehe (124 Mezoneuron kavaiense (uhiuhi), a in this final rule. individuals), and at several locations as medium-sized tree in the pea family Current Status of the Three Species a result of the Federal Highway (Fabaceae), was known historically from Administration’s (FHWA) conservation Kauai, Oahu, Lanai, Maui, and Hawaii In order to avoid confusion regarding measures (over 600 individuals) (Boston the number of locations of each species (Geesink et al. 1999, pp. 647–648). At 2008, in litt.; HBMP 2010a; Wagner the time of listing in 1986, a single large (a location does not necessarily 2013a, in litt., Wagner 2014a, in litt.; represent a viable population), we use occurrence of approximately 30 Wagner 2015, in litt.). the word ‘‘occurrence’’ instead of individuals at Puu Waawaa contained ‘‘population.’’ Each occurrence is Isodendrion pyrifolium (wahine noho the majority of individuals of this composed only of wild (i.e., not kula), a perennial shrub in the violet species on Hawaii Island (51 FR 24672, propagated and outplanted) individuals. family (Violaceae), is known from July 8, 1986; HBMP 2010c). In 1992, a We have updated information on the Niihau, Oahu, Molokai, Lanai, Maui, second occurrence of 21 individuals status of the three species that was and Hawaii (Wagner et al. 1999a, p. was discovered at Kealakehe (USFWS presented in the proposed rule (77 FR 1,331). Isodendrion pyrifolium was 1994, p. 14; HBMP 2010c). In 1993, fire 63928; October 17, 2012), and provide thought to be extinct since 1870, but within a kipuka (an area of older land the updated status below. was rediscovered in 1991, at Kealakehe, within the younger Kaupulehu lava Bidens micrantha ssp. ctenophylla near Kailua on the island of Hawaii. In flow) destroyed 80 percent of the (kookoolau), a perennial herb in the 2003, Isodendrion pyrifolium was only individuals known from Puu Waawaa. sunflower family (Asteraceae), occurs known from a single occurrence of Surveys in 2006 reported the number of only on the island of Hawaii (Ganders approximately nine individuals at individuals at Puu Waawaa to be and Nagata 1999, pp. 271, 273). Kealakehe on the island of Hawaii (68 approximately 50 to 100 individuals Historically, Bidens micrantha ssp. FR 39624, July 2, 2003). Currently, there (HBMP 2010c). In addition, new ctenophylla was known from the north are no extant occurrences on Oahu, information recently documented 13 Kona district in the lowland dry Lanai, Molokai, or Maui. Surveys have individuals near Waikoloa Village ecosystem (HBMP 2010a). Currently, documented the decline of the total (Faucette 2010, p. 3). A total of 520 this subspecies is restricted to an area of number of individuals at Kealakehe individuals have been reintroduced at less than 10 square miles (mi2) (26 (from nine individuals in 2003, to four several sites in the North Kona and square kilometers (km2)) on the leeward individuals in 2006, to three individuals Waikoloa regions (USFWS 2015a, in slopes of Hualalai volcano, in the in 2007, to two individuals in 2012) litt.). Currently, Mezoneuron kavaiense lowland dry ecosystem in five (David 2007, pers. comm. in USFWS is found in 6 occurrences totaling 72 occurrences totaling fewer than 1,000 2008, in litt.; Wagner 2011b, in litt.) mature and 22 immature wild individuals. The largest occurrence is within two small, managed preserves individuals in the lowland dry found in Kaloko and Honokohau, with situated in an urban setting. The larger ecosystem of Hawaii Island (USFWS over 475 individuals widely dispersed 26 ac (11 ha) preserve is bordered by a 2015a, in litt.). Due to its rarity on Kauai throughout the area (David 2005, pp. 8– high school, residential development, and Oahu, remaining populations and 10; Palmer 2005a, pp. 3–4; Palmer and construction of the Kealakehe individuals on those islands are 2005b, pp. 4–5; Zimpfer 2011, in litt.). portion of Ane Keohokalole Highway. regularly monitored by staff at the Plant The occurrence at Kealakehe was Recent surveys have documented the Extinction Prevention Program of reported to have been abundant and mortality of the two mature, Hawaii. Mezoneuron kavaiense is under common in 1992, but by 2010 had reproducing individuals, leaving only propagation for outplanting at the declined to low numbers (Whistler several immature individuals in one of Volcano Rare Plant Facility (Hawaii), 2007, pp. 1–18; Bio 2008, in litt.; HBMP the preserves (Wagner 2014b, in litt.; the Olinda Rare Plant Facility (Maui), 2010a; Whistler 2008, pp. 1–11). Wagner 2016, in litt.). Three individuals the Pahole Rare Plant Facility (Oahu), Currently, there are approximately 13 are represented in off-site seed storage the Waimea Valley (Oahu), and the individuals scattered amongst several collections (PEPP 2011, p. 32). National Tropical Botanical Garden locations in the Kealakehe area (HFIA Isodendrion pyrifolium is under (Kauai). Seed banking for this species is 2013, in litt.; Guinther et al. 2013). In propagation for outplanting at the occurring at the Volcano Rare Plant addition, there are three individuals in Volcano Rare Plant Facility (Hawaii) Facility (Hawaii), the Maui Nui Kaloko-Honokohau National Historical and at the Future Forests Nursery Botanical Garden (Maui), Lyon Park (NHP) (Beavers 2010, in litt.), and (Hawaii) (VRPF 2010, in litt.; VRPF Arboretum Seed Conservation two occurrences are found to the 2011, in litt; Wagner 2011b, in litt.). Laboratory (Oahu), and the National northeast: an unknown number of Seed banking for this species is Tropical Botanical Garden (Kauai). Seed individuals at Puu Waawaa, and a few occurring at the Volcano Rare Plant collections contain representation of

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genetic material from all islands across geographic area, and the ability to of critical habitat in unoccupied areas the species’ distribution. withstand catastrophic events. and the inclusion of areas for the Due to the small population sizes, few Representation is genetic and expansion of existing populations. numbers of individuals, and reduced environmental diversity, and the ability (3) In response to comments, we geographic range of Bidens micrantha to adapt to changing conditions over clarified that utility facilities and ssp. ctenophylla, Isodendrion time. Sufficient resiliency, redundancy, infrastructure, and their designated, pyrifolium, and Mezoneuron kavaiense, and representation will ensure long- maintained rights-of-way, are existing we have determined that a recovery term viability and bring Bidens manmade features and structures that focus limited to the areas known to be micrantha ssp. ctenophylla, Isodendrion are not included in the critical habitat occupied at the time of listing would be pyrifolium, and Mezoneuron kavaiense designation. inadequate to achieve the conservation to the point at which the protections of (4) Based on public comments and of these species. Some areas believed to the Act are no longer necessary (that is, information received regarding Bidens be unoccupied, and that may have been when delisting is appropriate). micrantha ssp. ctenophylla, Isodendrion unoccupied at the time of listing, have pyrifolium, and Mezoneuron kavaiense been determined to be essential for the Summary of Changes From Proposed in Hawaii, we determined that conservation and recovery of the Rule approximately 100 ac (40 ha) of species; these areas provide the habitat We are designating a total of 11,640 ac unoccupied proposed critical habitat do necessary for the expansion of existing (4,711 ha) of critical habitat for Bidens not meet the definition of critical wild populations and reestablishment of micrantha ssp. ctenophylla, Isodendrion habitat; therefore, we removed these wild populations within the historical pyrifolium, and Mezoneuron kavaiense areas from this final designation. These range of the species. Conservation of on the island of Hawaii. We received a areas that do not meet the definition of suitable habitat in both occupied and number of site-specific comments critical habitat include: 34.5 ac (14 ha) unoccupied areas, either through critical related to critical habitat for the species, in Hawaii—Lowland Dry—Unit 31, 20.8 habitat or conservation partnerships completed our analysis of areas ac (8 ha) in Hawaii—Lowland Dry— with landowners, is essential to considered for exclusion under section Unit 32, 17.1 ac (7 ha) in Hawaii— facilitate the establishment of additional 4(b)(2) of the Act or for exemption Lowland Dry—Unit 34, and 28.7 ac (12 populations through natural recruitment under section 4(a)(3) of the Act, ha) in Hawaii—Lowland Dry—Unit 35. or managed reintroductions. The reviewed the application of our criteria (5) For the areas that meet the recovery plans for these species note for identifying critical habitat across the definition of critical habitat, we that augmentation and reintroduction of range of these species to refine our carefully considered the benefits of populations are necessary for the designations, and completed the FEA of inclusion and the benefits of exclusion species’ conservation (as described the designation as proposed. We fully in proposed critical habitat under below in ‘‘Recovery Needs’’). Population considered all comments from the section 4(b)(2) of the Act, particularly in augmentation will increase the public and peer reviewers on the areas where conservation agreements likelihood that the species will survive proposed rule and the associated and management plans specific to and recover in the face of normal and economic analysis to develop this final Bidens micrantha ssp. ctenophylla, stochastic events (e.g., hurricanes, fire, designation of critical habitat for these Isodendrion pyrifolium, and and nonnative species introductions) three species. This final rule Mezoneuron kavaiense are in place, and (Mangel and Tier 1994, p. 612; Pimm et incorporates changes to our proposed where the maintenance and fostering of al. 1998, p. 777; Stacey and Taper 1992, critical habitat based on the comments important conservation partnerships p. 27). Furthermore, because so many that we received and have responded to were a consideration. Based on the important habitat areas for Bidens in this document, and considers results of our analysis, we are excluding micrantha ssp. ctenophylla, Isodendrion conservation agreements, conservation approximately 7,027 ac (2,844 ha) from pyrifolium, and Mezoneuron kavaiense partnerships, and other efforts to our final critical habitat designation for occur on lands managed by non-Federal conserve Bidens micrantha ssp. Bidens micrantha ssp. ctenophylla, entities, collaborative relationships are ctenophylla, Isodendrion pyrifolium, Isodendrion pyrifolium, and essential for their recovery, and, in some and Mezoneuron kavaiense. Mezoneuron kavaiense (see Exclusions cases, partnerships with landowners are Our final designation of critical discussions, below). Two entire units of sufficient to conserve areas occupied by habitat reflects the following changes proposed critical habitat are excluded: the species. from the proposed rule: Hawaii—Lowland Dry—Unit 32 (1,758 The conservation of Bidens micrantha (1) We updated the ownership of two ac (711 ha)), and Hawaii—Lowland ssp. ctenophylla, Isodendrion parcels in Hawaii—Lowland Dry—Unit Dry—Unit 35 (1,164 ac (471 ha)). We pyrifolium, and Mezoneuron kavaiense 35, TMK (3) 7–4–020:005 (21.7 ac (8.8 excluded portions of the proposed is dependent upon the protection of ha)) and TMK (3) 7–4–030:006 (24.8 ac designation in three other units, existing population sites and the (9.6 ha)) totaling 46.5 ac (18.4 ha), including the following: 2,834 ac (1,147 protection of suitable unoccupied which we had indicated were under ha) of Hawaii—Lowland Dry—Unit 31, habitat within the species’ historical State of Hawaii ownership in the 593 ac (240 ha) of Hawaii—Lowland range, either through critical habitat or proposed rule to ownership by the Dry—Unit 33, and 678 ac (274 ha) of conservation partnerships; protection of Department of Hawaiian Home Lands Hawaii—Lowland Dry—Unit 34. The these areas will provide for the requisite (DHHL) in this final rule. total area excluded represents resiliency, redundancy, and (2) In response to comments, we approximately 37 percent of the area representation of populations through provided additional detail from the proposed as critical habitat for the three restoration and reintroductions. Service’s existing recovery plans for species. Exclusion from critical habitat Population resiliency is the population Isodendrion pyrifolium and Mezoneuron should not be interpreted as a size, growth rate, and connectivity kavaiense, and discussed how the determination that these areas are indicative of the ability to withstand recovery goals and objectives for these unimportant, that they do not provide stochastic disturbances. Redundancy two plants relate to the recovery of physical or biological features essential refers to the spreading of risk among Bidens micrantha ssp. ctenophylla, in to the conservation of the species (for multiple populations over a large order to further explain the designation occupied areas), or are not otherwise

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essential for conservation (for that any action they authorize, fund, or species and may be included in the unoccupied areas); exclusion merely carry out is not likely to result in the critical habitat designation. reflects the Secretary’s determination destruction or adverse modification of Section 4 of the Act requires that we that the benefits of excluding those critical habitat. The designation of designate critical habitat on the basis of particular areas outweigh the benefits of critical habitat does not affect land the best scientific and commercial data including them in the designation. ownership or establish a refuge, available. Further, our Policy on Due to these changes in our final wilderness, reserve, preserve, or other Information Standards Under the critical habitat designation, we updated conservation area. Such designation Endangered Species Act (published in unit descriptions and critical habitat does not allow the government or public the Federal Register on July 1, 1994 (59 maps, all of which can be found later in to access private lands. Such FR 34271)), the Information Quality Act this document. This final designation of designation does not require (section 515 of the Treasury and General critical habitat represents a reduction of implementation of restoration, recovery, Government Appropriations Act for 7,126 ac (2,886 ha) from our proposed or enhancement measures by non- Fiscal Year 2001 (Pub. L. 106–554; H.R. critical habitat for Bidens micrantha Federal landowners. Where a landowner 5658)), and our associated Information ssp. ctenophylla, Isodendrion requests Federal agency funding or Quality Guidelines provide criteria, pyrifolium, and Mezoneuron kavaiense, authorization for an action that may establish procedures, and provide for the reasons detailed above. affect a listed species or critical habitat, guidance to ensure that our decisions Additional minor differences between the consultation requirements of section are based on the best scientific data proposed and final critical habitat for 7(a)(2) of the Act would apply, but even available. They require our biologists, to these species on the order of roughly 3 in the event of a destruction or adverse the extent consistent with the Act and ac (1 ha) beyond those detailed above modification finding, the obligation of with the use of the best scientific data are due to minor boundary adjustments the Federal action agency and the available, to use primary and original and simple rounding error. landowner is not to restore or recover sources of information as the basis for the species, but to implement recommendations to designate critical Critical Habitat reasonable and prudent alternatives to habitat. Background avoid destruction or adverse When we are determining which areas modification of critical habitat. should be designated as critical habitat, Critical habitat is defined in section 3 our primary source of information is Under the first prong of the Act’s of the Act as: generally the information developed definition of critical habitat, areas (1) The specific areas within the during the listing process for the within the geographical area occupied geographical area occupied by the species. Additional information sources species, at the time it is listed in by the species at the time it was listed may include any generalized accordance with the Act, on which are are included in a critical habitat conservation strategy, criteria, or outline found those physical or biological designation if they contain physical or that may have been developed for the features biological features (1) which are species, the recovery plan for the (a) Essential to the conservation of the essential to the conservation of the species, articles in peer-reviewed species, and species and (2) which may require journals, conservation plans developed (b) Which may require special special management considerations or by States and counties, scientific status management considerations or protection. For these areas, critical surveys and studies, biological protection; and habitat designations identify, to the assessments, other unpublished (2) Specific areas outside the extent known using the best scientific materials, or experts’ opinions or geographical area occupied by the and commercial data available, those personal knowledge. species at the time it is listed, upon a physical or biological features that are Habitat is dynamic, and species may determination that such areas are essential to the conservation of the move from one area to another over essential for the conservation of the species (such as space, food, cover, and time. We recognize that critical habitat species. protected habitat). In identifying those designated at a particular point in time Conservation, as defined under physical or biological features within an may not include all of the habitat areas section 3 of the Act, means to use and area, we focus on the primary biological that we may later determine are the use of all methods and procedures or physical constituent elements (PCEs necessary for the recovery of the that are necessary to bring an such as roost sites, nesting grounds, species. For these reasons, a critical endangered or threatened species to the seasonal wetlands, water quality, tide, habitat designation does not signal that point at which the measures provided soil type) that are essential to the habitat outside the designated area is pursuant to the Act are no longer conservation of the species. Primary unimportant or may not be needed for necessary. Such methods and constituent elements are those specific recovery of the species. Areas that are procedures include, but are not limited elements of the physical or biological important to the conservation of the to, all activities associated with features that provide for a species’ life- species, both inside and outside the scientific resources management such as history processes and are essential to critical habitat designation, will research, census, law enforcement, the conservation of the species. continue to be subject to: (1) habitat acquisition and maintenance, Under the second prong of the Act’s Conservation actions implemented propagation, live trapping, and definition of critical habitat, we can under section 7(a)(1) of the Act, (2) transplantation, and, in the designate critical habitat in areas regulatory protections afforded by the extraordinary case where population outside the geographical area occupied requirement in section 7(a)(2) of the Act pressures within a given ecosystem by the species at the time it is listed, for Federal agencies to insure their cannot be otherwise relieved, may upon a determination that such areas actions are not likely to jeopardize the include regulated taking. are essential for the conservation of the continued existence of any endangered Critical habitat receives protection species. For example, an area currently or threatened species, and (3) section 9 under section 7 of the Act through the occupied by the species but that was not of the Act’s prohibitions related to listed requirement that Federal agencies occupied at the time of listing may be plants. Federally funded or permitted ensure, in consultation with the Service, essential to the conservation of the projects affecting listed species outside

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their designated critical habitat areas ctenophylla, which we listed as subspecies is restricted to an area of less may still result in jeopardy findings in endangered in 2013 (78 FR 64638; than 10 square miles (mi2) (26 square some cases. These protections and October 29, 2013), we believe it is kilometers (km2)), in five occurrences conservation tools will continue to reasonable to apply the same approach totaling fewer than 1,000 individuals in contribute to recovery of these species. to this species because it has a similar the lowland dry ecosystem. One Similarly, critical habitat designations life history, occurs in the same habitat, occurrence at Kaloko is considered made on the basis of the best available and faces the same threats as the two reproducing, defined as offspring that information at the time of designation other plant species with approved reach reproductive maturity (produce will not control the direction and recovery plans that are addressed in this viable fruit and seeds). The following substance of future recovery plans, final rule. recovery objectives apply to B. HCPs, or other species conservation The overall recovery goal stated in the micrantha ssp. ctenophylla as a short- planning efforts if new information recovery plans for Isodendrion lived plant: available at the time of these planning pyrifolium and Mezoneuron kavaiense, • For interim stabilization, 3 efforts calls for a different outcome. and applied to Bidens micrantha ssp. populations reproducing and increasing On February 11, 2016, we published ctenophylla, includes the establishment in numbers, with at least 50 mature a final rule in the Federal Register (81 of 8 to 10 populations with a minimum individuals; FR 7414) to amend our regulations of 100 mature, reproducing individuals • For downlisting (that is, concerning the procedures and criteria per population for long-lived reclassifying from an endangered we use to designate and revise critical perennials; 300 mature, reproducing species to a threatened species), 5 to 7 habitat. That rule became effective on individuals per population for short- populations documented where they March 14, 2016, but, as stated in that lived perennials; and 500 mature, now occur or occurred historically, that rule, the amendments it sets forth to 50 reproducing individuals per population are naturally reproducing, stable, or CFR 424.12 apply to ‘‘rules for which a for annuals. These are the minimum increasing in number, with a minimum proposed rule was published after population targets set for considering of 300 mature individuals per March 14, 2016.’’ We published our delisting of the species, which we population; and proposed critical habitat designation for consider the equivalent of achieving the • For delisting (that is, removing from the three plant species on October 17, conservation of the species as defined in the List of Endangered and Threatened 2012 (77 FR 63928); therefore, the section 3 of the Act (hereafter we refer Plants), 8 to 10 populations, that are amendments to 50 CFR 424.12 to these delisting objectives as defined each naturally reproducing, stable, or contained in the February 11, 2016, in recovery plans or by the Hawaii and increasing in number, and secure from final rule at 81 FR 7414 do not apply to Pacific Plants Recovery Coordinating threats, with a minimum of 300 mature this final designation of critical habitat Committee (HPPRCC 1998) as simply individuals per population and for the three plant species. ‘‘recovery objectives’’). To be considered persisting at this level for a minimum of recovered, the populations of multi- 5 consecutive years. There is no Recovery Needs island species should be distributed previously designated critical habitat for The lack of detailed scientific data on among the islands of its known this subspecies. the life histories of Bidens micrantha historical range (Recovery Plan for Isodendrion pyrifolium, a short-lived ssp. ctenophylla, Isodendrion Caesalpinia kavaiensis (now perennial shrub, is known from Niihau, pyrifolium, and Mezoneuron kavaiense Mezoneuron kavaiense) and Kokia Oahu, Molokai, Lanai, Maui, and precludes development of a robust drynarioides, June 1994; Recovery Plan Hawaii. Isodendrion pyrifolium was quantitative model (e.g., population for the Big Island Plant Cluster, thought to be extinct since 1870, but viability analysis (Morris et al. 2002, p. September 1996; HPPRCC 1998). A was rediscovered in 1991, in a single 708)) to identify the optimal number, population, for the purposes of this occurrence with 50 to 60 individuals at size, and location of critical habitat discussion and as defined in the Kealakehe on the island of Hawaii. units needed to achieve recovery. Based recovery plans for these species, is a Currently, there are no extant on the best information available at this unit in which the individuals could be occurrences on Niihau, Oahu, Lanai, time, we have concluded that the regularly cross-pollinated and Molokai, or Maui. On Hawaii Island, current size and distribution of the influenced by the same small-scale only a few immature, wild individuals extant populations are not sufficient to events (such as landslides), and which remain at a single location, and expect a reasonable probability of long- contains a minimum of 100, 300, or 500 approximately 90 outplanted term survival and recovery of these mature, reproducing individuals, individuals occur in four locations in plant species. depending on whether the species is a the lowland dry ecosystem. One For two of the three plant species, the long-lived perennial, short-lived location at Laiopua has reproducing recovery needs, outlined in the perennial, or annual. For all plant plants. The following recovery approved recovery plans, include: (1) species, propagated and outplanted objectives apply to Isodendrion Stabilization of existing wild individuals are generally not initially pyrifolium as a short-lived plant: populations; (2) protection and counted toward recovery, as • For interim stabilization, 3 management of habitat; (3) enhancement populations must demonstrate populations reproducing and increasing of existing small populations and recruitment (the ability to reproduce in numbers, with at least 50 mature reestablishment of new populations and generate multiple generations) and individuals; within historical range; and (4) research viability over an extended period of • For downlisting, 5 to 7 populations on species biology and ecology time to be considered self-sustaining. documented on islands where they now (Recovery Plan for Caesalpinia Bidens micrantha ssp. ctenophylla, a occur or occurred historically, that are kavaiensis (now Mezoneuron kavaiense) short-lived perennial herb, is known naturally reproducing, stable, or and Kokia drynarioides, June 1994; only from the leeward slopes of Hualalai increasing in number, with a minimum Recovery Plan for the Big Island Plant volcano on Hawaii Island. Historically, of 300 mature individuals per Cluster, September 1996). Although a this subspecies was known only from population; and recovery plan has not yet been the North Kona district in the lowland • For delisting, 8 to 10 populations, developed for Bidens micrantha ssp. dry ecosystem. Currently, this that are each naturally reproducing,

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stable, or increasing in number, and the minimum population criteria to be database (HBMP 2010a; HBMP 2010b; secure from threats, with a minimum of met, based on the best available HBMP 2010c), the The Nature 300 mature individuals per population scientific data, to ensure adequate Conservancy database (TNC 2007– and persisting at this level for a population resiliency (population size, Ecosystem Database of ArcMap minimum of 5 consecutive years. growth rate, and connectivity; indicative Shapefiles, unpublished), and our own Critical habitat has been designated for of ability to withstand stochastic rare plant database; this species on Oahu within 8 units disturbances), redundancy (spreading • Species information from the plant totaling 1,924 ac (779 ha) (77 FR 57648; the risk among multiple populations database housed at National Tropical September 18, 2012), and on the islands over a large geographic area; ability to Botanical Garden (NTBG); of Maui and Molokai within 13 units withstand catastrophic events), and • Maps of habitat essential to the totaling 21,703 ac (8,783 ha) (81 FR representation (genetic and recovery of Hawaiian plants, as 17790; March 30, 2016). environmental diversity; ability to adapt determined by the Hawaii and Pacific Mezoneuron kavaiense, a long-lived to changing conditions over time) to Plant Recovery Coordinating Committee tree, was known historically from Kauai, ensure long-term viability and bring (HPPRCC 1998, 32 pp. + appendices); Oahu, Lanai, Maui, and Hawaii. these species to the point at which the • Maps of important habitat for the Currently, this species is represented by protections of the Act are no longer recovery of plants protected under the single mature tree on Kauai, five mature necessary (that is, when delisting is Act (USFWS 1999, pp. F12); trees and two seedlings in two appropriate). Under section 3 of the Act, • The Nature Conservancy’s populations on Oahu, extirpated on ‘‘conserve’’ means to use and the use of Ecoregional Assessment of the Hawaiian Lanai (two outplanted individuals), and all methods and procedures which are High Islands (2006) and ecosystem maps extirpated on Maui. On Hawaii Island, necessary to bring any endangered (TNC 2007–Ecosystem Database of M. kavaiense is found in six occurrences species or threatened species to the ArcMap Shapefiles, unpublished); totaling 72 mature wild and 22 point at which the measures provided • Color mosaic 1:19,000 scale digital immature wild individuals in the pursuant to this Act are no longer aerial photographs for the Hawaiian lowland dry ecosystem on Hawaii necessary; therefore, we consider Islands (March 2006 to January 2009); Island (USFWS 2015, in litt.). None of meeting these recovery objectives as • Island-wide Geographic Information these occurrences has reproducing essential to the conservation of these System (GIS) coverage (e.g., Gap plants. In addition, a total of 520 species. These population recovery Analysis Program (GAP) vegetation data individuals have been reintroduced at objectives are not necessarily the only of 2005, HabQual data of 2014, Landfire several sites in the North Kona and recovery criteria for each species, but data of 2014); they served as the guide for our Waikoloa regions (USFWS 2015, in litt.). • 1:24,000 scale digital raster graphics identification of the critical habitat areas The recovery plan for Mezoneuron of U.S. Geological Survey (USGS) essential for the conservation of the kavaiense identifies the following topographic quadrangles; three species in this rule, in terms of objectives: • Geospatial data sets associated with providing the ability to meet the • For downlisting, a minimum of 100 parcel data from Hawaii County (2008); mature individuals in each of three specified population objectives. • In conclusion, the conservation of Species Distribution Models populations in the North Kona region on Bidens micrantha ssp. ctenophylla, (USFWS 2013, unpublished); Hawaii Island, and 100 mature • Isodendrion pyrifolium, and Recent biological surveys and individuals in each of three populations Mezoneuron kavaiense is dependent reports; and • on each of Kauai, Oahu, Lanai, and upon the protection of existing Discussions with qualified Maui; and individuals familiar with these species • population sites, including room for For delisting, a total of 8 to 10 population growth and expansion, and and ecosystems. populations, that are each naturally the protection of suitable unoccupied Based upon all of this data, we reproducing, stable, or increasing in habitat within their historical range, to determined the areas that were occupied number, and secure from threats, with a provide for the requisite resiliency, by these species at the time of listing, minimum of 100 mature individuals per redundancy, and representation of and whether they contain the physical population and persisting at this level populations through restoration and or biological features essential to the for a minimum of 5 consecutive years reintroductions. conservation of the species and which (USFWS 1996, p. 118). may require special management There is no previously designated Methods considerations or protection. In light of critical habitat for this species. As required by section 4(b) of the Act, the recovery needs of the species, we The recovery objectives listed above we used the best scientific data also examined areas that were not are intended to reduce the adverse available in determining those areas that occupied at the time of listing by one or effects of genetic inbreeding and contain the physical or biological more of the three species, to identify random environmental events and features essential to the conservation of areas essential for the conservation of catastrophes, such as landslides, floods, Bidens micrantha ssp. ctenophylla, the species (TNC 2006b, pp. 1–2). and hurricanes, which could destroy a Isodendrion pyrifolium, and Physical or Biological Features large percentage of a species at any one Mezoneuron kavaiense, and for which time (Kramer et al. 2008, p. 879; Menges designation of critical habitat is In accordance with section 3(5)(A)(i) 1990, pp. 56–60; Neel and Ellstrand considered prudent, by identifying the and 4(b)(1)(A) of the Act and regulations 2003, p. 347). These recovery objectives occurrence data for each species and at 50 CFR 424.12, in determining which were initially developed by the HPPRCC determining the ecosystems upon which areas within the geographical area and are found in the recovery plans for they depend. This information was occupied by the species at the time of Isodendrion pyrifolium and Mezoneuron developed by using: listing to designate as critical habitat, kavaiense, and applied to Bidens • The known locations of the three we consider the physical or biological micrantha ssp. ctenophylla, which does species, including site-specific species features essential to the conservation of not have an approved recovery plan. As information from the Hawaii the species and which may require stated above, these objectives describe Biodiversity Mapping Program (HBMP) special management considerations or

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protection. These include, but are not Plan for the Big Island Plant Cluster additional populations will increase the limited to: (USFWS 1996, pp. 1–252), and the 2003 likelihood that the species will survive (1) Space for individual and Final Designation and Nondesignation and recover in the face of normal and population growth and for normal of Critical Habitat for 46 Plant Species stochastic events (e.g., hurricanes, fire, behavior; From the Island of Hawaii, HI (68 FR and nonnative species introductions) (2) Food, water, air, light, minerals, or 39624, July 2, 2003). We have (Mangel and Tier 1994, p. 612; Pimm et other nutritional or physiological reevaluated the physical and biological al. 1998, p. 777; Stacey and Taper 1992, requirements; features for Isodendrion pyrifolium p. 27). For these reasons, the (3) Cover or shelter; based on the features of the ecosystem designation of critical habitat limited to (4) Sites for breeding, reproduction, or on which its survival depends, using the geographic areas occupied by the rearing (or development) of offspring; species information from the 2003 Final species at the time of listing would be and Designation and Nondesignation of insufficient to achieve recovery (5) Habitats that are protected from Critical Habitat for 46 Plant Species objectives. disturbance or are representative of the From the Island of Hawaii, HI (68 FR historical, geographical, and ecological In this final rule, the physical or 39624, July 2, 2003) and new scientific distributions of a species. biological features are described based For plant species, ecosystems that information that has become available on the features of the ecosystem on provide appropriate dryland habitats, since that time. Bidens micrantha ssp. which Bidens micrantha ssp. host species, pollinators, soil types, and ctenophylla is found in locations with ctenophylla, Isodendrion pyrifolium, associated plant communities are taken the same substrate age and soil type as and Mezoneuron kavaiense depend, the into consideration when determining Isodendrion pyrifolium and Mezoneuron lowland dry ecosystem. Ecosystem the physical or biological features kavaiense, and is known to share the characteristic parameters include essential for a species. same land cover (vegetation) type as elevation, precipitation, substrate (i.e., We derived the specific physical or Mezoneuron kavaiense throughout over age of lava), and associated native plant biological features essential for Bidens 85 percent of its range (HBMP 2010c). genera. The lowland dry ecosystem micrantha ssp. ctenophylla, Isodendrion Therefore, we believe that Bidens consists of shrublands and forests pyrifolium, and Mezoneuron kavaiense micrantha ssp. ctenophylla shares the generally below 3,300 feet (ft) (1,000 from studies on each of the species’ same physical or biological features that meters (m)) elevation and receives less habitat, ecology, and life history as we have determined for Isodendrion than 50 inches (in) (130 centimeters described in the Critical Habitat section pyrifolium and Mezoneuron kavaiense. (cm)) annual rainfall, or otherwise of the proposed rule to designate critical We have determined that the three bearing prevailingly dry substrate habitat published in the Federal lowland dry plant species (Bidens conditions that range from weathered Register on October 17, 2012 (77 FR micrantha ssp. ctenophylla, Isodendrion reddish silty loams to stony clay soils, 63928), and in the information pyrifolium, and Mezoneuron kavaiense) rocky ledges with very shallow soil, or presented below. Additional addressed in this final rule require the relatively recent little-weathered lava information can be found in the final physical or biological features described (TNC 2006b). As conservation of each listing rules published in the Federal in the following paragraphs and species is dependent upon a functioning Register on October 29, 2013 (78 FR summarized in Table 2, below. ecosystem to provide its fundamental 64638), for Bidens micrantha ssp. Based on the recovery needs of these life requirements, such as a certain ctenophylla, on March 4, 1994 (59 FR species discussed above, it is essential substrate type or minimum level of 10305), for Isodendrion pyrifolium, and to conserve suitable habitat in both rainfall, we consider the physical or on July 8, 1986 (51 FR 24672) for occupied and unoccupied areas, which biological features present in the Mezoneuron kavaiense; as well as in the will in turn allow for the establishment lowland dry ecosystem described in this Recovery Plan for Caesalpinia of additional populations through rule to provide the necessary physical kavaiensis and Kokia drynarioides natural recruitment or managed and biological features for each of the (USFWS 1994, pp. 1–91), the Recovery reintroductions. Establishment of these three species (see Table 2, below).

TABLE 2—PHYSICAL AND BIOLOGICAL FEATURES* FOR BIDENS MICRANTHA SSP. CTENOPHYLLA, ISODENDRION PYRIFOLIUM, AND MEZONEURON KAVAIENSE

Supporting one or more of these associated native plant genera Ecosystem Elevation Annual Substrate precipitation Canopy Subcanopy Understory

Lowland <3,300 ft <50 in (<130 Weathered silty Diospyros, Erythrina, Chamaesyce, Alyxia, Artemisia, Dry. (<1,000 m). cm). loams to stony Metrosideros, Dodonaea, Bidens, Capparis, clay, rocky Myoporum, Osteomeles, Chenopodium, ledges, little- Pleomele, Santalum, Psydrax, Scaevola, Nephrolepis, weathered lava. Sapindus. Wikstroemia. Peperomia, Sicyos. *Note: These features also represent the primary constituent elements for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense.

When designating critical habitat in focus on whether the area is essential accurate picture of the geographic areas occupied areas, we focus on the for the conservation of the species. The needed for the recovery of each species. physical or biological features that may physical or biological features for We believe this information will be be essential to the conservation of the occupied areas, in conjunction with the helpful to Federal agencies and our species and which may require special unoccupied areas needed to expand and other partners, as we collectively work management considerations or reestablish wild populations within to recover these imperiled species. protections. In unoccupied habitat, we their historical range, provide a more

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Primary Constituent Elements for the light availability, soil nutrients, loss of habitat caused by residential and Three Species hydrologic regime, and temperature), urban development. Urbanization also Under the Act and implementing and in all cases, space within the increases the likelihood of wildfires regulations applicable to this rule, we appropriate habitats for population ignited by human sources. Without are required to identify the physical or growth and expansion, as well as to protection and special management, biological features essential to the maintain the historical geographical and habitat containing the features that are conservation of the three plant species ecological distribution of each species. essential for the conservation of these in areas occupied at the time of listing, In the case of Isodendrion pyrifolium, species will continue to be degraded focusing on the features’ PCEs. Primary due to its relatively recent rediscovery and destroyed. constituent elements are those specific and limited geographic distribution at All designated critical habitat may elements of the physical or biological one known occurrence, the more general require active management to address features that provide for a species’ life- description of the physical or biological the ongoing degradation and loss of features that provide for the successful history processes and are essential to native habitat caused by nonnative function of the ecosystem that is the conservation of the species. ungulates (goats and cattle). Nonnative The PCEs identified in this final rule essential to the conservation of the ungulates also impact the habitat take into consideration the ecosystem species represents the only scientific through predation and trampling. on which these species depend for information available. Accordingly, for Without this special management, survival and reflect a distribution that the purposes of this final rule, the habitat containing the features that are we believe is essential to achieving the physical or biological features of a essential for the conservation of these properly functioning lowland dry species’ recovery needs within the species will continue to be degraded ecosystem are the PCEs essential to the lowland dry ecosystem on Hawaii and destroyed. conservation of the three species at Island. As described above, we All designated critical habitat may issue here (see Table 2, above). considered the current population status require active management to address of each species, to the extent it is Special Management Considerations or the ongoing degradation and loss of known, and assessed its status relative Protections native habitat caused by nonnative plants. Special management is also to the recovery objectives for that When designating critical habitat, we required to prevent the introduction and species, in terms of population goals assess whether the specific areas within spread of nonnative plant species into (numbers of populations and the geographical area occupied by the individuals in each population, which species at the time of listing contain native habitats. Particular attention is contributes to population resiliency) features that are essential to the required in nonnative plant control and distribution (whether the species conservation of the species and which efforts to avoid creating additional occurs in habitats representative of its may require special management disturbances that may facilitate the historic geographical and ecological considerations or protection. The further introduction and establishment distribution, and are sufficiently following discussion of special of invasive plant seeds. Precautions are redundant to withstand the loss of some management needs is applicable to each also required to avoid the inadvertent populations over time). This analysis of the three Hawaii Island species for trampling of listed plant species in the informed us as to whether the species which we are designating critical course of management activities. requires space for population growth habitat. The active control of nonnative plant and expansion in areas occupied at the For Bidens micrantha ssp. species will help to address the threat time of listing, or whether additional ctenophylla, Isodendrion pyrifolium, posed by fire in all five of the areas unoccupied at the time of listing and Mezoneuron kavaiense, we have designated critical habitat units. This may be required for the reestablishment determined that the features essential to threat is largely a result of the presence of populations to achieve conservation. their conservation are those required for of nonnative plant species such as the In this final rule, the PCEs for Bidens the successful functioning of the grasses Pennisetum setaceum and micrantha ssp. ctenophylla, Isodendrion lowland dry ecosystem in which they Melinis minutiflora that increase the pyrifolium, and Mezoneuron kavaiense occur (see Table 2, above). Special fuel load and quickly regenerate after a are defined based on those physical or management considerations or fire. These nonnative grass species can biological features essential to support protections are necessary throughout the outcompete native plants that are not the successful functioning of the critical habitat areas designated here to adapted to fire, creating a grass-fire ecosystem upon which each species avoid further degradation or destruction cycle that alters ecosystem functions depends, and which may require special of the habitat that provides those (D’Antonio and Vitousek 1992, pp. 64– management considerations or features essential to their conservation. 66; Brooks et al. 2004, p. 680). protection. As the conservation of each The primary threats to the physical or In summary, we find that each of the species is dependent upon a functioning biological features essential to the areas we are designating as critical ecosystem to provide its fundamental conservation of these three species habitat contains features essential for life requirements, such as a certain soil include habitat destruction and the conservation of Bidens micrantha type or minimum level of rainfall, we modification by development, ssp. ctenophylla, Isodendrion consider the physical or biological nonnative ungulates, competition with pyrifolium, and Mezoneuron kavaiense features present in the lowland dry nonnative species, hurricanes, fire, that may require special management ecosystem described in this rule to drought, and climate change. The considerations or protection to ensure provide the necessary PCEs for each of reduction of these threats will require the conservation of the three plant the three species. The ecosystem’s the implementation of special species for which we are designating features collectively provide the suite of management actions within each of the critical habitat. These special environmental conditions essential to critical habitat areas identified in this management considerations and meeting the requirements of each final rule. protections are required to preserve and species, including the appropriate All designated critical habitat may maintain the essential features provided microclimatic conditions for require special management actions to to these species by the lowland dry germination and growth of plants (e.g., address the ongoing degradation and ecosystem upon which they depend.

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Criteria Used To Identify Critical In general, land areas that were mortality of the two remaining mature, Habitat identified as highly degraded were reproducing individuals, leaving only As required by section 4(b)(2) of the removed from the final critical habitat several immature individuals in the Act, we used the best scientific data units, and natural or manmade features lowland dry ecosystem on Hawaii available to designate critical habitat. (e.g., ridge lines, valleys, streams, Island (Wagner 2014b, in litt.; Wagner We reviewed available information coastlines, roads, and obvious land 2016, in litt.) and three individuals pertaining to the habitat requirements of features) were used to delineate the final represented in off-site seed storage Bidens micrantha ssp. ctenophylla, critical habitat boundaries. We are collections (PEPP 2011, p. 32). The Isodendrion pyrifolium, and designating critical habitat on lands that unoccupied areas of each unit are Mezoneuron kavaiense. In accordance contain the physical or biological essential for the expansion of this with the Act and implementing features essential to conserving these species to achieve viable population regulations at 50 CFR 424.12(b) species, and unoccupied lands that are numbers and maintain its historical applicable to this final rule, we review essential the species’ conservation, geographical and ecological available information pertaining to the based on their shared dependence on distribution. This same reasoning habitat requirements of the species and the lowland dry ecosystem. applies to Bidens micrantha ssp. The critical habitat is a combination identify areas occupied by the species at ctenophylla and Mezoneuron kavaiense. of areas occupied by these three species the time of listing and any specific areas Further details are provided under Final at the time of listing, as well as areas Critical Habitat Designation, below. outside the geographical area occupied that may be currently unoccupied. The The critical habitat areas described by the species to be considered for best available scientific information below constitute our best assessment of designation as critical habitat. We are suggests that these species either the areas occupied by Bidens micrantha designating critical habitat in areas presently occur within, or have ssp. ctenophylla, Isodendrion within the geographical area occupied occupied, these habitats. The occupied pyrifolium, and Mezoneuron kavaiense by Bidens micrantha ssp. ctenophylla at areas provide the physical or biological at their times of listing that contain the the time of its listing in 2013, features essential to the conservation of physical or biological features essential Isodendrion pyrifolium at the time of its these species, which all depend on the for the recovery and conservation of the listing in 1994, and Mezoneuron lowland dry ecosystem. However, due three plant species, and the unoccupied kavaiense at the time of its listing in to the small population sizes, few areas that are needed for the expansion 1986. We also are designating critical numbers of individuals, and reduced or augmentation of reduced populations habitat in areas outside the geographical geographic range of each of the three or reestablishment of populations. The area occupied by these species at the species for which critical habitat is here approximate size of each of the five times of their listing because we have designated, we have determined that a plant critical habitat units and the status determined that such areas are essential designation limited to the areas known of their land ownership, are identified for the conservation of these species. to be occupied at the time of listing in Table 3. As noted in Table 3, all areas We considered several factors in the would be inadequate to achieve the designated for critical habitat selection of specific boundaries for conservation of those species. The areas designation are found within the critical habitat for Bidens micrantha believed to be unoccupied, and that may lowland dry ecosystem. Table 4 ssp. ctenophylla, Isodendrion have been unoccupied at the time of identifies the areas excluded from pyrifolium, and Mezoneuron kavaiense. listing, have been determined to be critical habitat designation under We determined critical habitat unit essential for the conservation and section 4(b)(2) of the Act (see boundaries taking into consideration the recovery of the species because they Consideration of Impacts Under Section known past and present locations of the provide the habitat necessary for the 4(b)(2) of the Act, below). species, important areas of habitat expansion of existing wild populations When determining critical habitat identified by HPPRCC (HPPRCC 1998, and reestablishment of wild populations boundaries within this final rule, we entire), recovery areas described by within the historical range of the made every effort to avoid including species’ Recovery Plans (for Isodendrion species. developed areas (such as lands covered pyrifolium and Mezoneuron kavaiense), We are designating critical habitat on by buildings, pavement, railroads, projections of geographic ranges of lands that contain the physical or airports, runways, utility facilities and Hawaiian plant species (Price et al. biological features essential to infrastructure and their designated and 2012, entire), space to allow for conserving multiple species, based on maintained rights-of-way, other paved increases in numbers of individuals and their shared dependence on the areas, lawns, and other urban for expansion of populations to provide functioning ecosystem they have in landscaped areas) because such lands for the minimum numbers required to common. Because the lowland dry lack the physical or biological features reach delisting goals (as described in ecosystem that supports the three plant essential for the conservation of the recovery plans), and space between species addressed here does not form a three plant species. The scale of the individual critical habitat units to contiguous area, it is divided into five maps we prepared under the parameters provide for redundancy of populations geographic units. Some of the for publication within the CFR may not across the range of the species in case designated critical habitat for the three reflect the exclusion of such developed of catastrophic events such as fire and plant species overlies critical habitat areas. Any such structures and the land hurricanes (see also Methods, above). already designated for other plants on under them inadvertently left inside For these three species, we designate the island of Hawaii. Because of the critical habitat boundaries shown on the critical habitat only in the geographic small numbers of individuals or low maps of this final rule have been area of historical occurrence on Hawaii population sizes of each of these three excluded by text in the rule and are not Island, which is restricted to the plant species, each requires suitable designated as critical habitat. Therefore, lowland dry ecosystem in the north habitat and space for the expansion of Federal actions involving these areas Kona and south Kohala regions. Initial existing populations to achieve a level would not trigger section 7 consultation draft boundaries were superimposed that could approach recovery. For with respect to critical habitat or the over digital topographic maps of the example, recent surveys of Isodendrion requirement to avoid adverse island of Hawaii and further evaluated. pyrifolium have documented the modification of critical habitat unless

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the specific action would affect the physical or biological features in the adjacent critical habitat.

TABLE 3—CRITICAL HABITAT DESIGNATION FOR BIDENS MICRANTHA SSP. CTENOPHYLLA, ISODENDRION PYRIFOLIUM, AND MEZONEURON KAVAIENSE ON THE ISLAND OF HAWAII [Totals may not sum due to rounding]

Corresponding Designated Size of section Size of section critical habitat map in critical habitat in acres in hectares State Federal County Private the Code of area Federal Regulations

Hawaii—Lowland Dry

—Unit 10 ...... 2,913 1,179 2,913 ...... Map 39a. —Unit 31 ...... 7,067 2,860 7,067 ...... Map 104. —Unit 33 ...... 989 400 989 ...... Map 105. —Unit 34 ...... 268 109 242 ...... 27 Map 105. —Unit 36 ...... 402 163 5 397 ...... Map 105.

Total Low- 11,640 4,711 11,216 397 ...... 27 land Dry.

We are designating as critical habitat Final Critical Habitat Designation Table 3, above). The critical habitat unit lands that we have determined are numbers and the corresponding map We are designating 11,640 ac (4,711 occupied at the time of listing and numbers that will appear at 50 CFR ha) as critical habitat in five units contain sufficient physical or biological 17.99 are provided for ease of reference within the lowland dry ecosystem for in the CFR. features to support life-history processes Bidens micrantha ssp. ctenophylla, essential for the conservation of the Isodendrion pyrifolium, and Descriptions of the Five Critical Habitat species, and lands outside of the Mezoneuron kavaiense (see Table 3, Units geographical area occupied at the time above, for details). Of these five units, Hawaii—Lowland Dry—Unit 10 of listing that we have determined are 8,443 ac (3,417 ha) or 72 percent, was essential for the conservation of Bidens already designated as critical habitat for Hawaii—Lowland Dry—Unit 10 micrantha ssp. ctenophylla, Isodendrion other listed species. The final critical consists of 2,913 ac (1,179 ha) of State pyrifolium, and Mezoneuron kavaiense. habitat includes land under State, land from Puu Waawaa to Kaupulehu Units are designated based on County of Hawaii, Federal (Kaloko- on the northwestern slope of Hualalai sufficient elements of physical or Honokohau NHP), and private between the elevations of 1,400 and biological features being present to ownership. The critical habitat units we 2,600 ft (427 and 793 m). This unit support the life processes of Bidens describe below constitute our current overlaps portions of previously micrantha ssp. ctenophylla, Isodendrion best assessment of those areas that meet designated plant critical habitat in unit pyrifolium, and Mezoneuron kavaiense. the definition of critical habitat for the Hawaii 10 (see 50 CFR 17.99(k)), and Some units contain all of the identified three species of plants. The five critical includes critical habitat for the habitat units are: Hawaii—Lowland following listed plant species: Bonamia elements of physical or biological Dry—Unit 10, Hawaii—Lowland Dry— menziesii, Colubrina oppositifolia, features and support multiple life Unit 31, Hawaii—Lowland Dry—Unit Hibiscadelphus hualalaiensis, Neraudia processes. Some units contain only 33, Hawaii—Lowland Dry—Unit 34, and ovata, Nothocestrum breviflorum, and some elements of the physical or Hawaii—Lowland Dry—Unit 36 (see the Pleomele hawaiiensis. This unit is biological features necessary to support Regulation Promulgation section of this depicted on Map 39a in the Regulation the species’ particular use of that rule, 50 CFR 17.99(k)(115), the Table of Promulgation section of this rule. habitat. Protected Species Within Each Critical This unit is occupied by Mezoneuron The critical habitat designation is Unit for the Island of Hawaii, for the kavaiense and includes the mixed defined by the maps, and refined by occupancy status of each unit). herbland and shrubland, the moisture accompanying regulatory text, presented Because some of the final critical regime, and canopy, subcanopy, and at the end of this document in the habitat for the three plants overlays understory native plant species regulatory portion of this final rule. We critical habitat already designated for identified as physical or biological include more detailed information on other plant species on the island of features in the lowland dry ecosystem the boundaries of the critical habitat Hawaii, we have incorporated the maps (see Table 2, above). This unit also designation in the preamble of this of the areas newly designated as critical contains unoccupied habitat for document. The coordinates or plot habitat in this final rule into the existing Mezoneuron kavaiense that is essential points or both on which each map is critical habitat unit numbering system to the conservation of this species by based are available to the public on established for the plants on the island providing the PCEs necessary for the http://www.regulations.gov at Docket of Hawaii in the Code of Federal expansion of the existing wild No. FWS–R1–ES–2013–0028, on our Regulations (CFR) at 50 CFR 17.99(k). populations. Although Hawaii— internet site at http://www.fws.gov/ The maps and area descriptions Lowland Dry—Unit 10 is not known to pacificislands/, and at the field office presented here represent the critical be occupied by Bidens micrantha ssp. habitat designation that we have ctenophylla and Isodendrion pyrifolium, responsible for the designation (see FOR identified for the three plant species, we have determined this area is also FURTHER INFORMATION CONTACT, above). subdivided into a total of five units (see essential for the conservation and

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recovery of these two species because it canopy, subcanopy, and understory the elevations of 20 and 90 ft (6 and 27 provides the PCEs necessary for the native plant species identified as m). This unit is not in previously reestablishment of wild populations physical or biological features in the designated critical habitat and within their historical range. Due to lowland dry ecosystem (see Table 2, comprises only newly designated their small numbers of individuals, above). Although Hawaii—Lowland critical habitat. This unit is depicted on these species require suitable habitat Dry—Unit 33 is not known to be Map 105 in the Regulation Promulgation and space for expansion or introduction occupied by Bidens micrantha ssp. section of this rule. to achieve population levels that could ctenophylla, Isodendrion pyrifolium, This unit is occupied by the plant approach recovery. and Mezoneuron kavaiense, we have Bidens micrantha ssp. ctenophylla, and determined this area is essential for the includes the mixed herbland and Hawaii—Lowland Dry—Unit 31 conservation and recovery of these shrubland, the moisture regime, and Hawaii—Lowland Dry—Unit 31 lowland dry species because it provides canopy, subcanopy, and understory consists of 7,067 ac (2,860 ha) of State the PCEs necessary for the native plant species identified as land from Puu Waawaa to Kaupulehu reestablishment of wild populations physical or biological features in the on the northwestern slope of Hualalai within their historical range. Due to lowland dry ecosystem (see Table 2, between the elevations of 720 and 1,960 their small numbers of individuals or above). This unit also contains ft (427 and 597 m). This unit is not in low population sizes, these species unoccupied habitat for Bidens previously designated plant critical require suitable habitat and space for micrantha ssp. ctenophylla that is habitat and comprises only newly expansion or reintroduction to achieve essential to the conservation of this designated plant critical habitat. This population levels that could approach species by providing the PCEs necessary unit is depicted on Map 104 in the recovery. for the expansion of the existing wild Regulation Promulgation section of this Hawaii—Lowland Dry—Unit 34 populations. Although Hawaii— rule. Lowland Dry—Unit 36 is not known to This unit is occupied by Mezoneuron Hawaii—Lowland Dry—Unit 34 be occupied by Isodendrion pyrifolium, kavaiense and includes the mixed consists of 242 ac (98 ha) of State land, we have determined this area is also herbland and shrubland, the moisture and 27 ac (11 ha) of privately owned essential for the conservation and regime, and canopy, subcanopy, and land for a total of 269 ac (109 ha), from recovery of this lowland dry species understory native plant species Kalaoa to Puukala on the western slope because it provides the PCEs necessary identified as physical or biological of Hualalai between the elevations of for the reestablishment of wild features in the lowland dry ecosystem 280 and 600 ft (85 and 183 m). This unit populations within its historical range. (see Table 2, above). This unit also is not in previously designated critical Due to their small numbers of contains unoccupied habitat for habitat and comprises only newly individuals or low population sizes, Mezoneuron kavaiense that is essential designated critical habitat. This unit is these species require suitable habitat to the conservation of this species by depicted on Map 105 in the Regulation and space for expansion or providing the PCEs necessary for the Promulgation section of this rule. reintroduction to achieve population This unit is unoccupied by Bidens expansion of the existing wild levels that could approach recovery. populations. Although Hawaii— micrantha ssp. ctenophylla, Isodendrion Lowland Dry—Unit 31 is not known to pyrifolium, and Mezoneuron kavaiense; Effects of Critical Habitat Designation however, it includes the mixed herbland be occupied by Bidens micrantha ssp. Section 7 Consultation ctenophylla and Isodendrion pyrifolium, and shrubland, the moisture regime, and we have determined this area is also canopy, subcanopy, and understory Section 7(a)(2) of the Act, as essential for the conservation and native plant species identified as amended, requires Federal agencies, recovery of these two species because it physical or biological features in the including the Service, to ensure that provides the PCEs necessary for the lowland dry ecosystem (see Table 2, actions they fund, authorize, or carry reestablishment of wild populations above). Although Hawaii—Lowland out are not likely to jeopardize the within their historical range. Due to Dry—Unit 34 is not known to be continued existence of any endangered their small numbers of individuals, occupied by Bidens micrantha ssp. species or threatened species or result in these species require suitable habitat ctenophylla, Isodendrion pyrifolium, the destruction or adverse modification and space for expansion or introduction and Mezoneuron kavaiense, we have of designated critical habitat of such to achieve population levels that could determined this area is essential for the species. In addition, section 7(a)(4) of approach recovery. conservation and recovery of these the Act requires Federal agencies to lowland dry species because it provides confer with the Service on any agency Hawaii—Lowland Dry—Unit 33 the PCEs necessary for the action that is likely to jeopardize the Hawaii—Lowland Dry—Unit 33 reestablishment of wild populations continued existence of any species consists of 989 ac (400 ha) of State land, within their historical range. Due to proposed to be listed under the Act or from Puukala to Kalaoa on the western their small numbers of individuals or result in the destruction or adverse slope of Hualalai between the elevations low population sizes, these species modification of proposed critical of 360 and 1,080 ft (110 and 329 m). require suitable habitat and space for habitat. This unit is not in previously designated expansion or reintroduction to achieve We published a final rule defining critical habitat and comprises only population levels that could approach ‘‘destruction or adverse modification’’ newly designated critical habitat. This recovery. on February 11, 2016 (81 FR 7214). unit is depicted on Map 105 in the ‘‘Destruction or adverse modification’’ Regulation Promulgation section of this Hawaii—Lowland Dry—Unit 36 means a direct or indirect alteration that rule. Hawaii—Lowland Dry—Unit 36 appreciably diminishes the value of This unit is unoccupied by Bidens consists of 5 ac (2 ha) of State land and critical habitat for the conservation of a micrantha ssp. ctenophylla, Isodendrion 397 ac (161 ha) of Federal land for a listed species. Such alterations may pyrifolium, and Mezoneuron kavaiense; total of 402 ac (163 ha), near the include, but are not limited to, those however, it contains the mixed herbland coastline at Kaloko and Honokohau on that alter the physical or biological and shrubland, the moisture regime, and the western slope of Hualalai between features essential to the conservation of

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a species or that preclude or reasonable and prudent alternative are woodcutting, bulldozing, construction, significantly delay development of such similarly variable. road building, mining, herbicide features. Regulations at 50 CFR 402.16 require application), and taking actions that If a Federal action may affect a listed Federal agencies to reinitiate formal pose a risk of fire. species or its critical habitat, the consultation on previously reviewed (2) Actions that may alter watershed responsible Federal agency (action actions in instances where we have characteristics in ways that would agency) must enter into consultation listed a new species or subsequently appreciably reduce groundwater with us. Examples of actions that are designated critical habitat that may be recharge or alter natural, wetland, subject to section 7 consultation process affected and the Federal agency has aquatic, or vegetative communities. are actions on Federal lands or that retained discretionary involvement or Such activities include new water require a Federal permit (such as a control over the action (or the agency’s diversion or impoundment, excess permit from the U.S. Army Corps of discretionary involvement or control is groundwater pumping, and Engineers under section 404 of the authorized by law). Consequently, manipulation of vegetation through Clean Water Act (33 U.S.C. 1251 seq.) or Federal agencies may sometimes need to activities such as the ones mentioned in a permit from the Service under section request reinitiation of consultation with (1), above. 10 of the Act) or that involve some other us on actions for which formal (3) Recreational activities that may Federal action (such as funding from the consultation has been completed, if appreciably degrade vegetation. FHWA, Federal Aviation those actions with discretionary (4) Mining sand or other minerals. (5) Introducing or facilitating the Administration, or the Federal involvement or control may affect spread of nonnative plant species. Emergency Management Agency). subsequently listed species or designated critical habitat. (6) Importing nonnative species for Federal actions not affecting listed research, agriculture, and aquaculture, species or critical habitat, and actions Application of the ‘‘Adverse and releasing biological control agents. on State, County, or private lands that Modification’’ Standard are not federally funded or authorized, Exemptions The key factor related to the adverse do not require section 7 consultation. modification determination is whether, Application of Section 4(a)(3) of the Act At the conclusion of section 7 with implementation of the proposed consultation, we may issue: Section 4(a)(3)(B)(i) of the Act (16 Federal action, the affected critical U.S.C. 1533(a)(3)(B)(i)) provides that: (1) A concurrence letter for Federal habitat would continue to serve its actions that may affect, but are not ‘‘The Secretary shall not designate as intended conservation role for the three critical habitat any lands or other likely to adversely affect, listed species species, or would retain its current or critical habitat; or geographical areas owned or controlled ability for the essential features to be by the Department of Defense, or (2) A biological opinion for Federal functionally established. Activities that actions that may affect and are likely to designated for its use, that are subject to may destroy or adversely modify critical an integrated natural resources adversely affect, listed species or critical habitat are those that result in a direct management plan [INRMP] prepared habitat. or indirect alteration that appreciably under section 101 of the Sikes Act (16 When we issue a biological opinion diminishes the value of critical habitat U.S.C. 670a), if the Secretary determines concluding that a project is likely to for the conservation of Bidens in writing that such plan provides a jeopardize the continued existence of a micrantha ssp. ctenophylla, Isodendrion benefit to the species for which critical listed species or destroy or adversely pyrifolium, and Mezoneuron kavaiense. habitat is proposed for designation.’’ modify critical habitat, we provide Such alterations may include, but are There are no Department of Defense reasonable and prudent alternatives to not limited to, those that alter the (DOD) lands with a completed INRMP the project, if any are identifiable, that physical or biological features essential within the critical habitat designation. would avoid the likelihood of jeopardy to the conservation of these species or and/or destruction or adverse that preclude or significantly delay Consideration of Impacts Under Section modification of critical habitat. We development of such features. 4(b)(2) of the Act define ‘‘reasonable and prudent Section 4(b)(8) of the Act requires us Section 4(b)(2) of the Act states that alternatives’’ (at 50 CFR 402.02) as to briefly evaluate and describe, in any the Secretary shall designate and make alternative actions identified during proposed or final regulation that revisions to critical habitat on the basis consultation that: designates critical habitat, activities of the best available scientific data after (1) Can be implemented in a manner involving a Federal action that may taking into consideration the economic consistent with the intended purpose of destroy or adversely modify such impact, national security impact, and the action, habitat, or that may be affected by such any other relevant impacts of specifying (2) Can be implemented consistent designation. any particular area as critical habitat. with the scope of the Federal agency’s Activities that may affect critical The Secretary may exclude an area from legal authority and jurisdiction, habitat, when carried out, funded, or critical habitat if he determines that the (3) Are economically and authorized by a Federal agency, should benefits of such exclusion outweigh the technologically feasible, and result in consultation for Bidens benefits of specifying such area as part (4) Would, in the Director’s opinion, micrantha ssp. ctenophylla, Isodendrion of the critical habitat, unless he avoid the likelihood of jeopardizing the pyrifolium, and Mezoneuron kavaiense. determines, based on the best scientific continued existence of the listed species These activities include, but are not data available, that the failure to and/or avoid the likelihood of limited to: designate such area as critical habitat destroying or adversely modifying (1) Actions that may appreciably will result in the extinction of the critical habitat. degrade or destroy the physical or species. In making that determination, Reasonable and prudent alternatives biological features for the species, the statute on its face, as well as the can vary from slight project including, but not limited to, legislative history are clear that the modifications to extensive redesign or overgrazing, maintaining or increasing Secretary has broad discretion regarding relocation of the project. Costs feral ungulate levels, clearing or cutting which factor(s) to use and how much associated with implementing a native live trees and shrubs (e.g., weight to give to any factor.

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When identifying the benefits of effective; and whether the plan contains partnerships are of heightened inclusion for an area, we consider the a monitoring program or adaptive importance on the islands of Hawaii. additional regulatory benefits that area management to ensure that the After identifying the benefits of would receive from the protection from conservation measures are effective and inclusion and the benefits of exclusion, adverse modification or destruction as a can be adapted in the future in response we carefully weigh the two sides to result of actions with a Federal nexus; to new information. evaluate whether the benefits of the educational benefits of mapping exclusion outweigh those of inclusion. When identifying the benefits of essential habitat for recovery of the If our analysis indicates the benefits of exclusion, we consider, among other listed species; and any benefits that may exclusion outweigh the benefits of things, whether exclusion of a specific result from a designation due to Federal, inclusion, we then determine whether State, or local laws that may apply to area is likely to encourage new exclusion would result in extinction. If critical habitat. We also look at whether conservation partnerships and future exclusion of an area from critical habitat these benefits might be reduced by the conservation efforts. The Secretary will result in extinction, we will not existence of a conservation plan. In such places great weight on demonstrated exclude it from the designation. cases, we consider a variety of factors, partnerships, as in many cases they can Based on the information provided by including, but not limited to, whether lead to the implementation of landowners, as well as public comments the plan is finalized; how it provides for conservation actions that provide received, we evaluated whether certain the conservation of the essential benefits to the species and their habitat lands in the proposed critical habitat physical or biological features; whether beyond those that are achievable were appropriate for exclusion from this there is a reasonable expectation that through the designation of critical final designation pursuant to section the conservation management strategies habitat and section 7 consultations, 4(b)(2) of the Act. We are excluding the and actions contained in a management particularly on private lands. As most following areas from critical habitat plan will be implemented into the endangered or threatened species in designation for Bidens micrantha ssp. future; whether the conservation Hawaii occur on private and other non- ctenophylla, Isodendrion pyrifolium, strategies in the plan are likely to be Federal lands, such conservation and Mezoneuron kavaiense:

TABLE 4—AREAS EXCLUDED FROM CRITICAL HABITAT DESIGNATION BY CRITICAL HABITAT UNIT

Unit name designated CH + area excluded, in Area excluded from critical habitat, in acres acres (Hectares) Landowner or land manager (Hectares)

Hawaii—Lowland Dry—Unit 31 12,814 (4,039) Kamehameha Schools ...... Total 2,834 (1,147). Hawaii—Lowland Dry—Unit 32 1,779 (720) ..... Waikoloa Village Association (WVA) ...... Total 1,758 (712). Hawaii—Lowland Dry—Unit 33 1,583 (640) ..... Palamanui Global Holdings LLC; Department 502 (203). of Hawaiian Home Lands (DHHL). 91 (30). Total 593 (233). Hawaii—Lowland Dry—Unit 34 961 (389) ...... Kaloko Entities; Lanihau Properties ...... 631 (255). 47 (19). Total 677 (274). Hawaii—Lowland Dry—Unit 35 1,192 (485) ..... County of Hawaii (State); Hawaii Housing and 165 (67). Finance Development Corporation (HHFDC) 30 (12). (State); Department of Hawaiian Home 401 (165). Lands (DHHL); Forest City Kona; Queen 265 (107). Liliuokalani Trust (QLT). 302 (122). Total 1,164 (471).

Consideration of Economic Impacts effects of the designation (FEA) was specifically with the designation of developed taking into consideration the critical habitat for the species. The Under section 4(b)(2) of the Act, we public comments and any new incremental conservation efforts and consider the economic impacts of information received (IEc 2016). We also associated impacts are those not specifying any particular area as critical considered the effects of the exclusion expected to occur absent the designation habitat. In order to consider economic of lands owned by Kaloko Properties of critical habitat for the species. In impacts, we prepared a DEA of the LLC, which resulted in Unit 34 other words, the incremental costs are proposed critical habitat designation becoming an unoccupied unit. those attributable solely to the and related factors (IEc 2013, entire). The economic impact of the final designation of critical habitat above and The draft analysis, dated April 4, 2013, critical habitat designation is analyzed beyond the baseline costs; these are the was made available for public review by comparing scenarios both ‘‘with costs we consider in the final from April 30, 2013, through May 30, critical habitat’’ and ‘‘without critical designation of critical habitat. The 2013 (78 FR 25243; April 30, 2013); habitat.’’ The ‘‘without critical habitat’’ analysis looks retrospectively at from July 2, 2013, through September 3, scenario represents the baseline for the baseline impacts incurred since the 2013 (78 FR 39698); and from May 20, analysis, considering protections species was listed, and forecasts both 2016, through June 6, 2016 (81 FR already in place for the species (e.g., baseline and incremental impacts likely 31900). The DEA addressed potential under the Federal listing and other to occur with designation of critical economic impacts of critical habitat Federal, State, and local regulations). habitat. designation for Bidens micrantha ssp. The baseline, therefore, represents the The FEA also addresses how potential ctenophylla, Isodendrion pyrifolium, costs incurred regardless of whether economic impacts are likely to be and Mezoneuron kavaiense. Following critical habitat is designated. The ‘‘with distributed, including an assessment of the close of the comment periods, a final critical habitat’’ scenario describes the any local or regional impacts of habitat analysis of the potential economic incremental impacts associated conservation and the potential effects of

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conservation activities on government designation; therefore, any anticipated and Wildlife Office (see ADDRESSES) or agencies, private businesses, and effects due to the designation will not by downloading from the internet at individuals. The FEA measures lost occur. The second is a QLT mixed-use http://www.regulations.gov under economic efficiency associated with development project that is not likely to Docket No. FWS–R1–ES–2013–0028. residential and commercial be subject to a Federal nexus and Exclusions Based on Impacts on development and public projects and would, therefore, have very little chance National Security or Homeland Security activities, such as economic impacts on of any economic impacts due to critical development and transportation habitat designation. The QLT land is Under section 4(b)(2) of the Act, we projects. also being excluded from the critical consider whether there are lands owned The FEA looks retrospectively at costs habitat designation. The third project is or managed by the Department of that have been incurred since the listing a highway extension planned on Kaloko Defense where a national security of the three species (51 FR 24672, July Entities property and State lands in impact might exist. In preparing this 8, 1986; 59 FR 10305, March 4, 1994; 78 proposed Unit 34. With the exclusion of final rule, we have determined that no FR 64638, October 29, 2013), and the Kaloko Entities lands, this unit lands within the designation of critical considers those costs that may occur in would be considered unoccupied, and, habitat for these three species are owned the 10 years following the designation of therefore, the only critical habitat the or managed by the Department of critical habitat, which was determined project would be impacting would be Defense or Department of Homeland to be the appropriate period for analysis unoccupied critical habitat. However, Security, and, therefore, we anticipate because limited planning information the project would also still be impacting no impact on national security or was available for most activities to occupied areas on the Kaloko Entities homeland security. Consequently, the forecast activity levels for projects lands, and, therefore, a section 7 Secretary is not exercising his discretion beyond a 10-year timeframe. The FEA jeopardy analysis on the presence of the to exclude any areas from this final analyzes economic impacts of the species within the project area would designation based on impacts on conservation efforts for these species already be required. Because one of the national security or homeland security. associated with the following categories primary threats to these species is Exclusions Based on Other Relevant of activity: Residential and commercial habitat loss and degradation, the Impacts development projects, and consultation process under section 7 of transportation projects. The FEA the Act for projects with a Federal nexus Under section 4(b)(2) of the Act, we concluded that critical habitat will, in evaluating the effects to these consider any other relevant impacts, in designation is unlikely to change the species, evaluate the effects of the action addition to economic impacts and outcome of future section 7 on the conservation or function of the impacts on national security. We consultations on projects or activities habitat for the species regardless of consider a number of factors, including within occupied areas, and that whether critical habitat is designated for whether there are permitted incremental impacts due to section 7 these lands, and will likely result in conservation plans covering the species consultations in occupied areas will similar recommended conservation in the area such as HCPs, safe harbor most likely be limited to the additional measures. Therefore, the cost of critical agreements, or candidate conservation administrative effort of considering habitat designation on this project agreements, or non-permitted adverse modification (IEc 2016, p. 2–9). would be limited to the additional conservation agreements which reduce The FEA estimates approximately administrative cost of adding the the benefits of critical habitat or $35,000 over the next 10 years (an adverse modification analysis to the partnerships that would be encouraged annualized impact of $4,700, 7 percent section 7 jeopardy analysis. by exclusion from critical habitat. In discount rate) associated with future The FEA additionally considered the preparing this final rule, we have section 7 consultations. Impacts on potential indirect effects of the determined that the final designation of projects occurring in areas being designation, including, for example, critical habitat for Bidens micrantha considered for exclusion are expected to perceptional effects on land values, or ssp. ctenophylla, Isodendrion be $15,000 (an annualized impact of the potential for third-party lawsuits. pyrifolium, and Mezoneuron kavaiense $2,000, 7 percent discount rate) (IEc Given the uncertainties surrounding the does not include any land covered by 2016, p. E–7). probability of any such effects occurring permitted conservation plans. We The FEA concluded that additional (and if so, the magnitude of any such anticipate no impact to permitted impacts, beyond administrative costs effects), quantification of the potential conservation plans from this critical associated with section 7 consultations, indirect effects of the designation was habitat designation. are likely within unoccupied areas but not possible. The FEA acknowledges, Private or Other Non-Federal limited information is available however, that these uncertainties result Conservation Plans or Agreements and regarding the nature and extent of these in an underestimate of the quantified Partnerships impacts and precludes quantification of impacts of the designation (IEc 2016, p. these costs. Two specific projects in 2–23). We sometimes exclude areas from unoccupied habitat were identified that critical habitat designations based in may be subject to economic impacts due Exclusions Based on Economic Impacts part on the existence of private or other to a critical habitat designation. Prior to The Service considered the economic non-Federal conservation plans or finalizing this rule, we also evaluated impacts of the critical habitat agreements that can minimize the the potential economic effects related to designation and the Secretary is not benefits of critical habitat. We may also a third project in Unit 34, which, based exercising his discretion to exclude any exclude areas covered by conservation on a potential 4(b)(2) exclusion, would areas from this designation of critical agreements if we believe a benefit of become an unoccupied unit. The first is habitat for Bidens micrantha ssp. exclusion would be to encourage future a DHHL residential development project ctenophylla, Isodendrion pyrifolium, conservation partnerships. A that is expected to involve the use of and Mezoneuron kavaiense based on conservation plan or agreement Federal funds, and would thus require economic impacts. describes actions that are designed to section 7 consultation, but this area is A copy of the FEA may be obtained provide for the conservation needs of a being excluded from the critical habitat by contacting the Pacific Islands Fish species and its habitat, and may include

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actions to reduce or mitigate negative potential benefits of exclusion where lands (Wilcove et al. 1996, pp. 5–6; effects on the species caused by voluntary conservation agreements may Bean 2002, pp. 2–3; James 2002, pp. activities on or adjacent to the area encourage future conservation actions 270–271; Koch 2002, pp. 2–3). Many covered by the plan. Conservation plans and partnerships. The establishment landowners fear a decline in their or agreements can be developed by and encouragement of strong property value due to real or perceived private entities with no Service conservation partnerships with non- restrictions on land-use options where involvement, or in partnership with the Federal landowners is especially endangered or threatened species are Service. important in the State of Hawaii, where found. Consequently, harboring We evaluate a variety of factors to there are relatively few lands under endangered species is viewed by many determine how the benefits of any Federal ownership; we cannot achieve landowners as a liability. This exclusion and the benefits of inclusion the conservation and recovery of listed perception can result in an anti- are affected by the existence of private species in Hawaii without the help and conservation incentive because of the or other non-Federal conservation plans cooperation of non-Federal landowners. fear that maintaining habitats for or agreements and their attendant More than 60 percent of the United endangered species could represent a partnerships when we undertake a States is privately owned (Lubowski et risk to future economic opportunities discretionary section 4(b)(2) exclusion al. 2006, p. 35), and at least 80 percent (Main et al. 1999, pp. 1,264–1,265; analysis. Some of the factors that we of endangered or threatened species Brook et al. 2003, pp. 1,644–1,648). will consider for non-permitted plans or occur either partially or solely on Because so many important habitat agreements are listed below. These private lands (Crouse et al. 2002, p. areas for Bidens micrantha ssp. factors are not required elements of 720). In the State of Hawaii, 84 percent ctenophylla, Isodendrion pyrifolium, plans or agreements, and all items may of landownership is non-Federal (U.S. and Mezoneuron kavaiense occur on not apply to every plan or agreement. General Services Administration, in lands managed by non-Federal entities, 1. The degree to which the plan or Western States Tourism Policy Council, collaborative relationships are essential agreement provides for the conservation 2009). Given the distribution of listed for their recovery. These species and of the species or the essential physical species with respect to landownership, their habitat are expected to benefit or biological features (if present) for the conservation of listed species in many substantially from voluntary land species; parts of the United States is dependent management actions that implement 2. Whether there is a reasonable upon working partnerships with a wide appropriate and effective conservation expectation that the conservation variety of entities and the voluntary strategies, or that add to our bank of management strategies and actions cooperation of many non-Federal knowledge about the species and their contained in a management plan or landowners (Wilcove and Chen 1998, p. ecological needs. The conservation agreement will be implemented; 1,407; Crouse et al. 2002, p. 720; James benefits of critical habitat, on the other 3. The demonstrated implementation 2002, p. 271). Building partnerships and hand, are primarily regulatory or and success of the chosen conservation promoting voluntary cooperation of prohibitive in nature. Where consistent measures; landowners is essential to with the discretion provided by the Act, 4. The degree to which the record of understanding the status of species on the Service believes it is both desirable the plan supports a conclusion that a non-Federal lands and necessary to and necessary to implement policies critical habitat designation would implement recovery actions, such as the that provide positive incentives to non- impair the realization of benefits reintroduction of listed species, habitat Federal landowners and land managers expected from the plan, agreement, or restoration, and habitat protection. to voluntarily conserve natural partnership; Many non-Federal landowners derive resources and to remove or reduce 5. The extent of public participation satisfaction from contributing to disincentives to conservation (Wilcove in the development of the conservation endangered species recovery. et al. 1996, pp. 1–14; Bean 2002, p. 2). plan; Conservation agreements with non- We believe it is imperative for the 6. The degree to which there has been Federal landowners, safe harbor recovery of Bidens micrantha ssp. agency review and required agreements, other conservation ctenophylla, Isodendrion pyrifolium, determinations (e.g., State regulatory agreements, easements, and State and and Mezoneuron kavaiense to support requirements), as necessary and local regulations enhance species ongoing positive management efforts appropriate; conservation by extending species with non-Federal conservation partners, 7. Whether National Environmental protections beyond those available and to provide positive incentives for Policy Act (NEPA; 42 U.S.C. 4321 et through section 7 consultations. We other non-Federal land managers who seq.) compliance was required; and encourage non-Federal landowners to might be considering implementing 8. Whether the plan or agreement enter into conservation agreements voluntary conservation activities but contains a monitoring program and based on a view that we can achieve have concerns about incurring adaptive management to ensure that the greater species conservation on non- incidental regulatory, administrative, or conservation measures are effective and Federal lands through such partnerships economic costs. can be modified in the future in than we can through regulatory methods Many landowners perceive critical response to new information. alone (USFWS and NOAA 1996e (61 FR habitat as an unnecessary and The Secretary places great weight on 63854, December 2, 1996)). duplicative regulatory burden, demonstrated partnerships, as in many Many non-Federal landowners, particularly if those landowners are cases they can lead to the however, are wary of the possible already developing and implementing implementation of conservation actions consequences of attracting endangered conservation and management plans that provide benefits to the species and species to their property. Some evidence that benefit listed species on their lands. their habitat beyond those that are suggests that some regulatory actions by In certain cases, we believe the achievable through the designation of the government, while well intentioned exclusion of non-Federal lands that are critical habitat and section 7 and required by law, can (under certain under positive conservation consultations, particularly on private circumstances) have unintended management is likely to strengthen the lands, reducing the benefits of critical negative consequences for the partnership between the Service and the habitat. In addition, we consider the conservation of species on non-Federal landowner, which may encourage other

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conservation partnerships with that Kamehameha Schools management strategy, and is sustained landowner in the future. As an added In this final designation, the Secretary through a suite of voluntary actions benefit, by modeling positive has exercised his discretionary authority including invasive weed control, native conservation partnerships that may to exclude from critical habitat lands species restoration, ungulate result in exclusion from critical habitat, that are owned by the Kamehameha management, rodent control, and such exclusion may also help encourage Schools, totaling 2,834 ac (1,147 ha), wildfire mitigation on lands owned by the formation of new partnerships with under section 4(b)(2) of the Act. These Kamehameha Schools. other landowners, with consequent lands fall within a portion of the 9,936 In 1993, the North Kona Dry Forest benefits to the listed species. For all of ac (4,021 ha) proposed as critical habitat Working Group was organized to address recovery of dry forest these reasons, we place great weight on in Hawaii—Lowland Dry—Unit 31 (77 ecosystems in the region. The group the value of conservation partnerships FR 63928, October 17, 2012), have consisted of Kamehameha Schools in with non-Federal landowners when documented presence of Bidens partnership with Federal and State micrantha ssp. ctenophylla and considering the potential benefits of agencies, other private landowners, Mezoneuron kavaiense, and are inclusion versus exclusion of areas in conservation organizations, scientific considered essential to the conservation critical habitat. researchers, and the Service. The group of Isodendrion pyrifolium. Kamehameha We are excluding a total of selected a 5.8-ac (2.3-ha) parcel at Schools is a proven conservation approximately 7,027 ac (2,844 ha) of Kaupulehu Mauka managed by partner, as demonstrated, in part, by non-Federal lands on the island of Kamehameha Schools as a pilot project their ongoing management programs Hawaii that meet the definition of to demonstrate the feasibility of that provide important conservation economically restoring and regenerating critical habitat from the final critical benefits to Bidens micrantha ssp. habitat rule under section 4(b)(2) of the the lowland dry forest ecosystem ctenophylla, Isodendrion pyrifolium, (Hawaii Forest Industry Association Act. We are excluding these lands and Mezoneuron kavaiense and their because the continuation and (HFIA) 1998, p. 3). By 1998, the group habitat, as well as to other federally had successfully demonstrated strengthening of important conservation listed species. These programs include partnerships with the landowners will exclusion of ungulates, removal of Kamehameha Schools Natural fountain grass (Pennisetum setaceum), a increase the likelihood of meaningful Resources Management Plan (NRMP), conservation for Bidens micrantha ssp. reduction in rodent populations, and the Three Mountain Alliance TMA establishment of numerous native ctenophylla, Isodendrion pyrifolium, Management Plan, and the management understory plant species at Kaupulehu and Mezoneuron kavaiense, and program on Kamehameha Schools lands Mauka. The benefits of these actions for increase the possibility that these at Kaupulehu. We have determined that endangered plant recovery include partnerships will encourage others to the benefits of excluding these lands reduction in the threat of wildfire, enter into similar partnerships. owned by Kamehameha Schools reduction in rodent predation of fruits Furthermore, the development and outweigh the benefits of including them and seeds of native plant species, and implementation of management plans in critical habitat for Bidens micrantha increased regeneration of native plant covering portions of these excluded ssp. ctenophylla, Isodendrion species. lands increase the accessibility pyrifolium, and Mezoneuron kavaiense. In 1999, the North Kona Dry Forest necessary for surveys or monitoring Kamehameha Schools is the largest Working Group received funding from designed to promote the conservation of private landowner in the State of the Service’s Private Landowner these federally listed plant species and Hawaii, owning approximately 375,000 Incentive Program to outplant nine their habitat, as well as provide for other ac (151,757 ha), with approximately endangered plant species and as part of native species of concern, thereby 297,000 ac (120,192 ha) on Hawaii an effort to expand dry forest restoration reducing the benefits of overlying a Island alone. Approximately 98 percent efforts to larger areas within the region designation of critical habitat. The of these lands are dedicated to (Cordell et al. 2008, pp. 279–284). The Secretary has determined that the agriculture and conservation, and the group initiated this effort at Kaupulehu benefits of excluding these areas remaining 2 percent of lands are in Makai (Cordell et al. 2008, pp. 279– commercial real estate and properties. outweigh the benefits of including them 284), an approximately 70-ac (28-ha) Kamehameha Schools is a private in critical habitat, and that such parcel that is managed as part of a larger charitable educational trust established exclusion will not result in the parcel owned by the Kamehameha in 1887, through the will of Princess extinction of the species. The specific Schools. Five endangered plant species Bernice Pauahi Paki Bishop. The trust is areas excluded are detailed in Table 4. naturally occur within Kaupulehu used primarily to operate a Makai, including one of the species for Maps of each area excluded are comprehensive educational program for which critical habitat is designated in provided in our supporting document students of Hawaiian ancestry. In this rule, Mezoneuron kavaiense. The ‘‘Supplemental Information for the addition, part of the Kamehameha other four naturally occurring federally Designation and Nondesignation of Schools’ mission is to protect Hawaii’s listed plant species are Bonamia Critical Habitat for Bidens micrantha environment through recognition of the menziesii, Colubrina oppositifolia, ssp. ctenophylla, Isodendrion significant cultural value of the land Nothocestrum breviflorum, and pyrifolium, and Mezoneuron kavaiense’’ and its unique flora and fauna. Pleomele hawaiiensis. Four other listed available at http://www.regulations.gov Kamehameha Schools has established a plant species have been outplanted under Docket No. FWS–R1–ES–2013– policy to guide the sustainable here, including Abutilon menziesii, 0028. Here we present (by landowner) stewardship of its lands including Hibiscadelphus hualalaiensis, Hibiscus an overview of each of the areas we are natural resources, water resources, and brackenridgei, and Kokia drynarioides. excluding based on conservation ancestral places (Kamehameha Schools Management actions on the 70-ac (28- partnerships with the landowners, 2013, entire). The maintenance of ha) parcel have included outplanting followed by a summary of our analysis healthy, functioning native ecosystems and care for 100 individuals of each of of the benefits of inclusion versus the is a critical component of the the nine endangered plant species, benefits of exclusion in each case. Kamehameha Schools’ integrated construction and enlargement of fire

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breaks, repair and maintenance of a Plan 2007, pp. 16–21). The TMA and culturally based goals and strategies fence line to exclude goats and sheep, management plan and the commitments to: (1) Assess natural resources integrity; removal of fountain grass, and control of by Kamehameha Schools to implement (2) manage priority threats to rodent populations. the conservation actions listed above regeneration of native species; (3) In 2004, additional funding was have led to maintenance or restore ecosystem integrity; and (4) received from the Service’s Private enhancement of habitat for these and integrate and enable sustainable use. Stewardship Grants Program for other native species, or the emergence of The NRMP further describes specific restoration of the lowland dry suitable habitat where it is not present. actions, targets, and metrics for ecosystem within the 70-ac (28-ha) The conservation priorities articulated monitoring implementation at annual or parcel. With the stated goal of in the TMA management plan have been 5-year intervals. For example, the NRMP discovering and demonstrating methods implemented on the Kamehameha identifies the goal of limiting habitat of cost effective control of fountain grass Schools property at Kaupulehu in some loss by suppressing or eliminating and other nonnative species, this project form or another since the 1993 priority threats to the regeneration of and its collaboration with scientific organization of the North Kona Dry native species, increasing very high- researchers has provided landowners Forest Working Group. Beginning with quality habitat, and increasing land- with the tools and scientific the experimental set-aside at Kaupulehu based learning experiences to the 3,000 documentation to restore the lowland Mauka and continuing with the people served annually. The NRMP dry ecosystems in the North Kona outplantings at Makai, Kamehameha includes the following management region (Cabin et al. 2000; Cabin et al. Schools has conducted voluntary, actions designed to address threats to 2002a; Cabin et al. 2002b; Thaxton et al. ongoing conservation, and we expect the lowland dry ecosystem: (1) Weed 2010). This project also includes public they will continue conservation control; (2) fencing/hunting to remove outreach through ongoing volunteer activities in the future. For more than 10 ungulates; (3) increasing native land participation to control nonnative plants years, Kamehameha Schools has carried cover and biodiversity; (4) maintaining and outplant native plants. Community out active ecosystem management at access and fire response infrastructure; volunteer participation has become a Kaupulehu on the 76 ac (31 ha) of and (5) developing a restoration significant part of the continued success lowland dry forest (70 ac (28 ha) at strategy. The NRMP also identifies the of this project, with volunteers Makai, and approximately 6 ac (2.3 ha) desired goal of increasing the area of consisting of school groups, native at Mauka), with intensive management habitat in restoration within the area Hawaiian charter school groups, Youth occurring in a 36-ac (15-ha) area. The being excluded from this designation. Conservation Corps, and other special entire 76-ac (31-ha) area is fenced, is The Kamehameha Schools is interest groups (HFIA 2006, in litt.; enclosed by strategic firebreaks, and has currently implementing the NRMP HFIA 2007, in litt.; HFIA 2008, in litt.). been maintained as ungulate-free for the across the State in coordination with Kamehameha Schools helped past 15 years. Within the 36-ac (15-ha) previously established site-specific establish the Three Mountain Alliance intensively managed area, additional plans that often already include the (TMA) in 2007. That year, Kamehameha management actions include the conservation actions in the NRMP, such Schools signed a memorandum of aggressive suppression of fountain grass as the program at Kaupulehu, North understanding (MOU) with the other and other priority weeds, suppression of Kona. As a partner in the West Maui members of the TMA, including the rodent populations, and outplanting of Mountain Watershed Partnership, Service, to incorporate approximately common and rare native species Kamehameha Schools participates in 253,466 ac (102,785 ha) of its lands into (Hannahs 2013, in litt.). Such voluntary the conservation efforts in Paunau, the partnership (TMA Management Plan threat management and restoration Maui, to control erosion, manage 2007, entire). Of the 2,834 ac (1,147 ha) actions provide multiple benefits to ungulate populations, and eradicate of Kamehameha Schools land excluded listed plant species, including Bidens invasive species for the purpose of from this critical habitat designation, micrantha ssp. ctenophylla, Isodendrion maintaining the watershed that provides 650 ac (263 ha) at Kaupulehu, North pyrifolium, and Mezoneuron kavaiense a continual supply of fresh water to the Kona, are within the management area and their habitat. In association with families of Maui. On Oahu, of the TMA, but currently only the 6 ac their site manager of the 76 ac (28 ha) Kamehameha Schools is a partner in (2.3 ha) at Mauka are actively managed. parcel at Kaupulehu (Hawaii Forest efforts to restore the wetlands of Uko‘a The TMA management program is Industry Association) and the Service, in order to provide a healthy native ongoing and includes: (1) Habitat Kamehameha Schools is working to habitat for Hawaii’s water birds and protection and restoration; (2) complete a 10-year management plan to other native biodiversity. Ongoing work watershed protection; (3) compatible continue their ongoing active ecosystem includes a project to fence a 100-ac recreation and ecotourism; (4) management of the parcel, as well as a (40.5-ha) area to keep out ungulate education, awareness, and public potential expansion of management populations and allow the native outreach; (5) cultural and historical actions into an additional 70 ac (28 ha) ecosystem to regenerate and thrive. On resource protection; and (6) research, in the surrounding lowland dry Kauai, Kamehameha Schools has monitoring, and management program ecosystem (Whitehead 2015, in litt.). conducted surveys on the invasive indicators (TMA Management Plan In addition to implementing Australian tree fern and is now working 2007, pp. 26–38). The TMA conservation actions on their lands on on mitigation efforts to control spread of management plan priorities that benefit Hawaii Island, Kamehameha Schools the fern. Bidens micrantha ssp. ctenophylla, has shown a commitment to As discussed above, Kamehameha Isodendrion pyrifolium, and conservation on their lands across the Schools NRMP, the TMA Management Mezoneuron kavaiense and their habitat State of Hawaii. In 2011, they approved Plan, and the management program on include prioritizing feral animal control a 10-year Statewide Natural Resource Kamehameha Schools lands at (through removal and fencing), weed Management Plan (NRMP), which sets Kaupulehu together have provided for control, human activities management, the vision and direction for native the conservation of Bidens micrantha public education and awareness, small ecosystem management on all the ssp. ctenophylla, Isodendrion mammal control, climate change, and Kamehameha Schools lands in Hawaii. pyrifolium, and Mezoneuron kavaiense, fire management (TMA Management The NRMP includes broad ecologically and their shared essential physical or

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biological features. Implementation of land that surround the village. In 2009, addition, WDFI conducts regular guided these programs has been ongoing for the non-profit Waikoloa Village Outdoor tours, volunteer work trips, and an many years and the Service has a Circle secured funding for the Waikoloa annual festival that provides reasonable expectation that the Dry Forest Recovery Project from the educational opportunities for the conservation management strategies and State of Hawaii Forest Stewardship community to learn about conservation actions contained in these conservation Program and Natural Resource of listed species and the lowland dry plans will continue to be implemented. Conservation Service’s (NRCS) Wildlife ecosystem. The plans contain monitoring programs Habitat Improvement Program. The 10- In addition to cooperating with WDFI, to ensure that the conservation year project (from 2009 to 2019) has in April 2014, the WVA signed an MOU measures are effective and can be proven successful at protecting existing with the Service wherein they agreed to modified in the future in response to Mezoneuron kavaiense individuals, implement additional important new information. restoring native forest around a remnant conservation actions beneficial to Because critical habitat designation patch of lowland dry wiliwili (Erythrina Bidens micrantha ssp. ctenophylla, provides regulatory protection against sandwicensis) forest, and creating new Isodendrion pyrifolium, and Federal actions that are found likely to populations of nine endangered plant Mezoneuron kavaiense, and the lowland destroy or adversely modify critical species. The project’s management dry ecosystem upon which they depend habitat, we looked at the section 7 program includes: (1) Construction and (Memorandum of Understanding consultation history on these maintenance of a fence to exclude between Waikoloa Village Association Kamehameha Schools lands. According ungulates from a 275-ac (111-ha) area of and U.S. Department of Interior Fish to our records, between 2007 and 2016, dry forest south of Waikoloa Village; (2) and Wildlife Service 2014, entire). The there were no section 7 consultations removal of ungulates from the fenced WVA agreed to set aside from conducted for projects on these exclosure; (3) control of nonnative plant development a 60-ac (24-ha) parcel Kamehameha Schools lands, indicating species to reduce competition and the adjacent to the Waikoloa Dry Forest little likelihood of a future Federal threat of fire; (4) integrated pest Recovery Project’s 275-ac (111-ha) nexus on these lands that would management to reduce impacts on exclosure, and work cooperatively with potentially trigger the consideration of native plant species; (5) provision of the Service or other approved adverse modification or destruction of infrastructure for propagation and conservation partners to conduct critical habitat through section 7 maintenance of outplantings; (6) the activities expected to benefit Bidens consultation. establishment of common native and micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense Waikoloa Village Association (WVA) endangered plant species; and (7) education and community outreach and the lowland dry ecosystem. In this final designation, the Secretary activities. In 2011, a new nonprofit, the Adaptive management strategies may has exercised his discretion to exclude include monitoring, fencing, ungulate 1,758 ac (712 ha) of lands from critical Waikoloa Dry Forest Initiative Inc. (WDFI), was formed to take over removal, nonnative plant control, habitat, under section 4(b)(2) of the Act, outplanting of target species, and other that are owned by the WVA. These responsibility of the Waikoloa Dry Forest Recovery Project. In 2012, the management actions intended to benefit lands include almost the entirety of the listed species or the lowland dry 1,779 ac (720 ha) proposed as critical WVA Board of Directors granted WDFI permission to protect and restore the ecosystem. Implementation has already habitat in Hawaii—Lowland Dry—Unit been initiated on the following action 275-ac (111-ha) dry forest area on WVA 32; this area is occupied by one of the agreed to in the MOU: set aside from lands in the proposed critical habitat three plant species, Mezoneuron development a 60-ac (24-ha) parcel Hawaii–Lowland Dry–Unit 32 for a kavaiense, and is unoccupied but adjacent to the Waikoloa Dry Forest period of 75 years by way of a license essential to the conservation of Bidens Recovery Project’s 275-ac (111-ha) agreement with WDFI. micrantha ssp. ctenophylla and exclosure. Isodendrion pyrifolium (77 FR 63928; In total, the Waikoloa Dry Forest As discussed above, the Waikoloa Dry October 17, 2012). The WVA has a Recovery Project’s budget is over $1 Forest Recovery Project conducted with history of voluntarily facilitating and million, which includes funding from the cooperation of WVA has provided supporting the conservation of federally the State of Hawaii Forest Stewardship for the conservation of Mezoneuron listed species and habitat essential to Program, NRCS, and in-kind kavaiense on WVA lands. Although the their recovery on their privately owned contributions (Waikoloa Dry Forest conservation area is unoccupied by lands, and recently signed a MOU that Recovery Project 2009). Since 2009, the Bidens micrantha ssp. ctenophylla and formalizes their partnership with the project has successfully completed Isodendrion pyrifolium, by conserving Service. We have determined that the construction of the fence around the Mezoneuron kavaiense, the Project also benefits of excluding these lands owned 275-ac (111-ha) dry forest area, conserves the shared physical and by the WVA outweigh the benefits of conducted ungulate removal from biological features that are essential to including them in critical habitat for within the fenced exclosure, controlled the conservation of Bidens micrantha Bidens micrantha ssp. ctenophylla, nonnative plant species, and propagated ssp. ctenophylla and Isodendrion Isodendrion pyrifolium, and and outplanted common and federally pyrifolium. Implementation of the Mezoneuron kavaiense. listed native plant species, including the program has been ongoing for many Waikoloa Village is a rapidly growing federally listed Abutilon sandwicense, years, and is expected to continue on suburban community situated on the Achyranthes mutica, Bonamia the 275-ac (111-ha) dry forest reserve leeward slope of Mauna Kea volcano at menziesii, Chrysodracon (=Pleomele) until 2087. The plan contains a approximately 1,100 ft (335 m) elevation hawaiiensis, Hibiscus brackenridgei, monitoring program to ensure that the in the district of South Kohala on Kokia drynarioides, Melanthera conservation measures are effective and Hawaii Island. The WVA, which (=Lipochaeta) venosa, Mezoneuron can be modified in the future in represents the community through an kavaiense, Neraudia ovata, response to new information. elected Board of Directors, owns and Nothocestrum breviflorum, Sesbania Furthermore, WVA’s 2014 MOU with manages the village golf course and tomentosa, Silene hawaiiensis, Silene the Service augments the reserve area approximately 10,000 ac (4,047 ha) of lanceolata, and Vigna o-wahuensis. In with 60 ac (24 ha) of additional

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protected habitat. The WVA’s history of ctenophylla and Isodendrion pyrifolium. Palamanui has successfully conservation actions, their willingness Palamanui has demonstrated their implemented the following conservation to supplement those actions with a new willingness to work as a conservation actions: (1) Fencing to protect a 55-ac MOU with the Service for the protection partner by undertaking site management (22-ha) lowland dry forest preserve and of additional acreage, and their steps to that provides important conservation other endangered plant locations implement the MOU give the Service a benefits to the native Hawaiian species outside the preserve; (2) maintenance of reasonable expectation that WVA will that depend upon the lowland dry firebreaks to control the threat of fire at continue to implement the conservation ecosystem habitat. These actions the preserve and other endangered plant management strategies and actions for include a voluntary conservation locations outside the preserve; (3) the Waikola Dry Forest Recovery Project partnership and conservation agreement establishment of the Palamanui Dry and those contained in the MOU. with the Service and ongoing site- Forest Working Group and research Because critical habitat designation specific management on their lands for partnership; and (4) partnerships with provides regulatory protection against the conservation of rare and endangered other landowners and practitioners to Federal actions that are found likely to species and their habitats. We have benefit the conservation and recovery of destroy or adversely modify critical determined that the benefits of dry forest species and their habitat. habitat, we looked at the section 7 excluding these lands owned by Subsequent to the publication of the consultation history on these WVA Palamanui outweigh the benefits of October 17, 2012, proposed critical lands. According to our records, including them in critical habitat for habitat rule (77 FR 63928), Palamanui between 2007 and 2016, there were two Bidens micrantha ssp. ctenophylla, participated in a series of collaborative informal consultations conducted Isodendrion pyrifolium, and meetings with the Service, County of regarding projects receiving Federal Mezoneuron kavaiense. Hawaii, DHHL, Hawaii Department of funding on WVA lands. The 2008 Palamanui is developing a mixed-use Land and Natural Resources (DLNR), consultation with NRCS involved the residential and commercial project on and other landowners in Hawaii— implementation of conservation actions 725 ac (293 ha) in the land division of Lowland Dry—Units 31, 33, 34, and 35, for the Waikoloa Dry Forest Recovery Kau, North Kona district, Hawaii Island to address species protection and Project. The project was determined not (Group 70 International 2004, p. 1–5; recovery, and development on a likely adversely affect listed species or Case 2013, in litt.). A portion of this regional scale. These discussions critical habitat in the action area. The development will provide supporting resulted in a cooperative approach to second consultation with FEMA in 2013 setting aside acreage adjacent to other involved the construction of a dip tank infrastructure for the proposed to improve fire suppression capabilities University of Hawaii West campus landowners in order to protect larger in West Hawaii. The project was also located on adjacent State land. In 2005, areas of contiguous habitat from determined not likely to adversely affect the area’s previous owner, Hiluhilu development. In 2015, Palamanui any listed species or critical habitat in Development LLC, developed an signed a MOU with the Service wherein the action area. This history indicates integrated natural and cultural resources they agreed to implement important the potential for a future Federal nexus management plan (INCRMP) as part of conservation actions beneficial to the on these lands that could trigger the a petition to reclassify the 725 ac (293 three species, as well as other rare and consideration of adverse modification or ha) of land to the Urban District for the listed plant species and their habitat in destruction of critical habitat through development project at North Kona the lowland dry ecosystem section 7 consultation; however, these (Land Use Commission Docket A03–744 (Memorandum of Understanding consultations were for actions aimed, 2005). The INCRMP addressed Between Palamanui Global Holdings directly or indirectly, at facilitating preservation, mitigation, management, LLC and U.S. Department of Interior conservation efforts. Also, the presence and stewardship measures for the Fish and Wildlife Service 2015, entire). of Mezoneuron kavaiense on these lands natural and cultural resources at the Palamanui agreed to increase the area of would trigger a section 7 consultation Palamanui development, and included a fenced and managed lowland dry forest on effects to the species even without a phased management program for protected within the 55-ac (22-ha) critical habitat designation. As biological resources with the following preserve by 19 ac (7.7 ha), for a total of discussed in Benefits of Exclusion goals: (1) Creation of a lowland dry approximately 75 ac (30 ha). Palamanui Outweigh the Benefits of Inclusion, forest preserve and smaller reserves to also agreed to ensure funding for below, we determined that the benefits protect rare and endangered plants; (2) conservation actions within the preserve of excluding these lands from critical establishment of the Palamanui Dry for the next 20 years at a minimum of habitat outweigh the benefits that may Forest Working Group; (3) hiring of a $50,000 per year. Palamanui will be derived from this potential Federal reserve coordinator; (4) reduction of fire contribute conservation actions valued nexus. threat; (5) construction of fences around at an additional $200,000 to benefit the preserve areas and exclosures around recovery of the three plant species and Palamanui Global Holdings LLC endangered tree species; (6) control of the lowland dry ecosystem, and agreed (Palamanui) invasive weeds; (7) control of nonnative to work cooperatively with the Service In this final designation, the Secretary predators; (8) protection of rare and or other conservation partners to has exercised his authority to exclude endangered species outside dry forest conduct activities expected to benefit from critical habitat lands that are preserve; (9) creation of a native plant Bidens micrantha ssp. ctenophylla, owned by Palamanui, totaling 502 ac restoration program; (10) provision of an Isodendrion pyrifolium, and (203 ha). These lands fall within a updated biological inventory of preserve Mezoneuron kavaiense and their portion of the 1,583 ac (640 ha) areas and information on native habitat. Implementation has already proposed as critical habitat in Hawaii— invertebrates and the endangered been initiated on the following actions Lowland Dry—Unit 33 (77 FR 63928, Hawaiian hoary bat (Lasiurus cinereus agreed to in the MOU: (1) Firebreak October 17, 2012), have documented semotus); and (11) development of an maintenance around the preserve; (2) presence of Mezoneuron kavaiense, and interpretive program for natural and fence maintenance to exclude ungulates are considered essential to the cultural resources (Hiluhilu from the preserve, and removal of conservation of Bidens micrantha ssp. Development 2005, Exhibit D). To date, ungulates that breached the fence and

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entered the preserve; (3) regular weed two proposed critical habitat units. The The plan was finalized in 1999, and control in the preserve; and (4) DHHL owns 91 ac (30 ha) of the 1,583 included the following conservation propagation, outplanting, and ac (640 ha) proposed as critical habitat actions: (1) Construction requirements maintenance of listed species in the in Hawaii—Lowland Dry—Unit 33 (77 for fire prevention and control, and to preserve (Wagner 2016b, in litt., Wagner FR 63928; October 17, 2012); this DHHL avoid construction impacts to 2016c, in litt). land has no documented presence of endangered plants; (2) development of As discussed above, Palamanui’s Bidens micrantha ssp. ctenophylla, eight mini-preserves (each protection of the lowland dry forest Isodendrion pyrifolium, or Mezoneuron approximately 0.03 ac, for a total of 0.24 species and habitat through the INCRMP kavaiense but is considered essential to ac (0.1 ha)) and two principal preserves has provided for the conservation of the conservation of all three. The DHHL totaling approximately 37 ac (15 ha); (3) Mezoneuron kavaiense and the physical also owns 401 ac (165 ha) of the 1,192 a secured and managed off-site or biological features that are essential ac (485 ha) proposed as critical habitat mitigation area (tied to the development to its conservation. Although the in Hawaii—Lowland Dry—Unit 35 (77 of villages 9 and 10) of approximately conservation area is unoccupied by FR 63928; October 17, 2012); this DHHL 100 to 150 ac (40 to 61 ha); and (4) Bidens micrantha ssp. ctenophylla and land has documented presence of propagation and on-site planting of Isodendrion pyrifolium, by conserving Bidens micrantha ssp. ctenophylla, endangered and common native plant Mezoneuron kavaiense, the INCRMP Isodendrion pyrifolium, and species, and management, monitoring, also conserves the shared physical and Mezoneuron kavaiense. Currently, the and reporting (Belt Collins 1999). biological features that are essential to DHHL has the responsibility of The transfer agreements between the the conservation of Bidens micrantha managing approximately 200,000 ac HHFDC and DHHL included ssp. ctenophylla and Isodendrion (80,900 ha) in the State of Hawaii for the acknowledgement of the need to pyrifolium. The plan has had ongoing purposes of providing homestead conform with the portions of the 1999 implementation for many years, and leasing opportunities for native Plan related to the lands that DHHL Palamanui has committed to continuing Hawaiians. The DHHL has acquired (including management of the the effort into the future (based on their demonstrated their willingness to work preserves), and the need to consult with 2015 MOU with the Service). The plan as a conservation partner by the Service and the DLNR on contains a monitoring program to ensure undertaking site management that endangered and threatened species that the conservation measures are provides important conservation issues (HHFDC and DHHL 1997; BLNR effective and can be modified in the benefits to the native Hawaiian species et al. 2000; HCDCH and DHHL 2004; future in response to new information. that depend upon the lowland dry HCDCH and DHHL 2006). On May 17, The 2015 MOU with the Service ecosystem habitat. These actions includes augmentation of the existing 2007, in association with a section 7 include a voluntary conservation consultation with the U.S. Housing and 55-ac (22-ha) preserve by an additional partnership and conservation agreement 19 ac (7.7 ha), as well as a commitment Urban Development (HUD) regarding with the Service and ongoing site- funding under the Native American to fund conservation actions in the specific management on their lands for preserved areas for the next 20 years. Housing Assistance and Self the conservation of rare and endangered Determination Act of 1996 (25 U.S.C. Palamanui’s history of conservation species and their habitats. We have actions, their cooperation in the 4101 et seq.), the Service determined the determined that the benefits of DHHL development of Villages 1, 2, 4, development and finalization of the excluding these lands owned by DHHL MOU, and their initial steps to and 5, and associated park and outweigh the benefits of including them implement the MOU give the Service a community facilities totaling in critical habitat for Bidens micrantha reasonable expectation that the approximately 235 ac (95 ha), were not ssp. ctenophylla, Isodendrion conservation management strategies and likely to adversely affect the endangered pyrifolium, and Mezoneuron kavaiense. actions contained in the MOU will Isodendrion pyrifolium and Mezoneuron continue to be implemented. At Kealakehe, the DHHL is kavaiense or any designated critical Because critical habitat designation developing a portion of the Villages of habitat for listed species (USFWS 2007, provides regulatory protection against Laiopua (Laiopua), a master-planned in litt.). As part the proposed action, Federal actions that are found likely to community with single- and multi- DHHL agreed to: (1) Minimize impacts destroy or adversely modify critical family residential units, recreational to listed species and their habitats habitat, we looked at the section 7 facilities, community facilities, parks, during construction; (2) develop and consultation history on these Palamanui and archaeological and endangered implement a revised endangered species lands. According to our records, plant preserve sites (DHHL 2009, pp. management plan for Isodendrion between 2007 and 2016, there were no 12–13). From 1996 to 2006, DHHL pyrifolium and Mezoneuron kavaiense; section 7 consultations conducted for acquired 685 ac (277 ha) of the roughly and (3) construct and manage the two projects on these Palamanui lands, 1,000-ac (405-ha) development from the principal preserves and the mini indicating little likelihood of a future previous owner Hawaii Housing preserves (for Villages 3, 4, and 5) from Federal nexus on these lands that would Finance and Development Corporation the 1999 plan, and an archaeological potentially trigger the consideration of (HHFDC) (formerly Housing and preserve totaling approximately 66 ac adverse modification or destruction of Community Development Corporation (27 ha) (Kane 2007, in litt.). The DHHL critical habitat through section 7 of Hawaii (HCDCH)). The HHFDC had subsequently committed two parcels consultation. developed a mitigation plan with the (totaling 40 ac) and four mini preserves Service and Hawaii Department of Fish (each between 0.1 and 0.4 acres, for a Department of Hawaiian Home Lands and Wildlife (DOFAW) (Belt Collins total of approximately 1 ac (0.4 ha)) for (DHHL) 1999) for the listed and other rare plant the development, management, and In this final designation, the Secretary species affected by the proposed maintenance as preserves with the sole has exercised his authority to exclude development as part of a section 7 purpose of protecting Bidens micrantha from critical habitat lands that are consultation with the Environmental ssp. ctenophylla, Isodendrion owned by DHHL, totaling 492 ac (199 Protection Agency (EPA) on wastewater pyrifolium, Mezoneuron kavaiense, and ha). These lands fall within portions of treatment for Laiopua (USFWS 1990). other endangered species (Masagatani

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2012, in litt.), and set aside an area Isodendrion pyrifolium, and Bidens micrantha ssp. ctenophylla, and identified for protection of Mezoneuron kavaiense, and the lowland Isodendrion pyrifolium. The archaeological resources; all protected dry ecosystem. The 21.7-ac (8.8-ha) conservation effort has been occurring areas totaled approximately 73 ac (29 portion of the additional 24 ac (10 ha) since DHHL took over ownership and ha). The DHHL also agreed to allocate protected from development by DHHL is management of the land, and DHHL has $250,000 per year over a 2-year period the site of proposed Village 10 and is committed to continuing the effort into to fund management of the preserves. adjacent to the 4.2 ac (1.7 ha) protected the future based on their 2015 MOU The 100- to 150-ac (40- to 61-ha) off-site from development by the HHFDC with the Service. The effort includes an mitigation area from the 1999 plan (Village 9) and another 22 ac (8.9 ha) set annual progress evaluation to ensure addressing development of Villages 9 aside by the County; these three areas that the conservation measures are and 10 was not created because Village together create approximately 47.9 effective and can be modified in the 9 and 10 were not developed. The contiguous acres (19.4 ha) protected for future in response to new information. DHHL has protected all of the 21.7 ac the conservation of the three species The MOU augments the original 75-ac (8.8 ha) for Village 10 from and the lowland dry ecosystem. The (29-ha) preserve with an additional 24 development, as discussed below. The DHHL also agreed in the MOU to fund ac (10 ha) and includes a commitment HHFDC owns the land slated for Village conservation actions valued at $3.229 to fund conservation actions into the 9; they protected from development a million on 44 ac (18 ha) of the existing future. The DHHL’s history of 4.2-ac (1.7-ha) portion of this area that preserves for 40 years and within the conservation actions, their cooperation is occupied by Mezoneuron kavaiense. additional 24 ac (10 ha) for 20 years. in the development and finalization of Since 2010, the DHHL has committed The remaining 29 ac (ha) of existing approximately $1,198,052 for the preserves will not be actively managed their MOU with the Service, and their development and management of the but will remain protected from steps to implement the MOU give the two larger preserves and four mini development. Service a reasonable expectation that preserves at Kealakehe (Masagatani Conservation actions on the 68 the conservation management strategies 2012, in litt.). Conservation actions in managed acres include actions from the and actions contained in the MOU will the preserve areas include: (1) Fencing 1999 plan (control and the prevention of continue to be implemented. to exclude ungulates and prevent the threat of fire; control and removal of The DHHL has worked in other areas human trespass; (2) control and removal nonnative plant species; and on the Island of Hawaii to protect and of nonnative plants; (3) control and propagation, outplanting, and care of restore endangered and threatened prevention of the threat of fire; (4) Bidens micrantha ssp. ctenophylla, species and their habitats. In December propagation, outplanting, and care of Isodendrion pyrifolium, and 2010, the Hawaiian Homes Commission common native and endangered plant Mezoneuron kavaiense, and other rare adopted the ‘‘Aina Mauna Legacy species; and (5) promotion of and endangered plant species) as well as Program,’’ a 100-year plan to reforest community volunteer and education the following additional actions: (1) approximately 87 percent of a 56,200-ac programs that support native plant Installation and maintenance of a 6-ft- (22,743-ha) contiguous parcel managed conservation. tall, hog wire, ungulate-proof fence by DHHL on the eastern slope of Mauna Subsequent to the publication of the around each protected area; (2) Kea, Hawaii Island. The Aina Mauna October 17, 2012, proposed rule, the construction and maintenance of a 20- Legacy Program is removing all feral DHHL participated in a series of ft (6-m) wide firebreak and fence line ungulates from the Aina Mauna collaborative meetings with the Service, around these fences; (3) sufficient landscape, and several projects have County of Hawaii, DLNR, and other control of nonnative plant species to included fenced units where pigs and stakeholders in Hawaii—Lowland Dry— prepare the land for out-planting of cattle have been removed (DHHL 2009, Units 31, 33, 34, and 35, to address covered species; (4) out-planting of pp. 19–21). Projects that have been species protection and recovery, and covered species; (5) weeding after initial implemented to date have received development on a regional scale. These preparation and re-weeding/re-planting funding from the Service’s Partners for discussions resulted in a cooperative the entire area at regular intervals after Fish and Wildlife Program and included approach to setting aside acreage the entire area has been weeded and 10-year landowner agreements between adjacent to other landowners in order to out-planted once; and (6) allowing site the Service and the landowners protect larger areas of contiguous habitat visits by the Service. Implementation from development. In 2015, the DHHL has already been initiated on the (including DHHL) to maintain the signed a MOU with the Service wherein following actions agreed to in the MOU: conservation actions; other partners they agreed to implement important (1) Fence and firebreak maintenance involved include the State of Hawaii, conservation actions beneficial to the around the preserves; (2) regular weed the Hakalau Forest National Wildlife recovery of the three species, as well as control of the managed areas in the Refuge, and the Mauna Kea Watershed other rare and listed plant species and preserves; (3) improvements to the Alliance. Conservation actions that have their habitat in the lowland dry fences and gates in the existing Aupaka been implemented for these projects ecosystem (Memorandum of Preserve, including raising the height of include: (1) Management of 650 ac (263 Understanding Between the Department the fence to exclude ungulates and ha) of native koa (Acacia koa) buffer of Hawaiian Home Lands and U.S. removing barbed wire (a threat to the between the invasive nonnative gorse Department of Interior Fish and Wildlife endangered Hawaiian hoary bat); (4) site and the Hakalau Forest National Service 2015, entire). DHHL agreed to preparation for outplanting; (5) Wildlife Refuge (USFWS 2014a, in litt.); protect the 73 ac (29 ha) of existing outplanting of 200 listed plants on 5 ac (2) restoration of 2 mi (3.2 km) of preserves and to set aside and not (2 ha) per year inside the main Aupaka riparian habitat along Nauhi Gulch develop two additional parcels totaling preserve; and (6) and weekly monitoring (USFWS 2014b, in litt.); (3) protection 24 ac (10 ha) (one 2 ac (0.8 ha) area and of all outplants (Wagner 2017b, in litt). and restoration of approximately 1,100 another 21.7 ac (8.8 ha) area); in total As discussed above, the development ac (445 ha) of montane wet and montane the protected area is approximately 97 and management of the preserves at mesic native forest within the ac (39 ha) to benefit the recovery of Kealakehe has provided for the Waipahoehoe Management Unit Bidens micrantha ssp. ctenophylla, conservation of Mezoneuron kavaiense, (USFWS 2015b, in litt.); and (4) habitat

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restoration and protection of 525 ac (212 Kaloko Entities In 2011, SCD–TSA Kaloko Makai, LLC ha) of the Kanakaleonui Bird Corridor. In this final designation, the Secretary prepared a draft habitat conservation Because critical habitat designation has exercised his discretion to exclude plan (HCP) under State law to address provides regulatory protection against 631 ac (255 ha) of lands from critical the impacts of their planned Kaloko Federal actions that are found likely to habitat, under section 4(b)(2) of the Act, Makai Development, a mixed use development on 1,139 ac (461 ha) in the destroy or adversely modify critical that are owned or managed by Kaloko Kaloko-Kohanaiki area, Kona, Hawaii; habitat, we looked at the section 7 Entities. These lands fall within a approximately 605 ac (245 ha) of this consultation history on these DHHL portion of the 961 ac (389 ha) proposed as critical habitat in Hawaii—Lowland area was included in proposed Hawaii— lands. According to our records, Lowland Dry—Unit 34 (77 FR 63928; between 2007 and 2016, there were Dry—Unit 34 (77 FR 63928, October 17, 2012), have documented presence of October 17, 2012). The draft HCP was three informal consultations conducted available for public comment as a regarding projects receiving Federal Bidens micrantha ssp. ctenophylla and Mezoneuron kavaiense, and are supporting document with the funding on DHHL lands in proposed publication of the October 17, 2012, Hawaii—Lowland Dry—Unit 35 (in considered essential to the conservation of Isodendrion pyrifolium. Kaloko proposed designation. The conservation 2007, 2010, and 2014). The 2007 project measures in the draft HCP were funded by HUD (discussed above), Entities is a new conservation partner with a willingness to engage in ongoing designed to address impacts to four entailed the development of four management programs that provide endangered species (Chrysodracon residential subdivisions and the important conservation benefits to (Pleomele) hawaiiensis, Mezoneuron establishment of endangered species Bidens micrantha ssp. ctenophylla, kavaiense, Neraudia ovata, preserve areas at the Villages of Isodendrion pyrifolium, and Nothocestrum breviflorum), one (at the Laiopua, Kealakehe, North Kona. Based Mezoneuron kavaiense and their time) candidate plant species (Bidens on the conservation measures for the habitat, as well as to other rare and micrantha ssp. ctenophylla), and the endangered plants Isodendrion federally listed species. We have Kaloko dry forest. These measures pyrifolium and Mezoneuron kavaiense, determined that the benefits of included: (1) Establishment of a and the candidate plant (at the time) excluding these lands owned or preserve to protect in perpetuity the Bidens micrantha ssp. ctenophylla, we managed by Kaloko Entities outweigh 150-ac (61-ha) set-aside of dry forest concurred that this project was not the benefits of including them in critical from the 2010 consultation; (2) likely to adversely affect listed species habitat for Bidens micrantha ssp. propagation and planting of three listed or critical habitat (USFWS 2007, in litt.). ctenophylla, Isodendrion pyrifolium, plants for each listed plant taken; (3) A second consultation in 2010 involved and Mezoneuron kavaiense. implementation of a fire plan; and (4) the construction of Phase 1A of the Ane The Kaloko Entities, established in removal of invasive plant species Keohokalole Highway within a right of 2016, manages approximately 1,203 ac around listed plant species in the way adjacent to DHHL lands containing (487 ha) in the district of North Kona, preserve (Hookuleana 2011, pp. 10–11). Isodendrion pyrifolium. Based on the on Hawaii Island, including 631 ac (255 During the public comment periods conservation measures for Isodendrion ha) originally proposed for designation following the publication of the October pyrifolium, we concurred that this of critical habitat but excluded by this 17, 2012, proposed critical habitat project was not likely to adversely affect final rule. The Kaloko Entities consists designation (77 FR 63928), the Service listed species or critical habitat (USFWS of: (1) Kaloko Residential Park LLC, a continued to reach out to State, County, and private landowners, including 2010a, in litt.). The 2014 project, also Hawaii limited liability company (new several meetings between the Service funded by HUD, was for the owner of lands formerly owned by SCD– and representatives of SCD–TSA Kaloko construction of the Laiopua 2020 TSA Kaloko Makai LLC and Kaloko Makai, LLC. On June 6, 2016, during the community center, with a project Properties Corporation); and (2) TSA second reopened comment period on footprint of 4.53 ac (1.83 ha). Based on LLC, a Hawaii limited liability company (formerly known as TSA Corporation). the proposed critical habitat the conservation measures incorporated designation, the Service was notified of into the project description and the Conservation activities on these excluded lands date back to a 2010 the new management and consultant small project footprint, we concurred section 7 consultation by the FHWA team representing the Kaloko Entities. that this project was not likely to associated with the construction of The comment letter expressed an adversely affect listed species or Phase 1A Package B of the Ane interest to engage in discussions with proposed critical habitat. This history Keohokalole Highway (USFWS 2010b, the Service regarding conservation of indicates the potential for a future in litt.). As a result of that consultation, key habitats on their property. The Federal nexus on these lands that could SCD–TSA Kaloko Makai LLC agreed to Kaloko Entities also noted that all trigger section 7 consultation on effects set aside 150 ac (61 ha) of this area as development plans for the Kaloko Makai to critical habitat. In addition, a future a dryland forest reserve and participate Development have been deferred with residential project planned for in implementing conservation measures the transfer of ownership of those lands development on the 91 ac (30 ha) of as a condition for issuance of a county from SCD–TSA Kaloko Makai LLC and DHHL lands at Kalaoa in proposed grading permit. SCD–TSA Kaloko Makai Kaloko Properties Corporation to Kaloko Hawaii—Lowland Dry—Unit 33 is likely LLC worked cooperatively with FHWA Residential Park LLC (Mukai 2016, in to involve a Federal nexus (DHHL 2002, and the County of Hawaii by providing litt.). pp. 25–26). However, as discussed access to its lands for implementation of In October 2016, the Kaloko Entities below under Benefits of Exclusion FHWA-funded conservation actions in entered into a MOU with the Service Outweigh the Benefits of Inclusion, we the 150-ac (61-ha) set-aside. The FHWA wherein they agreed to implement determined that the benefits of conservation measures that addressed important conservation actions excluding these lands from critical impacts of construction of the portion of beneficial to Bidens micrantha ssp. habitat outweigh the benefits that may Ane Keohokalole Highway from ctenophylla, Isodendrion pyrifolium, be derived from this potential Federal Kealakehe Parkway to Hina Lani Street and Mezoneuron kavaiense, as well as nexus. ended in 2015. other rare and endangered plant species

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and their habitat in the lowland dry can be modified in the future in benefits that may be derived from this ecosystem (Memorandum of response to new information. Kaloko potential Federal nexus. Understanding between Kaloko Entities Entities’ history of conservation actions, Lanihau Properties and U.S. Department of Interior Fish their cooperation in the development and Wildlife Service 2016, entire). The and finalization of the MOU, and their In this final designation, the Secretary MOU established a partnership between initial steps to implement the MOU give has exercised his discretion to exclude Kaloko Entities and the Service to the Service a reasonable expectation 47 ac (19 ha) of lands from critical benefit the recovery of endangered that the conservation management habitat, under section 4(b)(2) of the Act, species and their habitats for the next 26 strategies and actions contained in the that are owned by Lanihau Properties. years. Kaloko Entities previously agreed MOU will continue to be implemented. These lands fall within a portion of the 961 ac (389 ha) proposed as critical to set aside 150 ac (61 ha) as a preserve Because critical habitat designation habitat in Hawaii— Lowland Dry—Unit to benefit the conservation of 10 rare provides regulatory protection against 34 (77 FR 63928, October 17, 2012), and endangered plant and animal Federal actions that are found likely to have documented presence of Bidens species and the lowland dry ecosystem. destroy or adversely modify critical micrantha ssp. ctenophylla, and are In the 2016 MOU, Kaloko Entities habitat, we looked at the section 7 considered essential to the conservation committed to pursuing protection of the consultation history on these Kaloko of Isodendrion pyrifolium and preserve in perpetuity via transfer or Entities lands. According to our records, Mezoneuron kavaiense. Lanihau donation of the preserve to a third party. between 2007 and 2016, there were two Kaloko Entities will also construct a Properties has demonstrated their informal consultations regarding willingness to work as a conservation fence to exclude ungulates from the projects receiving Federal funding on preserve. The MOU includes a partner by undertaking site management Kaloko Entities lands. In 2008, the that provides important conservation commitment from Kaloko Entities to Service concluded that the construction provide $2,000,000 towards the benefits to the native Hawaiian species of the Kaloko Transitional Housing that depend upon the lowland dry implementation of on-site conservation Project funded by HUD on lands actions that will benefit the recovery of ecosystem habitat. These actions previously owned TSA Corporation was include a voluntary conservation the three plant species and the lowland not likely to adversely affect listed dry ecosystem. Conservation actions partnership and a conservation MOU species or critical habitat. In 2010, the with the Service and ongoing site- include fence maintenance, the second consultation (discussed earlier specific management on their lands for establishment of fire breaks, weeding, in this summary) involved construction the conservation of rare and endangered outplanting, irrigation, ungulate of Phase 1A Package B of Ane species and their habitats. We have removal, monitoring, and associated Keohokalole Highway funded by the determined that the benefits of activities (including necessary staking FHWA, and incorporated measures to excluding these lands owned by and soil surveys) to conserve covered minimize impacts to the endangered Lanihau Properties outweigh the species, additional species, and dry plants, Nothocestrum breviflorum, benefits of including them in critical forest ecosystem within the preserve. Mezoneuron kavaiense, Neraudia ovata, habitat for Bidens micrantha ssp. The plan contains a monitoring program and Chrysodracon (Pleomele) ctenophylla, Isodendrion pyrifolium, to ensure that the conservation hawaiiensis, and the (at that time) and Mezoneuron kavaiense. measures are effective and can be candidate Bidens micrantha ssp. Lanihau Properties, LLC, and its modified in the future in response to ctenophylla on lands owned by Kaloko affiliates the Palani Ranch Company and new information. Kaloko Entities’ Properties Corporation and Stanford the Kaumalumalu, LCC (collectively protection of the lowland dry forest Carr Development. This consultation with Lanihau Properties called the species and habitat through their MOU resulted in the 150-ac (61-ha) short-term ‘‘Lanihau Group’’) manage certain lands with the Service will provide for the set-aside (facilitated by the County) in the district of North Kona, on Hawaii conservation of Mezoneuron kavaiense, protected from development, and Island. Subsequent to the publication of Bidens micrantha ssp. ctenophylla, and $500,000 committed by FHWA for the October 17, 2012, proposed critical Isodendrion pyrifolium, and the conservation actions in the set-aside habitat rule (77 FR 63928), Lanihau physical or biological features that are over a 5-year period ending in 2015. Properties participated in a series of essential to their conservation. Based on the above conservation collaborative meetings along with the Implementation has already been measures, we concurred that this project Service, County of Hawaii, DHHL, initiated on the following action agreed was not likely to adversely affect listed DLNR, and other stakeholders in to in the MOU: Provide funding towards species or existing critical habitat. This Hawaii—Lowland Dry—Units 31, 33, the implementation of on-site history, as well as the planned future 34, and 35, to address species protection conservation actions. extension of the Ane Keohokalole and recovery, and development on a As discussed above, Kaloko Entities’ Highway discussed in the FEA (IEc regional scale. These discussions protection of the lowland dry forest 2016, p. 2–8), indicates the potential for resulted in a cooperative approach to species and habitat through the 2010 a future Federal nexus on these lands setting aside acreage adjacent to other section 7 consultation by the FHWA has that could trigger section 7 consultation landowners in order to protect larger provided for the conservation of on effects to critical habitat, although areas of contiguous habitat from Mezoneuron kavaiense, Bidens the presence of Bidens micrantha ssp. development. micrantha ssp. ctenophylla, and ctenophylla and Mezoneuron kavaiense In 2014, Lanihau Properties entered Isodendrion pyrifolium on Kaloko on these lands would trigger a section into a MOU with the Service wherein Entities lands. The 2016 MOU with the 7 consultation on effects to the species they agreed to implement important Service includes a commitment to fund even without a critical habitat conservation actions beneficial to $2,000,000 towards the implementation designation. As discussed below under Bidens micrantha ssp. ctenophylla, of conservation actions in the preserve. Benefits of Exclusion Outweigh the Isodendrion pyrifolium, and The effort includes an annual progress Benefits of Inclusion, we determined Mezoneuron kavaiense, as well as other evaluation to ensure that the that the benefits of excluding these rare and endangered plant species and conservation measures are effective and lands from critical habitat outweigh the their habitat in the lowland dry

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ecosystem (Memorandum of Properties lands. According to our include a voluntary conservation Understanding between Lanihau records, between 2007 and 2016, there partnership and conservation agreement Properties and U.S. Department of was one informal consultation finalized with the Service and ongoing site- Interior Fish and Wildlife Service 2014, in 2010 regarding projects receiving specific management on their lands for entire). Lanihau Properties agreed to set Federal funding on Lanihau Properties the conservation of rare and endangered aside and not undertake development in lands. The consultation involved species and their habitats. We have an approximately 16-ac (6-ha) area, construction of Phase 1A Package B of determined that the benefits of adding 11.4 ac (4.6 ha) to 4.6 ac (1.9 ha) Ane Keohokalole Highway funded by excluding these lands managed by the previously set aside as a dryland forest the FHWA and incorporated measures County outweigh the benefits of reserve as a condition for issuance of a to minimize impacts to the endangered including them in critical habitat for county grading permit associated with plants, Nothocestrum breviflorum, Bidens micrantha ssp. ctenophylla, the construction of Phase 1A Package B Mezoneuron kavaiense, Neraudia ovata, Isodendrion pyrifolium, and of the Ane Keohokalole Highway and Chrysodracon (Pleomele) Mezoneuron kavaiense. (USFWS 2010, in litt.), and to work hawaiiensis, and the (at that time) The County of Hawaii owns or cooperatively with the Service to allow candidate Bidens micrantha ssp. manages over 10,000 ac (4,047 ha) on entry access and work by the Service (or ctenophylla on lands owned by Lanihau Hawaii Island and is pursuing the entities working under contract, grant, Properties and Stanford Carr development of a regional park on 193 or cooperative agreement with the Development. This consultation ac (78 ha) in Kealakehe, North Kona, Service including the County of Hawaii) resulted in 150-ac (61-ha) set-aside Hawaii Island. In 2011, the Governor of to conduct activities in the no- (facilitated by the County) protected the State of Hawaii set aside these 193 development area expected to benefit from development, and $500,000 ac (78 ha) from the DLNR to be under the conservation of the three species committed by FHWA for conservation the control and management of the and the lowland dry ecosystem for the actions in the 150-ac (61-ha) set-aside County for the purposes of wastewater next 20 years. Conservation measures over 5 years. Based on the above reclamation, a golf course, and/or a that the Service may undertake in the conservation measures, we concurred public park (Governor’s Executive Order no-development area include: (1) that this project was not likely to No. 4355). Fencing to exclude ungulates; (2) adversely affect listed species or The County has been voluntarily control of nonnative plant species; (3) existing critical habitat. While this cooperating with the Service in the outplanting of Bidens micrantha ssp. history indicates a small potential for a conservation of rare and endangered ctenophylla, Isodendrion pyrifolium, future Federal nexus on these lands that species and their habitats for several and Mezoneuron kavaiense, as well as could trigger the consideration of years. In 2010, in association with their other rare and common native plant adverse modification or destruction of management of the construction of species; and (4) provision of critical habitat through section 7 Phase 1A Package B of the Ane supplemental water to outplanted consultation, the presence of Bidens Keohokalole Highway by the FWHA, the individuals, and other actions pre- micrantha ssp. ctenophylla these lands County helped negotiate protection from approved by the Lanihau Properties. would trigger a section 7 consultation development of over 150 ac (61 ha) of Implementation has already been on effects to the species even without a lowland dry ecosystem habitat in the initiated on the following action agreed critical habitat designation. As Kaloko dry forest known to contain to in the MOU: Set aside and not discussed below under Benefits of numerous listed plant species (USFWS undertake development in an Exclusion Outweigh the Benefits of 2010, in litt.). This project did not approximately 16-ac (6-ha) area of lands Inclusion, we determined that the involve County lands, but the land has under its management. benefits of excluding these lands from since come under County management As discussed above, Lanihau critical habitat outweigh the benefits through an easement. Subsequent to the Properties’ protection of the lowland that may be derived from this potential publication of the October 17, 2012, dry forest species and habitat through Federal nexus. proposed rule, the County participated their 2014 MOU with the Service will in a series of collaborative meetings provide for the conservation of County of Hawaii with the Service, DHHL, DLNR, and Mezoneuron kavaiense, Bidens In this final designation, the Secretary other stakeholders in Hawaii—Lowland micrantha ssp. ctenophylla, and has exercised his authority to exclude Dry—Units 31, 33, 34, and 35, to Isodendrion pyrifolium, and the from critical habitat lands owned by the address species protection and recovery, physical or biological features that are State of Hawaii that are under and development on a regional scale. essential to their conservation. In light management of the County of Hawaii (or These discussions resulted in a of their prior conservation efforts and County), totaling 165 ac (67 ha). These cooperative approach to setting aside the fact that they have begun lands fall within a portion of the 1,192 acreage adjacent to other landowners in implementation of the 2014 MOU, there ac (485 ha) proposed as critical habitat order to protect larger areas of is a reasonable expectation that the in Hawaii—Lowland Dry—Unit 35 (77 contiguous habitat from development. conservation management strategies and FR 63928; October 17, 2012), have In 2015, the County entered into an actions contained in the MOU will documented presence of Mezoneuron MOU with the Service wherein they continue to be implemented. The plan kavaiense, and are considered essential agreed to implement important contains a monitoring program to ensure to the conservation of Bidens micrantha conservation actions beneficial to that the conservation measures are ssp. ctenophylla and Isodendrion Bidens micrantha ssp. ctenophylla, effective and can be modified in the pyrifolium. The County has Isodendrion pyrifolium, and future in response to new information. demonstrated their willingness to work Mezoneuron kavaiense, as well as other Because critical habitat designation as a conservation partner by rare and listed plant species and their provides regulatory protection against undertaking site management that habitat in the lowland dry ecosystem Federal actions that are found likely to provides important conservation (Memorandum of Understanding destroy or adversely modify critical benefits to the native Hawaiian species Between County of Hawaii and U.S. habitat, we looked at the section 7 that depend upon the lowland dry Department of Interior Fish and Wildlife consultation history on these Lanihau ecosystem habitat. These actions Service 2015, entire). The County agreed

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to set aside and not develop conservation measures are effective and determined that the benefits of approximately 30 ac (12 ha) of lands can be modified in the future in excluding these lands managed by under its management, and conduct response to new information. HHFDC outweigh the benefits of conservation actions valued at $1.534 Because critical habitat designation including them in critical habitat for million on a total of 50.1 ac (20.3 ha) to provides regulatory protection against Bidens micrantha ssp. ctenophylla, benefit the recovery of the three plant Federal actions that are found likely to Isodendrion pyrifolium, and species, as well as other rare and listed destroy or adversely modify critical Mezoneuron kavaiense. plant species and their habitat in the habitat, we looked at the section 7 The HHFDC was established in 2006, lowland dry ecosystem, over the next 20 consultation history on these County and is tasked with developing and years. The 50.1 ac (20.3 ha) where lands. According to our records, financing low- and moderate-income conservation actions will occur includes between 2007 and 2016, there was one housing projects and administering 30 ac (12 ha) managed by the County, informal consultation conducted homeownership programs. The HHFDC 4.2 ac (1.7 ha) managed by HHFDC, and regarding a project receiving Federal has the development rights to a 36.6-ac 15.9 ac (6.4 ha) owned by Lanihau funding on lands under management of (14.8-ha) parcel, Tax Map Key (3) 7–4– Properties. Of the total 30 ac (12 ha) of the County. In 2013, the FHWA 020: 004, of Village 9 at the former County land protected from consulted with the Service regarding the Villages of Laiopua project in development, 22 ac (8.9 ha) are adjacent widening of Queen Kaahumanu Kealakehe, North Kona, Hawaii; to the 4.2 ac (1.7 ha) set aside by the Highway, adjacent to Kaloko- approximately 30 ac (12 ha) of this HHFDC and another 21.7 ac (8.8 ha) set Honokohau NHP in Kailua-Kona, parcel was proposed as critical habitat aside by DHHL; these three areas Hawaii. The Service concurred the (77 FR 63928; October 17, 2012). In together create approximately 47.9 proposed project was not likely to 2012, the Hawaii State Judiciary contiguous acres (19.4 ha) protected for adversely affect listed species or selected a 10-ac (4-ha) portion of the the conservation of the three species designated critical habitat, including parcel as the future site of the Kona and the lowland dry ecosystem. The proposed critical habitat delineated by Judiciary Complex; however, during the remaining 8 ac (3.2 ha) of County set- Hawaii—Lowland Dry—Unit 35. While extended due diligence process, surveys aside are located within the proposed this history indicates there is a small detected the presence of the endangered Kealakehe Regional Park and adjacent to potential for a future Federal nexus on Mezoneuron kavaiense within the an existing 3.4-ac (1.4-ha) preserve these lands that could trigger the HHFDC parcel, which led to the managed by the County but owned by consideration of adverse modification or decision to pursue development of the the Hawaiian DLNR. Because the destruction of critical habitat through Judiciary Complex at another location conservation actions will occur in some section 7 consultation, the presence of (Hawaii State Judiciary 2013, in litt.; areas jointly managed by the County Mezoneuron kavaiense on these lands Hawaii State Judiciary 2014, in litt.). Subsequent to the publication of the and other agencies or at offsite would trigger a section 7 consultation October 17, 2012, proposed rule (77 FR locations, the County will work on effects to the species even without a 63928), the HHFDC, in partnership with cooperatively and in partnership with critical habitat designation. As the Service, County of Hawaii, DHHL, these landowners. These conservation discussed below in our summary of DLNR, and other stakeholders in actions include: (1) Fencing to exclude benefits of exclusion outweighing the Hawaii—Lowland Dry—Units 31, 33, ungulates; (2) control and prevention of benefits of inclusion, by landowner, we determined that the benefits of 34, and 35, participated in a series of the threat of fire; (3) control of excluding these lands from critical meetings to address species protection nonnative plant species; and (4) other habitat outweigh the benefits that may and recovery, and development on a management actions expected to benefit be derived from this potential Federal regional scale. These discussions the recovery of listed plant species and nexus. resulted in a cooperative approach to the lowland dry ecosystem. setting aside acreage adjacent to other Implementation has already been Hawaii Housing Finance and landowners in order to protect larger initiated on the following action agreed Development Corporation (HHFDC) areas of contiguous habitat from to in the MOU: Set aside and not In this final designation, the Secretary development. develop approximately 30 ac (12 ha) of has exercised his authority to exclude In 2016, the HHFDC entered into an lands under its management. The from critical habitat lands owned by the MOU with the Service wherein they County continues to meet with the State of Hawaii that are under agreed to implement important Service to implement the MOU. management of the HHFDC totaling 30 conservation actions beneficial to the As discussed above, the County’s ac (12 ha). These lands fall within a three species, as well as other rare and protection of the lowland dry forest portion of the 1,192 ac (485 ha) listed plant species and their habitat in species and habitat through their 2015 proposed as critical habitat in Hawaii— the lowland dry ecosystem MOU with the Service will provide for Lowland Dry—Unit 35 (77 FR 63928; (Memorandum of Understanding the conservation of Mezoneuron October 17, 2012), have documented Between Hawaii Housing Finance and kavaiense, Bidens micrantha ssp. presence of Mezoneuron kavaiense, and Development Corporation and U.S. ctenophylla, and Isodendrion are considered essential to the Department of Interior Fish and Wildlife pyrifolium, and the physical or conservation of Bidens micrantha ssp. Service 2016, entire). The HHFDC biological features that are essential to ctenophylla and Isodendrion pyrifolium. agreed to set aside and not develop their conservation. In light of their prior The HHFDC is a new conservation approximately 4.2 ac (1.7 ha) of lands conservation efforts and the fact that partner with a willingness to engage in under its management (at the site of the they have begun implementation of the ongoing management programs that proposed Village 9 at Laiopua) to 2015 MOU, there is a reasonable provide important conservation benefits provide protection and management for expectation that the conservation to Bidens micrantha ssp. ctenophylla, one of the seven remaining mature management strategies and actions Isodendrion pyrifolium, and individuals of Mezoneuron kavaiense in contained in the MOU will continue to Mezoneuron kavaiense, and their proposed Unit 35, as well as other rare be implemented. The plan contains a habitat, as well as to other rare and and listed plant species and their monitoring program to ensure that the federally listed species. We have habitat in the lowland dry ecosystem,

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over the next 20 years. The 4.2 ac (1.7 Forest City Hawaii Kona LLC (Forest ecosystem (Memorandum of ha) protected from development by the City Kona) Understanding between Forest City HHFDC are adjacent to the 22 ac (8.9 ha) In this final designation, the Secretary Kona and U.S. Department of Interior set aside by the County and another 21.7 has exercised his discretion to exclude Fish and Wildlife Service 2016, entire). ac (8.8 ha) set aside by the DHHL; these 265 ac (107 ha) of lands from critical Forest City Kona agreed to set aside and three areas together create habitat, under section 4(b)(2) of the Act, not undertake development in two approximately 47.9 contiguous acres that are owned by Forest City Kona. areas, totaling 20 ac (8 ha), and to work (19.4 ha) protected for the conservation These lands fall within a portion of the cooperatively with the Service or of the three species and the lowland dry 1,192 ac (485 ha) proposed as critical approved conservation partners to ecosystem. Because the conservation habitat in Hawaii—Lowland Dry—Unit conduct activities expected to benefit actions will occur in some areas jointly 35 (77 FR 63928, October 17, 2012), the conservation of the three species managed by the HHFDC and other have documented presence of Bidens and the lowland dry ecosystem in these agencies, the HHFDC will work micrantha ssp. ctenophylla, and are areas for the next 20 years. In the larger cooperatively and in partnership with considered essential to the conservation of the two areas, 12 ac (5 ha) in size, these landowners and the Service. of Isodendrion pyrifolium and Forest City Kona will fence and maintain a firebreak around the These conservation actions include: (1) Mezoneuron kavaiense. Forest City perimeter. The MOU’s conservation Fencing to exclude ungulates; (2) Kona is a new conservation partner with actions include installation of control and prevention of the threat of a willingness to engage in ongoing management programs that provide maintenance of fencing to exclude fire; (3) control of nonnative plant ungulates, the installation and species; and (4) other management important conservation benefits to Bidens micrantha ssp. ctenophylla, maintenance of a firebreak, and control actions expected to benefit the recovery of nonnative plant species. The MOU of listed plant species and the lowland Isodendrion pyrifolium, and Mezoneuron kavaiense and their includes an agreement by Forest City dry ecosystem. Implementation has Kona to provide $500,000 towards the already been initiated on the following habitat, as well as to other rare and federally listed species. We have implementation of on-site or off-site action agreed to in the MOU: set aside conservation actions within the North and not develop approximately 4.2 ac determined that the benefits of excluding lands owned by Forest City Kona region that will benefit the (1.7 ha) of lands under its management. Kona outweigh the benefits of including recovery of the three plant species and The HHFDC continues to meet with the them in critical habitat for Bidens the lowland dry ecosystem. These Service to implement the MOU. micrantha ssp. ctenophylla, Isodendrion actions may include additional fencing, As discussed above, HHFDC’s pyrifolium, and Mezoneuron kavaiense. firebreaks, and weeding, as well as protection of the lowland dry forest Forest City Kona is a wholly owned propagation, outplanting, and care of species and habitat through their 2016 subsidiary of the national real estate Bidens micrantha ssp. ctenophylla, MOU with the Service will provide for company, Forest City Enterprises, Inc. Isodendrion pyrifolium, and the conservation of Mezoneuron Forest City Kona was selected by the Mezoneuron kavaiense, and other rare kavaiense, Bidens micrantha ssp. HHFDC to be the developer of the and common native plant species. ctenophylla, and Isodendrion Kamakana Villages housing project on Implementation has already been pyrifolium, and the physical or approximately 272 ac (110 ha) in initiated on the following actions agreed biological features that are essential to Keahuolu, North Kona district, Hawaii to in the MOU: (1) Set aside and not their conservation. In light of their prior Island (James 2012, in litt.). The undertake development in two areas, conservation efforts and the fact that Kamakana Villages project is planned to totaling 20 ac (8 ha) of lands under its they have begun implementation of the consist of residential (50 percent management; and (2) provide funding 2016 MOU, there is a reasonable affordable housing), commercial, mixed- towards the implementation of on-site or off-site conservation actions within expectation that the conservation use, parks, open space, archaeological the North Kona region to conserve and management strategies and actions preserves, and schools. Subsequent to recover the three plant species and the contained in the MOU will continue to the publication of the October 17, 2012, lowland dry ecosystem. Forest City be implemented. The plan contains a proposed critical habitat rule (77 FR Kona continues to meet with the Service monitoring program to ensure that the 63928), Forest City Kona participated in to implement the MOU. conservation measures are effective and a series of collaborative meetings with can be modified in the future in the Service, DHHL, DLNR, and other As discussed above, Forest City response to new information. stakeholders in Hawaii—Lowland Dry— Kona’s protection of the lowland dry Units 31, 33, 34, and 35, to address forest species and habitat through their Because critical habitat designation species protection and recovery, and 2016 MOU with the Service will provides regulatory protection against development on a regional scale. These provide for the conservation of Federal actions that are found likely to discussions resulted in a cooperative Mezoneuron kavaiense, Bidens destroy or adversely modify critical approach to setting aside acreage micrantha ssp. ctenophylla, and habitat, we looked at the section 7 adjacent to other landowners in order to Isodendrion pyrifolium, and the consultation history on these lands protect larger areas of contiguous habitat physical or biological features that are managed by HHFDC lands. According to from development. essential to their conservation. In light our records, between 2007 and 2016, In 2016, Forest City Kona entered into of their prior conservation efforts and there were no section 7 consultations a MOU with the Service and HHFDC the fact that they have begun conducted for projects on these HHFDC wherein they agreed to implement implementation of the 2016 MOU, there lands, indicating little likelihood of a important conservation actions is a reasonable expectation that the future Federal nexus on these lands that beneficial to Bidens micrantha ssp. conservation management strategies and would potentially trigger the ctenophylla, Isodendrion pyrifolium, actions contained in the MOU will consideration of adverse modification or and Mezoneuron kavaiense, as well as continue to be implemented. The plan destruction of critical habitat through other rare and listed plant species and contains a monitoring program to ensure section 7 consultation. their habitat in the lowland dry that the conservation measures are

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effective and can be modified in the propagation of two endangered plants, invasive species. The QLT continues to future in response to new information. Isodendrion pyrifolium and Neraudia spend over $12,000 per year to control Because critical habitat designation ovata, in order to secure genetic invasive species, such as fountain grass provides regulatory protection against material in ex situ (off-site) storage and (Pennisetum setaceum) and haole koa Federal actions that are found likely to provide individuals of each species for (Leucaena leucocephala). Other destroy or adversely modify critical reintroduction or restoration projects. significant expenditures include funds habitat, we looked at the section 7 The Service and the QLT each spent on security in response to consultation history on these Forest City contributed $10,000 toward the trespassing and vandalism on its Kona Kona lands. According to our records, completion of this project. The QLT lands (QLT 2013, in litt.). between 2007 and 2016, there were no voluntarily contributed additional funds As discussed above, QLT’s protection section 7 consultations conducted for toward purchase of an all-terrain of the lowland dry forest species and projects on these Forest City Kona vehicle, fencing to exclude ungulates, habitat through their 2014 MOU with lands, indicating little likelihood of a and construction of a greenhouse, and the Service will provide for the future Federal nexus on these lands that renewed and extended the 2004 conservation of Mezoneuron kavaiense, would potentially trigger the agreement through 2007. The QLT also Bidens micrantha ssp. ctenophylla, and consideration of adverse modification or initiated management of outplanting Isodendrion pyrifolium, and the destruction of critical habitat through sites, installed irrigation, and conducted physical or biological features that are section 7 consultation. reintroduction of select native species. essential to their conservation. In light In February 2014, the QLT entered of their prior conservation efforts and Queen Liliuokalani Trust (QLT) into a MOU with the Service wherein the fact that they have begun In this final designation, the Secretary they agreed to implement important implementation of the 2014 MOU, there has exercised his discretion to exclude conservation actions beneficial to is a reasonable expectation that the 302 ac (122 ha) of lands from critical Bidens micrantha ssp. ctenophylla, conservation management strategies and habitat, under section 4(b)(2) of the Act, Isodendrion pyrifolium, and actions contained in the MOU will that are owned by QLT. These lands fall Mezoneuron kavaiense, as well as other continue to be implemented. The plan within a portion of the 1,192 ac (485 ha) rare and listed plant species and their contains a monitoring program to ensure proposed as critical habitat in Hawaii— habitat in the lowland dry ecosystem that the conservation measures are Lowland Dry—Unit 35 (77 FR 63928, (Memorandum of Understanding effective and can be modified in the October 17, 2012), have no documented between Queen Liliuokalani Trust and future in response to new information. presence of Bidens micrantha ssp. U.S. Department of Interior Fish and Because critical habitat designation ctenophylla, Isodendrion pyrifolium, or Wildlife Service 2014, entire). The provides regulatory protection against Mezoneuron kavaiense, but are management program will be Federal actions that are found likely to considered essential to the conservation implemented within a portion of an destroy or adversely modify critical of all three. The QLT is a proven already existing 25-ac (10-ha) Historic habitat, we looked at the section 7 conservation partner, as demonstrated, Preserve Area for a period of 20 years consultation history on these QLT in part, by their history of conservation and includes: (1) Fencing to exclude lands. According to our records, programs and site management that ungulates; (2) control and prevention of between 2007 and 2016, there were no provide important conservation benefits the threat of fire; (3) propagation and consultations conducted regarding to federally listed plants and their outplanting of Bidens micrantha ssp. projects receiving Federal funding on habitat. These programs include a ctenophylla, Isodendrion pyrifolium, these QLT lands, indicating little voluntary conservation agreement with and Mezoneuron kavaiense, as well as likelihood of a future Federal nexus on the Service dating back to 2004 under six other rare or listed plant species; (4) these lands that would potentially the Service’s Partners for Fish and weed control; (5) watering and trigger the consideration of adverse Wildlife Program, outplanting and site maintenance of outplanted individuals; modification or destruction of critical maintenance for federally listed species, (6) monitoring and reporting; (7) habitat through section 7 consultation. and the initiation of a service learning analysis of success criteria; and (8) Our DEA and FEA identified one program to engage the public in adaptive management. To date, they anticipated future project slated for conservation actions. We have have installed exclusion fencing around development on QLT lands; however, determined that the benefits of the Historic Preserve Area and have the Trust’s project is unlikely to involve excluding these lands owned by QLT begun implementation of their intensive the use of Federal funding or require outweigh the benefits of including them management program. The QLT also Federal permitting, and, therefore, in critical habitat for Bidens micrantha agreed to set aside and not undertake section 7 consultation is unlikely (IEc ssp. ctenophylla, Isodendrion development in a separate 28-ac (11-ha) 2016, p. 2–12). The Benefits of Inclusion pyrifolium, and Mezoneuron kavaiense. area and work cooperatively with the and Exclusion The mission of the Queen Service or other conservation partners to Benefits of Inclusion—We find there Liliuokalani Trust, founded in 1909, is conduct activities such as those are minimal benefits to including the to provide services to benefit orphaned mentioned above to benefit the areas described above in critical habitat. and destitute Hawaiian children and conservation of the three species and As discussed earlier in this document, their families. On Hawaii Island, QLT the lowland dry ecosystem. This area the primary effect of designating any properties total approximately 6,200 ac will be available for the conservation particular area as critical habitat is the (2,509 ha), including the nearly intact, and propagation efforts for the three requirement for Federal agencies to 3,400-ac (1,376-ha) ahupua‘a of species and other listed and rare species consult under section 7 of the Act to Keahuolu¯ u in Kona, and the 2,800 ac of the lowland dry ecosystem. ensure actions they carry out, authorize, (1,133 ha) of agricultural and In addition to the agreements detailed or fund do not destroy or adversely conservation lands of Honohina on the above, the QLT developed a culturally modify designated critical habitat. In windward side. In 2004, the QLT and place-based service learning areas where a federally listed species is entered into an agreement with the program that has involved over 1,300 likely present, Federal agencies are Service’s Partners for Fish and Wildlife beneficiaries, school groups, and other obligated under section 7 of the Act to Program to conduct research on the community members in removing consult with us on actions that may

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affect that species to ensure that such conservation of Mezoneuron kavaiense, same, any additional conservation that actions are not likely to jeopardize the Bidens micrantha ssp. ctenophylla, and could be attained through the section 7 species’ continued existence. This Isodendrion pyrifolium, and in 2015 prohibition on adverse modification requirement to consult to ensure Federal DHHL entered into an MOU with the analysis would not likely be significant actions are not likely to jeopardize Service in which DHHL agreed to in this case because of the consultation federally listed species in the area in preserve a total of approximately 97 ac history. Most of the excluded areas in question operates regardless of critical (39 ha) of land for the conservation and this rule are occupied by Bidens habitat. In areas where listed species are recovery of Bidens micrantha ssp. micrantha ssp. ctenophylla, Isodendrion not likely present, section 7 ctenophylla, Isodendrion pyrifolium, pyrifolium, or Mezoneuron kavaiense, consultation may not be triggered by a and Mezoneuron kavaiense, and their and, therefore, in all seven previous Federal action unless critical habitat is lowland dry ecosystem. In addition, consultations a jeopardy analysis was designated. Thus the benefit of critical under the MOU, DHHL agreed to install completed and recommendations for habitat may potentially be greater in and maintain a fence around the offsetting adverse impacts to habitat unoccupied areas, since consultation preserve lands and to construct and were incorporated into the projects. may be triggered solely by the critical maintain a firebreak around the fence, Furthermore, the State of Hawaii habitat designation. An evaluation of control nonnative plant species, prohibits take of any federally listed our consultation history on the island of conduct out-planting, weed and endangered or threatened plants (HRS Hawaii demonstrates that there is some maintain the area, and conduct other section 195D–4). Violation of this State potential for a Federal nexus resulting related conservation activities. As law can result in a misdemeanor in a section 7 consultation, as has discussed above, implementation of this conviction with both criminal fines and occurred nine times in the last 9 years MOU has been initiated. For these administrative fines that graduate for (2007 to 2016) for actions in the reasons, we believe that the MOU subsequent convictions. This excluded areas; however, the minimizes the benefits of designating prohibition may lessen the benefit of a consultations were all informal, and the the 91 ac (37 ha) of DHHL lands in critical habitat designation on these Service concurred in each case that the Hawaii—Lowland Dry—Unit 33 for lands that are occupied by Bidens action was not likely to adversely affect Bidens micrantha ssp. ctenophylla, micrantha ssp. ctenophylla, Isodendrion the listed species or any critical habitat Isodendrion pyrifolium, and pyrifolium, and/or Mezoneuron within the project area, in some cases Mezoneuron kavaiense. kavaiense. due to conservation measures included If a future Federal nexus were to The existing conservation programs in the project. occur for an action taking place within being implemented by these landowners In areas of critical habitat unoccupied an area occupied by one or more listed also may reduce the regulatory benefits by but essential to a species, such as species, section 7 consultation would of critical habitat. The designation of QLT-owned lands and the portion of already be triggered by the presence of critical habitat carries no requirement DHHL-owned lands in Hawaii— the species, and the Federal agency that non-Federal landowners undertake Lowland Dry—Unit 33, critical habitat would consider the effects of its actions any proactive conservation measures, designation can provide a conservation on the species through a jeopardy for example with regard to the benefit because Federal agencies are analysis. Because one of the primary maintenance, restoration, or required to consult with the Service to threats to these species is habitat loss enhancement of habitat for listed ensure that their actions are not likely and degradation, the consultation species. Any voluntary action by a non- to destroy or adversely modify critical process will, in evaluating the effects to Federal landowner that contributes to habitat, and conservation measures are these species, evaluate the effects of the the maintenance, restoration, or subsequently recommended for action on the conservation or function enhancement of habitat is, therefore, a offsetting adverse project impacts to of the habitat for the species regardless valuable benefit to the listed species. habitat. However, in these two of whether critical habitat is designated The benefits of overlaying a designation particular cases, the likelihood that for these lands. As noted in our FEA of critical habitat may be further conservation benefits would be gained (IEc 2016, p. 1–7), the Service’s reduced by the fact that the from a critical habitat adverse recommendations for offsetting adverse development and implementation of modification analysis is very limited. project impacts to habitat that is management plans covering portions of There is no history of section 7 occupied by a listed bird, invertebrate, these excluded lands increase the consultations on the excluded QLT or plant species under the jeopardy accessibility necessary for surveys or lands over the last 9 years, and the only standard are often the same as monitoring designed to promote the future development project expected on recommendations we would make to conservation of these federally listed these lands is unlikely to involve the offset adverse impacts to critical habitat, plant species and their habitat. We have use of Federal funding or require with the exception of the conservation evaluated each of the conservation plans Federal permitting and, therefore, project’s location. As a consequence of below to determine the appropriate would not have a Federal nexus that shared threats and habitat requirements, weight that should be given to the plans would trigger a consultation (IEc 2016, any potential project modifications to in reducing the benefits of critical p. 2–13). provide for the conservation of one of habitat. With respect to the unoccupied these species would likely be the same Another potential benefit of including portions of DHHL lands in Hawaii— as modifications requested for the lands in a critical habitat designation is Lowland Dry—Unit 33, although there others; thus, there would be little if any that the designation can serve to educate is no history of section 7 consultations, benefit from additional section 7 landowners, State and local government there is a future development project consultation for those species for which agencies, and the public regarding the proposed for these 91 ac (37 ha) that an area is designated as unoccupied but potential conservation value of an area, would likely have a Federal nexus. essential critical habitat for a species and may help focus conservation efforts However, the DHHL has a strong history when it is also designated as occupied on areas of high conservation value for of implementation in the development habitat for one of the other species. certain species. Any information about and management of the preserves at Although the standards for jeopardy Bidens micrantha ssp. ctenophylla, Kealakehe that have provided for the and adverse modification are not the Isodendrion pyrifolium, and

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Mezoneuron kavaiense and their habitat demonstrated by their ongoing imposition of government regulation. that reaches a wider audience, including conservation efforts and participation in According to some researchers, the parties engaged in conservation conservation agreements. Several designation of critical habitat on private activities, is valuable. However, in the landowners have a history of lands significantly reduces the case of all the lands excluded from this conservation efforts that date back many likelihood that landowners will support designation, the educational value of years. Also, three of the landowners and carry out conservation actions critical habitat is limited because the (Kamehameha Schools, WVA, and QLT) (Main et al. 1999, p. 1,263; Bean 2002, conservation value of these lands to conduct public outreach and education p. 2). The magnitude of this negative Bidens micrantha ssp. ctenophylla, programs that engage the public in outcome is greatly amplified in Isodendrion pyrifolium, and conservation awareness. Therefore, for situations where active management Mezoneuron kavaiense is well the lands excluded from this measures (such as reintroduction, fire recognized through extensive designation, the benefit of critical management, and control of invasive coordination and outreach with State habitat in terms of education is reduced. species) are necessary for species and local government agencies and the There is a long history of critical conservation (Bean 2002, pp. 3–4). We public after critical habitat was habitat designation in Hawaii, and believe the judicious exclusion of proposed. neither the State nor county specific areas of non-federally owned During 2012, the Service held jurisdictions have ever initiated their lands from critical habitat designation multiple informational meetings with own additional requirements in areas can contribute to species recovery and the DHHL, DLNR, HHFDC, QLT, Forest because they were identified as critical provide a superior level of conservation City Kona, other nongovernmental habitat. Therefore, based on this history, than critical habitat. Therefore, we organizations (NGOs) and private we believe this potential benefit of consider the positive effect of excluding landowners, about the proposed critical critical habitat is limited. active conservation partners from habitat for Bidens micrantha ssp. Benefits of Exclusion—The benefits of critical habitat to be a significant benefit ctenophylla, Isodendrion pyrifolium, excluding the areas described above of exclusion. and Mezoneuron kavaiense. In 2013, the from designated critical habitat are Benefits of Exclusion Outweigh the Service participated in a community relatively substantial. Excluding the Benefits of Inclusion—We have forum and held a public informational areas owned and/or managed by these reviewed and evaluated the exclusion of meeting to educate local community landowners from critical habitat 7,027 ac (2,844 ha) of land owned and/ members about the limited distribution designation will provide significant of the three federally listed species, the benefit in terms of sustaining and or managed by 10 landowners on the threats to the native flora of Hawaii and enhancing the partnership between the island of Hawaii from critical habitat the ecosystems upon which they rely, Service and these landowners and designation (see Table 4, above). The and the importance of native flora and partners, with positive consequences for benefits of including these lands in the fauna to the Hawaiian community and conservation for the species that are the designation are comparatively small. We economy. On August 7, 2013, the subject of this rule as well as other see a low likelihood of these areas Service held a public information species that may benefit from such substantially benefitting from the meeting in the Kailua-Kona area of west partnerships in the future. As described application of section 7 to critical Hawaii specifically to highlight the above, partnerships with non-Federal habitat, as reflected in the consultation proposed critical habitat. In 2013 and landowners are vital to the conservation history between 2007 and 2016. All 2014, the Service, along with several of listed species, especially on non- seven of the section 7 consultations in landowners participated in a series of Federal lands; therefore, the Service is the excluded areas have resulted ‘‘in not meetings to address protection and committed to supporting and likely to adversely affect’’ recovery of listed species and their encouraging such partnerships through determinations. There are three future habitat while balancing individual the recognition of positive conservation projects planned for development on landowner priorities on a regional scale. contributions. In the cases considered these excluded lands. One of them is The process of proposing and finalizing here, excluding these areas from critical planned for occupied habitat (on Kaloko critical habitat provided the opportunity habitat, both managed and unmanaged, Makai land) and, therefore, would for peer review and public comment. will help foster the partnerships the already be subject to a jeopardy analysis Through this process, all of these landowners and land managers in in a section 7 consultation, which excluded lands were clearly identified question have developed with Federal minimizes the benefits of designating as meeting the definition of critical and State agencies and local this area as critical habitat. In evaluating habitat for the three plant species. The conservation organizations; will the effects to these species in a jeopardy Service has posted maps of the areas encourage the continued analysis, we evaluate the effects of the excluded as supplemental materials implementation of voluntary action on the conservation or function under Docket No. FWS–R1–ES–2013– conservation actions for the benefit of of the habitat for the species regardless 0028 at http://www.regulations.gov. The Bidens micrantha ssp. ctenophylla, of whether critical habitat is designated maps identify and further underscore Isodendrion pyrifolium, and for these lands, and the Service’s the importance of these areas for the Mezoneuron kavaiense and their habitat recommendations for offsetting adverse conservation of Bidens micrantha ssp. on these lands; and may also serve as a project impacts to occupied habitat are ctenophylla, Isodendrion pyrifolium, model and aid in fostering future often the same as any recommendations and Mezoneuron kavaiense. It is cooperative relationships with other we would make to offset adverse unlikely that designation of critical parties here and in other locations for impacts to critical habitat. The two habitat will reach a wider audience or the benefit of other endangered or other projects are planned for provide new information concerning the threatened species. unoccupied habitat, but only one (on conservation value of this area. The designation of critical habitat, on DHHL land) would have a Federal Furthermore, the landowners the other hand, could have an nexus and, therefore, a potential benefit excluded from this designation have unintended negative effect on our from critical habitat designation. already taken proactive steps to manage relationship with some non-Federal However, the section 7 consultation for for the conservation of these species, as landowners due to the perceived the project on DHHL land would be

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unlikely to result in benefits for these endangered or threatened species. where these management actions occur species beyond the current and Therefore, in consideration of the in critical habitat. Since critical habitat anticipated future benefits gained factors discussed above under Benefits does not require active management to through the conservation partnership of Exclusion, including the relevant maintain or improve habitat, the DHHL has with the Service. impacts to current and future conservation actions in the Furthermore, the potential partnerships, we have determined that Kamehameha Schools NRMP, the TMA educational and informational benefits the benefits of exclusion of lands owned Management Plan, and the management of critical habitat designation on lands and/or managed by the 10 landowners program on Kamehameha Schools lands containing the physical or biological considered here and identified in Table at Kaupulehu provide benefits on the features essential to the conservation of 4, above, outweigh the benefits of managed portions of these non-Federal Bidens micrantha ssp. ctenophylla, designating these non-Federal lands as lands beyond those that can be achieved Isodendrion pyrifolium, and critical habitat. Below, we provide a through critical habitat designation and Mezoneuron kavaiense would be summary of how the benefits of section 7 consultations. Additionally, minimal, because the landowners and exclusion outweigh the benefits of this landowner and the public are land managers under consideration have inclusion for each landowner. already educated about the conservation demonstrated their knowledge of the Kamehameha Schools value of these areas due to Kamehameha species and their habitat needs in the Schools’ conservation actions, their process of developing their partnerships In this final designation, the Secretary active outreach and education program, with the Service. Additionally, the has exercised his authority to exclude and the extensive coordination and current active conservation efforts on from critical habitat lands owned by outreach with State and local some of these lands contribute to our Kamehameha Schools, totaling 2,834 ac government agencies and the public knowledge of the species through (1,147 ha) on the island of Hawaii. after critical habitat on these lands was monitoring and adaptive management. Kamehameha Schools has been a proven proposed; the designation of critical Finally, as described above, conservation partner over the last two habitat would not increase Kamehameha Schools, WVA, and QLT decades, as demonstrated, in part, by Kamehameha School’s or the public’s have developed or participated in an their ongoing management programs, awareness in this regard. Finally, the active community outreach programs including the Kamehameha Schools State of Hawaii’s take prohibition on that have increased community NRMP, the TMA Management Plan, and federally listed plants (HRS section awareness of Bidens micrantha ssp. the management program on 195D–4) will also lessen the benefit of Kamehameha Schools land at ctenophylla, Isodendrion pyrifolium, a critical habitat designation on these Kaupulehu. and Mezoneuron kavaiense. lands since they are occupied by Bidens The section 7 consultation history of In contrast, the benefits derived from micrantha ssp. ctenophylla and excluding these owners and enhancing these Kamehameha Schools lands (no Mezoneuron kavaiense. our partnership with these landowners consultations over the last 9 years) and land managers is significant. indicates there is little potential for a The benefits of exclusion, on the other Because voluntary conservation efforts future Federal nexus that would create hand, are significant. Excluding areas for the benefit of listed species on non- a benefit to including these lands in covered by existing plans and programs Federal lands are so valuable, the critical habitat. If a future Federal nexus can encourage landowners like Service considers the maintenance and were to occur for an action taking place Kamehameha Schools to partner with encouragement of conservation on these lands, a section 7 consultation the Service in the future, by removing partnerships to be a significant benefit would already be triggered by the any real or perceived disincentives for of exclusion. The development and presence of Bidens micrantha ssp. engaging in conservation activities, and maintenance of effective working ctenophylla and Mezoneuron kavaiense, thereby provide a benefit by partnerships with non-Federal and the Federal agency would consider encouraging future conservation landowners for the conservation of the effects of its actions on the species partnerships and beneficial management listed species is particularly important through a section 7 consultation on the actions. Furthermore, we give great in areas such as Hawaii, a State with species. Because one of the primary weight to the benefits of excluding areas relatively little Federal landownership threats to these species is habitat loss where we have conservation but many species of conservation and degradation, the consultation partnerships, especially on non-Federal concern. Excluding these areas from process under section 7 of the Act for lands, and excluding Kamehameha critical habitat will help foster the projects with a Federal nexus will, in Schools lands even where active partnerships the landowners and land evaluating the effects to these species, management is not occurring is likely to managers in question have developed evaluate the effects of the action on the strengthen the partnership between the with Federal and State agencies and conservation or function of the habitat Service and the landowner, which may local conservation organizations, and for the species regardless of whether encourage other conservation will encourage the continued critical habitat is designated for these opportunities with Kamehameha implementation of voluntary lands, and will likely result in similar Schools in the future and increased conservation actions for the benefit of recommended conservation measures. conservation of listed species and their Bidens micrantha ssp. ctenophylla, Several additional factors serve to habitat on Kamehameha Schools lands. Isodendrion pyrifolium, and reduce the benefit of designating these Because Kamehameha Schools is a large Mezoneuron kavaiense and their habitat lands owned by Kamehameha Schools landowner in the area where habitat for on these lands. In addition, these as critical habitat. First, the significant Bidens micrantha ssp. ctenophylla, partnerships not only provide a benefit management actions already underway Isodendrion pyrifolium, and for the conservation of these species, but by Kamehameha Schools to restore and Mezoneuron kavaiense occurs, may also serve as a model and aid in support the lowland dry habitat upon managing approximately 297,000 ac fostering future cooperative which Bidens micrantha ssp. (120,192 ha) on Hawaii Island, its relationships with other parties in this ctenophylla, Isodendrion pyrifolium, partnership with the Service is not only area of Hawaii Island and in other and Mezoneuron kavaiense depend beneficial to the conservation of the locations for the benefit of other reduce the benefit of including the lands species on Kamehameha Schools land

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through protection and enhancement of in critical habitat. As detailed below, awareness in this regard. The State of habitat, but also potentially a very the Secretary has further determined Hawaii’s take prohibition on federally positive influence on other landowners that such exclusion will not result in the listed plants (HRS section 195D–4) will considering partnerships with the extinction of Bidens micrantha ssp. also lessen the benefit of a critical Service. The exclusion highlights a ctenophylla, Isodendrion pyrifolium, or habitat designation on these lands since positive conservation partnership model Mezoneuron kavaiense. they are occupied by Mezoneuron with a large landowner, and thereby Waikoloa Village Association (WVA) kavaiense. In addition, the 2014 MOU may encourage the formation of new with the Service contains conservation partnerships with other landowners, In this final designation, the Secretary actions that will restore and support the with consequent benefits to Bidens has exercised his authority to exclude lowland dry habitat upon which Bidens micrantha ssp. ctenophylla, Isodendrion from critical habitat lands owned by micrantha ssp. ctenophylla, Isodendrion pyrifolium, Mezoneuron kavaiense, and WVA, totaling 1,758 (712 ha) on the pyrifolium, and Mezoneuron kavaiense other listed species. island of Hawaii. The WVA has been depend, and so the benefit of including The benefits of excluding these involved in conservation since 2009, the lands where the management Kamehameha Schools lands from through the State Forest Stewardship actions occur in critical habitat is critical habitat are sufficient to outweigh Agreement, the 2012 Waikoloa Dry reduced. Since critical habitat does not the potential benefits that may be Forest Initiative License Agreement, and require active management to maintain realized through the designation of more recently their MOU with the or improve habitat, the conservation critical habitat. The regulatory benefit of Service. actions in the MOU are expected to designating critical habitat, afforded The section 7 consultation history of provide benefits on the managed through the section 7(a)(2) consultation these WVA lands (two informal portions of these non-Federal lands process, is minimal because of limited consultations over the last 9 years) beyond those that can be achieved indicates there is potential for a future potential for a Federal nexus on these through critical habitat designation and Federal nexus that could create a benefit lands and because the presence of section 7 consultations. However, we to including these lands in critical Bidens micrantha ssp. ctenophylla and have also taken into consideration that habitat. However, we believe that the Mezoneuron kavaiense would already this is a new conservation agreement benefits gained from supporting the require section 7 consultation regardless and full implementation has not yet positive conservation partnership with of whether or not critical habitat is been demonstrated. designated. In occupied habitat, the this landowner in the State of Hawaii by section 7 prohibition on adverse excluding these lands from critical The benefits of exclusion, on the other modification would be unlikely to habitat (discussed below) are greater hand, are significant. Excluding areas provide additional conservation benefits than the benefit that would be gained covered by existing plans and programs beyond what would be attained through from the designation of critical habitat. can encourage landowners like WVA to the jeopardy analysis for these species. If a future Federal nexus were to occur partner with the Service in the future, The current efforts underway by for an action taking place on these WVA by removing any real or perceived Kamehameha Schools demonstrate the lands, a section 7 consultation would disincentives for engaging in willingness of the landowner to already be triggered by the presence of conservation activities, and thereby contribute to the conservation of listed Mezoneuron kavaiense, and the Federal provide a benefit by encouraging future species and their habitat, and provide agency would consider the effects of its conservation partnerships and significant benefits for Bidens actions on the species through a beneficial management actions. micrantha ssp. ctenophylla, Isodendrion jeopardy analysis. Because one of the Furthermore, we give great weight to the pyrifolium, and Mezoneuron kavaiense primary threats to these species is benefits of excluding areas where we on the managed portions of these non- habitat loss and degradation, the have conservation partnerships, Federal lands beyond those that can be consultation process under section 7 of especially on non-Federal lands, and achieved through critical habitat and the Act for projects with a Federal nexus excluding other WVA lands where section 7 consultations. Furthermore, will, in evaluating the effects to these active management is not occurring is significant conservation benefits would species, evaluate the effects of the action likely to strengthen the partnership be realized through the exclusion of all on the conservation or function of the between the Service and WVA, which these Kamehameha Schools lands, both habitat for the species regardless of may encourage other conservation managed and unmanaged, by continuing whether critical habitat is designated for opportunities with the landowner in the and strengthening our positive these lands, and likely result in similar future and increased conservation of relationship with Kamehameha Schools, recommended conservation measures. listed species and their habitat on WVA as well as encouraging additional Several additional factors serve to lands. Because WVA is a large beneficial conservation partnerships in reduce the benefit of designating these landowner in the area where habitat for the future. The combination of lands owned by WVA as critical habitat. Bidens micrantha ssp. ctenophylla, conservation gained from continuing This landowner and the public are Isodendrion pyrifolium, or Mezoneuron management actions by Kamehameha already educated about the conservation kavaiense occurs, managing Schools and the importance of value of these areas for Bidens approximately 10,000 ac (4,047 ha) on maintaining, enhancing, and developing micrantha ssp. ctenophylla, Isodendrion Hawaii Island, its partnership with the conservation partnerships provides pyrifolium, and Mezoneuron kavaiense Service is not only beneficial to the greater benefits to Bidens micrantha ssp. due to WDFI’s conservation actions, conservation of the species on WVA ctenophylla, Isodendrion pyrifolium, their active public outreach and land through protection and and Mezoneuron kavaiense than what education program, and the Service’s enhancement of habitat, but also could be provided through the extensive coordination and outreach potentially a very positive influence on designation of critical habitat. with State and local government other landowners considering The Secretary has therefore concluded agencies and the public after critical partnerships with the Service. The that, in this particular case, the benefits habitat on these lands was proposed; the exclusion highlights a positive of excluding Kamehameha Schools’ designation of critical habitat would not conservation partnership model with a lands outweigh those of including them increase WVA’s or the public’s large landowner, and thereby may

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encourage the formation of new of including them in critical habitat. As MOU with the Service provide benefits partnerships with other landowners, detailed below, the Secretary has further on the managed portions of these non- with consequent benefits to Bidens determined that such exclusion will not Federal lands beyond those that can be micrantha ssp. ctenophylla, Isodendrion result in the extinction of Bidens achieved through critical habitat and pyrifolium, and Mezoneuron kavaiense, micrantha ssp. ctenophylla, Isodendrion section 7 consultations. In addition, the and other listed species pyrifolium, or Mezoneuron kavaiense. landowner and public are already aware The benefits of excluding these lands of the conservation value of these areas Palamanui Global Holdings, LLC from critical habitat are sufficient to due to Palamanui’s conservation actions outweigh the potential benefits that may In this final designation, the Secretary and the extensive coordination and be realized through the designation of has exercised his authority to exclude outreach with State and local critical habitat. The regulatory benefit of from critical habitat lands owned or government agencies and the public designating critical habitat, afforded managed by Palamanui Global Holdings after critical habitat on these lands was through the section 7(a)(2) consultation LLC (Palamanui), totaling 502 ac (203 proposed; the designation of critical process, is minimal because the ha) on the island of Hawaii. Palamanui habitat would not increase Palamanui’s presence of the species would already has been involved since 2005 in or the public’s awareness in this regard. require a section 7 consultation conservation programs that provide Finally, the State of Hawaii’s take regardless of whether or not critical important conservation benefits to prohibition on federally listed plants habitat is designated. In occupied Bidens micrantha ssp. ctenophylla, (HRS section 195D–4) will also lessen habitat, the section 7 prohibition on Isodendrion pyrifolium, and the benefit of a critical habitat adverse modification would be unlikely Mezoneuron kavaiense and their designation on these lands since they to provide significant additional habitat, as well as to other rare and are occupied by Mezoneuron kavaiense. conservation benefits beyond what federally listed species, such as their The benefits of exclusion, on the other would be attained through the section 7 INCRMP, their new MOU with the hand, are significant. Excluding areas consultation due to the presence of Service, and their collaboration with covered by existing plans and programs Mezoneuron kavaiense. The current other landowners in the originally can encourage landowners like conservation efforts underway by WVA Hawaii—Lowland Dry—Units 31, 33, Palamanui to partner with the Service in demonstrate the willingness of WVA to 34, and 35. the future, by removing any real or contribute to the conservation of listed The section 7 consultation history of perceived disincentives for engaging in species and their habitat, and provide these Palamanui lands (no consultations conservation activities, and thereby significant benefits for Bidens over the last 9 years) indicates there is provide a benefit by encouraging future micrantha ssp. ctenophylla, Isodendrion little potential for a future Federal nexus conservation partnerships and pyrifolium, and Mezoneuron kavaiense that would create a benefit to including beneficial management actions. on the managed portions of these non- these lands in critical habitat. If a future Furthermore, we give great weight to the Federal lands beyond those that can be Federal nexus were to occur for an benefits of excluding areas where we achieved through critical habitat and action taking place on these Palamanui have conservation partnerships, section 7 consultations. WVAs current lands, a section 7 consultation would especially on non-Federal lands, and conservation efforts (including already be triggered by the presence of excluding other Palamanui lands where development of the MOU), combined Mezoneuron kavaiense, and the Federal active management is not occurring is with our outreach to State and local agency would consider the effects of its likely to strengthen the partnership governments and the public, indicate actions on the species through a section between the Service and the landowner, that the educational value of critical 7 consultation on the species. Because which may encourage additional habitat would be minimal. The State’s one of the primary threats to these conservation partnerships with prohibition on the take of listed plants species is habitat loss and degradation, Palamanui in the future and increased will also minimize the benefits of the consultation process under section 7 conservation of listed species and their critical habitat in this case because the of the Act for projects with a Federal habitat on Palamanui lands. The excluded lands are occupied by nexus will, in evaluating the effects to exclusion highlights a positive Mezoneuron kavaiense. On the other these species, evaluate the effects of the conservation partnership model with hand, significant conservation benefits action on the conservation or function the landowner, and thereby may help would be realized through the exclusion of the habitat for the species regardless encourage the formation of new of all these WVA lands, both managed of whether critical habitat is designated partnerships with other landowners, and unmanaged, by continuing and for these lands, and will likely result in yielding benefits to Bidens micrantha strengthening our positive relationship similar recommended conservation ssp. ctenophylla, Isodendrion with WVA, as well as encouraging measures. pyrifolium, and Mezoneuron kavaiense additional beneficial conservation Several additional factors serve to beyond what could be realized through partnerships in the future. The reduce the benefit of designating these critical habitat designation and section combination of conservation gained lands owned by Palamanui as critical 7 consultations on these areas. from continuing management actions by habitat. First, the management actions The benefits of excluding these WVA and the importance of already underway by Palamanui to Palamanui lands from critical habitat maintaining, enhancing, and developing restore and support the lowland dry are sufficient to outweigh the potential conservation partnerships provides habitat upon which Bidens micrantha benefits that may be realized through greater benefits to Bidens micrantha ssp. ssp. ctenophylla, Isodendrion the designation of critical habitat. The ctenophylla, Isodendrion pyrifolium, pyrifolium, and Mezoneuron kavaiense regulatory benefit of designating critical and Mezoneuron kavaiense than what depend reduce the benefit of including habitat, afforded through the section could be provided through the the lands where these management 7(a)(2) consultation process, is minimal designation of critical habitat on these actions occur in critical habitat. Since because of limited potential on these WVA lands. critical habitat does not require active lands for a Federal nexus and because The Secretary has therefore concluded management to maintain or improve the presence of Mezoneuron kavaiense that, in this particular case, the benefits habitat, the conservation actions would already require section 7 of excluding WVA lands outweigh those included in the ICNRMP and the 2015 consultation regardless of whether or

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not critical habitat is designated. In This landowner is a conservation ctenophylla, Isodendrion pyrifolium, occupied habitat, the section 7 partner with a willingness to engage in and Mezoneuron kavaiense and their prohibition on adverse modification ongoing management programs that lowland dry ecosystem, and to conduct would be unlikely to provide additional provide important conservation benefits related conservation activities. We do conservation benefits beyond what to Bidens micrantha ssp. ctenophylla, not anticipate that critical habitat would be attained through the jeopardy Isodendrion pyrifolium, and designation on these DHHL lands would analysis for these species. The current Mezoneuron kavaiense and their result in benefits for these species conservation efforts underway by habitat, as well as to other rare and beyond the current and anticipated Palamanui demonstrate the willingness federally listed species as demonstrated, future benefits gained through the of Palamanui to contribute to the by their history of conservation actions conservation partnership DHHL has conservation of listed species and their at Laiopua, their new MOU with the with the Service. habitat, and provide significant benefits Service, and their collaboration with Several additional factors serve to for Bidens micrantha ssp. ctenophylla, other landowners in Hawaii—Lowland further reduce the benefit of designating Isodendrion pyrifolium, and Dry—Units 31, 33, 34, and 35. these lands as critical habitat. The Mezoneuron kavaiense on the managed The section 7 consultation history of management actions already underway portions of these non-Federal lands these DHHL lands over the last 9 years at the Kealakehe preserves to restore beyond those that can be achieved includes three informal consultations in and support the lowland dry habitat through critical habitat and section 7 Hawaii—Lowland Dry—Unit 35, upon which Bidens micrantha ssp. consultations. Palamanui’s current indicating there is potential for a future ctenophylla, Isodendrion pyrifolium, conservation efforts (including Federal nexus that would create a and Mezoneuron kavaiense depend development of the MOU), combined benefit to including these lands in reduce the benefit of including the lands with our outreach to State and local critical habitat. However, we believe where the management actions occur in governments and the public, indicate that the benefits gained from supporting critical habitat. Since critical habitat that the educational value of critical the positive conservation partnership does not require active management to habitat would be minimal. The State’s with this large landowner in the State of maintain or improve habitat, the prohibition on the take of listed plants Hawaii by excluding these lands from conservation actions included in the will also minimize the benefits of critical habitat (discussed below) are conservation effort at Kealakehe and the critical habitat in this case because the greater than the benefit that would be 2015 MOU with the Service are excluded lands are occupied by gained from the designation of critical expected to provide benefits on the Mezoneuron kavaiense. On the other habitat. Furthermore, if a future Federal managed portions of these non-Federal hand, significant conservation benefits nexus were to occur for an action taking lands beyond those that can be achieved for Bidens micrantha ssp. ctenophylla, place on the DHHL lands in Hawaii— through critical habitat and section 7 Isodendrion pyrifolium, and Lowland Dry—Unit 35, a section 7 consultations. Additionally, this Mezoneuron kavaiense would be consultation would already be triggered landowner and the public are already realized through the exclusion of these by the presence of Bidens micrantha educated about the conservation value Palamanui lands, by continuing and ssp. ctenophylla, Isodendrion of these areas for Bidens micrantha ssp. strengthening our positive relationship pyrifolium, and Mezoneuron kavaiense, ctenophylla, Isodendrion pyrifolium, with Palamanui, as well as encouraging and the Federal agency would consider and Mezoneuron kavaiense due to additional beneficial conservation the effects of its actions on the species DHHL’s conservation actions and the partnerships in the future. The through a jeopardy analysis. Because Service’s extensive coordination and combination of conservation gained one of the primary threats to these outreach with State and local from continuing management actions by species is habitat loss and degradation, government agencies and the public Palamanui and the importance of the consultation process under section 7 after critical habitat on these lands was maintaining, enhancing, and developing of the Act for projects with a Federal proposed; the designation of critical conservation partnerships provides nexus will, in evaluating the effects to habitat would not increase DHHL’s or greater benefits to Bidens micrantha ssp. these species, evaluate the effects of the the public’s awareness in this regard. ctenophylla, Isodendrion pyrifolium, action on the conservation or function Also, the State of Hawaii’s take and Mezoneuron kavaiense than what of the habitat for the species regardless prohibition on federally listed plants could be provided through the of whether critical habitat is designated (HRS section 195D–4) will also lessen designation of critical habitat on this for these lands, and likely result in the benefit of a critical habitat Palamanui land. similar recommended conservation designation on these DHHL lands in The Secretary has therefore concluded measures. proposed Unit 35 since they are that, in this particular case, the benefits With respect to the unoccupied occupied by Bidens micrantha ssp. of excluding Palamanui’s lands portions of DHHL lands in Hawaii— ctenophylla, Isodendrion pyrifolium, outweigh those of including them in Lowland Dry—Unit 33, although there and Mezoneuron kavaiense. critical habitat. As detailed below, the is no history of section 7 consultations, The benefits of exclusion, on the other Secretary has further determined that there is a future project that would hand, are significant. Excluding areas such exclusion will not result in the likely have a Federal nexus. As where there are existing plans and extinction of Bidens micrantha ssp. mentioned earlier, DHHL is planning to programs can encourage landowners ctenophylla, Isodendrion pyrifolium, or develop all of these lands under their like DHHL to partner with the Service Mezoneuron kavaiense. ownership in Hawaii—Lowland Dry— in the future, by removing any real or Unit 33. However, DHHL has a strong perceived disincentives for engaging in Department of Hawaiian Home Lands history of implementation of conservation activities, and thereby (DHHL) conservation efforts at the Kealakehe provide a benefit by encouraging future In this final designation, the Secretary preserves, and in 2015, DHHL entered conservation partnerships and has exercised his authority to exclude into an MOU with the Service in which beneficial management actions. 492 ac (199 ha) of lands from critical DHHL agreed to preserve a total 97.05 Furthermore, we give great weight to the habitat, under section 4(b)(2) of the Act, ac (39 ha) of land for the conservation benefits of excluding areas where we that are under management by DHHL. and recovery of Bidens micrantha ssp. have conservation partnerships,

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especially on non-Federal lands, and significant benefits for Bidens that the benefits gained from supporting excluding other DHHL lands where micrantha ssp. ctenophylla, Isodendrion the positive conservation partnership active management is not occurring is pyrifolium, and Mezoneuron kavaiense with this landowner by excluding these likely to strengthen the partnership on the managed portions of these non- lands from critical habitat (discussed between the Service and the landowner, Federal lands beyond those that can be below) are greater than the benefit that which may encourage additional achieved through critical habitat and would be gained from the designation of partnerships with DHHL in the future section 7 consultations. These current critical habitat. Furthermore, if a future and increased conservation of listed conservation activities on these lands Federal nexus were to occur for an species and their habitat on DHHL and development of the MOU, action taking place on these Kaloko lands. Because DHHL is a large combined with our outreach to State Entities lands, a section 7 consultation landowner/manager in the State of and local governments and the public, would already be triggered by the Hawaii, managing 200,000 ac (80,900 indicate that the educational value of presence of Bidens micrantha ssp. ha), its partnership with the Service is critical habitat would be minimal. On ctenophylla and Mezoneuron kavaiense, not only beneficial to the conservation the other hand, significant conservation and the Federal agency would consider of Bidens micrantha ssp. ctenophylla, benefits would be realized through the the effects of its actions on the species Isodendrion pyrifolium, and exclusion of these DHHL lands, by through a section 7 consultation on the Mezoneuron kavaiense on DHHL land continuing and strengthening our species. Because one of the primary through protection and enhancement of positive relationship with DHHL, as threats to these species is habitat loss habitat, but also potentially a very well as encouraging additional and degradation, the consultation positive influence on other landowners beneficial conservation partnerships in process under section 7 of the Act for considering partnerships with the the future. The combination of projects with a Federal nexus will, in Service. The exclusion highlights a conservation gained from continuing evaluating the effects to these species, positive conservation partnership model management actions by DHHL and the evaluate the effects of the action on the with a large landowner/manager in the importance of maintaining, enhancing, conservation or function of the habitat State, and thereby may encourage the and developing conservation for the species regardless of whether formation of new partnerships with partnerships provides greater benefits to critical habitat is designated for these other landowners, yielding benefits to Bidens micrantha ssp. ctenophylla, lands, and likely result in similar Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and recommended conservation measures. Mezoneuron kavaiense than what could Isodendrion pyrifolium, and Several additional factors serve to be provided through critical habitat and Mezoneuron kavaiense beyond what reduce the benefit of designating these could be realized through critical section 7 consultations. The Secretary has therefore concluded lands owned by Kaloko Entities as habitat designation and section 7 critical habitat. The management actions consultations on these areas. that, in this particular case, the benefits of excluding DHHL lands outweigh already underway by Kaloko Entities to The benefits of excluding these lands those of including them in critical restore and support the lowland dry from critical habitat are sufficient to habitat. As detailed below, the Secretary habitat upon which Bidens micrantha outweigh the potential benefits that may has further determined that such ssp. ctenophylla, Isodendrion be realized through the designation of exclusion will not result in the pyrifolium, and Mezoneuron kavaiense critical habitat. The regulatory benefit of extinction of Isodendrion pyrifolium, depend reduce the benefit of including designating critical habitat, afforded Mezoneuron kavaiense, or Bidens the lands where the management through the section 7(a)(2) consultation micrantha ssp. ctenophylla. actions occur in a critical habitat process, is minimal. In the occupied designation. Since critical habitat does proposed Unit 35, the presence of the Kaloko Entities not require active management to species would already require a In this final designation, the Secretary maintain or improve habitat, the jeopardy analysis and section 7 has exercised his authority to exclude conservation actions in the MOU prohibition on adverse modification from critical habitat lands owned or provide benefits on the managed with critical habitat would be unlikely managed by Kaloko Entities, totaling portions of these non-Federal lands to provide additional conservation 631 ac (255 ha) on the island of Hawaii. beyond those that can be achieved benefits on those lands beyond what Kaloko Entities is a new conservation through critical habitat designation and would be attained through the jeopardy partner with a willingness to engage in section 7 consultations. In addition, the analysis for these species on those management programs and partnerships landowner and the public are already lands; the conservations measures that that will provide important educated about conservation value of would be recommended to avoid conservation benefits to Bidens these areas for Bidens micrantha ssp. impacts to habitat would likely be the micrantha ssp. ctenophylla, Isodendrion ctenophylla, Isodendrion pyrifolium, same as those already recommended to pyrifolium, and Mezoneuron kavaiense and Mezoneuron kavaiense due to avoid impacts to the species. In and their habitat, as well as to other rare Kaloko Entities’ conservation actions unoccupied Unit 33, there could be a and federally listed species, as and the Service’s extensive coordination benefit to designating critical habitat; demonstrated by their MOU with the and outreach with State and local however, we do not anticipate that Service and their collaboration with government agencies and the public critical habitat designation on these other landowners in the originally after critical habitat on these lands was DHHL lands would result in benefits for proposed Hawaii—Lowland Dry—Units proposed; the designation of critical these species beyond the current and 31, 33, 34, and 35. habitat would not increase Kaloko anticipated future benefits gained The section 7 consultation history of Entities’ or the public’s awareness in through the conservation partnership these Kaloko Entities lands (two this regard. Finally, the State of DHHL has with the Service. The current informal consultations over the last 9 Hawaii’s take prohibition on federally conservation efforts underway by DHHL years) indicates there is a potential for listed plants (HRS section 195D–4) will demonstrate the willingness of DHHL to a future Federal nexus that would create also lessen the benefit of a critical contribute to the conservation of listed a benefit to including these lands in habitat designation on these lands since species and their habitat, and provide critical habitat. However, we believe they are occupied by Bidens micrantha

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ssp. ctenophylla and Mezoneuron MOU), combined with our outreach to habitat (discussed below) are greater kavaiense. State and local governments and the than the benefit that would be gained The benefits of exclusion, on the other public, indicate that the educational from the designation of critical habitat. hand, are significant. Excluding areas value of critical habitat would be Furthermore, if a future Federal nexus covered by existing plans and programs minimal. The State’s prohibition on the were to occur for an action taking place can encourage landowners like Kaloko take of listed plants will also minimize on these Lanihau Properties lands, a Entities to partner with the Service in the benefits of critical habitat in this section 7 consultation would already be the future, by removing any real or case because the excluded lands are triggered by the presence of Bidens perceived disincentives for engaging in occupied by two of the species. On the micrantha ssp. ctenophylla, and the conservation activities, and thereby other hand, significant conservation Federal agency would consider the provide a benefit by encouraging future benefits would be realized through the effects of its actions on the species conservation partnerships and exclusion of these Kaloko Entities lands, through a section 7 consultation on the beneficial management actions. by continuing and strengthening our species. Because one of the primary Furthermore, we give great weight to the positive relationship with Kaloko threats to these species is habitat loss benefits of excluding areas where we Entities, as well as encouraging and degradation, the consultation have conservation partnerships, additional beneficial conservation process under section 7 of the Act for especially on non-Federal lands, and partnerships in the future. The projects with a Federal nexus will, in excluding Kaloko Entities lands even combination of conservation gained evaluating the effects to these species, where active management is not from continuing management actions by evaluate the effects of the action on the occurring is likely to strengthen the Kaloko Entities and the importance of conservation or function of the habitat partnership between the Service and the maintaining, enhancing, and developing for the species regardless of whether landowner, which may encourage conservation partnerships provides critical habitat is designated for these additional partnerships with Kaloko greater benefits to Bidens micrantha ssp. lands, and likely result in similar Entities in the future and increased ctenophylla, Isodendrion pyrifolium, recommended conservation measures. conservation of listed species and their and Mezoneuron kavaiense than what Several additional factors serve to habitat on Kaloko Entities lands. The could be provided through the reduce the benefit of designating these exclusion highlights a positive designation of critical habitat on these lands owned by Lanihau Properties as conservation partnership model with Kaloko Entities lands. critical habitat. The management actions the landowner, and thereby may help The Secretary has therefore concluded already underway by Lanihau Properties encourage the formation of new that, in this particular case, the benefits to restore and support the lowland dry partnerships with other landowners, of excluding Kaloko Entities lands habitat upon which Bidens micrantha yielding benefits to Bidens micrantha outweigh those of including them in ssp. ctenophylla, Isodendrion ssp. ctenophylla, Isodendrion critical habitat. As detailed below, the pyrifolium, and Mezoneuron kavaiense pyrifolium, and Mezoneuron kavaiense Secretary has further determined that depend reduce the benefit of including beyond what could be realized through such exclusion will not result in the the lands where the management critical habitat designation and section extinction of Bidens micrantha ssp. actions occur in a critical habitat 7 consultations on these areas. ctenophylla, Isodendrion pyrifolium, or designation. Since critical habitat does The benefits of excluding these lands Mezoneuron kavaiense. not require active management to from critical habitat are sufficient to maintain or improve habitat, the Lanihau Properties outweigh the potential benefits that may conservation actions in the MOU be realized through the designation of In this final designation, the Secretary provide benefits on the managed critical habitat. The regulatory benefit of has exercised his authority to exclude portions of these non-Federal lands designating critical habitat, afforded from critical habitat lands owned or beyond those that can be achieved through the section 7(a)(2) consultation managed by Lanihau Properties, totaling through critical habitat designation and process, is minimal because the 47 ac (19 ha) on the island of Hawaii. section 7 consultations. In addition, the presence of Bidens micrantha ssp. Lanihau Properties is a new landowner and the public are already ctenophylla and Mezoneuron kavaiense conservation partner with a willingness educated about conservation value of would already require section 7 to engage in management programs that these areas for Bidens micrantha ssp. consultation regardless whether critical will provide important conservation ctenophylla, Isodendrion pyrifolium, habitat is designated. In occupied benefits to Bidens micrantha ssp. and Mezoneuron kavaiense due to habitat, the section 7 prohibition on ctenophylla, Isodendrion pyrifolium, Lanihau Properties’ conservation adverse modification would be unlikely and Mezoneuron kavaiense and their actions and the Service’s extensive to provide additional conservation habitat, as well as to other rare and coordination and outreach with State benefits beyond what would be attained federally listed species, as demonstrated and local government agencies and the through the jeopardy analysis for these by their MOU with the Service and their public after critical habitat on these species. The current conservation efforts collaboration with other landowners in lands was proposed; the designation of underway by Kaloko Entities the originally proposed Hawaii— critical habitat would not increase demonstrate the willingness of Kaloko Lowland Dry—Units 31, 33, 34, and 35. Lanihau Properties’ or the public’s Entities to contribute to the The section 7 consultation history of awareness in this regard. Finally, the conservation of listed species and their these Lanihau Properties lands (one State of Hawaii’s take prohibition on habitat, and provide significant benefits informal consultation over the last 9 federally listed plants (HRS section for Bidens micrantha ssp. ctenophylla, years) indicates there is a small 195D–4) will also lessen the benefit of Isodendrion pyrifolium, and potential for a future Federal nexus that a critical habitat designation on these Mezoneuron kavaiense on the managed would create a benefit to including lands since they are occupied by Bidens portions of these non-Federal lands these lands in critical habitat. However, micrantha ssp. ctenophylla. beyond those that can be achieved we believe that the benefits gained from The benefits of exclusion, on the other through critical habitat and section 7 supporting the positive conservation hand, are significant. Excluding areas consultations. The current conservation partnership with this landowner by covered by existing plans and programs efforts (including development of the excluding these lands from critical can encourage landowners like Lanihau

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Properties to partner with the Service in take of listed plants will also minimize Federal nexus were to occur for an the future, by removing any real or the benefits of critical habitat in this action taking place on these County perceived disincentives for engaging in case because the excluded lands are lands, a section 7 consultation would conservation activities, and thereby occupied by Bidens micrantha ssp. already be triggered by the presence of provide a benefit by encouraging future ctenophylla. On the other hand, Mezoneuron kavaiense and the Federal conservation partnerships and significant conservation benefits would agency would consider the effects of its beneficial management actions. be realized through the exclusion of actions on the species through a section Furthermore, we give great weight to the these Lanihau Properties lands by 7 consultation on the species. Because benefits of excluding areas where we continuing and strengthening our one of the primary threats to these have conservation partnerships, positive relationship with Lanihau species is habitat loss and degradation, especially on non-Federal lands, and Properties, as well as encouraging the consultation process under section 7 excluding Lanihau Properties lands additional beneficial conservation of the Act for projects with a Federal even where active management is not partnerships in the future. The nexus will, in evaluating the effects to occurring is likely to strengthen the combination of conservation gained these species, evaluate the effects of the partnership between the Service and the from continuing management actions by action on the conservation or function landowner, which may encourage Lanihau Properties and the importance of the habitat for the species regardless additional partnerships with Lanihau of maintaining, enhancing, and of whether critical habitat is designated Properties in the future and increased developing conservation partnerships for these lands, and likely result in conservation of listed species and their provides greater benefits to Bidens similar recommended conservation habitat on Lanihau Properties lands. micrantha ssp. ctenophylla, Isodendrion measures. The exclusion highlights a positive pyrifolium, and Mezoneuron kavaiense Several additional factors serve to conservation partnership model with than what could be provided through reduce the benefit of designating these the landowner, and thereby may help the designation of critical habitat on lands managed by the County as critical encourage the formation of new these Lanihau Properties lands. habitat. The management actions partnerships with other landowners, The Secretary has therefore concluded already underway by the County to yielding benefits to Bidens micrantha that, in this particular case, the benefits restore and support the lowland dry ssp. ctenophylla, Isodendrion of excluding Lanihau Properties lands habitat upon which Bidens micrantha pyrifolium, and Mezoneuron kavaiense outweigh those of including them in ssp. ctenophylla, Isodendrion beyond what could be realized through critical habitat. As detailed below, the pyrifolium, and Mezoneuron kavaiense critical habitat designation and section Secretary has further determined that depend reduce the benefit of including 7 consultations on these areas. such exclusion will not result in the the lands where the management extinction of Bidens micrantha ssp. actions occur in a critical habitat The benefits of excluding these lands ctenophylla, Isodendrion pyrifolium, or designation. Since critical habitat does from critical habitat are sufficient to Mezoneuron kavaiense. not require active management to outweigh the potential benefits that may maintain or improve habitat, the County of Hawaii be realized through the designation of conservation actions in the MOU critical habitat. The regulatory benefit of In this final designation, the Secretary provide benefits on the managed designating critical habitat, afforded has exercised his authority to exclude portions of these non-Federal lands through the section 7(a)(2) consultation from critical habitat State-owned lands beyond those that can be achieved process, is minimal because the managed by the County of Hawaii, through critical habitat and section 7 presence of Bidens micrantha ssp. totaling 165 ac (67 ha) on the island of consultations. In addition, the ctenophylla would already require a Hawaii. The County is a proven landowner and the public are already section 7 consultation regardless of conservation partner, as shown, in part, educated about conservation value of whether or not critical habitat is in voluntary conservation actions dating these areas for Bidens micrantha ssp. designated. In occupied habitat, the back to 2010, their new MOU with the ctenophylla, Isodendrion pyrifolium, section 7 prohibition on adverse Service, and their collaboration with and Mezoneuron kavaiense due to the modification would be unlikely to other landowners in Hawaii—Lowland County’s prior conservation actions and provide additional conservation benefits Dry—Units 31, 33, 34, and 35, which all the Service’s extensive coordination and beyond what would be attained through demonstrate a willingness to engage in outreach with State and local the section 7 consultation on species ongoing management programs that government agencies and the public present. The current conservation efforts provide important conservation benefits after critical habitat on these lands was underway by Lanihau Properties to Bidens micrantha ssp. ctenophylla, proposed; the designation of critical demonstrate the willingness of Lanihau Isodendrion pyrifolium, and habitat would not increase the County Properties to contribute to the Mezoneuron kavaiense and their of Hawaii’s or the public’s awareness in conservation of listed species and their habitat. this regard. The State of Hawaii’s take habitat, and provide significant benefits The section 7 consultation history of prohibition on federally listed plants for Bidens micrantha ssp. ctenophylla, these County lands (one informal (HRS section 195D–4) will also lessen Isodendrion pyrifolium, and consultation over the last 9 years) the benefit of a critical habitat Mezoneuron kavaiense on the managed indicates there is a small potential for a designation on these lands since they portions of these non-Federal lands future Federal nexus that would create are occupied by Mezoneuron kavaiense. beyond those that can be achieved a benefit to including these lands in The benefits of exclusion, on the other through critical habitat and section 7 critical habitat. However, we believe hand, are significant. Excluding areas consultations. The current conservation that the benefits gained from supporting covered by existing plans and programs efforts (including development of the the positive conservation partnership can encourage land managers like the MOU), combined with our outreach to with this landowner by excluding these County to partner with the Service in State and local governments and the lands from critical habitat (discussed the future, by removing any real or public, indicate that the educational below) are greater than the benefit that perceived disincentives for engaging in value of critical habitat would be would be gained from the designation of conservation activities, and thereby minimal. The State’s prohibition on the critical habitat. Furthermore, if a future provide a benefit by encouraging future

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conservation partnerships and portions of these non-Federal lands Federal nexus were to occur for an beneficial management actions. beyond those that can be achieved action taking place on these HHFDC Furthermore, we give great weight to the through critical habitat and section 7 lands, a section 7 consultation would benefits of excluding areas where we consultations. The County’s current already be triggered by the presence of have demonstrated partnerships, conservation efforts (including Mezoneuron kavaiense, and the Federal especially on non-Federal lands, and development of the MOU), combined agency would consider the effects of its excluding County-managed lands from with our outreach to State and local actions on the species through a section critical habitat even where active governments and the public, indicate 7 consultation on the species. Because management is not occurring is likely to that the educational value of critical one of the primary threats to these strengthen the partnership between the habitat would be minimal. The State’s species is habitat loss and degradation, Service and the landowner, which may prohibition on the take of listed plants the consultation process under section 7 encourage additional partnerships with will also minimize the benefits of of the Act for projects with a Federal the County in the future and increased critical habitat in this case because the nexus will, in evaluating the effects to conservation of listed species and their excluded lands are occupied by these species, evaluate the effects of the habitat on County lands. Because the Mezoneuron kavaiense. On the other action on the conservation or function County of Hawaii is a large landowner/ hand, significant conservation benefits of the habitat for the species regardless manager in the area where habitat for would be realized through the exclusion of whether critical habitat is designated Bidens micrantha ssp. ctenophylla, of these County lands, by continuing for these lands, and will likely result in Isodendrion pyrifolium, and and strengthening our positive similar recommended conservation Mezoneuron kavaiense occurs, relationship with the County of Hawaii, measures. managing over 10,000 ac (4,047 ha) on as well as encouraging additional Several additional factors serve to Hawaii Island, its partnership with the beneficial conservation partnerships in reduce the benefit of designating these Service is not only beneficial to the the future. The combination of lands managed by HHFDC as critical conservation of the species on County conservation gained from continuing habitat. First, the management actions land through protection and management actions by the County and already underway by HHFDC to restore enhancement of habitat, but also the importance of maintaining, and support the lowland dry habitat potentially a very positive influence on enhancing, and developing conservation upon which Bidens micrantha ssp. other landowners considering partnerships provides greater benefits to ctenophylla, Isodendrion pyrifolium, partnerships with the Service. The Bidens micrantha ssp. ctenophylla, and Mezoneuron kavaiense depend exclusion highlights a positive Isodendrion pyrifolium, and reduce the benefit of including the lands conservation partnership model with a Mezoneuron kavaiense than what could where these management actions occur large landowner/manager in the State, be provided through the designation of in a critical habitat designation. Since and thereby may encourage the critical habitat on these County lands. critical habitat does not require active formation of new partnerships with The Secretary has therefore concluded management to maintain or improve other landowners, yielding benefits to that, in this particular case, the benefits habitat, the conservation actions in the Bidens micrantha ssp. ctenophylla, of excluding these County of Hawaii MOU provide benefits on the managed Isodendrion pyrifolium, and lands outweigh those of including them portions of these non-Federal lands Mezoneuron kavaiense beyond what in critical habitat. As detailed below, beyond those that can be achieved the Secretary has further determined through critical habitat and section 7 could be realized through critical that such exclusion will not result in the consultations. In addition, the habitat designation and section 7 extinction of Bidens micrantha ssp. landowner and the public are already consultations on these areas. ctenophylla, Isodendrion pyrifolium, or educated about conservation value of The benefits of excluding these lands Mezoneuron kavaiense. these areas due to HHFDC’s managed by the County of Hawaii from conservation actions and the extensive Hawaii Housing and Finance critical habitat are sufficient to outweigh coordination and outreach with State Development Corporation the potential benefits that may be and local government agencies and the realized through the designation of In this final designation, the Secretary public after critical habitat on these critical habitat. The regulatory benefit of has exercised his authority to exclude lands was proposed; the designation of designating critical habitat, afforded from critical habitat State-owned lands critical habitat would not increase through the section 7(a)(2) consultation managed by HHFDC, totaling 30 ac (12 HHFDC’s or the public’s awareness in process, is minimal because the ha) on the island of Hawaii. HHFDC is this regard. Finally, the State of presence of Mezoneuron kavaiense a new conservation partner with a Hawaii’s take prohibition on federally would already require section 7 willingness to engage in management listed plants (HRS section 195D–4) will consultation regardless of whether or programs that will provide important also lessen the benefit of a critical not critical habitat is designated. In conservation benefits to Bidens habitat designation on these lands since occupied habitat, the section 7 micrantha ssp. ctenophylla, Isodendrion they are occupied by Mezoneuron prohibition on adverse modification pyrifolium, and Mezoneuron kavaiense kavaiense. would be unlikely to provide additional and their habitat, as well as to other rare The benefits of exclusion, on the other conservation benefits beyond what and federally listed species, as hand, are significant. Excluding areas would be attained through the jeopardy demonstrated by their MOU with the covered by existing plans and programs analysis for these species. The current Service and their collaboration with can encourage land managers like conservation efforts underway by the other landowners in Hawaii—Lowland HHFDC to partner with the Service in County demonstrate the willingness of Dry—Units 31, 33, 34, and 35. the future, by removing any real or the County to contribute to the The section 7 consultation history of perceived disincentives for engaging in conservation of listed species and their these HHFDC lands (no consultations conservation activities, and thereby habitat, and provide significant benefits over the last 9 years) indicates there is provide a benefit by encouraging future for Bidens micrantha ssp. ctenophylla, little potential for a future Federal nexus conservation partnerships and Isodendrion pyrifolium, and that would create a benefit to including beneficial management actions. Mezoneuron kavaiense on the managed these lands in critical habitat. If a future Furthermore, we give great weight to the

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benefits of excluding areas where we and strengthening our positive lands, and will likely result in similar have conservation partnerships, relationship with HHFDC, as well as recommended conservation measures. especially on non-Federal lands, and encouraging additional beneficial Several additional factors serve to excluding other HHFDC lands from conservation partnerships in the future. reduce the benefit of designating these critical habitat where active The combination of conservation gained lands owned by Forest City Kona as management is not occurring is likely to from continuing management actions by critical habitat. First, the management strengthen the partnership between the HHFDC and the importance of actions already underway by Forest City Service and the landowner, which may maintaining, enhancing, and developing Kona to restore and support the lowland encourage additional partnerships with conservation partnerships provides dry habitat upon which Bidens the HHFDC in the future and increased greater benefits to Bidens micrantha ssp. micrantha ssp. ctenophylla, Isodendrion conservation of listed species and their ctenophylla, Isodendrion pyrifolium, pyrifolium, and Mezoneuron kavaiense habitat on HHFDC lands. The exclusion and Mezoneuron kavaiense than what depend reduce the benefit of including highlights a positive conservation could be provided through the the lands where these management partnership model with a land manager, designation of critical habitat on these actions occur in a critical habitat and thereby may encourage the HHFDC lands. designation. Since critical habitat does formation of new partnerships with The Secretary has therefore concluded not require active management to other landowner/managers, yielding that, in this particular case, the benefits maintain or improve habitat, the benefits to Bidens micrantha ssp. of excluding HHFDC’s lands outweigh conservation actions in the MOU ctenophylla, Isodendrion pyrifolium, those of including them in critical provide benefits on the managed and Mezoneuron kavaiense beyond habitat. As detailed below, the Secretary portions of these non-Federal lands what could be realized through critical has further determined that such beyond those that can be achieved habitat designation and section 7 exclusion will not result in the through critical habitat and section 7 consultations on these areas. extinction of Bidens micrantha ssp. consultations. In addition, the ctenophylla, Isodendrion pyrifolium, or landowner and the public are already The benefits of excluding these lands Mezoneuron kavaiense. educated about conservation value of from critical habitat are sufficient to these areas due to Forest City Kona’s outweigh the potential benefits that may Forest City Kona, LLC conservation actions and the extensive be realized through the designation of In this final designation, the Secretary coordination and outreach with State critical habitat. The regulatory benefit of has exercised his authority to exclude and local government agencies and the designating critical habitat, afforded from critical habitat lands owned by public after critical habitat on these through the section 7(a)(2) consultation Forest City Kona, totaling 265 ac (107 lands was proposed; the designation of process, is minimal because of limited ha) on the island of Hawaii. Forest City critical habitat would not increase potential on these lands for a Federal Kona is a new conservation partner with Forest City Kona’s or the public’s nexus and because the presence of a willingness to engage in management awareness in this regard. Finally, the Mezoneuron kavaiense would already programs that will provide important State of Hawaii’s take prohibition on require section 7 consultation regardless conservation benefits to Bidens federally listed plants (HRS section of whether or not critical habitat is micrantha ssp. ctenophylla, Isodendrion 195D–4) will also lessen the benefit of designated. In occupied habitat, the pyrifolium, and Mezoneuron kavaiense a critical habitat designation on these section 7 prohibition on adverse and their habitat, as well as to other rare lands since they are occupied by Bidens modification would be unlikely to and federally listed species, as micrantha ssp. ctenophylla. provide additional conservation benefits demonstrated by their MOU with the The benefits of exclusion, on the other beyond what would be attained through Service and their collaboration with hand, are significant. Excluding areas the jeopardy analysis for these species. other landowners in Hawaii—Lowland covered by existing plans and programs The current conservation efforts Dry—Units 31, 33, 34, and 35. can encourage landowners like Forest underway by HHFDC demonstrate the The section 7 consultation history of City Kona to partner with the Services willingness of HHFDC to contribute to these Forest City Kona lands (no in the future, by removing any real or the conservation of listed species and consultations over the last 9 years) perceived disincentives for engaging in their habitat, and provide significant indicates there is little potential for a conservation activities, and thereby benefits for Bidens micrantha ssp. future Federal nexus that would create provide a benefit by encouraging future ctenophylla, Isodendrion pyrifolium, a benefit to including these lands in conservation partnerships and and Mezoneuron kavaiense on the critical habitat. If a future Federal nexus beneficial management actions. managed portions of these non-Federal were to occur for an action taking place Furthermore, we give great weight to the lands beyond those that can be achieved on these Forest City Kona lands, a benefits of excluding areas where we through critical habitat and section 7 section 7 consultation would already be have conservation partnerships, consultations. HHFDC’s current triggered by the presence of Bidens especially on non-Federal lands, and conservation efforts (including micrantha ssp. ctenophylla, and the excluding Forest City Kona lands from development of the MOU), combined Federal agency would consider the critical habitat even where active with our outreach to State and local effects of its actions on the species management is not occurring is likely to governments and the public, indicate through a section 7 consultation on the strengthen the partnership between the that the educational value of critical species. Because one of the primary Service and the landowner, which may habitat would be minimal. The State’s threats to these species is habitat loss encourage additional partnerships with prohibition on the take of listed plants and degradation, the consultation Forest City Kona in the future and will also minimize the benefits of process under section 7 of the Act for increased conservation of listed species critical habitat in this case because the projects with a Federal nexus will, in and their habitat on Forest City Kona excluded lands are occupied by evaluating the effects to these species, lands. The exclusion highlights a Mezoneuron kavaiense. On the other evaluate the effects of the action on the positive conservation partnership model hand, significant conservation benefits conservation or function of the habitat with the landowner, and thereby may be would be realized through the exclusion for the species regardless of whether influential in the formation of new of these HHFDC lands by continuing critical habitat is designated for these partnerships with other landowners,

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yielding benefits to Bidens micrantha The Secretary has therefore concluded the lands where the management ssp. ctenophylla, Isodendrion that, in this particular case, the benefits actions occur in critical habitat is pyrifolium, and Mezoneuron kavaiense of excluding Forest City Kona’s lands reduced. Additionally, this landowner beyond what could be realized through outweigh those of including them in and the public are already educated critical habitat designation and section critical habitat. As detailed below, the about conservation value of these areas 7 consultations on these areas. Secretary has further determined that due to QLT’s conservation actions, their The benefits of excluding these lands such exclusion will not result in the active outreach and education program, from critical habitat are sufficient to extinction of Bidens micrantha ssp. and the Service’s extensive coordination outweigh the potential benefits that may ctenophylla, Isodendrion pyrifolium, or and outreach with State and local be realized through the designation of Mezoneuron kavaiense. government agencies and the public after critical habitat on these lands was critical habitat. The regulatory benefit of Queen Liliuokalani Trust (QLT) designating critical habitat, afforded proposed; the designation of critical In this final designation, the Secretary through the section 7(a)(2) consultation habitat would not increase QLT’s or the has exercised his authority to exclude process, is minimal because of limited public’s awareness in this regard. from critical habitat lands owned by potential on these lands for a Federal The benefits of exclusion, on the other Queen Liliuokalani Trust, totaling 302 nexus and because the presence of hand, are significant. Excluding areas ac (122 ha) on the island of Hawaii. The Bidens micrantha ssp. ctenophylla covered by existing plans and programs QLT is a proven conservation partner, as would already require section 7 can encourage landowners like QLT to demonstrated in several conservation partner with the Services in the future, consultation regardless of whether or efforts including a Partners for Fish and by removing any real or perceived not critical habitat is designated. In Wildlife Program Agreement and a new disincentives for engaging in occupied habitat, the section 7 MOU with the Service, showing a conservation activities, and thereby prohibition on adverse modification willingness to engage in ongoing provide a benefit by encouraging future would be unlikely to provide additional management programs that provide conservation partnerships and conservation benefits beyond what important conservation benefits to beneficial management actions. would be attained through the jeopardy Bidens micrantha ssp. ctenophylla, Furthermore, we give great weight to the analysis for these species. The current Isodendrion pyrifolium, and benefits of excluding areas where we conservation efforts underway by Forest Mezoneuron kavaiense and their have conservation partnerships, City Kona demonstrate the willingness habitat, as well as to other rare and especially on non-Federal lands, and of Forest City Kona to contribute to the federally listed species. excluding these QLT lands even where conservation of listed species and their The section 7 consultation history of active management is not occurring is habitat, and provide significant benefits these QLT lands (no consultations over likely to strengthen the partnership for Bidens micrantha ssp. ctenophylla, the last 9 years) indicates there is little between the Service and the landowner, Isodendrion pyrifolium, and potential for a future Federal nexus that which may encourage additional Mezoneuron kavaiense on the managed would create a benefit to including partnerships with QLT in the future and portions of these non-Federal lands these lands in critical habitat. The only increased conservation of listed species beyond those that can be achieved future development project planned for and their habitat on QLT lands. The through critical habitat and section 7 these QLT lands is not expected to have exclusion highlights a positive consultations. Forest City Kona’s a Federal nexus, and, therefore, critical conservation partnership model with current conservation efforts (including habitat would provide no benefit the landowner, and thereby may be development of the MOU), combined through the section 7 consultation influential in the formation of new with our outreach to State and local process. partnerships with other landowners, governments and the public, indicate Several additional factors serve to yielding benefits to Bidens micrantha that the educational value of critical reduce the benefit of designating these ssp. ctenophylla, Isodendrion habitat would be minimal. The State’s lands owned by QLT as critical habitat. pyrifolium, and Mezoneuron kavaiense prohibition on the take of listed plants First, the management actions already beyond what could be realized through will also minimize the benefits of underway by QLT to restore and critical habitat designation and section critical habitat in this case because the support the lowland dry habitat upon 7 consultations on these areas. excluded lands are occupied by Bidens which Bidens micrantha ssp. The benefits of excluding these lands micrantha ssp. ctenophylla. On the ctenophylla, Isodendrion pyrifolium, from critical habitat are sufficient to other hand, significant conservation and Mezoneuron kavaiense depend, outweigh the potential benefits that may benefits would be realized through the reduce the benefit of including the lands be realized through the designation of exclusion of these Forest City Kona where these management actions occur critical habitat. The regulatory benefit of lands by continuing and strengthening in critical habitat. Since critical habitat designating critical habitat, afforded our positive relationship with Forest does not require active management to through the section 7(a)(2) consultation City Kona, as well as encouraging maintain or improve habitat, the process, is minimal because of limited additional beneficial conservation conservation actions of QLT provide potential on these lands for a Federal partnerships in the future. The benefits on the managed portions of nexus. The current conservation efforts combination of conservation gained these non-Federal lands beyond those underway by QLT demonstrate the from continuing management actions by that can be achieved through critical willingness of QLT to contribute to the Forest City Kona and the importance of habitat and section 7 consultations. conservation of listed species and their maintaining, enhancing, and developing Furthermore, QLT has begun habitat, and provide significant benefits conservation partnerships provides implementation on the 2014 MOU with for Bidens micrantha ssp. ctenophylla, greater benefits to Bidens micrantha ssp. the Service that contains conservation Isodendrion pyrifolium, and ctenophylla, Isodendrion pyrifolium, actions that will restore and support the Mezoneuron kavaiense on the managed and Mezoneuron kavaiense than what lowland dry habitat upon which Bidens portions of these non-Federal lands could be provided through the micrantha ssp. ctenophylla, Isodendrion beyond those that can be achieved designation of critical habitat on these pyrifolium, and Mezoneuron kavaiense through critical habitat and section 7 Forest City Kona lands. depend, and so the benefit of including consultations. The outreach and

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education programs of QLT, as well as the strength and number of partnerships totaling fewer than 1,000 individuals our outreach to State and local with non-Federal landowners that are within the lowland dry ecosystem of the governments and the public, indicate needed to recover the species. North Kona region on Hawaii Island. that the educational value of critical An important consideration as we One of the locations where the habitat on these lands would be evaluate these exclusions and their subspecies occurs is on land owned by minimal. On the other hand, significant potential effect on the species in Kaloko Entities that is excluded from conservation benefits would be realized question is that critical habitat does not this critical habitat designation, but through the exclusion of these QLT carry with it a regulatory requirement to these individuals of Bidens micrantha lands, by continuing and strengthening restore or actively manage habitat for ssp. ctenophylla are protected by the our positive relationship with QLT, as the benefit of listed species; the State prohibition on the take of listed well as encouraging additional regulatory effect of critical habitat is plants. As part of their 2016 MOU with beneficial conservation partnerships in only the avoidance of destruction or the Service, Kaloko Entities is the future. adverse modification of critical habitat preserving a 150-ac (61-ha) area to The Secretary has therefore concluded should an action with a Federal nexus protect Bidens micrantha ssp. that, in this particular case, the benefits occur. It is, therefore, advantageous for ctenophylla and nine other species, and of excluding QLT lands outweigh those the conservation of the species to will provide enhanced protection of including them in critical habitat. As support the proactive efforts of non- through fencing around the area. detailed below, the Secretary has further Federal landowners who are However, the Service is not relying on determined that such exclusion will not contributing to the enhancement of the actions of Kaloko Entities to prevent result in the extinction of Bidens essential habitat features for listed the extinction of Bidens micrantha ssp. micrantha ssp. ctenophylla, Isodendrion species through exclusion. ctenophylla. As described above in pyrifolium, or Mezoneuron kavaiense. As described above, at least some of ‘‘Recovery Needs,’’ the future of this the area excluded is likely to support subspecies depends on the outplanting Exclusion Will Not Result in Extinction recovery efforts for these species, of the Species of cultivated individuals into suitable although for purposes of this analysis habitat to establish new populations. We have determined that the we do not count on that. However, the Plants are under propagation, and seed exclusion of 7,027 ac (2,844 ha) from the remaining designated critical habitat banking is taking place at facilities on designation of critical habitat for Bidens will accommodate the expansion of Hawaii and Oahu, and Bidens micrantha ssp. ctenophylla, Isodendrion existing populations and the micrantha ssp. ctenophylla has already pyrifolium, and Mezoneuron kavaiense establishment of new populations of been outplanted in several areas on on the island of Hawaii owned and/or Bidens micrantha ssp. ctenophylla, Hawaii Island. Although three of the managed by the 10 landowners Isodendrion pyrfolium, and Mezoneuron locations (across five different identified here will not result in kavaiense that will help prevent landownerships) where Bidens extinction of the species. The exclusion extinction. Although some of the areas micrantha ssp. ctenophylla currently of these lands is likely to improve our where these species occur are being occurs are being excluded from critical ability to maintain current and form excluded from critical habitat, the habitat, this rule designates 11,640 ac new conservation partnerships with 11,640 ac (4,711 ha) of critical habitat (4,711 ha) of both occupied and non-Federal landowners in areas designated in this final rule and the unoccupied critical habitat for this essential to the conservation of Bidens sufficient numbers of individuals subspecies on Hawaii Island where it is micrantha ssp. ctenophylla, Isodendrion remaining in the critical habitat possible the subspecies could be pyrifolium, and Mezoneuron kavaiense. designation are adequate to facilitate the reintroduced. The State’s prohibition on As discussed above, reintroduction and recovery of each species. reestablishment of populations into These three species are also subject to the take of listed plants, combined with areas that are not currently occupied by other protections as well; these the designation of other critical habitat the species will be required to achieve protections remain in effect even absent on the Island of Hawaii, is sufficient to their conservation. Exclusion is not the designation of critical habitat. prevent extinction of this subspecies. likely to reduce the likelihood that Section 195D–4 of Hawaii Revised Isodendrion pyrifolium currently has reintroductions would occur or be Statutes (endangered species and only a few immature individuals left in successful. Exclusion of lands that are threatened species) stipulates that the wild in the Kealakehe area. These managed by non-Federal landowners for species determined to be endangered or individuals are on land owned by DHHL restoration or maintenance of suitable threatened under the Federal that is excluded from this critical native habitat is more likely to facilitate Endangered Species Act shall be habitat designation. However, DHHL robust partnerships with non-Federal deemed endangered or threatened under already provides enhanced protection landowners that would be required to the State law. Thus, these species are for these individuals through fencing support a reintroduction program that already protected under State law, and around the plants, and these individuals would be effective in conserving these unlike the Federal Endangered Species are protected by the State prohibition on species. The establishment and Act, State law prohibits the take of the take of plants. In addition, the encouragement of strong conservation plants. Under the State law, it is recovery of this species will rely on the partnerships with non-Federal unlawful, with some exceptions, to outplanting of cultivated individuals in landowners is especially important in ‘‘take’’ such species, or to possess, sell, suitable habitat on Hawaii Island and the State of Hawaii, where there are carry or transport them. The statutory other suitable habitat in the State of relatively few lands under Federal protections under State law provide Hawaii. Plants are under propagation, ownership; we cannot achieve the additional assurances that exclusion of and seed banking is taking place at conservation and recovery of listed these areas from critical habitat will not facilities on Hawaii and Kauai, and species in Hawaii without the help and result in extinction of Bidens micrantha Isodendrion pyrifolium has already been cooperation of non-Federal landowners. ssp. ctenophylla, Isodendrion outplanted in several areas of Hawaii Excluding lands covered by voluntary pyrifolium, and Mezoneuron kavaiense. Island. Recent management efforts have conservation partnerships in Hawaii is Bidens micrantha ssp. ctenophylla is resulted in 90 outplanted individuals likely to restore, maintain, and increase currently known from five occurrences distributed in four occurrences (in

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addition to the Kealakehe area). We within the areas identified in Table 4, organizations made comments on the have also designated critical habitat for totaling 7,027 ac (2,844 ha). designation of critical habitat for the this species on Oahu within 8 units Maps of areas essential to the three species. During the fourth totaling 1,924 ac (779 ha) (77 FR 57648; conservation of the species covered in comment period, we received 9 letters September 18, 2012), and on the islands this rule, identified through designated addressing the proposed critical habitat of Maui and Molokai within 13 units critical habitat, or through partnerships designation. All substantive information totaling 21,703 ac (8,783 ha) (81 FR and conservation agreements with provided during comment periods has 17790; March 30, 2016). Even though landowners and land managers but either been incorporated directly into the DHHL land is excluded, this rule excluded from critical habitat under this final determination or is addressed designates 11,640 ac (4,711 ha) of section 4(b)(2) of the Act, are available below. Comments we received are critical habitat for the species on Hawaii in the document ‘‘Supplementary grouped into 11 general issues relating Island. Combined, these measures will Information for the Designation and to the proposed critical habitat prevent extinction of Isodendrion Non-Designation of Critical Habitat on designation for the three species. pyrifolium. Hawaii for Bidens micrantha ssp. Peer Review Currently, Mezoneuron kavaiense is ctenophylla, Isodendrion pyrifolium, found in six occurrences totaling 72 and Mezoneuron kavaiense,’’ available In accordance with our peer review mature and 22 immature wild on the internet at http:// policy published in the Federal Register individuals in the lowland dry www.regulations.gov under Docket No. on July 1, 1994 (59 FR 34270), we ecosystem of Hawaii Island, mainly in FWS–R1–ES–2013–0028. solicited expert opinions on our the Kealakehe, Puu Waawaa, and The total area excluded from critical combined proposed listing and critical Waikoloa Village areas. These habitat designation in this rule is habitat rule (77 FR 63928; October 17, individuals are protected by the State summarized by landowner in the 2012) from 14 knowledgeable prohibition on taking listed plants. In following table. individuals with scientific expertise on addition, as with the other two species, the Hawaii Island plants and the other the recovery of this species will rely on TABLE 5—TOTAL AREA (ac, ha) EX- species included in the proposed the outplanting of cultivated CLUDED FROM CRITICAL HABITAT BY rulemaking, including familiarity with the species, the geographic region in individuals. Monitoring and recovery LANDOWNER OR LAND MANAGER actions are being implemented for wild which these species occur, and and outplanted populations on Kauai, Area conservation biology principles. We Oahu, and Lanai. Plants are under Landowner or land manager excluded in ac received responses from 11 of the peer propagation and seed banking is taking (ha) reviewers on the combined proposed place at facilities on Hawaii, Maui, listing and critical habitat rule; Oahu, and Kauai. On Kauai, there is an Kamehameha Schools ...... 2,834 (1,147) however, only two peer reviewers Waikoloa Village Associa- occurrence of Mezoneuron kavaiense in provided comments specifically tion ...... 1,758 (712) addressing the proposed critical habitat Waimea Canyon. On Oahu, there are Palamanui Global Holdings two occurrences with a total of five LLC ...... 502 (203) designation. These peer reviewers individuals. On Lanai, the species is Department of Hawaiian generally supported our methodology extirpated in the wild; however, two Home Lands ...... 492 (199) and conclusions. We reviewed all individuals have been reintroduced into Kaloko Entities ...... 631 (255) comments received from the peer a fenced exclosure. Seed collections Lanihau Properties ...... 47 (19) reviewers for substantive issues and contain representation of genetic County of Hawaii ...... 165 (67) new information regarding the material of Mezoneuron kavaiense from Hawaii Housing and Fi- designation of critical habitat for Bidens all islands across the species’ nance Development Cor- micrantha ssp. ctenophylla, Isodendrion poration ...... 30 (12) distribution. Although we are excluding pyrifolium, and Mezoneuron kavaiense. Forest City Kona ...... 265 (107) Peer reviewers’ comments are addressed some areas that had been proposed for Queen Liliuokalani Trust ..... 302 (122) critical habitat designation, this rule in the following summary and designates 11,640 ac (4,711 ha) of incorporated into the final rule as Summary of Comments and critical habitat for the species, including appropriate. Recommendations occupied and unoccupied habitat with Comments From Peer Reviewers room for reintroduction. The final We requested written comments from designation of critical habitat for the public on the proposed designation (1) Comment: One peer reviewer Mezoneuron kavaiense includes the area of critical habitat on Hawaii Island for expressed appreciation for emphasis at Puu Waawaa that contains the Bidens micrantha ssp. ctenophylla, placed on ecosystem approaches to majority (67 percent) of remaining Isodendrion pyrifolium, and preservation of species and the effects of mature wild individuals, and the largest Mezoneuron kavaiense during four global climate change. The peer outplanting of the species (254 plants). comment periods. We also contacted reviewer also commented that we Combined, these measures will prevent appropriate Federal, State, and local cannot be certain that areas that are the extinction of Mezoneuron kavaiense. agencies; scientific organizations; and identified as unoccupied by a species We have thoroughly considered the other interested parties and invited within the proposed critical habitat effect of each of the exclusions made in them to comment on the proposed rule designation actually have no this final rule. For all of the reasons and DEA during these comment periods. representatives of that species in the described above, the Secretary has During the first comment period, we area. The peer reviewer added that it is determined that these exclusions will received 20 letters addressing the very difficult to obtain evidence of not result in the extinction of the proposed critical habitat designation. absence for species in an area because species concerned, and is exercising his During the second comment period, we of the intensive level of sampling discretion under section 4(b)(2) of the received 87 letters addressing the required, and that it is doubtful that this Act to exclude from this final critical proposed critical habitat designation or level of sampling has been achieved for habitat designation portions of the the DEA. During the May 15, 2013, most of these species and the areas proposed critical habitat units that are public hearing, 39 individuals or where they could occur.

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Our Response: We recognize that concentrating recovery efforts for these above in Recovery Needs section). biological survey efforts for many native species. The DOFAW commented that Survey data indicate 47 separate species and ecosystems may be the proposed critical habitat for the locations of Mezoneuron kavaiense infrequent or lack complete coverage, three species at Puu Waawaa is in a individuals in the area west of and that presence of a species may later currently grazed area of scattered native Mamalahoa Highway that are be detected in a critical habitat unit that trees with an understory dominated by distributed evenly throughout the lower was considered unoccupied by a invasive fountain grass, particularly elevations of Unit 31 (DOFAW 2006, species. To ascertain the occupancy below the highway, and that the area unpublished). While it can be assumed status of critical habitat units, the below the highway is not a suitable area that areas at higher elevation (above Service uses the best available in which to recover these species. The 2,400 ft (731 m)), with higher rainfall occurrence data and other scientific and DOFAW further stated that conservation (mesic) and higher incidence of native commercial information available to us efforts will be much more effective in species, may provide favorable at the time of our determination (see higher elevation (above 2,400 feet (ft) conditions for plant growth and Methods, above). Our understanding of (731 meters (m)), wetter (mesic-dry to recovery, data are not available at this species’ biological needs and mesic, as opposed to dry) habitat, where time to inform whether introduction of distribution is updated as we obtain more intact native ecosystems occur. these three species from the lowland dry new information from sources such as The DOFAW proposed that the critical to the lowland mesic or montane mesic additional survey data and recent habitat boundary polygon be adjusted to ecosystem is likely to be successful. advances in species distribution include only those areas above the Mezoneuron kavaiense and the two modeling. Any updated occurrence data highway, excluding the area below the other species are primarily known to that the Service obtains for a listed highway because it is extremely occur at elevations of 2,400 ft (730 m) species are used to inform ongoing degraded. The DOFAW questioned how and below on Hawaii Island, the recovery efforts and any further the critical habitat designation would majority of which occur below rulemaking for that species. These data affect the management and recovery Mamalahoa Highway in Unit 31 also are incorporated into the technical efforts for these species currently in (USWFS 1994, pp. 13–16). Therefore, assistance we provide to action agencies place at Puu Waawaa. we have not adjusted the proposed during the section 7 consultation boundaries of the Unit 31 in this final Our Response: The State DOFAW is a process and our section 7 analyses. critical habitat rule. The Service will valued conservation partner in the (2) Comment: One peer reviewer continue our collaborative approach recovery of endangered species and expressed concern that the land set with the State and DOFAW on the their habitats. We appreciate the aside for protection in the Kaloko area management and recovery of DOFAW’s strategic approach to focus is not adequately protected from feral endangered species and their habitats. efforts in areas that may benefit the animals, particularly goats that have We will also continue to evaluate new recovery of additional listed species and been observed near Kaloko-Honokohau data and information regarding the where recovery is likely to be NHP in recent months. The peer threat of climate change and the ability reviewer emphasized that this area accomplished more readily due to of critical habitat to provide the areas merits a high ranking for protection for reduced competition with nonnative essential to species’ recovery. Bidens micrantha ssp. ctenophylla, plant species. The designation of critical (4) Comment: The DHHL Isodendrion pyrifolium, and habitat will not direct or require the recommended that the Service consult Mezoneuron kavaiensis, and that funds State DOFAW to implement recovery with the Hawaiian Homes Commission, should be procured to construct an and/or management actions in a specific the DHHL, the Office of Native ungulate-proof fence around the entire area, and the State is encouraged to Hawaiian Relations, and the native 150 ac (61 ha), allowing outplanting to continue their recovery efforts how and Hawaiian beneficiaries of the Hawaiian continue on a larger scale with where they determine most appropriate. Homes Commission Act, as well as assurances that the plants will persist Based on geographic analysis program provide knowledge of species, habitat, and not be consumed by feral goats. (GAP) vegetation data, we recognize that and management and protection prior to Our Response: We appreciate the certain areas of the proposed critical designation of critical habitat. information provided by the peer habitat within Unit 31 at Puu Waawaa Our Response: We met with DHHL reviewer regarding the land set-aside for are characterized as alien grassland representatives on August 24, 2012, protection at Kaloko, and agree that the dominated by fountain grass or kiawe prior to publishing our proposed rule area constitutes some of the best (GAP 2005). We also understand that (77 FR 63928; October 17, 2012). At the remaining habitat for the recovery of the State of Hawaii DLNR manages meeting, we provided information listed plant species. The peer reviewer month-to-month grazing leases at Puu regarding our compilation of available is correct in stating that the entire 150- Waawaa that are allowed for the dual information on species and habitat areas ac (61-ha) area is not protected from purposes of fuels reduction and on Hawaii Island, and requested goats by ungulate-proof fencing at this commercial cattle production (Parsons updated information from DHHL. At the time. The Service is working with the 2014, pers. comm.). However, our time we published our proposed rule landowners and developer to construct analysis indicates that these areas (77 FR 63928; October 17, 2012), we an ungulate-proof fence, remove contain both the physical and biological notified elected officials, the Hawaii ungulates, control nonnative plants, features essential for the recovery and County Planning Department, and maintain firebreaks, and allow for conservation of the three plant species, several Hawaiian organizations outplanting of listed plant species. as well as unoccupied areas that are including Kamehameha Schools, the needed for the expansion or Office of Hawaiian Affairs (OHA) Comments From State Agencies augmentation of reduced populations or (offices for Honolulu, Maui, Molokai, (3) Comment: The State of Hawaii the reestablishment of populations. The and Lanai), DHHL, the State Historic DOFAW stated a concern regarding the Recovery Plans for these species note Preservation Division, and Kahea (the proposed critical habitat designation at that augmentation and reintroduction of Hawaiian-Environmental Alliance). Puu Waawaa because that area is not an populations are necessary for the Following publication of our proposed area where the DOFAW is planning on species’ conservation (as described rule, we met with DHHL representatives

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(December 4, 2012, and April 10, 2013) Native Hawaiian Relations within the They reiterated concerns of cattle and presented a joint workshop with Secretary’s Office and its duties include producers that critical habitat DHHL planning staff at the April 23, effectuating and implementing the designation amounts to a downzoning 2013, Hawaiian Homes Commission special legal relationship between the (i.e., State land use district meeting, in Kapolei, Oahu. In addition, Native Hawaiian people and the United reclassification from Agriculture to we have consulted with staff from the States, and fully integrating the Conservation) of property and would Department of the Interior’s Office of principle and practice of meaningful, negatively affect the development Native Hawaiian Relations and included regular, and appropriate consultation potential of their lands, and them in meetings with DHHL. We with the Native Hawaiian people by consequently would negatively affect reviewed and incorporated new assuring timely notification of and prior the financial well-being of rancher’s information from these meetings into consultation with the Native Hawaiian operations. this final rule. people before any Federal agency takes Our Response: We understand the (5) Comment: The DHHL requested any actions that may have the potential HDOA’s concern with maintaining food that the Secretary of the Interior to significantly affect Native Hawaiian sustainability but we have no consider the effects of designation of resources, rights, or lands. A 2011 information to suggest that the critical critical habitat on Hawaiian Home Memorandum of Understanding (MOU) habitat designation will limit the ability Lands in a similar manner to the effects signed by the Department of the Interior of agricultural lands to produce food it has on tribal lands, including the states that ‘‘Federal agencies are crops. According to the State land use impact of tribal sovereignty. The DHHL required to consult with Native dockets that establish ‘‘Important also referenced Secretarial Order 3206, Hawaiian organizations before taking Agricultural Lands’’ (IALs) on the island which describes guidelines for the any action that may have the potential of Hawaii, there are no IALs within this Service when dealing with Indian tribes to significantly affect Native Hawaiian final critical habitat designation (IAL relating to endangered species on Indian resources, rights, or lands.’’ Although 2013). The designation of critical habitat tribal lands and calls on the Service to native Hawaiians do not yet have a does not deny anyone economically forge close working relationships with formal government-to-government viable use of their property (see our Indian tribes to preserve endangered relationship with the Federal response to Comment (31) for an species while respecting tribal authority Government, we endeavor to fully explanation of the regulatory over their lands. The DHHL further engage and work directly with native consequence of a critical habitat commented that the Hawaiian Home Hawaiians as much as possible. At the designation). Lands Recovery Act (Pub. L. 104–42) time we published our proposed rule Regarding downzoning, according to requires the Secretary to follow certain (77 FR 63928; October 17, 2012), we the State’s DLNR Office of Conservation procedures when determining whether notified several Hawaiian organizations and Coastal Lands and the State Office the consent of the United States is as described in our response to of Planning, critical habitat designation necessary for an amendment to the Comment (4). We have considered all does not automatically generate a Hawaiian Homes Commission Act (Pub. comments provided by the DHHL and district reclassification or downzoning L. 67–34) and when determining these other organizations in this final (e.g., redistricting from development use whether to approve an exchange of rule. to conservation). According to the State Hawaiian Home Lands with other lands. (6) Comment: The DHHL requested an Office of Planning, the presence of Our Response: In accordance with the extension of the public comment period critical habitat is taken into President’s memorandum of April 29, to allow an additional 60 days for public consideration during the redistricting 1994 (Government-to-Government review and comment on the proposed process (both during the 5-year Relations With Native American Tribal critical habitat designation and DEA. boundary reviews and review of Governments; 59 FR 22951), Executive The additional time was requested to petitions for boundary amendments); Order 13175 (Consultation and gather and assess information regarding however, the presence of critical habitat Coordination With Indian Tribal the benefits of exclusion or inclusion of does not necessarily mean that an area Governments), and the Department of DHHL lands. will be redistricted to the Conservation the Interior’s manual at 512 DM 2, we Our Response: On July 2, 2013 (78 FR District. The DLNR and State Office of readily acknowledge our responsibility 39698), we reopened the public Planning were unable to identify an to communicate meaningfully with comment period on the proposed instance in which critical habitat recognized Federal Tribes on a critical habitat designation and DEA for specifically affected a districting government-to-government basis. In an additional 60 days, ending on decision. accordance with Secretarial Order 3206 September 3, 2013. Further, on May 20, The FEA acknowledges that there is of June 5, 1997 (American Indian Tribal 2016, we announced another reopening uncertainty with regard to whether or Rights, Federal-Tribal Trust of the comment period on the proposed not the County of Hawaii will require Responsibilities, and the Endangered critical habitat designation, including landowners to implement conservation Species Act), we readily acknowledge the economic impacts of the measures or conduct environmental our responsibilities to work directly designation, ending June 6, 2016 (81 FR assessments as a result of the with tribes in developing programs for 31900). designation of critical habitat. healthy ecosystems; to incorporate (7) Comment: The Hawaii State Uncertainty exists regarding whether or native intelligence and knowledge of Department of Agriculture (HDOA) not critical habitat designation will species, habitat, and place-based stated that exclusion of agricultural cause the County to request additional management and protection; to lands from critical habitat designation is assessments or reporting, or require acknowledge that tribal lands are not important for Hawaii’s food additional conservation efforts when a subject to the same controls as Federal sustainability. The HDOA further landowner applies for a change in public lands; to remain sensitive to commented that critical habitat zoning. As described in section 2.6 of Indian culture; and to make information designation on agricultural land hurts the FEA, the County Planning available to tribes. In addition, a 2004 Hawaii’s agricultural production by Department indicated that while critical consolidated appropriations bill (Pub. L. limiting potential uses on the land and habitat designation is taken into 108–199) established the Office of reducing the market value of the land. consideration, the presence of a listed

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species weighs more heavily in the agencies. They stated that if the Service Comments From Elected Officials decision-making process. The County had provided data during the KCDP (11) Comment: Hawaii was unable to identify an instance in planning process about areas now being Congresswoman Colleen Hanabusa which the presence of critical habitat proposed for critical habitat, it may have requested that the Service conduct a generated additional conservation altered the Kona Urban Area boundary public information meeting regarding recommendations or a request for an designation. the proposed critical habitat for three Our Response: While we were not environmental assessment. species on the island of Hawaii during (8) Comment: The County of Hawaii heavily involved in the KCDP planning the public comment period for the Planning Department commented that process, there was extensive proposed critical habitat. their policy (‘‘Policy Env-1.5’’) requires information that the Service had earlier Our Response: The Service held two that areas identified as critical habitat be made available to the public regarding public information meetings regarding considered sensitive and are inventoried two of these species. We previously the proposed critical habitat designation as part of the County permitting process, proposed critical habitat for one of the for the three Hawaii Island species, the and, therefore, the Kona Community three species, Isodendrion pyrifolium, in first on May 15, 2013, and the second Development Plan (KCDP) already the KCDP area in 2002 (67 FR 36968; on August 7, 2013; both public recognizes the sensitive nature of the May 28, 2002). In addition, before its information meetings were held at the majority of lands that the Service is now listing in 2013, Bidens micrantha ssp. Kona Civic Center. Announcements of designating as critical habitat for these ctenophylla had been included as a the meetings were published in the three plant species. candidate for protection under the Act Our Response: We recognize that since 1980, and is recognized in Federal Register on April 30, 2013 (78 ‘‘Policy ENV–1.5: Sensitive Resources’’ numerous surveys and reports in the FR 25243), and July 2, 2013 (78 FR in the KCDP addresses areas already Kona area (Char 1990; Char 1992; 39698), respectively. In addition, the designated critical habitat and Warshauer and Gerrish 1993; Belt Service sent letters to all interested predominantly native ecosystems. In Collins Hawaii 1999; Hart 2003, in litt.; parties, including elected officials, addition, we appreciate that authors of Whistler 2007). Futhermore, in the Federal and State agencies, native the KCDP voluntarily compiled development of this critical habitat Hawaiian organizations, private information on critical habitat, designation, the Service used the HNHP landowners, and other stakeholders, anchialine ponds, and rare plants and database as a primary source of notifying each of the public information animals using data from the Hawaii information on rare species occurrence meetings. Natural Heritage Program (HNHP) data; this is the same source that the (12) Comment: Hawaii County Mayor database. The KCDP includes a map KCDP referenced for information on William Kenoi expressed strong showing native vegetation within the sensitive resources such as rare plants reservations about the proposed critical plan area and a map showing designated and animals, and native habitats. habitat designation and commented that critical habitat; this map also shows (10) Comment: The County of Hawaii areas within the proposed critical habitat of the Bidens micrantha ssp. Planning Department commented that habitat designation have been proposed ctenophylla and Mezoneuron kavaiense the KCDP Greenbelt may be an for some type of active use or within the Kona Urban Area (KCDP appropriate tool to provide protection development for at least 25 years. Mayor 2008, Figures 4–8b and 4–8c). Because for the species’ habitats within the Kona Kenoi commented that the proposed use the KCDP was published in 2008, and Urban Area boundary designation. The of these properties are a result of a the HNHP, which was a source of Greenbelt is defined as areas of largely quarter-century of land use decisions, information for the map, no longer undeveloped, wild, agricultural land planning, and coordination, and exists, we will work with the Planning surrounding or neighboring urban areas represent an integral part of the growth Department and provide updates on and is intended as a strategic planning of this fast-growing region. Mayor Kenoi sensitive resources, as appropriate, tool to prevent urban sprawl by keeping also expressed support for the Service’s including the critical habitat land permanently open. The Greenbelt efforts to protect native species in designations in this final rule. may also serve multipurpose uses, such accordance with the Act, and urged the Even though the KCDP already as for drainage (e.g., flow ways or Service and all stakeholders to seek recognizes the sensitive nature of these retention basins), sensitive resource common ground. lands, the Service is not relieved of its preserves, or wildfire protection buffers. Our Response: We acknowledge statutory obligation to designate critical Our Response: We have reviewed the Mayor Kenoi’s concerns related to the habitat based on the contention that it KCDP and commend the plan for proposed critical habitat designation will not provide additional conservation addressing the desire for open space and and its overlap with current land use benefit (see, e.g., Center for Biological preventing urban sprawl. We also proposals. Under the Act, any species Diversity v. Norton, 240 F. Supp. 2d support the use of native plant species determined to be endangered or 1090 (D. Ariz. 2003)). If an area provides in landscaping, including endangered threatened requires critical habitat to be the physical or biological features and threatened plant species, provided designated, to the maximum extent essential to the conservation of the proper permits and approvals are prudent and determinable. By species, even if that area is already secured. While we recognize that definition, in section 3(5)(A) of the Act, managed or protected, that area still Greenbelt areas are intended in some critical habitat for an endangered or qualifies as critical habitat under the instances to protect sensitive resources, threatened species includes the specific statutory definition of critical habitat if these areas are not likely to support areas within the geographical area special management or protection is species recovery because they: (1) Are occupied by a species, at the time it is required. too small in size; (2) increase habitat listed in accordance with the provisions (9) Comment: The County of Hawaii fragmentation; and (3) allow uses such of section 4 of the Act, on which are Planning Department commented on the as various transportation features, parks, found those physical or biological lack of timely input by the Service playgrounds, and other activities that features essential to the conservation of during the KCDP planning process, are incompatible with native ecosystem the species and which may require which included years of community and restoration (Kona CDP 2008, pp. 4–40– special management considerations or government input, including Federal 4–41, SC12). protection; and specific areas outside

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the geographical area occupied by a designation of their lands. Numerous electrical facilities. Another commenter species at the time it is listed in other public commenters wrote in stated that areas with the HELCO’s accordance with the provisions of support of excluding these lands from existing electrical facilities should be section 4 of the Act, upon a critical habitat. excluded from the critical habitat determination that such areas are Our Response: We used the best designations, and proposed a buffer of essential for the conservation of the available scientific information to 250 ft (76 m) around all electrical species. Although this designation may determine habitat essential to the facilities and requested exclusion of overlap areas proposed for the land uses conservation of the species (see these areas from the critical habitat mentioned by the commenter, these Methods, above), and further refined the designation to allow for necessary areas meet the definition of critical critical habitat boundaries based on new maintenance and vegetation clearing. habitat and are therefore included in information received since publication The commenter also requested that this final designation. However, under of the proposed rule on October 17, maps of the proposed critical habitat be section 4(b)(2), we designate, and make 2012 (77 FR 63928), and release of our revised to reflect exclusion of these revisions to, critical habitat based on the DEA of the Hawaii Island proposed areas, and that the Service add mention best scientific data available and after critical habitat on April 30, 2013 (78 FR of ‘‘electrical utility infrastructure and a taking into consideration the economic 25243). Under section 4(b)(2) of the Act, 250 ft (76 m) buffer around such impact, the impact on national security, we designate and make revisions to electrical infrastructure’’ to the list of and any other relevant impact. In this critical habitat based on the best examples of manmade features and final rule, we have excluded several scientific data available and after taking structures that are not included in the areas based on relevant impacts (see into consideration the economic impact, final critical habitat designation. the impact on national security, and any Consideration of Impacts Under Section Our Response: In our proposed rule other relevant impact. Some of these 4(b)(2) of the Act, above). (77 FR 63928; October 17, 2012), we (13) Comment: Hawaii County landowners have long-standing state that existing manmade features Councilmember Karen Eoff commented partnerships with the Service, and/or and structures such as buildings, roads, on the importance in maintaining demonstrated commitment and success railroads, airports, runways, other paved cultural, environmental, and economic for conservation of endangered species areas, lawns, and other urban balance, and expressed support for and the ecosystems on which they landscaped areas are not included in the designating adequate critical habitat for depend. The Service has worked with critical habitat designation. In this final Hawaii Island’s endangered native plant the other landowners to execute MOUs and animal species. She further stated to benefit the three critical habitat rule, we add clarification to include that protection of the island’s fragile species and the lowland dry ecosystem. utility facilities and infrastructure and ecosystem, and cultural and natural For the reasons described above (see their designated, maintained rights-of- environment, will enhance the visitor Consideration of Impacts Under Section way as examples of existing manmade industry and economy. The 4(b)(2) of the Act), the lands under features and structures (see § 17.99 councilmember also commented that control of Kamehameha Schools, WVA, Critical habitat; plants on the Hawaiian collaborative efforts among the Service, Palamanui, Kaloko Entities, Lanihau Islands.). Any such structures or DHHL, QLT, OHA, and State and Properties, QLT, Forest City Kona, State features and the land under them that is County agencies, in tandem with the of Hawaii lands assigned to the County inside critical habitat boundaries shown directives and guidelines outlined in the of Hawaii, the HHFDC, and the DHHL on the maps in this final rule are KCDP, will ensure perpetuation of have been excluded from critical habitat excluded by text in this final rule and traditional cultural practices, ensure in this final rule. are not designated as critical habitat (see protection of the island’s natural (15) Comment: The Hawaii Electric above, Criteria Used to Identify Critical resources, and safeguard balanced Light Company (HELCO) stated that the Habitat). It has always been our intent economic development. Service’s conclusion that the proposed and practice to not include any existing Our Response: We appreciate the rule will not ‘‘significantly affect energy designated, maintained rights-of-way for councilmember’s comments in support supply, distribution, and use’’ is utility facilities and infrastructure in the of the protection of Hawaii’s endangered erroneous. They stated that if HELCO’s areas designated as critical habitat. plant and animal species and her electrical facilities are included in the Federal actions involving these areas suggestion to work collaboratively with critical habitat designation, their ability will not trigger section 7 consultation all stakeholders (see our response to to provide reliable power where it is unless the specific action will also affect Comments (37) and (40), below, needed will be compromised because adjacent critical habitat or its physical regarding our outreach to and the designation might impede its ability or biological features. We believe the collaboration with stakeholders). See to maintain, replace, or repair existing clarification for utility facilities and our response to Comments (8) and (9) facilities or install additional facilities infrastructure and their existing regarding our consideration of the KCDP necessary to meet demand and thereby designated, maintained rights-of-way in this final rule. cause a significant adverse effect on allows for maintenance and vegetation energy distribution. The HELCO stated clearing, therefore, exclusion of a 250-ft Comments Regarding Exclusions that their 6700 and 6800 circuits (76-m) buffer around electrical (14) Comment: The Kamehameha provide stability and redundancy for the infrastructure and facilities is neither Schools, WVA, Palamanui, Kaloko grid, which is particularly essential, due necessary nor appropriate. As stated Entities (previously Kaloko Properties to their proximity to the Keahole Power above, it is our practice to consider Corporation, SCD–TSA Kaloko Makai Plant. They also stated that the Service utility rights-of-way as part of the LLC, TSA Corporation), Lanihau failed to take into account the impact of development/infrastructure footprint, Properties, QLT, Forest City Kona, State the proposed rules on energy supply, although, there are circumstances where of Hawaii lands assigned to the County distribution, and use, as required by a portion of the designated right-of-way of Hawaii, DHHL, and the HHFDC Executive Order 13211 of May 18, 2011, may not be regularly maintained; requested exclusion of their lands from and that consequently, the Service therefore, this area may contain physical the proposed critical habitat designation should prepare a Statement of Energy or biological features that define critical or expressed opposition to the Effects that addresses HELCO’s habitat. For example, a utility company

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may have a designated right-of-way for SCD–TSA Kaloko Makai LLC); and (3) recovery of the species because they a utility line where only a small portion TSA LLC, a Hawaii limited liability provide the physical or biological of the right-of-way is maintained company (formerly known as TSA features necessary for the expansion of (mowed, graded) as an access route. In Corporation). The letter expressed an existing wild populations and the this situation, if the un-maintained interest to re-engage in discussions with reestablishment of wild populations portion of the right-of-way contains the the Service regarding a partnership or within the historical range of the designated physical or biological conservation agreement. As discussed in species. These areas within the features, the Service would recommend our response to Comment (14) above, designated unit provide the physical the action agency consult on the and for the reasons discussed in the and biological features of the lowland project’s effects to critical habitat. Consideration of Impacts Under Section dry ecosystem for the three plants and According to Executive Order 13211, 4(b)(2) of the Act, the lands owned by also provide essential habitat that is a ‘‘Significant energy action’’ means any Kaloko Entities have been excluded necessary for the expansion of the action by an agency that is a significant from this critical habitat designation. existing wild populations of the three regulatory action under Executive Order species which occupy other sites in the Comments Regarding the Methodology 12866 or any successor order, and is unit. Due to the small numbers of Used To Determine Critical Habitat likely to have a significant adverse effect individuals or low population sizes of on the supply, distribution, or use of (17) Comment: Several commenters each of these three species, suitable energy; or that is designated by the opposed the designation of critical habitat and space for expansion or Administrator of the Office of habitat in unoccupied areas. One reintroduction are essential to achieving Information and Regulatory Affairs commenter stated that where population levels necessary for recovery (OIRA) as a significant energy action (66 unoccupied habitat is involved, courts these species. See our response to FR 28355; May 22, 2001). As discussed have determined that ‘‘[e]ssential for Comment (12) above regarding the in the Required Determinations section conservation is the standard for definition of critical habitat and criteria below, the OIRA determined this rule unoccupied habitat . . . and is a more for our determination of why was not significant. The economic demanding standard than that of unoccupied areas are essential to the analysis for this critical habitat occupied critical habitat,’’ citing conservation of the three species in this designation could not identify any Homebuilders Association of No. final rule (see also Criteria Used to energy projects planned or proposed California v. U.S. Fish & Wildlife Identify Critical Habitat, above). within the proposed critical habitat Service, 616 F.3d 983, 990 (9th Cir. (18) Comment: Several commenters designation, and, therefore, section A.4 2010). Another commenter challenged disputed the use of an ecosystem of Appendix A of the FEA, ‘‘Potential the Service to substantiate the approach in our determination of PCEs Impacts to the Energy Industry,’’ states presumption that loss of unoccupied for each species and cited the that the designation of critical habitat is habitat will significantly decrease the regulations for determining critical not anticipated to result in any impacts likelihood of conserving the species or habitat at 50 CFR 424.12(b). In addition, to the energy industry. jeopardize the conservation and commenters argued that the proposed (16) Comment: Several commenters preservation of the species. ecosystem critical habitat designations requested that the Kaloko Makai Our Response: We used the best are overly generalized and, therefore, property be excluded from critical available scientific information to lack the necessary analysis and habitat designation in light of the determine critical habitat for the species explanation required by the Act for each willingness of SCD–TSA Kaloko Makai, (see Methods, above), and further species, adding that the courts have LLC to convey 40 ac (1 ha) (out of the refined the critical habitat boundaries consistently held that such a roughly 630 ac (255 ha) of the Kaloko based on new information received generalization of critical habitat is Makai property proposed as critical since publication of the proposed rule unacceptable. habitat) to Hawaii Health Systems on October 17, 2012 (77 FR 63928) and Our Response: Under the Act and its Corporation (HHSC) at no cost for the release of our DEA of the Hawaii Island implementing regulations, in areas development of a new regional acute proposed critical habitat on April 30, occupied at the time of listing, we are care hospital, to set aside 150 ac (61 ac) 2013 (78 FR 25243). In this final rule, required to identify the physical and in perpetuity for a dryland forest the critical habitat designation is a biological features essential to the preserve, and to fence and remove combination of areas occupied by the conservation of the species for which ungulates and nonnative species from species and areas that may be we propose critical habitat. The PCEs the preserve. Concern was raised that if unoccupied. For areas considered are those specific elements of the the Kaloko Makai property is designated occupied, the best available scientific physical and biological features that as critical habitat there is little chance information suggests that these areas provide for a species’ life-history that the Kaloko Makai project will be were occupied by Bidens micrantha ssp. processes and are essential to the developed, and, as a result, the roads, ctenophylla, Isodendrion pyrifolium, conservation of the species. These water, sewer, and other infrastructure and Mezoneuron kavaiensis at the times species need a functioning ecosystem to that are necessary for the hospital of their listing. However, due to the survive and recovery. Further, in many operations would not be built. small population sizes, few numbers of cases, due to our limited knowledge of Our Response: The Service received individuals, and reduced geographic specific life-history requirements for the notification in a June 6, 2016, letter, of range of each of the three species for species that are little-studied and occur the new management of this property which critical habitat is here designated, in remote and inaccessible areas, the representing a group called the Kaloko we have determined that a designation physical and biological features that Entities that includes: (1) Kaloko limited to the known present range of provide for the successful functioning of Properties LLC, a Hawaii limited the area occupied by each species at the the ecosystem on which these species liability company (formerly known as time of its listing would be inadequate depend represent the best, and, in many Kaloko Properties Corporation); (2) to achieve the conservation of those cases, the only, scientific information Kaloko Residential Park LLC, a Hawaii species. The areas believed to be available. Accordingly, the physical and limited liability company (owner of the unoccupied have been determined to be biological features of the ecosystem are, Kaloko Makai lands formerly owned by essential for the conservation and at least in part, the physical and

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biological features essential to the that development could be planned to conservation of the three species by conservation of those species. avoid, protect, and restore remnant sites identifying the occurrence data for each Collectively, these features provide the with high-quality habitat. species and determining the ecosystems suite of environmental conditions Our Response: We agree with the upon which they depend. The essential to meeting the fundamental commenter’s statement that various information we used is described in our requirements of each species. threats affect most, if not all, of the October 17, 2012, proposed rule (77 FR In this case, the physical and habitat for the three species. Fire, 63928) and in this final rule (see biological features that we identified for nonnative plant species, and ungulates Methods, above). In response to the these species represent the PCEs for are identified as primary threats to the commenter’s suggestion that our these species, and reflect a distribution physical and biological features of the analysis consider areas across the entire that we concluded is essential to the lowland dry ecosystem essential to the Hawaii Island, we did not consider species’ recovery needs within the conservation of the three species. We including areas outside the species’ lowland dry ecosystem. The ecosystems’ also agree that the areas designated known historic range as critical habitat. features include the appropriate require special management The introduction of a species outside its microclimatic conditions for considerations or protections. (e.g., historically known range may cause germination and growth of the plants firebreaks, fencing, control of nonnative additional concerns, such as (e.g., light availability, soil nutrients, plant species). In addition, active hybridization with other closely related hydrologic regime, and temperature) management of the species themselves species (in the case of Bidens micrantha and space within the appropriate (e.g., ex situ (off-site) germplasm ssp. ctenophylla) (Giffin 2011, pers. habitats for population growth and storage, and collection, propagation, comm.), or exposing species to other expansion, as well as maintenance of outplanting and maintenance) will known or unknown threats. Regarding the historical geographical and likely be necessary for the conservation the consideration of available habitat on ecological distribution of each species. of the three species (USFWS 1994, pp. State and Federal lands, the final The PCEs are defined by elevation, 39–48; USFWS 1999, pp. 71, 117–119, designation includes significant areas of annual levels of precipitation, substrate 126). With protection and active State and Federal lands, totaling 11,613 type and slope, and the potential to management, we expect the areas ac (4,699 ha) out of the 11,640-ac (4,711- maintain characteristic native plant identified in this final rule to provide ha) designation. genera in the canopy, subcanopy, and the areas essential to the conservation of (21) Comment: One commenter stated understory levels of the vegetative the three species. While development that areas with soil types classified as community. The physical and biological adjacent to protected areas may include pahoehoe lava flows or aa lava flows are features/PCEs of a functioning paved or landscaped areas that may not suitable for critical habitat ecosystem for the lowland dry reduce the potential for invasion by or designation because such areas do not ecosystem identified as essential to the the harmful effects of nonnative plant provide the PCEs of the lowland dry conservation of the three species are species, higher levels of human activity ecosystem substrate, which consists of described in Table 2 of this final rule associated with development also ‘‘weathered silty loams to stony clay, and were derived from several sources, creates the potential of ignition sources, rocky ledges, and little-weathered lava.’’ including: (a) The Nature Conservancy’s vandalism, and theft. During the Our Response: We disagree with the Ecoregional Assessment of the Hawaiian proposed rule’s comment periods and in commenter’s statements that pahoehoe High Islands (2006) and ecosystem maps the development of this final rule, we and aa lava provide neither the PCEs of (2007); (b) Natural Resource worked with the State, County, and the lowland dry ecosystem nor suitable Conservation Service’s (NRCS) soil type affected landowners in a cooperative habitat for the three species. As analysis data layer for GIS (geographic planning process that addressed described by Gagne and Cuddihy (1999, information systems) mapping (NRCS development and the areas essential to pp. 67–74), the substrate of the lowland 2008); (c) Hawaii Island vegetation the conservation of the three species. dry ecosystem ranges from weathered analyses by Gagne and Cuddihy (1999, (20) Comment: Several commenters reddish silty loams to stony clay soils, pp. 45–114); (d) plant databases from stated the possibility that other potential rocky ledges with very shallow soil, or the National Tropical Botanical Garden conservation areas and resources are relatively recent, little-weathered lava. (2011); (e) geographic information available for protection of the target In addition, all three species are known system maps of habitat essential to the species throughout west Hawaii and from primarily pahoehoe and aa soil recovery of Hawaiian plants (HPPRCC Hawaii Island, and that the Service’s types on relatively recent lava flows (51 1998); (f) GAP (geographic analysis methods of only using available FR 24672, July 8, 1986; 59 FR 10305, program) vegetation data (GAP 2005); (g) historical surveys and past studies March 4, 1994; HBMP 2010a, HBMP Federal Register documents, such as prepared by landowners unnecessarily 2010b, HBMP 2010c). listing rules and 5-year status reviews; skews the designation of possible (22) Comment: One commenter stated (h) recent biological surveys and critical habitat areas toward areas that that there is no benefit of critical habitat scientific reports regarding species and are being slated for development, such designation in areas occupied by the their habitats; and (i) discussions with as the Kona Urban Area. A commenter species. The commenter stated that qualified individuals familiar with these suggested that a proper scientific according to information presented in species and ecosystems. method would include a contemporary the Service’s DEA, in areas where the (19) Comment: One commenter stated analysis of the entire island of Hawaii species is present, the level of that most of the area proposed for for the areas that have the necessary protection afforded by a critical habitat critical habitat is affected by various physical and biological attributes designation is similar to the level of threats (wildfires, nonnative plants, and necessary for establishing a critical protection already present without the nonnative ungulates), is not currently habitat area. designation. good habitat for endangered plant Our Response: As required by section Our Response: This comment may be species, and would require difficult, 4(b) of the Act, we used the best in reference to discussion of expensive measures to rehabilitate, scientific data available in determining incremental economic impacts in the requiring at the very least some fencing those areas that contain the physical or DEA (also discussed in the FEA) which and firebreaks. The commenter stated biological features essential to the recognizes that the presence of listed

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plants provides extensive baseline determined to be essential for their Act (see Consideration of Impacts Under protection because projects or activities conservation may not correspond to the Section 4(b)(2) of the Act, above). with a Federal nexus would be subject existing Conservation District. The best (25) Comment: Two commenters to section 7 consultation regardless of available scientific information led us to stated that lands within the critical critical habitat designation. It is, a proposed designation of critical habitat designation will have limited therefore, unlikely that critical habitat habitat wherein ten percent fell within access and thereby not allow people to designation will change the outcome of the Urban District (1,921 ac (778 ha)), 16 malama aina (care for the land). future section 7 consultations within percent within the Conservation District Our Response: The designation of areas occupied by the species. However, (2,955 ac (1,196 ha)), and 74 percent in critical habitat does not affect land critical habitat provides other benefits. the Agricultural District (13,892 ac ownership or establish a wilderness One of the benefits of a critical habitat (5,622 ha)). See our response to area, preserve, or wildlife refuge, nor designation is that it serves to educate Comment (12), above, regarding our does it open or restrict a privately- landowners, State and local analysis and the information used to owned area to human access or use. Past governments, and the public regarding determine the areas of critical habitat for or ongoing activities to care for the land, the potential conservation value of an the three species in our proposed rule such as habitat management, reduction area. This can help focus and promote (77 FR 63928; October 17, 2012) and in of species’ threats, and increasing conservation efforts by identifying areas this final rule (see also Methods and species numbers are expected to benefit of high conservation value for the listed Criteria Used to Identify Critical the species recovery, and, therefore, plants. Any additional information Habitat, above). such activities would be encouraged about the needs of the listed plants or (24) Comment: One commenter within designated critical habitat. their habitat that reaches a wider questioned the Service’s consideration Comments Regarding Regulatory audience is of benefit to future for exclusion of certain groups with Authority and Requirements conservation efforts. See also the second plans for commercial or residential half of our response to Comment (8) development within the proposed (26) Comment: Two commenters regarding the benefit of critical habitat. critical habitat designation, stating that stated that designating non-Federal land (23) Comment: One commenter stated such development would undoubtedly (Kamakana Villages, Kaloko Makai) as that by focusing on areas where there degrade and destroy the physical and critical habitat will provide no benefit to are perceived threats caused by biological features, and the resulting any listed or proposed endangered urbanization, the resulting proposed traffic would have detrimental effects on species that is not already provided critical habitat identifies areas in and the species’ habitat. Another commenter under Hawaii State law. The commenter around areas planned for urbanization. opposed the Service’s consideration of stated that section 9 of the Act does not The commenter suggested that the the areas proposed for exclusion from prohibit the ‘‘taking’’ of federally listed Service first consider lands within the critical habitat under section 4(b)(2) of plants from non-Federal lands and cited State Conservation District and the the Act for the purposes of widespread 16 U.S.C. 1538(a)(2)(B), which defers to protections afforded these lands in urban development and sprawl that State laws and regulations. The identification of potential critical further fragment, modify, and destruct commenter stated that under HRS habitat. Consideration of urban lands or these species’ critical habitat. 195D–4(e), it is unlawful to ‘‘take’’ any lands planned for urban growth for Our Response: We appreciate the endangered or threatened plant species critical habitat designation should only commenters’ concern for possible in the State of Hawaii, and, therefore, occur after all other sites protected impact to and assurances of with respect to plants, the State law is through zoning have been thoroughly conservation for areas considered for more protective than the Act and critical exhausted. exclusion from the proposed critical habitat designation on non-Federal land. Our Response: As stated previously, habitat designation in the proposed rule Another commenter stated that the DEA the State is a valued conservation (77 FR 63928; October 17, 2012). clearly indicates no additional partner in the recovery of endangered Section 4(b)(2) of the Act states that the protection of endangered species will be species and their habitats and we Secretary must designate or make afforded by the proposed critical habitat appreciate their strategic approach. revisions to critical habitat on the basis designation other than that which Species that occur in the lowland dry of the best available scientific data after already exists under State law. ecosystem face numerous threats in taking into consideration the economic Our Response: Unlike the automatic addition to urban development, impact, national security impact, and conferral of State law protection for all including habitat destruction by any other relevant impacts of specifying federally listed species (see HRS 195D– ungulates, nonnative plants, fire, and any particular area as critical habitat. 4(a)), there are no provisions in State climate change; predation or herbivory The Secretary may exclude an area from law (HRS 195D–4(e)) that reference by ungulates, nonnative vertebrates, and critical habitat if he determines that the federally designated critical habitat. invertebrates; and other threats such as benefits of such exclusion outweigh the When considering the benefits of hybridization (77 FR 63928; October 17, benefits of specifying such area as part inclusion of an area in critical habitat, 2012). Hawaii Revised Statute (HRS) of the critical habitat, unless he we consider the regulatory benefits that 183C establishes the authority of the determines, based on the best scientific area would receive from the protection Hawaii DLNR to regulate uses and data available, that the failure to from adverse modification or permitting within the Conservation designate such area as critical habitat destruction as a result of consultation District but does not address will result in the extinction of the under section 7(a)(2) of the Act for endangered and threatened species or species. The Secretary may exclude an actions with a Federal nexus; the designated critical habitat. In the case of area from critical habitat based on educational benefits of mapping habitat species such as Bidens micrantha ssp. economic impacts, impacts to national essential for recovery of the listed ctenophylla, the historical range of the security, or any other relevant impacts. species; and any benefits that may result species may be extremely restricted (see In this final rule, the Service carefully from a designation due to State or Current Status of the Species, above), considered the factors above and Federal laws that may apply to critical and, therefore, areas that contain the present the results of our analysis for habitat. Benefits could include public physical and biological features or areas each area excluded under 4(b)(2) of the awareness of the presence of listed

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species and the importance of habitat The Hawaii Department of Business, processes. In addition, HRS 343 protection, and in cases where a Federal Economic Development & Tourism’s provides a comprehensive review of the nexus exists, increased habitat (DBEDT) Office of Planning also environmental impact statement (EIS) protection due to the protection from conducts a periodic review of district process, and describes the applicability adverse modification or destruction of boundaries taking into account current and requirements for environmental critical habitat. Also, State law only land uses, environmental concerns, and assessments (EA), regardless of the protects existing plants from take. If an other factors, and may propose changes underlying land classification. HRS 343 area is unoccupied, there are no to the LUC. The State LUC determines does not trigger land reclassification as provisions for protection under State whether changes proposed by DLNR, a result of critical habitat designation, law. See also the second half of our DBEDT, other State agencies, counties, nor does it stipulate prohibitions against response to Comment (8). or landowners should be enacted. In proposed actions or proposed land use (27) Comment: Several commenters doing so, State law requires LUC to take changes in areas designated as critical expressed concern about the potential into account specific criteria, set forth at habitat, whether or not these areas are negative effects of critical habitat HRS section 205–17. While the LUC is in the conservation district. It states that designation on their lands because of specifically directed to consider the an EIS is required for any proposed land the interplay of Federal and Hawaii impact of the proposed reclassification reclassifications under 343–5(2) and State law. For example, they were on ‘‘the preservation or maintenance of 343–5(7) and ‘‘any use within any land concerned that designation of critical important natural systems or habitats,’’ classified as a conservation district by habitat could lead to reclassification of it is also specifically directed to the state land use commission under land by the State into the conservation consider five other impacts in its Chapter 205.’’ HRS 343, therefore, district pursuant to HRS 195D–5.1 and decision: (a) Maintenance of valued provides guidelines for the EIS process HRS 205–1(3). The commenters stated cultural, historical, or natural resources; and EA process regarding: (a) Land that critical habitat designation will put (b) maintenance of other natural reclassification, and (b) proposed the State of Hawaii Land Use resources relevant to Hawaii’s economy, actions or proposed land use changes on Commission (LUC) Urban District including, but not limited to, lands that are already classified as classification at risk because under HRS agricultural resources; (c) commitment conservation. 195D–5.1, the DLNR is required to of State funds and resources; (d) (29) Comment: One commenter stated initiate land use district boundary provision for employment opportunities that the Service must also consider its amendments to put lands that are and economic development; and (e) designation of critical habitat for plants considered habitat for flora and fauna provision for housing opportunities for in the context of the Hawaii Endangered into the State LUC Conservation all income groups, particularly the low, Species Act, HRS 195 (Hawaii ESA). District. Multiple commenters stated low-moderate, and gap groups (HRS The commenter stated that ‘‘impacts of that the proposed critical habitat section 205.17). Approval of plant designations in Hawaii are designation will result in a redistricting redistricting requires six affirmative consequently more sweeping than in the or ‘‘down-zoning’’ of the designated area votes from the nine commissioners, rest of the nation because the Hawaii to the conservation district due to HRS with the decision based on a ‘‘clear ESA makes it broadly unlawful for any section 195D–5.1, resulting in the loss of preponderance of the evidence that the person to ‘take’ a ‘land plant’’’ under projects and associated investments, proposed boundary is reasonable’’ (HRS HRS 195D–4(e)(2), subjecting violators entitlements, and other benefits. section 205–4). In addition, the LUC to the full force of civil and criminal Our Response: HRS section 195D–5.1 must hold a hearing on all petitions to penalties under the Hawaii ESA (citing states that the DLNR, ‘‘shall initiate redistrict areas greater than 15 ac (6 ha), HRS 195D–2 which defines ‘‘Taking’’ to amendments to the conservation district and must admit as intervening parties include collecting, cutting, uprooting, boundaries consistent with section 205– all persons who have some property destroying, injuring, or possessing the 4 in order to include high quality native interest in the land, thus giving private endangered land plant, without regard forests and the habitat of rare native property owners opposing redistricting to where it is located, including private species of flora and fauna within the the opportunity to present evidence property). conservation district.’’ HRS section 205– (HRS section 205–4). The relevant State Our Response: HRS 195D covers 2(e) specifies that ‘‘conservation endangered and threatened species conservation of aquatic life, wildlife, districts shall include areas necessary statute contains no reference to and land plants in the State of Hawaii. for * * * conserving indigenous or designated critical habitat. Also, as The sections of HRS 195D relevant to endemic plants, fish and wildlife, stated above, unlike the automatic this discussion are HRS sections 195D– including those which are threatened or conferral of State law protection for all 4 and 195D–5.1. HRS section 195D–4 endangered * * *.’’ Unlike the federally listed species, State law does recognizes the Federal status automatic conferral of State law not require initiation of the amendment (endangered or threatened) of flora and protection for all federally listed species process for federally designated critical fauna in Hawaii as determined by the (see HRS 195D–4(a)), these provisions habitat (HRS section 195D–5.1, HRS Department of the Interior. This section do not explicitly reference federally section 195D–4(a)). also outlines State regulations for designated critical habitat and, to our (28) Comment: One commenter stated possession, trade, or other uses of these knowledge, DLNR has not proposed that the consequences of critical habitat species, as well as prohibitions amendments in the past to include all designation are broader than section 7 regarding endangered and threatened designated critical habitat in the consultation. The commenter stated that species on both Federal and non-Federal conservation district. State law only the existence of the critical habitat land, but makes no mention of critical permits other State departments or designation would undoubtedly be used habitat under HRS 195D–4. HRS section agencies, the county in which the land to oppose any ongoing or proposed 195D–5.1, ‘‘Protection of Hawaii’s is situated, and any person with a actions in the designated area by State unique flora and fauna,’’ states that the property interest in the land to petition and county agencies. DLNR shall initiate amendments to the the State LUC for a change in the Our Response: See response to conservation district boundaries boundary of a district (HRS section 205– Comment (27) above regarding critical consistent with section 205–4 in order 4). habitat and State and County land use to include high-quality native forests

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and the habitat for rare native species of Flexibility Analysis (IRFA) (see 5 U.S.C. designated critical habitat. In other flora and fauna within the conservation 603). The commenters stated that the words, critical habitat only has a district. Neither of these sections of HRS Service did not perform an adequate regulatory impact if a Federal nexus 195D includes statements invoking analysis of the impacts on small exists. Critical habitat has no regulatory automatic prohibitions against adverse businesses, as required by law, stating effect or impact under the Act on modification of critical habitat on that under the RFA a ‘‘small business’’ actions that do not have a Federal private lands. has the same meaning as a ‘‘small nexus. Since Federal action agencies are (30) Comment: Several commenters business concern’’ (see 5 U.S.C. 601). the only directly regulated entities as a claimed that the regulatory flexibility Our Response: Section 4(b)(2) of the result of the designation of critical analysis provided in the proposed rule Act requires us to consider the habitat, it is therefore reasonable for us was flawed and inadequate. One economic impact of designating a to conclude that the designation of commenter cited the Regulatory particular area as critical habitat for an critical habitat does not directly regulate Flexibility Act (RFA) 5 U.S.C. 601 et endangered or threatened species. We small business entities and, therefore, seq., as amended by the Small Business also evaluate potential economic does not significantly impact them. As Regulatory Enforcement Fairness Act of impacts of a rulemaking pursuant to a result, we believe that we have 1996, which states that an agency must both Executive Order 12866 (E.O. accurately assessed potential impacts to either certify that a rule will not have a 12866), which states that a rulemaking small business entities in the significant impact on a substantial will be determined to be economically rulemaking, and can reasonably certify number of small entities, or it must significant if it will result in an impact that this designation will not have a complete an Initial Regulatory of more than $100 million in any given significant impact on a substantial Flexibility Analysis (IRFA) (see 5 U.S.C. year, and the Regulatory Flexibility Act number of small business entities. For a 603). The commenters stated that the (RFA; 5 U.S.C. 601 et seq.) as amended further discussion of our rationale, Service did not perform an adequate by the Small Business Regulatory please see Required Determinations, analysis of the impacts on small Enforcement Fairness Act of 1996 below. businesses, as required by law, stating (SBREFA; 5 U.S.C. 801 et seq.). Under (31) Comment: One commenter stated that under the RFA a ‘‘small business’’ the RFA, when an agency is required to that critical habitat is in violation of the has the same meaning as a ‘‘small publish a notice of rulemaking for any U.S. Constitution, Article 1, section 8, business concern’’ (see 5 U.S.C. 601). proposed or final rule, it must prepare based on the assertion that critical Our Response: Section 4(b)(2) of the and make available for public comment habitat designation would constitute Act requires us to consider the a regulatory flexibility analysis that Federal ownership of private property economic impact of designating a describes the effects of the rule on small within the State of Hawaii. Several particular area as critical habitat for an entities (small businesses, small commenters stated that the designation endangered or threatened species. We organizations, and small government of critical habitat is a taking of property also evaluate potential economic jurisdictions), except when the head of without just compensation. One impacts of a rulemaking pursuant to the agency certifies the rule will not commenter stated that the proposed both Executive Order 12866 (E.O. have a significant economic impact on designation involves a significant 12866), which states that a rulemaking a substantial number of small entities. amount of private land that has already will be determined to be economically The SBREFA amended the RFA to been granted land use entitlements to significant if it will result in an impact require Federal agencies to provide a allow for development of housing, of more than $100 million in any given certification statement of the factual schools, and commercial and other year, and the Regulatory Flexibility Act basis for certifying that a rule will not important uses, and the designation will (RFA; 5 U.S.C. 601 et seq.) as amended have a significant economic impact on significantly compromise and perhaps by the Small Business Regulatory a substantial number of small entities. eliminate the ability for those private Enforcement Fairness Act of 1996 To understand the potential impacts individuals to develop their land, (SBREFA; 5 U.S.C. 801 et seq.). Under of a critical habitat designation, we thereby rendering those land use the RFA, when an agency is required to evaluate in our economic analysis the entitlements void. publish a notice of rulemaking for any incremental impacts of the designation Our Response: Critical habitat proposed or final rule, it must prepare as identified by evaluating the designation does not confer ownership and make available for public comment additional protections or conservation of private property to the Federal a regulatory flexibility analysis that measures afforded the species through Government, nor does the Act restrict describes the effects of the rule of these the designation beyond those that the all uses of critical habitat, but only sections of HRS 195D includes species receives by being federally imposes restrictions under section statements invoking automatic listed. Under E.O. 12866, we are 7(a)(2) on Federal agency actions that prohibitions against adverse required to evaluate the direct and may result in destruction or adverse modification of critical habitat on indirect impacts of the designation. The modification of designated critical private lands. evaluation of these potential impacts is habitat. The mere promulgation of a (30) Comment: Several commenters discussed in our DEA and FEA. regulation, like the enactment of a claimed that the regulatory flexibility Additionally, under the RFA and statute, does not take private, State, analysis provided in the proposed rule following recent case law, we are to Federal, or county property, unless the was flawed and inadequate. One evaluate the potential impacts to small regulation on its face denies the commenter cited the Regulatory businesses, but this evaluation is property owners all economically Flexibility Act (RFA) 5 U.S.C. 601 et limited to impacts to directly regulated beneficial or productive use of their seq., as amended by the Small Business entities. The designation of critical land. The designation of critical habitat Regulatory Enforcement Fairness Act of habitat only has regulatory impact only does not deny anyone economically 1996, which states that an agency must through section 7 of the Act, under viable use of their property. The Act either certify that a rule will not have a which a Federal action agency is does not automatically restrict all uses significant impact on a substantial required to consult with us on any of critical habitat, but only imposes number of small entities, or it must project that is funded, permitted, or restrictions under section 7(a)(2) on complete an Initial Regulatory otherwise authorized that may affect Federal agency actions that may result

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in destruction or adverse modification completed after critical habitat has been share funding, and providing technical of designated critical habitat. proposed) to provide that the economic assistance. Prior to publication of the Furthermore, if in the course of a analysis be completed and made October 17, 2012, proposed rule, the consultation with a Federal agency, the available for public comment at the time Service conducted informational resulting biological opinion concludes of the publication of a proposed rule to meetings with several affected State that a proposed action is likely to result designate critical habitat. As directed, agencies, landowners, and other in destruction or adverse modification the Service published a proposed rule interested parties. The Service, along of critical habitat, we are required to for revisions to the regulations for with the County of Hawaii, DHHL, suggest reasonable and prudent impact analyses for critical habitat on DLNR, and other parties with an interest alternatives that can be implemented in August 24, 2012 (77 FR 51503) and in Hawaii—Lowland Dry—Units 31, 33, a manner consistent with the intended accepted comments for 60 days, ending 34, and 35, participated in a series of purpose of the action, that can be October 23, 2012. While we were still meetings where the long-term goals and implemented consistent with the scope accepting public comments on the objectives of each party were presented. of the Federal agency’s legal authority August 24, 2012, proposed rule, we The process provided a forum to discuss and jurisdiction, and that are published the proposed rule to list 15 species protection and recovery and economically and technologically species, including Bidens micrantha development on a regional scale. feasible. ssp. ctenophylla, as endangered, and to Although goals and objectives for While non-Federal entities that designate critical habitat for Bidens development are not always receive Federal funding, assistance, or micrantha ssp. ctenophylla, Isodendrion reconcilable with goals and objectives of permits, or that otherwise require pyrifolium, and Mezoneuron kavaiense a critical habitat designation, we have approval or authorization from a Federal on Hawaii Island (77 FR 63928; October considered the information presented in agency for an action, may be indirectly 17, 2012). Therefore, in publishing the these meetings, as well as public impacted by the designation of critical proposed rule, we followed the comments, in making this final critical habitat, the legally binding duty to regulations in place at that time. The habitat designation. These discussions avoid destruction or adverse public, including landowners within resulted, in some instances, a modification of critical habitat rests proposed critical habitat, were provided cooperative approach to setting aside squarely on the Federal agency. with an opportunity to comment on the acreage adjacent to other landowners in Regarding the assertion that critical proposed rule and DEA (see our order to protect larger areas of habitat constitutes a taking, the Act does response to Comment (37) for more contiguous habitat from development. not authorize the Service to regulate information regarding the timing and The Service and several landowners private actions on private lands or duration of comment periods for the have worked in partnership to execute confiscate private property as a result of proposed rule). In this final rule, we MOUs that are intended to benefit the critical habitat designation. Designation have fully considered and included three critical habitat species and the of critical habitat does not affect land responses to all substantive comments lowland dry ecosystem. See our analysis ownership, or establish any closures, or related to the DEA (see Comments on above (Consideration of Impacts Under restrictions on use or access to the the Draft Economic Analysis, below). Section 4(b)(2) of the Act) for a designated areas. Critical habitat description of several areas that are Comments Regarding Partnership and designation also does not establish excluded from the critical habitat Collaboration specific land management standards or designation in this final rule. prescriptions, although Federal agencies (33) Comment: Several commenters (34) Comment: One commenter are prohibited from carrying out, suggested that the Service convene a expressed concern whether proper funding, or authorizing actions that stakeholders meeting or task force to monitoring and oversight protocols were would destroy or adversely modify develop a comprehensive conservation in place to ensure for successful critical habitat. plan for the region that balances implementation of conservation (32) Comment: Several commenters protection of species and sustainable agreements between the Federal stated that the proposed rule did not urban development to truly embrace the Government and its partners. The same include a DEA, as would be required ecological approach for identifying commenter expressed concern regarding under the February 28, 2012, critical habitat. Multiple commenters the fate of the areas protected or Presidential Memorandum for the stated that more can be done through managed following the expiration or Secretary of the Interior, ‘‘Memorandum cooperative partnerships between the termination of the current partnerships on Proposed Revised Habitat for the Service and the affected landowners to and/or agreements. Spotted Owl: Minimizing Regulatory contribute to the recovery of the three Our Response: The conservation Burdens.’’ One commenter further species while ensuring the mission and agreements between the Service and our stated that the Service’s proceeding with work of the Service and various public and private partners include the proposed critical habitat rule stakeholders will be achieved. Several specific obligations for implementation without a timely DEA, contrary to commenters cited Hawaii House of voluntary conservation actions, President Obama’s directive, ‘‘is Concurrent Resolution 96 H.D. 2 S.D. 1 monitoring, and reporting, and review arbitrary and capricious, does not meet passed by the 2013 Hawaii State by the Service. Upon expiration or the requirements for transparency, and Legislature requesting the Service work termination of the agreement, it is our compounds the uncertainty and with the affected persons and counties hope that the parties will seek to economic dislocation that has been in establishing reasonable critical continue the partnership and all identified as a defect in the current habitat designations for endangered possible opportunities for the continued critical habitat designation process.’’ species in the State. care and maintenance of listed species Our Response: The February 28, 2012, Our Response: The Service has and their habitats. Endangered and Presidential Memorandum directed the worked cooperatively with the State, threatened species in the areas covered Secretary of the Interior to propose County, and private landowners to by conservation agreements will be revisions to the current regulations conserve the lowland dry ecosystem in afforded protection under State and (which were promulgated in 1984, and the North Kona region by participating Federal laws. To the extent such lands required that an economic analysis be on working groups, contributing cost- are being excluded from critical habitat

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by this rule, we may reconsider layer of the proposed critical habitat their November 29, 2012, comment designating critical habitat should our units. letter, and from the DHHL through partnership for the conservation of (37) Comment: One commenter stated meetings and correspondence following listed species prove to be unsuccessful that the proposed rule contained publication of the October 17, 2012, or short-lived. insufficient information for the public to proposed rule (77 FR 63928). We (35) Comment: One commenter determine the extent and location of incorporated all updated land recommended that the transfer of unoccupied habitat that is being ownership information into this final development rights to the Federal proposed for designation and that the rule. Government be considered as a means proposal does not provide sufficient Shortly after publishing our April 30, for the protection and survival of detail, including maps and descriptions, 2013, document announcing the endangered plants. to allow the landowners to readily availability of and seeking public Our Response: It is the landowner’s identify the extent of their land holdings comments on the DEA of the proposed discretion to consider whether an that may be impacted by the proposed critical habitat, reopening the comment easement or other transfer of designation. The commenter expressed period on the October 17, 2012, development rights to another entity is concern that the inadequacy of the proposed rule, and announcing the appropriate given the landowner’s information may result in the failure of public information meeting and public current and future planned uses for interested parties to provide comment hearing held on May 15, 2013 (78 FR their land. Several of the conservation because they were not aware that their 25243), we sent letters to all of the agreements contain landowner land was included in the proposed affected landowners that we were able commitments to ‘‘No Development critical habitat designation. to identify. In that letter we provided Areas’’ and allow for actions to benefit Our Response: On October 17, 2012, information on the proposed rule (77 FR the recovery of the three species and the we published the proposed rule to list 63928; October 17, 2012), the DEA, and lowland dry ecosystem during the term 15 Hawaii Island species as endangered the public hearing held on May 15, of the agreements. The Service is willing throughout their ranges, and to 2013, in Kailua-Kona, Hawaii. In to provide technical assistance to designate critical habitat for three addition, we contacted all appropriate partners who indicate an interest to species in the Federal Register (77 FR Federal and State agencies, county protect native species and their habitats 63928). We sent letters to all appropriate governments, elected officials, scientific by voluntarily putting a conservation State and Federal agencies, county organizations, and other interested easement on their property. The Service governments, elected officials, scientific parties and invited them to comment. In also remains committed to working organizations, and other interested addition, on October 20, 2012, we cooperatively with landowners who parties notifying them of the proposed published a public notice of the may not be interested in a conservation rule and invited them to comment. Due proposed rule in the local Honolulu Star easement but want to manage their to the scale of map required for Advertiser, Hawaii Tribune Herald, and lands for the conservation of listed publishing in the Federal Register, we West Hawaii Today newspapers. species and their habitats. were unable to provide finer-scaled (38) Comment: One commenter noted maps in the proposed rule. However, we that Table 5B in the proposed rule Comments Regarding the Accuracy and sent personalized letters with an identified 679 ac (275 ha) under Adequacy of the Rule enclosed map showing each consideration for exclusion on lands (36) Comment: The DOFAW stated landowner’s property, Tax Map Key owned by Kaloko Properties Corp., that the maps in the Federal Register (TMK) parcel information, and the Lanihau Properties, SCD TSA Kaloko could be improved as they are difficult proposed critical habitat designation to Makai, and TSA Corporation; however, to read and understand because: (a) The all landowners whose property the proposed rule failed to identify the maps are unclear as to whether each overlapped with the proposed critical 29 ac (8 ha) of the 702 ac (284 ha) map is for all three species or if species habitat. In addition, the proposed rule privatel owned land of the proposed are mapped separately, and (b) the maps directed reviewers to contact the Service designation within Unit 34 that were are not precise enough to determine for further clarification on any part of not considered for exclusion and exactly where the boundaries fall, so it the proposed rule, and provided contact requested clarification on the location of is difficult to make substantive information. these lands. comments as to their appropriateness During the initial comment period on Our Response: The information in our for the species involved. our proposed rule (77 FR 63928; files indicates that the 29 privately Our Response: The maps provided in October 17, 2012), we became aware owned acres referenced by the the final rule identify the areas that there were errors in the commenter are located within TMK designated as critical habitat and landownership information in the parcel 3–7–3–009:013. These lands are identify the species for which each unit geospatial data sets associated with located north of Hulikoa Street and are is designated. The species are not parcel data from Hawaii County (2008), not excluded from this final critical mapped separately; therefore, each which were used to identify affected habitat designation. ecosystem unit may contain both landowners. We recognize that some (39) Comment: One commenter noted occupied and/or unoccupied critical landowners whose properties that Figure 5–C in the proposed rule habitat for one or more species as overlapped with the proposed critical incorrectly identified a portion of Unit provided in the unit descriptions in the habitat did not receive notification 34 as being owned by TSA Corporation preamble of this rule and in the October letters due to errors in landownership (77 FR 63995); the correct owner is 17, 2012, proposed rule, as well as in information we received from the State SCD–TSA Kaloko Makai LLC. The the map titles. We have limited ability or missing landowner information in the commenter noted that, of the 702 ac to provide finer-scale maps in a State’s geospatial data sets. We received (284 ha) of private lands proposed for regulatory document due to required updated information on land ownership critical habitat designation in Unit 34, Federal Register printing standards; from Kaloko Makai in their December more than 83 percent of that land (606 however, we provided the DOFAW with 17, 2012, comment letter, from the ac (245 ha)) is owned by SCD–TSA and more detailed maps showing the level of Hawaii Housing and Finance planned for development as part of the detail requested as well as the ArcGIS Development Corporation (HHFDC) in Kaloko Makai project.

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Our Response: We appreciate the (41) Comment: One commenter stated commenter stated that this is in stark information provided by the that the proposed rule is silent on contrast to the Service’s rationale for commenter. The landowners in Figures whether Unit 36 is occupied by other units, for which it relies upon 5–A and 5–C in the proposed rule were Mezoneuron kavaiense. additional space for the reintroduction incorrectly identified. We apologize for Our Response: In the Descriptions of of the species. this error and any confusion this may Proposed Critical Habitat discussion in Our Response: We did not include a have caused. We updated ownership the October 17, 2012, proposed rule, we statement regarding reintroduction of information in our files regarding the identified the species within each unit the three species because Unit 35 is lands owned SCD–TSA Kaloko Makai for which the unit was considered occupied by the three species for which and notified the correct owners of the occupied. In the unit description for critical habitat is proposed. However, opportunity to provide comment on the Hawaii—Lowland Dry—Unit 36, we because of the small numbers of proposed rule during three additional stated that the unit is occupied by individuals of the three species in Unit comment periods (78 FR 25243, April Bidens micrantha ssp. ctenophylla. 35 and low population sizes, we have 30, 2013; 78 FR 39698, July 2, 2013; 81 Therefore, Hawaii—Lowland Dry—Unit determined, similar to other units, that FR 31900, May 20, 2016). 36 is not occupied by the other two the three species do require suitable (40) Comment: One commenter species, Isodendrion pyrifolium and habitat and space for expansion or expressed concern regarding the quality Mezoneuron kavaiense. In addition, in reintroduction within Unit 35 to achieve and completeness of the scientific the Proposed Regulation Promulgation population levels that could approach materials the Service relied on to section of the October 17, 2012, recovery. However, the entirety of Unit prepare the proposed rule and suggested proposed rule, proposed 50 CFR 35 has been excluded from this final that a public hearing would also provide 17.99(k)(121), the Table of Protected critical habitat designation for the an opportunity for the scientific Species Within Each Critical Unit for reasons described in Consideration of community to provide input into the the Island of Hawaii, set forth the unit Impacts Under Section 4(b)(2) of the decision making. name and occupancy status of each unit. Act. (42) Comment: One commenter stated (44) Comment: Two commenters Our Response: Under section that Service has not provided any stated that the proposed rule has 4(b)(1)(A) of the Act, we make a analysis on the minimum amount of significant takings implications; determination whether a species is land needed to justify designation of therefore, a takings implications endangered or threatened solely on the 18,766 total ac (7,597 ha) in proposed assessment is required. The two basis of the best scientific and critical habitat for West Hawaii (Kona commenters further stated that the commercial data available. All scientific area). takings analysis presented in the materials are available for review. Our Response: Our final designation proposed rule is inadequate and violates Although not included with the of critical habitat includes 11,640 ac the letter and intent of Executive Order proposed rule itself, information on how (4,711 ha) for Bidens micrantha ssp. 12630 (‘‘Governmental Actions and to obtain a list of our supporting ctenophylla, Isodendrion pyrifolium, Interference with Constitutionally documentation used was provided in and Mezoneuron kavaiense in West Protected Property Rights’’). They stated the proposed rule under Public Hawaii (Kona area). The designated that because a taking implications Comments and References Cited (77 FR acres meet the definition of critical assessment (TIA) has not been 63928; October 17, 2012). In addition, habitat for these three species, and our published with the proposed rule, lists of references cited in the proposed analyses determined them to be landowners are deprived of the ability rule (77 FR 63928; October 17, 2012) essential for the conservation of these to rationally or reasonably comment on and in this final rule are available on the species. As required by section 4(b) of the conclusion of the Service that the internet at http://www.regulations.gov, the Act, we used the best scientific data ‘‘designation of critical habitat for each and upon request from the Pacific available in determining those areas that of these species does not pose Islands Fish and Wildlife Office (see FOR contain the physical or biological significant takings implications within FURTHER INFORMATION CONTACT, above). features essential to the conservation of or affected by the proposed We also solicited scientific peer review the three species, and for which designation.’’ of the proposed listing and critical designation of critical habitat is Our Response: Executive Order 12630 habitat designation from 14 qualified considered prudent, by identifying the requires that a taking implications reviewers and received responses from occurrence data for each species and assessment (TIA) be made available to 11 reviewers regarding the proposed determining the ecosystems upon which the public if there are significant takings listing and 2 of these reviewers also they depend. The information we used implications. If there are not significant commented on the proposed critical is described in our proposed rule (77 FR takings implications, there is no habitat designation (see our responses to 63928; October 17, 2012) and in this requirement that this issue be addressed Comments (1) and (2), above). Finally, final rule (see Methods, above). See also in a rulemaking. In our proposed rule in addition to the initial 60-day public our response to Comment (12) and (77 FR 63928; October 17, 2012) we comment period, the Service reopened Criteria Used to Identify Critical stated that we analyzed the potential the public comment period three times Habitat. takings implications of critical habitat on the proposed critical habitat rule and (43) Comment: One commenter stated designation for three species and found draft economic analysis, allowing the that the description of Unit 35 does not that this designation of critical habitat public an additional 30, 60, and 15 days suggest reintroduction of the three does not pose significant takings to submit comments, for a total of 165 species for which critical habitat is implications for lands within or affected days to comment on our proposed proposed as a means of increasing the by the proposed designation. We critical habitat designation. We also populations of any species, but instead prepared a TIA for this final rulemaking held a public information meeting and attempts to justify the proposed and have affirmed that the designation hearing in Kailua-Kona, Hawaii, on May designation by relying exclusively on of critical habitat for three Hawaii Island 15, 2013, and another public the land within Unit 35 as ‘‘providing species does not pose significant takings information meeting in Kailua-Kona, the PCEs necessary for the expansion of implications for lands within or affected Hawaii, on August 7, 2013. the existing wild populations.’’ The by the designation.

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Comments Regarding Landowner Hawaii real property tax records on the State of Hawaii Department of Notification lands leased from Kamehameha Schools Business Economic Development and (45) Comment: One commenter within Unit 31 of the proposed critical Tourism. Neither CZM policy (Hawaii claimed that due to inconsistencies in habitat designation. The commenters Revised Statutes (HRS) 205A–2(c)) nor property identification, and lack of noted that this is contrary to the SMA guidelines (HRS 205A–26) for the notice to landowners, such as Stanford Service’s collaboration with PIA’s review of developments address the Carr Development—TSA (SCD–TSA), predecessor during preparation of two protection of endangered and threatened the proposed rule has not been fairly Service recovery plans (USFWS 1994, species or designated critical habitat(s). presented for public comment. The USFWS 1996). We are unaware of any requirements of Our Response: We sent a letter commenter cited 50 CFR 424.16, which the NPDES or SWPPP permit processes notifying Kamehameha Schools, the states that in the case of any proposed that would require consultation under owner of the lands leased by PIA, of the rule to list a species or to designate or section 7 of the Act. proposed critical habitat designation (48) Comment: Several commenters revise critical habitat, the Secretary based on the addresses contained in the stated that recent critical habitat shall give notice of the proposed landownership information in the designations have been initiated regulation to any Federal agencies, local geospatial data sets associated with primarily as a result of the Service’s authorities, or private individuals or parcel data from Hawaii County (2008). 2011 Multi-District Litigation settlement organizations known to be affected by We have updated our landownership with environmental groups. One the rule. information with PIA’s address and commenter added that the settlement Our Response: See our response to contact information, and they received unfairly places the burden on Comment (37) regarding adequate notification regarding opportunity to landowners and other stakeholders notification of the publication of the comment on the proposed designation affected by the critical habitat proposed rule, opportunity for public during subsequent comment periods on designations. comment, and availability of the proposed rule (78 FR 25243, April Our Response: We agree that the final information and resources in order for 30, 2013; 78 FR 39698, July 2, 2013; 81 listing rule for Bidens micrantha ssp. the public to comment on the proposed FR 31900, May 20, 2016). See also our ctenophylla (78 FR 64638; October 29, rule. In addition, we have incorporated response to Comment (37) concerning 2013) meets a requirement under the information received during the public notifications of, and opportunities to Service’s 2011 Multi District Litigation comment period and updated the comment on, the proposed rule. settlement. In accordance with information on land ownership 4(a)(3)(A)(i), we are required to accordingly. The Service provided Other Comments designate critical habitat concurrently adequate notification of the publication (47) Comment: One commenter with making a determination that a of the proposed rule, opportunity for requested clarification on whether species is an endangered species or a public comment, and availability of federally funded programs administered threatened species to the maximum information and resources in order for by a State agency such as the State of prudent and determinable. When the the public to comment on the proposed Hawaii Department of Health (DOH) final listing rule for Bidens micrantha rule. We also sent personalized letters management of the National Pollutant ssp. ctenophylla published (78 FR and with an enclosed map showing each Discharge Elimination System (NPDES) 64638; October 29, 2013), we had landowner’s property, Tax Map Key permit program, a county agency such already proposed critical habitat for (TMK) parcel information, and the as the County of Hawaii Planning Bidens micrantha ssp. ctenophylla, proposed critical habitat designation to Department management of the Coastal Isodendrion pyrifolium, and all landowners whose property Zone Management (CZM)/Special Mezoneuron kavaiense (77 FR 63928; overlapped with the proposed critical Management Area (SMA), or October 17, 2012), but we had not yet habitat. We sent letters to the addresses connections to a highway improvement finished developing this final rule. In contained in the landownership or utility infrastructure improvements the intervening time, we repeatedly information in the geospatial data sets approval process will trigger the Act’s reopened the comment period on the associated with parcel data from Hawaii section 7(a)(2) consultation process. proposed critical habitat designation (78 County (2008). We became aware that Our Response: The State of Hawaii FR 25243, April 30, 2013; 78 FR 39698, representatives of SCD–TSA to whom DOH, Clean Water Branch is given the July 2, 2013; 81 FR 31900, May 20, the letters were addressed may not have authority to implement the NPDES 2016) to ensure that we had the best notified SCD–TSA upon receipt of the permits process. The NPDES Multi scientific and commercial information correspondence sent shortly after Sector General Permit (MGP) (EPA for our final determination of critical publication of the October 17, 2012, 2008) Construction General Permit habitat. In this rule, we designate proposed rule. During each subsequent (CGP) (EPA 2012) requires applicants to critical habitat for the three plant comment period, the Service sent letters provide a determination regarding the species. Please also see our response to directly to this landowner providing protection of federally listed endangered Comment (31) regarding the regulatory notification of the comment period and or threatened species or their designated consequences of a critical habitat information on the proposed critical habitat(s) and the supporting designation. designation. documentation, if necessary (MGP 2008, (49) Comment: One commenter stated (46) Comment: Two commenters Appendix E; CGP 2012, Appendix D). that the Service considered the 1999 stated that the Service failed to notify The Stormwater Pollution Prevention mitigation plan (‘‘Mitigation Plan for Hualalai PIA-Kona, LLC (PIA) of the Plan (SWPPP) guidelines also direct Endangered Species at Villages of proposed critical habitat designation as applicants to follow similar guidelines La’i’opua, Kealakehe, North Kona, required by 50 CFR 424.16, which for protection of federally listed Hawaii’’ prepared for the Hawaii requires the Secretary to give notice to endangered and threatened species or Housing and Community Development ‘‘private individuals or organizations designated critical habitat(s) similar to Corporation (HCDCH) (Belt Collins known to be affected by the rule.’’ The those included in the MGP and CGP. 1999)) during its development of the commenters added that PIA is listed as The CZM/SMA program is administered critical habitat designation, even though an owner of record in the County of by the Office of State Planning within Service did not mention they were

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considering this document in previous Methods and Criteria Used to Identify Areas, identified in the KCDP. The correspondence regarding Forest City Critical Habitat, above). commenters provided information about Kona’s development; the commenter (51) Comment: One commenter expenditures that have been made thus specifically cited the Service’s April 8, expressed opposition to the designation far for these projects, and state that 2008, and March 12, 2010, comment of critical habitat and instead supported these expenditures, along with the value letters. focusing efforts and government of any entitlements attached to the Our Response: The 1999 mitigation resources on good species management projects, will be lost as a result of plan that the commenter mentions and recovery planning: The keys to critical habitat designation. In addition, identifies a framework of specific long-term protection and species they commented that the designation conservation actions to mitigate impacts recovery. The commenter stated that by will result in the redistricting of critical of the development on Bidens working with community-based, natural habitat to the Conservation District due micrantha ssp. ctenophylla, Isodendrion resources nongovernmental to HRS section 195D–5.1, resulting in pyrifolium, and Mezoneuron kavaiense. organizations (such as the Aha Moku the loss of projects and associated At a May 2013 meeting, representatives Council) and landowners (such as the investments, entitlements, and other of the Service, Forest City Kona, and QLT), plants and animals will benefit benefits. HHFDC discussed the 1999 mitigation more than they would from a critical Our Response: While consultations on plan only as a possible framework to habitat designation. planned projects may result in address the concerns of Forest City Our Response: We recognize the conservation recommendations such as Kona related to their development and importance of partnerships and those described in section 1.4 of the conservation of the three species in the voluntary conservation efforts for DEA and FEA, critical habitat does not proposed Hawaii—Lowland Dry—Unit species protection and recovery. The preclude the implementation of these 35. The information we used to Service welcomes information and projects. With respect to the determine the proposed critical habitat contributions of place-based knowledge, requirements of the Act, as described in designation of Hawaii—Lowland Dry— traditional ecological knowledge, and section 1.4 of the DEA and FEA, the Unit 35 was described in our proposed community-based natural resource presence of the plants across the rule (77 FR 63928; October 17, 2012). management and planning organizations proposed designation may result in See also our response to Comments (1) such as the Aha Moku Council in efforts conservation recommendations for and (12) above, and Criteria Used to to conserve listed species. We notified projects in these areas regardless of the Identify Critical Habitat. Finally, as the DLNR and other organizations that critical habitat designation. Where the discussed in our response to Comment possess traditional ecological, place- plants are present, projects or activities (14) above and for the reasons described based knowledge, such as the DHHL, with a Federal nexus would be subject in Consideration of Impacts Under the OHA, the QLT, the Kamehameha to section 7 consultation even absent Section 4(b)(2) of the Act, the lands Schools, and The Hawaiian critical habitat designation, and it is owned by Forest City Kona have been Environmental Alliance (KAHEA), unlikely that critical habitat designation excluded from this critical habitat during the multiple public comment would change the outcome of these designation. periods on the proposed critical habitat section 7 consultations. Only two (50) Comment: One commenter stated designation. Ongoing partnerships with projects are identified as likely to occur that a disproportionate amount of the DHHL, the Kamehameha Schools, where plants are not present (as Federal land is being considered for and the QLT are described below (see described in section 2.3 of the DEA) designation when compared with the ‘‘Private or Other Non-Federal and, for reasons described in amount of Federal land in the State of Conservation Plans or Agreements and Consideration of Impacts Under Section Hawaii. The commenter stated the Partnerships,’’ above). 4(b)(2) of the Act, these lands are Federal Government owned excluded from final critical habitat approximately 321,400 ac (130,066 ha) Comments on the Draft Economic designation in this rule. of land in 2007, out of the total Analysis The DEA acknowledges, however, that critical habitat designation may approximately 4,112,388 ac (1,664,224 Comments by State Agencies ha) in the State, or approximately 7.82 affect the other State and local land percent, and said the percentage of (52) Comment: Several commenters, management authorities, as well as the Federal lands proposed as critical including the State of Hawaii behavior of individual landowners or habitat for the three plant species Department of Accounting and General buyers. Additional discussion of these involves approximately 2.11 percent of Services (DAGS), HHFDC, OHA, DHHL, potential indirect impacts is included in the total acreage. the County Planning Department, the FEA (see section 2.6). While Our Response: According to section County Department of Parks and information limitations prevent the 4(b)(2) of the Act, we designate critical Recreation, the Office of the Mayor, the quantification of such impacts, the habitat based on the best available Office of the Prosecuting Attorney, and qualitative discussion is considered in scientific data available and after taking the State House of Representatives, evaluating impacts of the designation. into consideration the economic impact, commented that the DEA Section 2.6 of the DEA and FEA also the impact on national security, and any underestimates the incremental impacts includes a discussion of the potential other relevant impact of specifying any of the proposed critical habitat for critical habitat designation to result particular area as critical habitat; land designation. The commenters stated that in redistricting to the Conservation ownership is not one of the criteria we the DEA does not take into district (for more information, please see consider when identifying areas that consideration that the designation will our response to Comment (7) above). meet the definition of critical habitat. result in the elimination of ongoing or (53) Comment: Several commenters, See our response to Comments (12) and planned projects in the Kona Urban including DAGS, OHA, and the County (18) above regarding our analysis and Area, including Kaloko Makai, Planning Department, commented that the information used to determine Kamakana Villages, the Judiciary the DEA does not take into critical habitat boundaries in our project, Laiopua 2020, the QLT project, consideration the significant project proposed rule (77 FR 63928; October 17, and other major development cores delays that will result from the 2012) and in this final rule (see also within Transit Oriented Development designation of critical habitat. One

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commenter stated that the Hawaii State uncertainty and perception effects of are excluded from the critical habitat Legislature has delayed the funding for critical habitat designation on properties designation in this final rule. The FEA the Kona Judiciary project due to the may subside. Ideally, to estimate the has been updated to include additional uncertainty caused by the designation. amount by which land values may be information on the Kalaoa Homestead Our Response: Section 2.6 of the FEA diminished and the duration of this Development in Hawaii—Lowland includes a discussion of the potential effect, we would conduct a retrospective Dry—Unit 33. These lands are also for the critical habitat designation to study of existing critical habitat excluded from the critical habitat result in impacts associated with time designations. We would use statistical designation in this final rule (see delays. We recognize that both public analysis of land sales transactions to Consideration of Impacts Under Section and private entities may experience compare the value of similar parcels 4(b)(2) of the Act). time delays for projects and other located within and outside of critical (56) Comment: The DOFAW activities due to requirements associated habitat. However, such primary expressed concern that the DEA does with the section 7 consultation process. research, which requires substantial not mention the presence of cattle However, it is highly uncertain to what collection and generation of new data, is grazing in the proposed critical habitat degree the critical habitat designation beyond the scope of this effort. units 10 and 31. It stated that the might cause incremental project delays Furthermore, while some research has designation could affect the ability of above and beyond those that would be been conducted on the effect of the Act permittees to receive Federal experienced due to the listing of the on perception and land use decisions, agricultural aid. In addition, DOFAW species and other review processes that the results of these studies are not stated that the DEA does not mention are not related to the Act (e.g., transferrable to this situation (see the effects of critical habitat designation environmental assessments, EISs, etc.). section 2.6 of the FEA for more on public hunting opportunities in these Due to the degree of uncertainty with information). As no studies exist that areas, and that the designation could respect to whether incremental project have evaluated the potential affect the ability of DOFAW to utilize delays will occur and, if so, to what perceptional effect of critical habitat on Federal Aid in Wildlife Restoration extent, the economic analysis does not land values in Hawaii, and because grant funds to manage and implement quantify impacts associated with delays significant uncertainty exists regarding hunting activities in the area. Lastly, the but instead describes the potential whether these perceptional impacts will comment states that the costs of impacts qualitatively for the Service’s occur and, if they do, the magnitude of administrative effort to participate in consideration alongside the quantified the impacts, the FEA does not quantify section 7 consultations and other costs impacts in this report. The FEA notes these potential indirect effects, but of the designation should be included in that should incremental project delays instead presents this qualitative the costs of units 10 and 31 presented occur, incremental costs may include description of their potential for in the DEA. carrying costs on project-related debt consideration alongside the quantified Our Response: The FEA highlights the due to the delays. impacts in this report. presence of grazing areas within (54) Comment: Several commenters, (55) Comment: The DHHL commented proposed critical habitat Hawaii— including HDOA, DAGS, the County that by concluding that the critical Lowland Dry—Units 31 and 10. We Planning Department, the Hawaii habitat designation is unlikely to change expect that critical habitat would trigger Cattlemen’s Council, and the Land Use the outcome of future section 7 only minor, if any, administrative costs Research Foundation, commented that consultations in occupied areas, the of consultation with respect to these the DEA does not take into DEA essentially concludes that critical grazing activities. The only section 7 consideration the indirect effects of the habitat has no effect on occupied areas consultations that have occurred on designation, including perceptional and that, therefore, there is no benefit in grazing activities are associated with effects and regulatory uncertainty that designation. Further, DHHL stated that Federal assistance programs, such as the result in the loss of property value and the DEA is fundamentally flawed in its Natural Resource Conservation Service’s that may deter investment in the gross underestimation of the economic (NRCS) Environmental Quality designated area and beyond. The impact to DHHL based on the cost of Incentive Program (EQIP) and Wildlife commenters stated that these effects will conservation measures (i.e., offsets of 50 Habitat Incentive Program (WHIP) jeopardize planned projects and result to 150 ac (20 to 61 ha) of land) that the programs, which generally support in the loss of investors, developers, FWS may require as a result of section ecologically beneficial projects that are property value, market value, future 7 consultation on DHHL lands within unlikely to negatively affect critical economic benefits, project components, Hawaii—Lowland Dry—Unit 33 of the habitat. As a result, we do not anticipate economic activities related to proposed critical habitat designation, that the critical habitat designation development, jobs, tax revenue, and and that such requirements would would prevent permittees from other potential benefits. severely affect its ability to fulfill its receiving aid through the programs. The Our Response: The DEA and FEA mission to native Hawaiians. direct effects of the designation are most include a discussion of the potential for Our Response: Please see the second likely to be limited to additional regulatory uncertainty and perception half of our response to Comment (8) administrative effort by the Federal effects (see section 2.6 of the FEA). We regarding the benefits of designating agencies involved in the consultation as acknowledge that public attitudes about critical habitat. The potential part of future section 7 consultations in the limits and costs that the Act may conservation offset described (of 50 to the case that grazers work with Federal impose can cause real economic effects 150 ac (20 to 61 ha)) is relevant to this programs. In addition, the Service does to the owners of property, regardless of project regardless of whether critical not anticipate that the critical habitat whether such limits are actually habitat is designated, and the costs are designation will result in changes to the imposed. Over time, as public accordingly not described as costs of the management of hunting activities in the understanding grows regarding the exact critical habitat rule in the DEA or FEA. case that the State receives Federal Aid parameters of regulatory requirements In addition, for reasons described above program funding; as a result, the placed on designated lands, particularly in Consideration of Impacts Under designation would generate only minor, where no Federal nexus compelling Section 4(b)(2) of the Act, 315 ac (127 if any, additional administrative costs of section 7 consultation exists, the ha) of lands owned by DHHL in Unit 35 section 7 consultation. Furthermore,

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both units are occupied by listed plant capacity, regional socio-economic statements that the L2020 project site is species, so a section 7 jeopardy analysis benefits, and the need for alternative unoccupied. The lands owned by DHHL would already be required, and any programs to provide the services to within Unit 35, including the L2020 conservation measures that resulted beneficiaries (IEc 2013, pp. 2–16–2–17). project area, are considered occupied by from such a consultation would likely For reasons described above, these lands one or more of the three species for be the same measures that would result are excluded from the critical habitat which critical habitat is proposed (77 from a section 7 consultation on critical designation in this final rule (see FR 63928, October 17, 2012; Gerrish and habitat for these three plant species. Consideration of Impacts Under Section Leonard Bisel Associates LLC 2008, p. 4(b)(2) of the Act). 2). As such, the DEA concludes that the Public Comments (59) Comment: Commenters stated project is unlikely to be affected by the (57) Comment: Several commenters that no economic analysis was designation beyond potential additional expressed concern that the designation conducted on the proposed Kealakehe administrative effort as part of section 7 of critical habitat in the Kona Urban Regional Park and the Hawaii Health consultation. Section 2.6 of the FEA Area would constrain community and Systems Corporation’s (HHSC) hospital addresses the potential for other impacts infrastructure growth; would constrain project. generated by the designation, including development of affordable housing, job Our Response: The FEA included an time delays. opportunities, and hospitals; and would assessment of the potential impacts of The Service and DHHL have worked result in the loss of development the proposed designation on the Kaloko in partnership to execute a investments and entitlements. The Makai project, identified in Exhibit 2–4 memorandum of understanding (MOU) commenters stated that the proposed of the FEA, which includes the HHSC’s that is intended to benefit the three rule fails to take in to account the hospital project. The FEA clarifies that plant species and the lowland dry adverse economic and social impacts of Kaloko Makai project is a mixed-use ecosystem. For the reasons described the critical habitat designation on the project that includes the hospital. In above (see Consideration of Impacts long-planned development activities addition, the FEA included an Under Section 4(b)(2) of the Act), lands along transit routes and the urban assessment of the potential impacts of owned by DHHL and leased to L2020 corridor as identified in the KDCP. the proposed designation on the are excluded from the final critical Our Response: The DEA assessed the Kealakehe Regional Park Project; it is habitat designation. potential impacts of the proposed identified as the Regional Park Project (61) Comment: The Kaupulehu Water critical habitat designation on the in Exhibit 2–4. The FEA clarifies that Company stated that a significant ongoing and planned projects in the the name of the project is the Kealakehe portion of their current water source Kona Urban Area (see our response to Regional Park Project. For the reasons and transmission infrastructure (i.e., Comment (52), above). Subsequently, described above (see Consideration of wells and transmission lines), as well as the Service, along with the County of Impacts Under Section 4(b)(2) of the proposed water service infrastructure, Hawaii, DHHL, DLNR, and other Act), Kaloko Entities land is excluded falls within a portion of Unit 31 being stakeholders in Hawaii—Lowland Dry— from this final critical habitat considered for exclusion. They stated Units 31, 33, 34, and 35, participated in designation. that this infrastructure is essential to the a series of meetings facilitated by a (60) Comment: One commenter stated continued operations of the Kaupulehu professional mediator. The mediation that the DEA did not address the Water Company, and that the proposed process provided a forum to address impacts of the critical habitat designation will adversely affect their species protection and recovery, and designation on the proposed Laiopua ability to complete new facilities in a development on a regional scale. The 2020 (L2020) project. The commenter timely manner, impede their ability to Service continued to reach out to State, stated that costs will include mitigating serve customers, increase the cost and County, and private stakeholders to for adverse modification of critical expense of operating their water system, continue ongoing and develop new habitat, which they guess will be on the result in increased rates and charges to voluntary cooperative partnerships. In order of tens of millions of dollars, and customers, and result in a significant this rule, a total of 5,268 ac (2,132 ha) negotiating agreements with the Service, economic impact to their small is excluded from critical habitat which they estimate at tens of business. They stated that the DEA does designation in proposed Hawaii— thousands of dollars. For example, they not include these impacts. Lowland Dry—Units 31, 33, 34, and 35 commented that the cost through Our Response: For the reasons (see Consideration of Impacts Under acquisition or foregone development for described above (see Consideration of Section 4(b)(2) of the Act, above). 50 to 150 ac (20 to 61 ha) is alone Impacts Under Section 4(b)(2) of the (58) Comment: One commenter stated millions of dollars, with ongoing Act), areas that were being considered that the DEA fails to consider management expenses of at least for exclusion in Unit 31 in the proposed independent economic analysis of the $150,000, likely in perpetuity. The rule are excluded from this final critical ‘‘Socio-Economic impact of critical commenter also stated that the habitat designation. habitat designation for the Keahuolu designation will have an immediate (62) Comment: One commenter Lands of the Queen Liliuokalani Trust economic impact by delaying commented that the DEA notes that (QLT)’’ by John M. Knox & Associates employment opportunities for section 7 consultation is likely for the (2013). numerous construction jobs. The Kaloko Makai Project, but does not Our Response: Information provided commenter also stated that the DEA explain what would trigger that in the analysis cited by the commenter does not recognize the 52-ac (21–ac) consultation (IEc 2013, p. A–4). The (John M. Knox & Associates 2013) was project area as unoccupied. commenter added that consultation included in the DEA (IEc 2013, pp. 2– Our Response: The L2020 project could be required for a number of 11–2–13, 2–16–2–18). In the case that occurs on land (TMK parcels: (3)7–4– reasons, including funding from U.S. critical habitat designation results in 021:002, 003, and 023), leased from Department of Housing and Urban changes to the planned development, DHHL and within a portion of the Development or the U.S. Department of the DEA identifies the several impacts DHHL Villages of Laiopua Project in Veterans Affairs (commonplace for large that may result; these include impacts to Unit 35 (IEc 2013, pp. 2–6–2–9). We scale residential housing projects). The the development’s revenue-generating disagree with the commenter’s commenter further stated that a single

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section 7 consultation would, at a critical habitat protections are realized National Environmental Policy Act minimum, stall development. is section 7 of the Act, which requires (NEPA; 42 U.S.C. 4321 et seq.) analysis Additional consultations, as would be Federal agencies, in consultation with on the proposed rule to ensure that we required over the life of this 30-year the Service, to insure that any action make an informed decision regarding project, and the related mitigation authorized, funded, or carried by the the impact of critical habitat designation measures would likely preclude agency is not likely to destroy or on the environment. development altogether. The commenter adversely modify critical habitat. Only Our Response: It is the Service’s cited an average annual cost of $370.3 Federal action agencies are subject to a position that, outside the jurisdiction of million estimated for mitigation regulatory requirement (i.e., to avoid the Circuit Court of the United States for expenditures required by habitat adverse modification) as the result of the Tenth Circuit, we do not need to conservation plans (HCPs) and the designation. Because Federal prepare environmental analyses as associated with incidental take permits agencies are not small entities, the defined by NEPA in connection with (ITPs) pursuant to section 10 of the Act Service certified that the proposed designating critical habitat under the (ELI 2007, pp. 52–53). critical habitat rule would not have a Act. This position was upheld by the Our Response: The DEA quantified significant economic impact on a U.S. Court of Appeals for the Ninth costs associated with one future section substantial number of small entities. Circuit (Douglas County v. Babbitt, 48 7 consultation for the Kaloko Makai We acknowledge, however, that in F.3d 1495 (9th Cir. 1995), cert. denied project. To the extent that the some cases, third-party proponents of 516 U.S. 1042 (1996)). The designation development plans change over the life the action subject to permitting or of critical habitat for the three Hawaii of the 30-year project, additional funding may participate in a section 7 Island species is entirely within the consultations or reinitiation of the consultation and thus may be indirectly Ninth Circuit jurisdiction; therefore, we initial consultation may occur. It is affected. Therefore, the focus of the did not prepare an environmental difficult to predict whether and how DEA’s threshold analysis of impacts to analysis in connection with this critical often additional review will occur small entities pursuant to the RFA, as habitat designation. absent information on whether and how amended by the SBREFA of 1996, is to (66) Comment: One commenter plans for this land may evolve over identify the third-party entities likely to expressed support for the examples of time. However, we expect any effect of be involved and potentially indirectly conservation recommendations to offset critical habitat designation on any affected by the future section 7 habitat loss (i.e., acquire, restore, and future consultations would be similarly consultations on development and manage habitat in perpetuity to limited to additional administrative transportation projects likely to occur compensate habitat disturbed as a result effort. As described in section 2.3 of the within proposed critical habitat (IEc of a project or activity), citing those DEA, the project is located in an 2013, chapter 2, p. A–4). As described identified by the County of Hawaii occupied area of the proposed in section 2.5 of the DEA, the QLT Planning Department where the designation, and consultation is project is unlikely to have a Federal presence of listed species resulted in therefore unlikely to result in additional nexus that would lead to section 7 conservation requirements including: conservation recommendations. For the consultation with the Service. In (1) Setting aside land for conservation; reasons described above (see addition, for the reasons described (2) establishing buffer zones around Consideration of Impacts Under Section above (see Consideration of Impacts individual species; (3) requiring that 4(b)(2) of the Act), Kaloko Entities land Under Section 4(b)(2) of the Act), the landscaping be done using native plant is excluded from this final critical lands owned by QLT, Forest City Kona, species; and (4) relocating roadways or habitat designation. and Koloko Entities are excluded from buildings to avoid species (IEc 2013, p. (63) Comment: One commenter stated this final critical habitat designation. 2–16). that the proposed rule fails to recognize (64) Comment: Two commenters Our Response: We support the the cultural and economic consequences stated that the DEA’s analysis of only conservation requirements identified by of the critical habitat designation on the the incremental impacts resulting from the County and look forward to lands owned by a native Hawaiian trust critical habitat designation is flawed continuing to work together with the (QLT), contrary to the purpose of the and does not comport with the law. One County to conserve endangered species regulatory flexibility analysis. Two commenter stated that because the DEA and their habitats. commenters representing Kamakana uses a review of consultation records (67) Comment: One commenter stated Villages (Forest City Kona land) and conducted in 2002 to estimate that the baseline assumptions of the Kaloko Makai (Koloko Entities land) consultation costs, the analysis is not Service’s economic analysis are flawed. stated that the Service did not perform based on the best available cost The commenter stated that section 9 and an adequate analysis of the impacts on information. 10 of the Act are irrelevant on non- small businesses, as required by law. Our Response: While the research Federal land that contains no Our Response: Under the Regulatory undertaken to inform the estimates of endangered species of fish or wildlife. Flexibility Act (RFA; 5 U.S.C. 601 et administrative effort for consultations The commenter argues that the Service seq., as amended by the Small Business was conducted in 2002, the cost model dismisses section 7 costs as part of the Regulatory Enforcement Fairness Act relies on current wage rate information baseline and, therefore, is conflating the (SBREFA) of 1996), whenever an agency and continued communication with the jeopardy prohibition with the must publish a notice of rulemaking for Service and participating agencies to prohibition against adverse modification any proposed or final rule, it must groundtruth the estimates. The research of critical habitat, in disregard of the prepare and make available for public undertaken in 2002 focused on the plain language in 16 U.S.C. 1536. comment a regulatory flexibility range of hours spent in different types Our Response: Section 7(a)(2) of the analysis that describes the effects of the of consultation. However, the costs Act states that ‘‘[e]ach Federal agency rule on small entities (small businesses, assigned to this effort reference current shall, in consultation with and with the small organizations, and small hourly wage rates for participating assistance of the Secretary, insure that government jurisdictions) directly agency personnel. any action authorized, funded, or regulated by the rulemaking. The (65) Comment: Two commenters carried out by such agency . . . is not regulatory mechanism through which stated that the Service must prepare a likely to jeopardize the continued

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existence of any endangered species or Our Response: The designation of designation and DEA for another 60 threatened species or result in the critical habitat establishes an affirmative days, ending September 3, 2013, and destruction or adverse modification of obligation for Federal agencies to insure then on May 20, 2016 (81 FR 31900), we [critical] habitat of such species . . .’’ If their activities do not destroy or reopened the comment period for an jeopardy or adverse modification is adversely modify that critical habitat in additional 15 days, ending on June 6, determined, reasonable and prudent accordance with the requirements of 2016. In this final rule, we have fully alternatives are recommended. These section 7(a)(2) of the Act. In this case, considered and included responses to recommendations focus on avoiding the registration by a non-Federal entity all substantive comments related to the jeopardy and adverse modification by of lots for sale in accordance with the DEA and the information in the FEA. creating measures to restore and Interstate Land Sales Full Disclosure (71) Comment: Several commenters conserve temporarily disturbed areas Act does not in and of itself constitute expressed concern that the Ane and incorporating those measures into an affirmative Federal agency action Keohokalole Highway extension project project plans (IEc 2013, p. E–8). Project requiring compliance with section 7 of will be negatively affected by the critical modifications recommended to avoid the Act. We are unaware of any section habitat designation. They state that the jeopardy are similar to those 7 consultations occurring in Hawaii designation may result in project delays recommended to avoid adverse involving the U.S. Department of or prevent the project from occurring modification of habitat, and include Housing and Urban Development (HUD) altogether. such modifications as ‘‘avoid and the Interstate Land Sales Full Our Response: In the DEA and FEA, destruction of individual listed plants,’’ Disclosure Act. We have completed the Ane Keohokalole Highway project ‘‘control feral ungulates,’’ and numerous consultations with HUD (Phase 3) was identified as a future ‘‘propagate and outplant’’ (IEc 2013, p. involving grants or other funding project occurring within occupied E–14). However, the DEA and FEA actions, but none that we know of was habitat in proposed critical habitat Unit recognize that the analyses for jeopardy triggered by the Interstate Land Sales 34, on lands owned by Kaloko and those for adverse modification can Full Disclosure Act. Properties LLC and the State of Hawaii. differ. The economic impacts of (70) Comment: One commenter noted Because areas occupied by Bidens conservation measures undertaken to that the economic impacts of the micrantha ssp. ctenophylla and avoid jeopardy to the species are proposed critical habitat designation Mezoneuron kavaiense and owned by considered baseline impacts in the DEA have not been thoroughly vetted. The Kaloko Properties LLC (now Kaloko and FEA, as they are not generated by proposed designation includes at least Entities LLC) are being excluded from the critical habitat designation. Baseline 6,364 ac (257 ha) of privately owned the final critical habitat designation, the conservation measures and associated lands, and the commenter asserted the only critical habitat the Ane Keohokalole Highway project will economic impacts are not affected by proposed designation will have a potentially impact is unoccupied habitat decisions related to critical habitat devastating impact on the value and use on lands owned by State of Hawaii. designation for the species (IEc 2013, p. of those lands. The commenter also Therefore, we examined the potential 1–4). requested an extension of time to provide comments on the proposed rule effects of the designation of this now- (68) Comment: A commenter claimed and DEA. unoccupied critical habitat unit that the Service based its analysis on Our Response: In our April 30, 2013 (because the occupied portion is insufficient information and limited (78 FR 25243), publication, we excluded). This project is likely to have consultation, and that information announced the availability of the DEA a Federal nexus that would lead to a relating to the economic impact on all and reopened for 30 days (ending May section 7 consultation with the Service affected parties, particularly property 30, 2013) the comment period on our in the event the State and/or county and business owners in the designation October 17, 2012, combined listing and receives Federal funding from the U.S. area be solicited, reviewed, and critical habitat proposal (77 FR 63928). Department of Transportation, FHWA. considered. In the April 30, 2013, publication, we A section 7 consultation for this project Our Response: The DEA was prepared also announced the public information would include an analysis of whether for the Service by Industrial Economics, meeting and public hearing held on May effects of the project would likely Incorporated (IEc). The primary sources 15, 2013, in Kailua-Kona, Hawaii. The jeopardize Bidens micrantha ssp. of information for the DEA are DEA presented an analysis of the ctenophylla, which is present on the communications with, and data potential economic impacts associated excluded lands and in the likely path of provided by, personnel from the with the proposed critical habitat the highway project, and also whether Service, State and local government designation for the three species. the project would destroy or adversely agencies, private landowners, and other Shortly after publishing our April 30, modify the unoccupied critical habitat stakeholders. Specifically, in developing 2013, document, we sent letters to all of on State lands. Because FHWA would the DEA and finalizing the FEA, IEc the affected landowners that we were already be consulting on the presence of referenced publicly available able to identify. In that letter we the species on Koloko Entities’ land, the information, including relevant public provided information on the proposed section 7 costs associated with this comments submitted on the proposed rule published on October 17, 2012 (77 project in critical habitat in Unit 34 rule (77 FR 63928; October 17, 2012) FR 63928), the DEA, and the public would be limited to the incremental and the DEA, and agency planning hearing held on May 15, 2013, in costs of the additional adverse documents (e.g., development plans). A Kailua-Kona, Hawaii. In addition, we modification analysis and any resulting complete list of references is provided contacted all appropriate Federal and project modification recommendations. in the FEA (IEc 2016, pp. R–1—R–4). State agencies, county governments, The project may potentially impact (69) Comment: Under the DEA, it is elected officials, scientific some of the 268 ac (109 ha) of critical not clear if the Act and section 7 organizations, and other interested habitat in Unit 34, but we have no limitations would be triggered by parties and invited them to comment. information on specific acreage in the registering lots for sale under the On July 2, 2013 (78 FR 39698), we critical habitat unit that would actually Interstate Land Sales Full Disclosure again reopened the public comment be affected by the project. In addition, Act, 15 U.S.C. 1701 et seq. period on the proposed critical habitat there is significant uncertainty regarding

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effects attributable to critical habitat seq. as amended by the SBREFA of The entirety of Unit 35 is excluded from because potential conservation 1996). critical habitat designation in this final measures would likely be developed for Our Response: See our response to rule due in part to conservation the project as a whole. However, we Comment (30) concerning our partnerships established with each acknowledge that the Service may considerations under the RFA. We separate landowner in the unit; these recommend measures to avoid or acknowledge, however, that in some partnerships and our analysis of the minimize habitat destruction in the cases, third-party proponents of the benefits of inclusion and exclusion are critical habitat unit including fencing to action subject to permitting or funding described above (see Consideration of exclude ungulates, nonnative species may participate in a section 7 Impacts Under Section 4(b)(2) of the control, out-planting of native species, consultation and thus may be indirectly Act). and other related conservation affected. For these consultations, the activities, and/or mitigation in the form DEA estimated that third parties incur Required Determinations of habitat protection. Based on our approximately $900 in administrative Regulatory Planning and Review Incremental Effects Memorandum (IEc costs to participate in the consultation (Executive Orders 12866, 13563 and 2016, Appendix E, p. 8), we estimate (IEc 2013, Appendix B, Exhibit B–1). 13771) that the requested mitigation may be at For projects located in occupied areas of a ratio of 2 or more acres preserved for the proposed critical habitat Executive Order 12866 provides that every one acre impacted (depending on designation, such as the WVA, the Office of Information and Regulatory the severity of impact, type/location/ incremental impacts are likely limited Affairs (OIRA) will review all significant condition/rarity of habitat impacted, to these administrative costs for rules. The OIRA has determined that and the amount of habitat needed for participation in the consultations (IEc this rule is not significant. recovery of the species). Therefore, 2013, chapter 1). In addition, for the Executive Order 13563 reaffirms the while we cannot quantify the impacts, reasons described above (see principles of E.O. 12866 while calling there may be some incremental Consideration of Impacts Under Section for improvements in the nation’s economic effects directly attributable to 4(b)(2) of the Act), the lands owned by regulatory system to promote the designation of this unoccupied WVA are excluded from the final predictability, to reduce uncertainty, critical habitat unit. critical habitat designation. and to use the best, most innovative, Refer to Comments (52) and (53), (73) Comment: On behalf of the and least burdensome tools for above, and chapter 2 of the FEA for a Hawaii Judiciary, DAGS requested that achieving regulatory ends. The discussion of potential indirect effects the Service exempt or exclude Unit 35 executive order directs agencies to on projects such as this, including the in its entirety based on the following: (a) consider regulatory approaches that possibility for delay. Since FHWA will Timely completion of the new Kona reduce burdens and maintain flexibility likely need to consult under section 7 of Judiciary complex will result in greater and freedom of choice for the public the Act due to potential impacts of the social and economic benefits than the where these approaches are relevant, project on the occupied habitat nearby, assumed social and economic benefits feasible, and consistent with regulatory regardless of whether or not this associated with the critical habitat objectives. E.O. 13563 emphasizes unoccupied unit is designated, any designation; (b) critical habitat further that regulations must be based delays due to the consultation process designation will result in significant on the best available science and that may not be solely attributable to critical adverse impacts on ongoing and future the rulemaking process must allow for habitat designation. developments due to the need for public participation and an open Finally, with regard to the additional consultation at the Federal exchange of ideas. We have developed commenters’ concerns that designation and State level, resulting in project this rule in a manner consistent with of critical habitat may prevent the delays and uncertainties; and (c) the these requirements. highway extension from occurring, we Service has not provided any scientific Executive Order 13771—Reducing cannot predict the outcome of the documentation or justifications to Regulation and Controlling Regulatory consultation process; however, if the substantiate that exclusion of Unit 35 Costs Service concludes that the project is will result in the extinction of the likely to result in the destruction or endangered species. This rule is not an Executive Order adverse modification of critical habitat, Our Response: Section 4(b)(2) of the (E.O.) 13771 (82 FR 9339, February 3, as those terms are used in section 7, it Act states that the Secretary must 2017) regulatory action because this rule must suggest reasonable and prudent designate or make revisions to critical is not significant under E.O. 12866. habitat on the basis of the best available alternatives which the Secretary Regulatory Flexibility Act (5 U.S.C. 601 believes would not violate section scientific data after taking into et seq.) 7(a)(2) of the Act. If there are no consideration the economic impact, reasonable and prudent alternatives and national security impact, and any other Under the Regulatory Flexibility Act other criteria are met, the Act provides relevant impacts of specifying any (RFA; 5 U.S.C. 601 et seq., as amended for an exemption process. See 16 U.S.C. particular area as critical habitat. The by the Small Business Regulatory 1536(e)–(p). Secretary may exclude an area from Enforcement Fairness Act (SBREFA; 5 (72) Comment: One commenter, on critical habitat if he determines that the U.S.C. 801 et seq.) of 1996, whenever an behalf of the Waikoloa Village benefits of such exclusion outweigh the agency is required to publish a notice of Association (WVA), claimed that the benefits of specifying such area as part rulemaking for any proposed or final WVA is a small entity negatively of the critical habitat, unless he rule, it must prepare and make available impacted by the proposed designation, determines, based on the best scientific for public comment a regulatory and that the proposed rule will have a data available, that the failure to flexibility analysis that describes the significant economic impact on the designate such area as critical habitat effects of the rule on small entities (i.e., WVA. This impact must be considered will result in the extinction of the small businesses, small organizations, in a regulatory flexibility analysis species. Any such exclusion is at the and small government jurisdictions). prepared pursuant to the Regulatory discretion of the Secretary; exclusion of However, no regulatory flexibility Flexibility Act (RFA; 5 U.S.C. 601 et any area is not a requirement of the Act. analysis is required if the head of the

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agency certifies the rule will not have a because no small entities are directly condition of Federal assistance.’’ It also significant economic impact on a regulated by this rulemaking, the excludes ‘‘a duty arising from substantial number of small entities. Service certifies that this final critical participation in a voluntary Federal The SBREFA amended the RFA to habitat designation will not have a program,’’ unless the regulation ‘‘relates require Federal agencies to provide a significant economic impact on a to a then-existing Federal program certification statement of the factual substantial number of small entities. under which $500,000,000 or more is basis for certifying that the rule will not During the development of this final provided annually to State, local, and have a significant economic impact on rule, we reviewed and evaluated all tribal governments under entitlement a substantial number of small entities. information submitted during the authority,’’ if the provision would In this final rule, we are certifying that comment periods that may pertain to ‘‘increase the stringency of conditions of this critical habitat designation for the our consideration of the possible assistance’’ or ‘‘place caps upon, or three species will not have a significant incremental impacts of this critical otherwise decrease, the Federal economic impact on a substantial habitat designation. Based on this Government’s responsibility to provide number of small entities. The following information, we affirm our certification funding,’’ and the State, local, or tribal discussion explains our rationale. that this final critical habitat governments ‘‘lack authority’’ to adjust According to the Small Business designation will not have significant accordingly. At the time of enactment, Administration, small entities include economic impact on a substantial these entitlement programs were: small organizations, such as number of small entities, and a Medicaid; Aid to Families with independent nonprofit organizations; regulatory flexibility analysis is not Dependent Children work programs; small governmental jurisdictions, required. Child Nutrition; Food Stamps; Social including school boards and city and Energy Supply, Distribution, or Use— Services Block Grants; Vocational town governments that serve fewer than Executive Order 13211 Rehabilitation State Grants; Foster Care, 50,000 residents; and small businesses Adoption Assistance, and Independent (13 CFR 121.201). Small businesses Executive Order 13211 (Actions Living; Family Support Welfare include manufacturing and mining Concerning Regulations That Services; and Child Support concerns with fewer than 500 Significantly Affect Energy Supply, Enforcement. ‘‘Federal private sector employees, wholesale trade entities Distribution, or Use) requires agencies mandate’’ includes a regulation that with fewer than 100 employees, retail to prepare Statements of Energy Effects ‘‘would impose an enforceable duty and service businesses with less than $5 when undertaking certain actions. OMB upon the private sector, except (i) a million in annual sales, general and has provided guidance for condition of Federal assistance or (ii) a heavy construction businesses with less implementing this Executive Order that duty arising from participation in a than $27.5 million in annual business, outlines nine outcomes that may voluntary Federal program.’’ special trade contractors doing less than constitute ‘‘a significant adverse effect’’ The designation of critical habitat $11.5 million in annual business, and when compared to not taking the does not impose a legally binding duty agricultural businesses with annual regulatory action under consideration. on non-Federal Government entities or sales less than $750,000. To determine Our economic analysis finds that none private parties. Under the Act, the only if potential economic impacts to these of these criteria is relevant to this regulatory effect is that Federal agencies small entities are significant, we analysis. Thus, based on information in must ensure that their actions do not consider the types of activities that the economic analysis, energy-related destroy or adversely modify critical might trigger regulatory impacts under impacts associated with conservation habitat under section 7. While non- this rule, as well as the types of project activities for the three species within Federal entities that receive Federal modifications that may result. In critical habitat are not expected. As funding, assistance, or permits, or that general, the term ‘‘significant economic such, the designation of critical habitat otherwise require approval or impact’’ is meant to apply to a typical is not expected to significantly affect authorization from a Federal agency for small business firm’s business energy supplies, distribution, or use. an action, may be indirectly impacted operations. Therefore, this action is not a significant by the designation of critical habitat, the The Service’s current understanding energy action, and no Statement of legally binding duty to avoid of the requirements under the RFA, as Energy Effects is required. destruction or adverse modification of amended, and following recent court critical habitat rests squarely on the Unfunded Mandates Reform Act (2 decisions, is that Federal agencies are Federal agency. Furthermore, to the U.S.C. 1501 et seq. ) required to evaluate the potential extent that non-Federal entities are incremental impacts of rulemaking on In accordance with the Unfunded indirectly impacted because they those entities directly regulated by the Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate rulemaking itself. The regulatory seq.), we make the following findings: in a voluntary Federal aid program, the mechanism through which critical (1) This rule will not produce a Unfunded Mandates Reform Act would habitat protections are realized is Federal mandate. In general, a Federal not apply, nor would critical habitat section 7 of the Act, which requires mandate is a provision in legislation, shift the costs of the large entitlement Federal agencies, in consultation with statute, or regulation that would impose programs listed above onto State the Service, to ensure that any action an enforceable duty upon State, local, or governments. authorized, funded, or carried out by the tribal governments, or the private sector, (2) The designation of critical habitat agency is not likely to destroy or and includes both ‘‘Federal imposes no obligation on State or local adversely modify critical habitat. intergovernmental mandates’’ and governments. By definition, Federal Consequently, only Federal action ‘‘Federal private sector mandates.’’ agencies are not considered small agencies will be directly regulated by These terms are defined in 2 U.S.C. entities, although the activities they this designation. There is no 658(5)–(7). ‘‘Federal intergovernmental fund or permit may be proposed or requirement under RFA to evaluate the mandate’’ includes a regulation that carried out by small entities. potential impacts to entities not directly ‘‘would impose an enforceable duty Consequently, we do not believe that regulated. Moreover, Federal agencies upon State, local, or tribal governments’’ the critical habitat designation will are not small entities. Therefore, with two exceptions. It excludes ‘‘a significantly or uniquely affect small

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government entities. As such, a Small not have substantial direct effects either National Environmental Policy Act (42 Government Agency Plan is not on the States, or on the relationship U.S.C. 4321 et seq.) required. between national government and the It is our position that, outside the States, or on the distribution of powers Takings—Executive Order 12630 jurisdiction of the U.S. Court of Appeals and responsibilities among the various for the Tenth Circuit, we do not need to In accordance with E.O. 12630 levels of government. The designation (Government Actions and Interference prepare environmental analyses may have some benefit to these pursuant to the national Environmental with Constitutionally Protected Private governments because the areas that Property Rights), we have analyzed the Policy Act (NEPA; 42 U.S.C. 4321 et contain the features essential to the seq.) in connection with designating potential takings implications of conservation of the species are more designating critical habitat for each of critical habitat under the Act. See clearly defined, and the physical and Douglas County v. Babbitt, 48 F.3d 1495 the three species in a takings biological features of the habitat implications assessment. The Act only (9th Cir. 1995), cert. denied 516 U.S. necessary to the conservation of the 1042 (1996). regulates Federal actions and does not species are specifically identified. This regulate private actions on private lands information may assist local References Cited or confiscate private property as a result governments in long-range planning. A complete list of references cited in of critical habitat designation. Where State and local governments this rule is available on the internet at Designation of critical habitat does not require approval or authorization from a http://www.regulations.gov and upon affect land ownership, or establish any Federal agency for actions that may request from the Pacific Islands Fish closures, or restrictions on use of or affect critical habitat, consultation and Wildlife Office (see FOR FURTHER access to the designated areas. under section 7(a)(2) of the Act would INFORMATION CONTACT, above). Furthermore, the designation of critical be required. While non-Federal entities habitat does not affect landowner that receive Federal funding, assistance, Authors actions that do not require Federal or permits, or that otherwise require The primary authors of this document funding or permits. A takings approval or authorization from a Federal are the staff members of the Pacific implications assessment has been agency for an action may be indirectly Islands Fish and Wildlife Office. completed and concludes that this impacted by the designation of critical designation of critical habitat for the habitat, the legally binding duty to List of Subjects in 50 CFR Part 17 three species does not pose significant avoid destruction or adverse Endangered and threatened species, takings implications for lands within or modification of critical habitat rests Exports, Imports, Reporting and affected by the designation. squarely on the Federal agency. recordkeeping requirements, Federalism—Executive Order 13132 Civil Justice Reform—Executive Order Transportation. In accordance with E.O. 13132 12988 Regulation Promulgation (Federalism), this rule does not have In accordance with E.O. 12988 (Civil Accordingly, we amend part 17, significant Federalism effects. A Justice Reform), the Office of the subchapter B of chapter I, title 50 of the federalism impact summary statement is Solicitor has determined that the rule Code of Federal Regulations, as set forth not required. In keeping with does not unduly burden the judicial below: Department of the Interior and system and that it meets the Department of Commerce policy, we requirements of sections 3(a) and 3(b)(2) PART 17—ENDANGERED AND requested information from, and of the Order. We are designating critical THREATENED WILDLIFE AND PLANTS coordinated development of, this habitat in accordance with the critical habitat designation with provisions of the Act. To assist the ■ 1. The authority citation for part 17 appropriate State resource agencies in public in understanding the habitat continues to read as follows: Hawaii. We received comments from needs of the three species, this rule Authority: 16 U.S.C. 1361–1407; 1531– Hawaii elected officials; Hawaii identifies the elements of physical and 1544; and 4201–4245, unless otherwise Department of Accounting and General biological features essential to the noted. Services; Hawaii Department of conservation of the three species. The ■ Agriculture; Hawaii Department of 2. Amend § 17.99: designated areas of critical habitat are ■ a. By revising paragraphs (k) Business, Economic Development and presented on maps, and the rule introductory text and (k)(1); Tourism, -Hawaii Housing Finance and provides several options for the ■ b. By redesignating paragraphs (k)(40) Development Corporation; Hawaii interested public to obtain more through (52) as paragraphs (k)(41) Department of Hawaiian Home Lands; detailed location information, if desired. through (53); Hawaii Department of Education; Paperwork Reduction Act of 1995 (44 ■ c. By adding new paragraph (k)(40); Hawaii Division of Forestry and ■ U.S.C. 3501 et seq.) d. By further redesignating newly Wildlife; Office of Hawaiian Affairs; designated paragraphs (k)(46) through Hawaii County Office of the Prosecuting This rule does not contain any new (53) as paragraphs (k)(48) through (55); Attorney; Hawaii County Planning collections of information that require ■ e. By adding new paragraphs (k)(46) Department; and the University of approval by OMB under the Paperwork and (47); Hawaii. We addressed these comments Reduction Act of 1995 (44 U.S.C. 3501 ■ f. By revising the map in paragraph above, under Summary of Comments et seq.). This rule will not impose (k)(97)(ii); and Recommendations. From a recordkeeping or reporting requirements ■ g. By revising paragraphs (k)(100), federalism perspective, the designation on State or local governments, (101), and (102); of critical habitat directly affects only individuals, businesses, or ■ h. By redesignating paragraphs the responsibilities of Federal agencies. organizations. An agency may not (k)(104) and (105) as paragraphs (k)(115) The Act imposes no other duties with conduct or sponsor, and a person is not and (116); respect to critical habitat, either for required to respond to, a collection of ■ i. By adding new paragraphs (k)(104) States and local governments, or for information unless it displays a and (105) and paragraphs (k)(106) anyone else. As a result, the rule does currently valid OMB control number. through (114);

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■ j. By revising newly designated § 17.99 Critical habitat; plants on the railroads, airports, runways, utility paragraph (k)(115); and Hawaiian Islands. facilities and infrastructure and their ■ k. In paragraph (l)(1): * * * * * designated and maintained rights-of- (k) Maps and critical habitat unit way, other paved areas, lawns, and ■ i. By adding entries for ‘‘Family descriptions for the island of Hawaii, other urban landscaped areas are not Asteraceae: Bidens micrantha ssp. HI. Critical habitat units are described included in the critical habitat ctenophylla’’ and ‘‘Family Fabaceae: below. Coordinates are in UTM Zone 4 designation. Federal actions limited to Mezoneuron kavaiense’’ in alphabetical with units in meters using North those areas, therefore, would not trigger order by family name; and American Datum of 1983 (NAD83). The a consultation under section 7 of the Act ■ ii. By revising the entry for ‘‘Family following map shows the general unless they may affect the species or Violaceae: Isodendrion pyrifolium locations of the critical habitat units physical or biological features in (wahine noho kula)’’. designated on the island of Hawaii. adjacent critical habitat. The additions and revisions read as Existing manmade features and (1)Note: Map 1, Index map, follows: follows: structures, such as buildings, roads, BILLING CODE 4333–15–P

BILLING CODE 4333–15–C (i) This unit is also critical habitat for kavaiense—a (see paragraphs (k)(46) * * * * * Hawaii 10—Isodendrion pyrifolium—a and (47), respectively, of this section). (40) Hawaii 10—Bidens micrantha and Hawaii 10—Mezoneuron (ii) Note: Map 39a follows: ssp. ctenophylla—a (1,179 ha; 2,914 ac). BILLING CODE 4333–15–P

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BILLING CODE 4333–15–C (47) Hawaii 10—Mezoneuron (97) * * * * * * * * kavaiense—a (1,179 ha; 2,914 ac). See (ii) Note: Map 97 follows: (46) Hawaii 10—Isodendrion paragraph (k)(40)(ii) of this section for BILLING CODE 4333–15–P pyrifolium—a (1,179 ha; 2,914 ac). See the map of this unit. paragraph (k)(40)(ii) of this section for * * * * * the map of this unit.

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BILLING CODE 4333–15–C (100) Hawaii 30—Phyllostegia (ii) Note: Map 100 follows: * * * * * racemosa—c (267 ha, 659 ac). BILLING CODE 4333–15–P (i) [Reserved]

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BILLING CODE 4333–15–C (ii) Note: Map 101 follows: (101) Hawaii 30—Phyllostegia BILLING CODE 4333–15–P velutina—b (1,180 ha, 2,916 ac). (i) [Reserved]

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BILLING CODE 4333–15–C (ii) Note: Map 102 follows: (102) Hawaii 30—Plantago BILLING CODE 4333–15–P hawaiensis—c (1,219 ha, 3,012 ac). (i) [Reserved]

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BILLING CODE 4333–15–C (i) This unit is also critical habitat for kavaiense—b (see paragraphs (k)(105) * * * * * Hawaii 31—Isodendrion pyrifolium—b and (106), respectively, of this section). (104) Hawaii 31—Bidens micrantha and Hawaii 31—Mezoneuron (ii) Note: Map 104 follows: ssp. ctenophylla—b (2,860 ha; 7,066 ac). BILLING CODE 4333–15–P

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BILLING CODE 4333–15–C paragraph (k)(104)(ii) of this section for and Hawaii 33—Mezoneuron (105) Hawaii 31—Isodendrion the map of this unit. kavaiense—d (see paragraphs (k)(108) pyrifolium—b (2,860 ha; 7,066 ac). See and (109), respectively, of this section). paragraph (k)(104)(ii) of this section for (107) Hawaii 33—Bidens micrantha the map of this unit. ssp. ctenophylla—d (400 ha; 989 ac). (ii) Note: Map 105 follows: (106) Hawaii 31—Mezoneuron (i) This unit is also critical habitat for BILLING CODE 4333–15–P kavaiense—b (2,860 ha; 7,066 ac). See Hawaii 33–Isodendrion pyrifolium—d

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Map 105

Hawaii 33-Bidens micrantha ssp. ctenophylla-d, Hawaii 33-Isodendrion pyrifolium-d,

Hawaii 33-Mezoneuron kavaiense-d; Hawaii 34-Bidens micrantha ssp. ctenophylla-e,

Hawaii 34-Isodendrion pyrifolium-e, Hawaii 34-Mezoneuron kavaiense-e;

Hawaii 36-Bidens micrantha ssp. ctenophylla-g, Hawaii 36-Isodendrion pyrifolium-g

Lowland Dry

,,l., .. :UNahah8 ' .' Unit 33';

. . .. -·· ' ;:'" ...... ~·· ...... ,_ ...... _ ): I' ' .. ./ ..... , .... ,.. ""-- . ' - ...... '' ' '. ' . '• '!...· .. ' ' .. .' . .. ' ' ' ' ' .' ' . ' . . \ \. '· '. . ' .. ' ' . '• . . I .' ·· . . ' . 'I '.. ', . ' ' ' \ . ''. ., '' . .I ' '•,

Fllll.il Critical Habitat /'V Coastline 0 2 Mi N Major roads I I !:l . ". •· Elevation (1.000-foot contours) 2 Km N

BILLING CODE 4333–15–C (109) Hawaii 33—Mezoneuron (110) Hawaii 34—Bidens micrantha (108) Hawaii 33—Isodendrion kavaiense—d (400 ha; 989 ac). See ssp. ctenophylla—e (371 ha; 917 ac). pyrifolium—d (400 ha; 989 ac). See paragraph (k)(107)(ii) of this section for (i) This unit is also critical habitat for paragraph (k)(107)(ii) of this section for the map of this unit. Hawaii 34—Isodendrion pyrifolium—e the map of this unit. and Hawaii 34—Mezoneuron

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kavaiense— e (see paragraphs (k)(111) (112) Hawaii 34—Mezoneuron (ii) See paragraph (k)(107)(ii) of this and (112), respectively, of this section). kavaiense—e (371 ha; 917 ac). See section for the map of this unit. (ii) See paragraph (k)(107)(ii) of this paragraph (k)(107)(ii) of this section for (114) Hawaii 36—Isodendrion section for the map of this unit. the map of this unit. pyrifolium—g (163 ha; 402 ac). See (113) Hawaii 36—Bidens micrantha paragraph (k)(107)(ii) of this section for (111) Hawaii 34—Isodendrion ssp. ctenophylla—g (163 ha; 402 ac). the map of this unit. pyrifolium—e (371 ha; 917 ac). See (i) This unit is also critical habitat for (115) Table of Protected Species paragraph (k)(107)(ii) of this section for Hawaii 36—Isodendrion pyrifolium—g Within Each Critical Habitat Unit for the the map of this unit. (see paragraph (k)(114) of this section). Island of Hawaii.

Unit name Species occupied Species unoccupied

Hawaii 1—Clermontia lindseyana—a ...... Clermontia lindseyana ...... Clermontia lindseyana. Hawaii 1—Clermontia peleana—a ...... Clermontia peleana ...... Clermontia peleana. Hawaii 1—Clermontia pyrularia—a ...... Clermontia pyrularia. Hawaii 1—Cyanea shipmanii—a ...... Cyanea shipmanii ...... Cyanea shipmanii. Hawaii 1—Phyllostegia racemosa—a ...... Phyllostegia racemosa ...... Phyllostegia racemosa. Hawaii 2—Clermontia lindseyana—b ...... Clermontia lindseyana ...... Clermontia lindseyana. Hawaii 2—Clermontia pyrularia—b ...... Clermontia pyrularia ...... Clermontia pyrularia. Hawaii 2—Phyllostegia racemosa—b ...... Phyllostegia racemosa ...... Phyllostegia racemosa. Hawaii 3—Clermontia peleana—b ...... Clermontia peleana ...... Clermontia peleana. Hawaii 3—Cyanea platyphylla—a ...... Cyanea platyphylla ...... Cyanea platyphylla. Hawaii 3—Cyrtandra giffardii—a ...... Cyrtandra giffardii ...... Cyrtandra giffardii. Hawaii 3—Cyrtandra tintinnabula—a ...... Cyrtandra tintinnabula ...... Cyrtandra tintinnabula. Hawaii 3—Phyllostegia warshaueri—a ...... Phyllostegia warshaueri ...... Phyllostegia warshaueri. Hawaii 4—Isodendrion hosakae—a ...... Isodendrion hosakae. Hawaii 4—Isodendrion hosakae—b ...... Isodendrion hosakae. Hawaii 4—Isodendrion hosakae—c ...... Isodendrion hosakae. Hawaii 4—Isodendrion hosakae—d ...... Isodendrion hosakae. Hawaii 4—Isodendrion hosakae—e ...... Isodendrion hosakae. Hawaii 4—Isodendrion hosakae—f ...... Isodendrion hosakae ...... Isodendrion hosakae. Hawaii 4—Vigna o-wahuensis—a ...... Vigna o-wahuensis. Hawaii 4—Vigna o-wahuensis—b ...... Vigna o-wahuensis. Hawaii 4—Vigna o-wahuensis—c ...... Vigna o-wahuensis. Hawaii 5—Nothocestrum breviflorum—a ...... Nothocestrum breviflorum. Hawaii 6—Nothocestrum breviflorum—b ...... Nothocestrum breviflorum ...... Nothocestrum breviflorum. Hawaii 7—Pleomele hawaiiensis—a ...... Pleomele hawaiiensis ...... Pleomele hawaiiensis. Hawaii 8—Clermontia drepanomorpha—a ...... Clermontia drepanomorpha ...... Clermontia drepanomorpha. Hawaii 8—Phyllostegia warshaueri—b ...... Phyllostegia warshaueri ...... Phyllostegia warshaueri. Hawaii 9—Achyranthes mutica—a ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—b ...... Achyranthes mutica ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—c ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—d ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—e ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—f ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—g ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—h ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—i ...... Achyranthes mutica. Hawaii 9—Achyranthes mutica—j ...... Achyranthes mutica. Hawaii 10—Argyroxiphium kauense—a ...... Argyroxiphium kauense. Hawaii 10—Bidens micrantha ssp. ctenophylla—a ...... Bidens micrantha ssp. ctenophylla. Hawaii 10—Bonamia menziesii—a ...... Bonamia menziesii. Hawaii 10—Colubrina oppositifolia—a ...... Colubrina oppositifolia ...... Colubrina oppositifolia. Hawaii 10—Delissea undulata—a ...... Delissea undulata. Hawaii 10—Delissea undulata—b ...... Delissea undulata ...... Delissea undulata. Hawaii 10—Hibiscadelphus hualalaiensis—a ...... Hibiscadelphus hualalaiensis ...... Hibiscadelphus hualalaiensis. Hawaii 10—Hibiscus brackenridgei—a ...... Hibiscus brackenridgei ...... Hibiscus brackenridgei. Hawaii 10—Isodendrion pyrifolium—a ...... Isodendrion pyrifolium. Hawaii 10—Mezoneuron kavaiense—a ...... Mezoneuron kavaiense ...... Mezoneuron kavaiense. Hawaii 10—Neraudia ovata—a ...... Neraudia ovata. Hawaii 10—Nothocestrum breviflorum—c ...... Nothocestrum breviflorum ...... Nothocestrum breviflorum. Hawaii 10—Pleomele hawaiiensis—b ...... Pleomele hawaiiensis ...... Pleomele hawaiiensis. Hawaii 10—Solanum incompletum—a ...... Solanum incompletum. Hawaii 10—Zanthoxylum dipetalum ssp. Zanthoxylum dipetalum ssp. tomentosum ... Zanthoxylum dipetalum ssp. tomentosum. tomentosum—a. Hawaii 11—Cyanea hamatiflora ssp. carlsonii—a ...... Cyanea hamatiflora ssp. carlsonii ...... Cyanea hamatiflora ssp. carlsonii. Hawaii 11—Solanum incompletum—b ...... Solanum incompletum. Hawaii 14—Cyanea hamatiflora ssp. carlsonii—b ...... Cyanea hamatiflora ssp. carlsonii. Hawaii 15—Cyanea hamatiflora ssp. carlsonii—c ...... Cyanea hamatiflora ssp. carlsonii. Hawaii 15—Cyanea stictophylla—a ...... Cyanea stictophylla ...... Cyanea stictophylla. Hawaii 16—Cyanea hamatiflora ssp. carlsonii—d ...... Cyanea hamatiflora ssp. carlsonii ...... Cyanea hamatiflora ssp. carlsonii. Hawaii 16—Cyanea stictophylla—b ...... Cyanea stictophylla ...... Cyanea stictophylla. Hawaii 17—Diellia erecta—a ...... Diellia erecta ...... Diellia erecta. Hawaii 17—Flueggea neowawraea—a ...... Flueggea neowawraea ...... Flueggea neowawraea. Hawaii 18—Colubrina oppositifolia—b ...... Colubrina oppositifolia ...... Colubrina oppositifolia.

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Unit name Species occupied Species unoccupied

Hawaii 18—Diellia erecta—b ...... Diellia erecta ...... Diellia erecta. Hawaii 18—Flueggea neowawraea—b ...... Flueggea neowawraea ...... Flueggea neowawraea. Hawaii 18—Gouania vitifolia—a ...... Gouania vitifolia ...... Gouania vitifolia. Hawaii 18—Neraudia ovata—d ...... Neraudia ovata ...... Neraudia ovata. Hawaii 18—Pleomele hawaiiensis—c ...... Pleomele hawaiiensis ...... Pleomele hawaiiensis. Hawaii 19—Mariscus fauriei—a ...... Mariscus fauriei ...... Mariscus fauriei. Hawaii 20—Sesbania tomentosa—a ...... Sesbania tomentosa ...... Sesbania tomentosa. Hawaii 21—Ischaemum byrone—a ...... Ischaemum byrone. Hawaii 22—Ischaemum byrone—b ...... Ischaemum byrone ...... Ischaemum byrone. Hawaii 23—Pleomele hawaiiensis—d ...... Pleomele hawaiiensis ...... Pleomele hawaiiensis. Hawaii 23—Sesbania tomentosa—b ...... Sesbania tomentosa ...... Sesbania tomentosa. Hawaii 24—Argyroxiphium kauense—b ...... Argyroxiphium kauense ...... Argyroxiphium kauense. Hawaii 24—Asplenium fragile var. insulare—a ...... Asplenium fragile var. insulare ...... Asplenium fragile var. insulare. Hawaii 24—Cyanea stictophylla—c ...... Cyanea stictophylla. Hawaii 24—Melicope zahlbruckneri—a ...... Melicope zahlbruckneri. Hawaii 24—Phyllostegia velutina—a ...... Phyllostegia velutina ...... Phyllostegia velutina. Hawaii 24—Plantago hawaiensis—a ...... Plantago hawaiensis ...... Plantago hawaiensis. Hawaii 25—Argyroxiphium kauense—c ...... Argyroxiphium kauense ...... Argyroxiphium kauense. Hawaii 25—Plantago hawaiensis—b ...... Plantago hawaiensis ...... Plantago hawaiensis. Hawaii 25—Silene hawaiiensis—a ...... Silene hawaiiensis ...... Silene hawaiiensis. Hawaii 26—Hibiscadelphus giffardianus—a ...... Hibiscadelphus giffardianus ...... Hibiscadelphus giffardianus. Hawaii 26—Melicope zahlbruckneri—b ...... Melicope zahlbruckneri ...... Melicope zahlbruckneri. Hawaii 27—Portulaca sclerocarpa—a ...... Portulaca sclerocarpa ...... Portulaca sclerocarpa. Hawaii 27—Silene hawaiiensis—b ...... Silene hawaiiensis ...... Silene hawaiiensis. Hawaii 28—Adenophorus periens—a ...... Adenophorus periens ...... Adenophorus periens. Hawaii 29—Clermontia peleana—c ...... Clermontia peleana ...... Clermontia peleana. Hawaii 29—Cyanea platyphylla—b ...... Cyanea platyphylla ...... Cyanea platyphylla. Hawaii 29—Cyrtandra giffardii—b ...... Cyrtandra giffardii. Hawaii 29—Cyrtandra tintinnabula—b ...... Cyrtandra tintinnabula. Hawaii 30—Argyroxiphium kauense—d ...... Argyroxiphium kauense ...... Argyroxiphium kauense. Hawaii 30—Clermontia lindseyana—c ...... Clermontia lindseyana ...... Clermontia lindseyana. Hawaii 30—Cyanea shipmanii—b ...... Cyanea shipmanii ...... Cyanea shipmanii. Hawaii 30—Cyanea shipmanii—c ...... Cyanea shipmanii. Hawaii 30—Cyanea stictophylla—d ...... Cyanea stictophylla. Hawaii 30—Cyrtandra giffardii—c ...... Cyrtandra giffardii ...... Cyrtandra giffardii. Hawaii 30—Phyllostegia racemosa—c ...... Phyllostegia racemosa. Hawaii 30—Phyllostegia velutina—b ...... Phyllostegia velutina ...... Phyllostegia velutina. Hawaii 30—Plantago hawaiensis—c ...... Plantago hawaiensis ...... Plantago hawaiensis. Hawaii 30—Sicyos alba—a ...... Sicyos alba ...... Sicyos alba. Hawaii 31—Bidens micrantha ssp. ctenophylla—b ...... Bidens micrantha ssp. ctenophylla. Hawaii 31—Isodendrion pyrifolium—b ...... Isodendrion pyrifolium. Hawaii 31—Mezoneuron kavaiense—b ...... Mezoneuron kavaiense ...... Mezoneuron kavaiense. Hawaii 33—Bidens micrantha ssp. ctenophylla—d ...... Bidens micrantha ssp. ctenophylla. Hawaii 33—Isodendrion pyrifolium—d ...... Isodendrion pyrifolium. Hawaii 33—Mezoneuron kavaiense—d ...... Mezoneuron kavaiense. Hawaii 34—Bidens micrantha ssp. ctenophylla—e ...... Bidens micrantha ssp. ctenophylla. Hawaii 34—Isodendrion pyrifolium—e ...... Isodendrion pyrifolium. Hawaii 34—Mezoneuron kavaiense—e ...... Mezoneuron kavaiense. Hawaii 36—Bidens micrantha ssp. ctenophylla—g ...... Bidens micrantha ssp. ctenophylla ...... Bidens micrantha ssp. ctenophylla. Hawaii 36—–Isodendrion pyrifolium—g ...... Isodendrion pyrifolium.

* * * * * Hawaii Island. In units Hawaii 10— (iv) Canopy: Diospyros, Erythrina, (l) * * * Bidens micrantha ssp. ctenophylla—a, Metrosideros, Myoporum, Pleomele, (1) * * * Hawaii 31—Bidens micrantha ssp. Santalum, Sapindus. * * * * * ctenophylla—b, Hawaii 33—Bidens (v) Subcanopy: Chamaesyce, micrantha ssp. ctenophylla—d, Hawaii Dodonaea, Osteomeles, Psydrax, FAMILY ASTERACEAE: Bidens 34—Bidens micrantha ssp. Scaevola, Wikstroemia. micrantha ssp. ctenophylla ctenophylla—e, and Hawaii 36—Bidens (vi) Understory: Alyxia, Artemisia, (KOOKOOLAU) micrantha ssp. ctenophylla—g, the Bidens, Capparis, Chenopodium, Hawaii 10—Bidens micrantha ssp. physical and biological features of Nephrolepis, Peperomia, Sicyos. ctenophylla—a, Hawaii 31—Bidens critical habitat are: micrantha ssp. ctenophylla—b, Hawaii * * * * * 33—Bidens micrantha ssp. (i) Elevation: Less than 3,300 ft (1,000 FAMILY FABACEAE: Mezoneuron ctenophylla—d, Hawaii 34—Bidens m). kavaiense (UHIUHI) micrantha ssp. ctenophylla—e, and (ii) Annual precipitation: Less than 50 Hawaii 10—Mezoneuron kavaiense— Hawaii 36—Bidens micrantha ssp. in (130 cm). a, Hawaii 31—Mezoneuron kavaiense— ctenophylla—g, identified in the legal b, Hawaii 33—Mezoneuron kavaiense— (iii) Substrate: Weathered silty loams descriptions in paragraph (k) of this d, and Hawaii 34—Mezoneuron section, constitute critical habitat for to stony clay, rocky ledges, little- kavaiense—e, identified in the legal Bidens micrantha ssp. ctenophylla on weathered lava. descriptions in paragraph (k) of this

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section, constitute critical habitat for (vi) Understory: Alyxia, Artemisia, (i) Elevation: Less than 3,300 ft (1,000 Mezoneuron kavaiense on Hawaii Bidens, Capparis, Chenopodium, m). Island. In units Hawaii 10—Mezoneuron Nephrolepis, Peperomia, Sicyos. (ii) Annual precipitation: Less than 50 kavaiense—a, Hawaii 31—Mezoneuron * * * * * in (130 cm). kavaiense—b, Hawaii 33—Mezoneuron (iii) Substrate: Weathered silty loams kavaiense—d, and Hawaii 34— FAMILY VIOLACEAE: Isodendrion to stony clay, rocky ledges, little- Mezoneuron kavaiense—e, the physical pyrifolium (WAHINE NOHO KULA) weathered lava. and biological features of critical habitat Hawaii 10—Isodendrion pyrifolium— (iv) Canopy: Diospyros, Erythrina, are: a, Hawaii 31—Isodendrion pyrifolium— Metrosideros, Myoporum, Pleomele, b, Hawaii 33—–Isodendrion Santalum, Sapindus. (i) Elevation: Less than 3,300 ft (1,000 (v) Subcanopy: Chamaesyce, m). pyrifolium—d, Hawaii 34—Isodendrion pyrifolium—e, and Hawaii 36— Dodonaea, Osteomeles, Psydrax, (ii) Annual precipitation: Less than 50 Isodendrion pyrifolium—g, identified in Scaevola, Wikstroemia. in (130 cm). the legal descriptions in paragraph (k) of (vi) Understory: Alyxia, Artemisia, (iii) Substrate: Weathered silty loams this section, constitute critical habitat Bidens, Capparis, Chenopodium, Nephrolepis, Peperomia, Sicyos. to stony clay, rocky ledges, little- for Isodendrion pyrfolium on Hawaii weathered lava. Island. In units Hawaii 10—Isodendrion * * * * * (iv) Canopy: Diospyros, Erythrina, pyrifolium—a, Hawaii 31—Isodendrion Dated: May 29, 2018. Metrosideros, Myoporum, Pleomele, pyrifolium—b, Hawaii 33—– James W. Kurth, Santalum, Sapindus. Isodendrion pyrifolium—d, Hawaii 34— Deputy Director, U.S. Fish and Wildlife Isodendrion pyrifolium—e, and Hawaii Service, exercising the authority of the (v) Subcanopy: Chamaesyce, 36—Isodendrion pyrifolium—g, the Director, U.S. Fish and Wildlife Service. Dodonaea, Osteomeles, Psydrax, physical and biological features of [FR Doc. 2018–17514 Filed 8–20–18; 8:45 am] Scaevola, Wikstroemia. critical habitat are: BILLING CODE 4333–15–P

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