Tuesday, June 17, 2003 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Designations or Nondesignations of Critical Habitat for 101 Plant Species From the Island of Oahu, HI; Final Rule VerDate Jan<31>2003 14:22 Jun 16, 2003 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\17JNR2.SGM 17JNR2 35950 Federal Register / Vol. 68, No. 116 / Tuesday, June 17, 2003 / Rules and Regulations DEPARTMENT OF THE INTERIOR designation of statutory critical habitat have been inundated with lawsuits for provides little additional protection to our failure to designate critical habitat, Fish and Wildlife Service most listed species, while consuming and we face a growing number of significant amounts of scarce lawsuits challenging critical habitat 50 CFR Part 17 conservation resources. The present determinations once they are made. RIN 1018–AI24 system for designating critical habitat These lawsuits have subjected the has evolved since its original statutory Service to an ever-increasing series of Endangered and Threatened Wildlife prescription into a process that provides court orders and court-approved and Plants; Final Designations or little real conservation benefit, is driven settlement agreements, compliance with Nondesignations of Critical Habitat for by litigation rather than biology, forces which now consumes nearly the entire 101 Plant Species From the Island of decisions to be made before complete listing program budget. This leaves the Oahu, HI scientific information is available, Service with little ability to prioritize its consumes enormous agency resources activities to direct scarce listing AGENCY: Fish and Wildlife Service, that would otherwise be applied to resources to the listing program actions Interior. actions of much greater conservation with the most biologically urgent ACTION: Final rule. benefit, and imposes huge social and species conservation needs. economic costs. The Service believes The consequence of the critical SUMMARY: We, the U.S. Fish and that rational public policy demands habitat litigation activity is that limited Wildlife Service (Service), designate serious attention to this issue in order listing funds are used to defend active critical habitat pursuant to the to allow our limited resources to be lawsuits, to respond to Notices of Intent Endangered Species Act of 1973, as applied to those actions that provide the (NOIs) to sue relative to critical habitat, amended (Act), for 99 of the 101 species greatest benefit to the species most in and to comply with the growing number known historically from the Hawaiian need of protection. of adverse court orders. As a result, island of Oahu. A total of approximately listing petition responses, the Service’s 22,274 hectares (ha) (55,040 acres (ac)) Role of Critical Habitat in Actual own proposals to list critically of land on Oahu fall within the Practice of Administering and imperiled species, and final listing boundaries of the 303 critical habitat Implementing the Act determinations on existing proposals are units designated for the 99 species. This While attention to and protection of significantly delayed. Litigation over critical habitat designation requires the habitat is paramount to successful critical habitat issues for species already Service to consult under section 7 of the conservation actions, we have listed and receiving the Act’s full Act with regard to actions carried out, consistently found that, in most protection has precluded or delayed funded, or authorized by a Federal circumstances, the designation of many listing actions nationwide. agency. Section 4 of the Act requires us critical habitat is of little additional The accelerated schedules of court to consider economic and other relevant value for most listed species, yet it ordered designations have left the impacts when specifying any particular consumes large amounts of conservation Service with almost no ability to area as critical habitat. This rule also resources. [Sidle (1987. Env. provide for adequate public determines that designating critical Manage.11(4):429–437) stated, ‘‘Because participation or ensure a defect-free habitat would not be prudent for two the ESA can protect species with and rulemaking process before making species (Cyrtandra crenata and without critical habitat designation, decisions on listing and critical habitat Pritchardia kaalae). We solicited data critical habitat designation may be proposals due to the risks associated and comments from the public on all redundant to the other consultation with noncompliance with judicially- aspects of the proposed rule, including requirements of section 7.’’] Currently, imposed deadlines. This in turn fosters data on economic and other impacts of only 306 species or 25% of the 1,211 a second round of litigation in which the designation. listed species in the U.S. under the those who fear adverse impacts from DATES: This rule becomes effective on jurisdiction of the Service have critical habitat designations challenge July 17, 2003. designated critical habitat. We address those designations. The cycle of the habitat needs of all 1,211 listed litigation appears endless, is very ADDRESSES: Comments and materials species through conservation expensive, and in the final analysis received, as well as supporting mechanisms such as listing, section 7 provides relatively little additional documentation, used in the preparation consultations, the Section 4 recovery protection to listed species. of this final rule will be available for planning process, the Section 9 The costs resulting from the public inspection, by appointment, protective prohibitions of unauthorized designation include legal costs, the cost during normal business hours at U.S. take, Section 6 funding to the States, of preparation and publication of the Fish and Wildlife Service, Pacific and the Section 10 incidental take designation, the analysis of the Islands Office, 300 Ala Moana Blvd., permit process. The Service believes economic effects and the cost of Room 3–122, PO Box 50088, Honolulu, that it is these measures that may make requesting and responding to public HI 96850–0001. the difference between extinction and comment, and in some cases the costs FOR FURTHER INFORMATION CONTACT: Paul survival for many species. of compliance with NEPA, all are part Henson, Field Supervisor, Pacific of the cost of critical habitat Procedural and Resource Difficulties in Islands Office at the above address designation. None of these costs result Designating Critical Habitat (telephone 808/541–3441; facsimile in any benefit to the species that is not 808/541–3470). With a budget consistently inadequate already afforded by the protections of SUPPLEMENTARY INFORMATION: to fund all of the petition review, listing, the Act enumerated earlier, and they and critical habitat designation duties Disclaimer directly reduce the funds available for required of us by statute, we have in the direct and tangible conservation actions. Designation of critical habitat past prioritized our efforts and focused provides little additional protection to our limited resources on adding species Background species. In 30 years of implementing the in need of protection to the lists of In the List of Endangered and ESA, the Service has found that the threatened or endangered species. We Threatened Plants (50 CFR 17.12(h)), VerDate Jan<31>2003 14:22 Jun 16, 2003 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\17JNR2.SGM 17JNR2 Federal Register / Vol. 68, No. 116 / Tuesday, June 17, 2003 / Rules and Regulations 35951 there are 101 plant species that, at the (ft)) (Wagner et al. 1999). The median Reynoldsia sandwicensis (ohe), and time of listing, were reported from the annual rainfall for the Waianae Sapindus oahuensis (lonomea) (Bates island of Oahu and are at issue in this Mountains varies from 51 to 190 cm (20 1999; HINHP Database 2001; final rule. These species and their to 75 in), with only the small summit Environmental Division of the U.S. distribution by island are identified in area of Mt. Kaala receiving the highest Army (EDA), in litt. 2001). Table 1 in the Federal Register notice amount (Service 1995a). The major threats to Abutilon proposing this critical habitat sandwicense are competition from the Discussion of the Plant Taxa designation (67 FR 37107–37272; chart nonnative plant species Ageratina page 37108). Species Endemic to Oahu riparia (hamakua pamakani), Aleurites Fifty-seven of these species are moluccana (kukui), Clidemia hirta endemic to the island of Oahu, while 44 Abutilon sandwicense (No common (Koster’s curse), Ficus microcarpa species are reported from one or more name (NCN)) (Chinese banyan), Grevillea robusta (silk other islands, as well as Oahu. Each of Abutilon sandwicense, a member of oak), Hyptis pectinata (Comb hyptis), these species is described in more detail the mallow family (Malvaceae) and a Ipomoea sp. (morning glory), Kalanchoe below in the section ‘‘Discussion of short-lived perennial, is a shrub that pinnata (air plant), Leucaena Plant Taxa.’’ Although we considered grows to 3 m (5 ft) tall and is covered leucocephala (koa haole), Melia designating critical habitat on Oahu for with short glandular hairs. This species azedarach (chinaberry), Melinis each of the 101 plant species, for the is distinguished from others in the minutiflora (molasses grass), Montanoa reasons described below, the final genus by the green or reddish-brown hibiscifolia (tree daisy),