department of the interior - u.s. government … federal register/vol. 66, no. 237/monday, december...

Monday,

December 10, 2001

Part II

Department of theInteriorFish and Wildlife Service

50 CFR Part 17Endangered and Threatened Wildlife andPlants; Determination of Critical Habitatfor the Oahu Elepaio (Chasiempissandwichensis ibidis); Final Rule

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63752 Federal Register / Vol. 66, No. 237 / Monday, December 10, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG99

Endangered and Threatened Wildlifeand Plants; Determination of CriticalHabitat for the Oahu Elepaio(Chasiempis sandwichensis ibidis)

AGENCY: Fish and Wildlife Service,Interior.ACTION: Final rule.

SUMMARY: We, the U.S. Fish andWildlife Service (Service), designatecritical habitat for the Oahu elepaiopursuant to the Endangered Species Actof 1973, as amended (Act). The Oahuelepaio is a forest bird found only on theisland of Oahu and is listed asendangered under the Act. The criticalhabitat consists of five units whoseboundaries encompass a total area ofapproximately 26,661 hectares (ha)(65,879 acres (ac)) in the Koolau andWaianae mountains on the island ofOahu, Hawaii. Critical habitat identifiesspecific areas that are essential to theconservation of a listed species and thatmay require special managementconsiderations or protection. Asrequired by section 4 of the Act, weconsidered economic and other relevantimpacts prior to making a final decisionon what areas to designate as criticalhabitat.

DATES: This rule is effective January 9,2002.FOR FURTHER INFORMATION CONTACT:Marilet A. Zablan, VertebrateConservation Coordinator, or EricVanderWerf, Biologist, Pacific IslandsFish and Wildlife Office, U.S. Fish andWildlife Service, 300 Ala MoanaBoulevard, Room 3–122, Box 50088,Honolulu, Hawaii 96850 (telephone:808/541–3441; facsimile: 808/541–3470).

SUPPLEMENTARY INFORMATION:

Background

The Oahu elepaio (Chasiempissandwichensis ibidis) is a small forest-

dwelling bird approximately 12.5 grams(0.43 ounces) in weight and 15centimeters (cm) (6 inches (in)) inlength, and is a member of the monarchflycatcher family Monarchidae(VanderWerf 1998). It is dark brownabove and white below, with lightbrown streaks on the breast. The tail islong (6.5 cm, 2.6 in) and often held upat an angle. Adults have conspicuouswhite wing bars, a white rump, andwhite tips on the tail feathers. Thethroat is white with black markings inboth sexes, but males tend to have moreblack on the chin than females.Juveniles and subadults are reddishabove, with a white belly and rustywing-bars. The bill is medium-length,straight, and black, with the base of thelower mandible bluish-gray in adultsand yellow in juveniles. The legs andfeet are dark gray and the iris is darkbrown (VanderWerf 1998).

Three subspecies of elepaio arerecognized, each found only on a singleisland: the Oahu elepaio; the Hawaiielepaio (Chasiempis s. sandwichensis);and the Kauai elepaio (C. s. sclateri).The forms on different islands aresimilar in ecology and behavior, butdiffer somewhat in coloration andvocalizations (Conant 1977, van Riper1995, VanderWerf 1998). The taxonomyused in this rule follows Pratt et al.(1987) and Pyle (1997), in which allforms are regarded as subspecies, butthe form on each island was originallydescribed as a separate species. TheOahu form was known as C. s. gayi(Wilson 1891) until Olson (1989)pointed out that the epithet ibidis(Stejneger 1887) has priority. Theelepaio comprises a monotypic genusthat is found only in the HawaiianIslands (VanderWerf 1998). Its closestrelatives are other monarch flycatchersfrom the Pacific region (Pratt et al. 1987,Sibley and Ahlquist 1985).

The Oahu elepaio occurs in a varietyof forest types, but is most common inriparian vegetation along streambedsand in mesic forest with a tall canopyand a well-developed understory(Shallenberger and Vaughn 1978,VanderWerf et al. 1997). Populationdensity is roughly 50 percent lower inshorter dry forest on ridges (VanderWerf

et al. 1997). Elepaio currently are notfound in very wet, stunted forest onwindswept summits or in very dryshrub land, but these areas may be usedby individuals dispersing amongsubpopulations. Forest structureappears to be more important to elepaiothan plant species composition(VanderWerf et al. 1997), and unlikemany Hawaiian forest birds, elepaiohave adapted relatively well todisturbed forest composed of introducedplants (Conant 1977, VanderWerf et al.1997, VanderWerf 1998). Fifty-fivepercent of the current range isdominated by introduced plants and 45percent is dominated by native plants(VanderWerf et al. 2001). Thisobservation does not imply that elepaioprefer introduced plant species, butprobably reflects a preference by elepaiofor riparian vegetation in valleys and thehigh degree of habitat disturbance andabundance of introduced plants inriparian areas (VanderWerf et al. 1997).Of the 45 percent dominated by nativeplants, 23 percent is categorized as wetforest, 17 percent as mesic forest, and 5percent as dry forest, shrub land, andcliffs (Hawaii Heritage Program 1991).

Plant species composition in elepaiohabitat varies considerably dependingon location and elevation, but some ofthe most common native plants in areaswhere elepaio occur are ohia(Metrosideros polymorpha), papalakepau (Pisonia umbellifera), lama(Diospyros sandwicensis), mamaki(Pipturus albidus), kaulu (Sapindusoahuensis), hame (Antidesmaplatyphyllum), and alaa (Pouteriasandwicensis), and some of the mostcommon introduced plants are guava(Psidium guajava), strawberry guava (P.cattleianum), kukui (Aleuritesmoluccana), mango (Mangifer indica),Christmasberry (Schinusterebinthifolius), and ti (Cordylineterminalis) (VanderWerf et al. 1997,VanderWerf 1998).

The current population of Oahuelepaio is approximately 1,982 birdsdistributed in six core subpopulationsand several smaller subpopulations(Table 1, Figure 1; VanderWerf et al.2001).

TABLE 1.—ESTIMATED SIZE AND AREA OF OAHU ELEPAIO SUBPOPULATIONS

[Data from VanderWerf et al. (2001). Letters before each subpopulation correspond to those on Figure 1]

Subpopulation Total popu-lation size

Breedingpopulation

size

Area(ha)

Waianae Mountains:A. Southern Waianae (Honouliuli Preserve, Lualualei Naval Magazine) ........................................ 458 418 1,170B. Schofield Barracks West Range .................................................................................................. 340 310 538C. Makaha, Waianae Kai Valleys ..................................................................................................... 123 112 459


63753Federal Register / Vol. 66, No. 237 / Monday, December 10, 2001 / Rules and Regulations

TABLE 1.—ESTIMATED SIZE AND AREA OF OAHU ELEPAIO SUBPOPULATIONS—Continued[Data from VanderWerf et al. (2001). Letters before each subpopulation correspond to those on Figure 1]

Subpopulation Total popu-lation size

Breedingpopulation

size

Area(ha)

D. Pahole, Kahanahaiki .................................................................................................................... 18 4 256E. Schofield Barracks South Range ................................................................................................. 6 0 20F. Makua Valley ................................................................................................................................ 7 2 49G. Kaala Natural Area Reserve ....................................................................................................... 3 0 21H. Makaleha Gulch ........................................................................................................................... 2 0 7I. Kuaokala ........................................................................................................................................ 3 2 14J. Kaluakauila Gulch ......................................................................................................................... 1 0 6

Koolau Mountains:K. Southern Koolau (Pia, Wailupe, Kapakahi, Kuliouou, Waialae Nui) ........................................... 475 432 1,063L. Waikane, Kahana Valleys ............................................................................................................ 265 242 523M. Central Koolau (Moanalua, North and South Halawa, Aiea, Kalauao) ...................................... 226 206 1,396N. Palolo Valley ................................................................................................................................ 46 42 78O. Waihee Valley .............................................................................................................................. 5 4 32P. Manoa .......................................................................................................................................... 2 0 19Q. Hauula ......................................................................................................................................... 1 0 4R. Waianu Valley .............................................................................................................................. 1 0 8

Total .............................................................................................................................................. 1,982 1,774 5,663

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The only previous populationestimate (200–500 birds; Ellis et al.1992) was not accurate because littleinformation was available when theestimate was made. The number of birdsis divided about evenly between theWaianae Mountains in the west and theKoolau Mountains in the east, withthree core subpopulations in eachmountain range. At least 10 tinyremnant subpopulations consistingmostly or entirely of males remain inboth the Waianae and Koolaumountains (Table 1). These remnantsubpopulations were much larger orcontinuous with other subpopulationsin the past, but because of their verysmall size, skewed sex ratio, andgeographic isolation, these relicts likelywill disappear in a few years as the lastadults die.

The breeding population, about 1,774birds, is less than the total populationbecause of a male-biased sex ratio; only84 percent of territorial males havemates in large populations (VanderWerfet al. 2001), and many small, decliningpopulations contain mostly males(Table 1). The genetically effectivepopulation size, a measure that takesinto account genetic populationstructure and variation in number ofindividuals over time, is probably evensmaller than the breeding populationbecause of the geographicallyfragmented distribution (Grant andGrant 1992). Offspring dispersaldistances in elepaio are usually less

than one kilometer (km) (0.62 mile (mi))and adults have high site fidelity(VanderWerf 1998), but most elepaiopopulations on Oahu are separated bymany kilometers of unsuitable urban oragricultural habitat. There may be someexchange among subpopulations withineach mountain range, but dispersalacross the extensive pineapple fieldsthat separate the Waianae and Koolaumountains is unlikely. While thecurrent distribution superficiallyappears to constitute a metapopulation,it is uncertain if dispersal occurs amongsubpopulations.

Before humans arrived, forest coveredabout 127,000 ha (313,690 ac) on Oahu(Figure 2; Hawaii Heritage Program1991), and it is likely that elepaio onceinhabited much of that area(VanderWerf et al. 2001). Reports byearly naturalists indicate that elepaiowere once widespread and abundant onOahu. Bryan (1905) called the Oahuelepaio ‘‘the most abundant Hawaiianspecies on the mountainside all the wayfrom the sea to well up into the higherelevations.’’ Perkins (1903) remarked onits ‘‘universal distribution * * * fromthe lowest bounds to the uppermostedge of continuous forest.’’ Seale (1900)stated the elepaio was ‘‘the commonestnative land bird to be found on theisland,’’ while MacCaughey (1919)described it as ‘‘the most abundantrepresentative of the native woodlandavifauna’’ and ‘‘abundant in all parts ofits range.’’ The historical range of the

Oahu elepaio apparently included mostforested parts of the island, and it wasformerly abundant.

Despite its adaptability, the Oahuelepaio has seriously declined since thearrival of humans, and it hasdisappeared from many areas where itwas formerly common (Shallenberger1977, Shallenberger and Vaughn 1978,Williams 1987, VanderWerf et al. 1997).The aggregate geographic area of allcurrent subpopulations isapproximately 5,660 ha (13,980 ac) (seeTable 1) (VanderWerf et al. 2001). TheOahu elepaio thus currently occupiesonly about 4 percent of its originalprehistoric range, and its range hasdeclined by roughly 96 percent sincehumans arrived in Hawaii 1,600 yearsago (Kirch 1982). In 1975, elepaioinhabited approximately 20,900 ha(51,623 ac) on Oahu, almost four timesthe area of the current range (Figure 2;VanderWerf et al. 2001). The range ofthe Oahu elepaio has thus declined byroughly 75 percent in the last 25 years.Much of the historical decline of theOahu elepaio can be attributed tohabitat loss, especially at lowelevations. Fifty-six percent of theoriginal prehistoric range has beendeveloped for urban or agricultural use,and practically no elepaio remain indeveloped areas (VanderWerf et al.2001).BILLING CODE 4310–55–P



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However, many areas of Oahu thatrecently supported elepaio and stillcontain suitable forest habitat arecurrently unoccupied, demonstratingthat habitat loss is not the only threat.Recent declines in Oahu elepaiopopulations are due to a combination oflow adult survival and low reproductivesuccess. Both annual adult survival andreproductive success are lower on Oahu(0.76, 0.33, respectively) than in a large,stable population of another subspeciesof elepaio at Hakalau Forest NationalWildlife Refuge on Hawaii Island (0.85,0.62; VanderWerf 1998). The two maincauses of low survival and lowreproduction on Oahu are nestpredation by alien black rats (Rattusrattus) and alien diseases, particularlyavian pox (Poxvirus avium) and avianmalaria (Plasmodium relictum), whichare carried by the alien southern housemosquito (Culex quinquefasciatus).Annual survival of birds with activeavian pox lesions (60 percent) waslower than annual survival of healthybirds (80 percent) (E. VanderWerfunpubl. data). Pairs in which at leastone bird had pox lesions producedfewer fledglings than healthy pair. (E.VanderWerf, unpubl. data). Many birdswith active pox did not even attempt tonest, and infected birds were sometimesdeserted by their mate. Malaria is aserious threat to many Hawaiian forestbirds (Warner 1968, van Riper et al.1986, Atkinson et al. 1995), but its effecton elepaio has not been investigated.

Nest predation by black rats causesmany nests to fail, and rats alsoprobably take adult female elepaio onthe nest at night. An experiment inwhich automatic cameras were wired toartificial elepaio nests containing quaileggs showed that a black rat was thepredator in all 10 predation eventsdocumented (VanderWerf 2001).Control of rats with snap traps anddiphacinone (an anticoagulantrodenticide) bait stations was effectiveat improving elepaio reproductivesuccess, resulting in an 85 percentincrease in nest success and a 127percent increase in fledglings per paircompared to control areas (VanderWerf1999).

A comprehensive description of thelife history and ecology of the elepaio isprovided by VanderWerf (1998), fromwhich much of the information below istaken. Elepaio are non-migratory anddefend all-purpose territories year-round. The average territory size onOahu was 2.0 ha (4.94 ac) in forestcomposed of introduced plant species(Conant 1977), but territory size likelyvaries with vegetation structure.Population density on Oahu was 50percent lower in short forest on ridges

than in tall riparian forest alongstreambeds (VanderWerf et al. 1997),and for the related subspecies onHawaii, territory size was 50 percentlarger in more disturbed forest with anopen canopy and grass understory.

Oahu elepaio are sociallymonogamous, and approximately 63percent of pairs remain together eachyear (E. VanderWerf, unpubl. data). Sitefidelity is high, with 96 percent of malesand 67 percent of females remaining onthe same territory from year to year.Annual survival of healthy adults ishigh, approximately 85 percent in malesand 70 percent in females (E.VanderWerf, unpubl. data). Young birdswander (or float) while they attempt toacquire a territory and a mate.

The nesting season usually extendsfrom mid February through May, butactive nests have been found fromJanuary through July (VanderWerf1998). Nest site selection is notspecialized, and nests have been foundin a variety of plants, including 6 nativespecies and 13 introduced species (E.VanderWerf, unpubl. data). The nest isa finely-woven, free-standing cup madeof rootlets, bark strips, leaf skeletons,lichen, and spider silk, and is placed ina fork or on top of a branch (Conant1977, VanderWerf 1998). Both sexesparticipate in all aspects of nesting, butthe female plays a larger role in nestbuilding and the male provides morefood for the nestlings. Clutch size is 1to 3 eggs, usually 2, and eggs hatch after18 days. The nestling period is 16 days.Fledglings are fed by their parents formore than a month after leaving thenest, and may remain in the hometerritory for up to 9 months, until thestart of the next breeding season.Fecundity (reproductive rate) is low;even if nest predators are removed, themean reproductive rate is 0.75fledglings per pair per year (VanderWerf1999). Oahu elepaio will re-nest once ortwice after failure, but they rarelyattempt to re-nest if the first nest issuccessful. Other than introducedpredators, storms with heavy rain andstrong winds are the most commoncause of nest failure.

The diet and foraging behaviors ofelepaio are extremely varied. The dietconsists of a wide range of arthropods,particularly insects and spiders, andincludes introduced species such asfruit flies (Tephritidae) (VanderWerf1998). Large prey, such as moths andcaterpillars, are beaten against a branchbefore being eaten. In a study on HawaiiIsland, VanderWerf (1993, 1994) foundthat elepaio foraged at all heights on allavailable plant species, and that theycaught insects from a variety ofsubstrates, including the ground and

fallen logs (2 percent), trunks (5percent), branches (24 percent), twigs(38 percent), foliage (20 percent), and inthe air (11 percent). Elepaio are versatileand agile in pursuit of prey, using adiversity of foraging behaviors that isamong the highest recorded for any bird,including perch-gleaning (48 percent),several forms of flight-gleaning (30percent), hanging (11 percent), aerialflycatching (7 percent), and activepursuit (4 percent) (VanderWerf 1994).

Previous Federal ActionWe were petitioned by Mr. Vaughn

Sherwood on March 22, 1994, to list theOahu elepaio as an endangered orthreatened species with critical habitat.The November 15, 1994, AnimalCandidate Notice of Review (59 FR58991) classified the Oahu elepaio (thenChasiempis sandwichensis gayi) as acategory 1 candidate. Category 1candidates were those species for whichwe had sufficient data in our possessionto support a listing proposal. On June12, 1995 (60 FR 30827), we published a90-day petition finding stating that thepetition presented substantialinformation that listing may bewarranted. On February 28, 1996 (61 FR7596), and September 19, 1997 (62 FR49398), we published noticesdiscontinuing candidate categorydesignations, and the Oahu elepaio waslisted as a candidate species. Candidatespecies are those for which we have onfile sufficient information on biologicalvulnerability and threats to supportproposals to list as threatened orendangered. On October 6, 1998 (63 FR53623), we published the proposed ruleto list the Oahu elepaio as anendangered species. Because C. s. gayiis a synonym of C. s. ibidis, theproposed rule constituted the final 12-month finding for the petitioned action.On April 18, 2000 (65 FR 20760), wepublished the final rule to list the Oahuelepaio as an endangered species.

Section 4(a)(3) of the Act, asamended, and implementing regulations(50 CFR 424.12) require that, to themaximum extent prudent anddeterminable, the Secretary designatecritical habitat at the time a species isdetermined to be endangered orthreatened. Our regulations (50 CFR424.12(a)(1)) also state that designationof critical habitat is not prudent whenone or both of the following situationsexist—(1) the species is threatened bytaking or other activity and theidentification of critical habitat can beexpected to increase the degree of threatto the species, or (2) such designation ofcritical habitat would not be beneficialto the species. In the proposed listingrule we indicated that designation of



critical habitat for the Oahu elepaio wasnot prudent because we believed acritical habitat designation would notprovide any additional benefit beyondthat provided through listing asendangered. Based on comments wereceived on the proposed listing ruleand on recent court rulings whichaddress the prudency standard, in thefinal listing rule we determined that acritical habitat designation for the Oahuelepaio was prudent because such adesignation could benefit the speciesbeyond listing as endangered byextending protection under section 7 ofthe Act to currently unoccupied habitatand by providing informational andeducational benefits.

Although we determined in the finallisting rule that critical habitatdesignation for the Oahu elepaio wouldbe prudent, we also indicated in thefinal listing rule that we were not ableto develop a proposed critical habitatdesignation for the Oahu elepaio at thattime due to budgetary and workloadconstraints. However, on June 28, 2000,the United States District Court for theDistrict of Hawaii established, in thecase of Conservation Council for Hawaiiv. Babbitt, CIV. NO. 00–00001 HG–BMK, a timetable to designate criticalhabitat for the Oahu elepaio, andordered that the Service publish thefinal critical habitat designation byOctober 31, 2001. That date wasextended to November 21, 2001. Thisfinal rule responds to the court’s order.

On November 9, 2000, we mailedletters to 32 landowners on Oahuinforming them that the Service was inthe process of designating criticalhabitat for the Oahu elepaio andrequesting from them information onmanagement of lands that currently orrecently (within the past 25 years)supported Oahu elepaio. The letterscontained a fact sheet describing theOahu elepaio and critical habitat, a mapshowing the historic and current rangeof the Oahu elepaio, and a questionnairedesigned to gather information aboutland management practices, which werequested be returned to us byNovember 27, 2000. We received 11responses to our landowner mailingwith varying types and amounts ofinformation on current landmanagement activities. Some responsesincluded detailed management plans,provided new information on locationswhere elepaio have been observedrecently, and described managementactivities such as fencing, hunting,public access, fire management,methods for controlling invasive weedsand introduced predators, andcollaboration with conservationresearchers. In addition, we met with

several landowners and managers,including the U.S. Army and the HawaiiState Division of Forestry and Wildlife,to obtain more specific information onmanagement activities and suitability ofcertain habitat areas for the elepaio. Theinformation provided in the responsesand during meetings was consideredand incorporated into this final rule.

On June 6, 2001, we published aproposed rule to designate criticalhabitat for the Oahu elepaio (66 FR30372). The proposed critical habitatconsisted of five units whoseboundaries encompassed a total area ofapproximately 26,661 hectares (ha)(65,879 acres (ac)) in the Koolau andWaianae mountains on the island ofOahu, Hawaii. The public commentperiod was open for 60 days untilAugust 6, 2001. We did not receive anyrequests for public hearings during thecomment period and we did not holdany public hearings. On August 6, 2001,we published a notice announcing thereopening of the public comment periodand the availability of the drafteconomic analysis for the proposedcritical habitat designation for the Oahuelepaio (66 FR 40960). The commentperiod was open for an additional 30days until September 6, 2001. OnAugust 28, 2001, we held a publicmeeting in Honolulu to provideinformation and promote discussionabout the critical habitat designation forthe Oahu elepaio. The meeting wasattended by 11 people, not includingService staff. During this meeting theService presented a brief introduction tothe biology of the Oahu elepaio, asummary of previous federal actionsregarding the elepaio, information aboutcritical habitat, and the methods used toidentify critical habitat for the Oahuelepaio. The presentation was followedby a question and answer session andgeneral discussion, and we madeavailable information including maps,fact sheets, news releases, reprints ofscientific papers, copies of the proposedrule and draft economic analysis, andinstructions for submitting publiccomments. On September 5, 2001, wepublished a correction to the proposedrule (66 FR 46428). The proposed rulecontained the correct maps and legaldescriptions of the proposed criticalhabitat units, but figure 2 in thebackground section of the proposedrule, which showed the proposedcritical habitat units in relation to thecurrent, recent historical, and presumedprehistoric distribution of the Oahuelepaio, showed the proposed criticalhabitat units incorrectly. The correctionprovided an accurate version of figure 2that matched the critical habitat units

depicted in the legal description of theoriginal proposed rule. Page 30377 ofthe proposed rule was replaced withpage 46429 of the correction.

Critical HabitatCritical habitat is defined in section 3,

paragraph (5)(A) of the Act as—(i) thespecific areas within the geographic areaoccupied by a species, at the time it islisted in accordance with the Act, onwhich are found those physical orbiological features (I) essential to theconservation of the species and (II) thatmay require special managementconsiderations or protection; and (ii)specific areas outside the geographicarea occupied by a species at the timeit is listed, upon a determination thatsuch areas are essential for theconservation of the species.‘‘Conservation,’’ as defined by the Act,means the use of all methods andprocedures that are necessary to bringan endangered or a threatened species tothe point at which listing under the Actis no longer necessary.

Critical habitat receives protectionunder section 7 of the Act through theprohibition against destruction oradverse modification of critical habitatwith regard to actions carried out,funded, or authorized by a Federalagency. Section 7 also requiresconferences on Federal actions that arelikely to result in the destruction oradverse modification of proposedcritical habitat. Destruction or adversemodification is direct or indirectalteration that appreciably diminishesthe value of critical habitat for theconservation of a listed species. Suchalterations include, but are not limitedto, alterations adversely modifying anyof those physical or biological featuresthat were the basis for determining thehabitat to be critical. Aside from theadded protection that may be providedunder section 7, the Act does notprovide other forms of regulatoryprotection to lands designated as criticalhabitat. Because consultation undersection 7 of the Act does not apply toactivities on private or other non-Federal lands that do not involve aFederal nexus, critical habitatdesignation would not afford anyadditional regulatory protections underthe Act against such activities.

Critical habitat also provides non-regulatory benefits to the species byinforming the public and private sectorsof areas that are important for speciesrecovery and where conservationactions would be most effective.Designation of critical habitat can helpfocus conservation activities for a listedspecies by identifying areas that containthe physical and biological features that



are essential for conservation of thatspecies, and can alert the public as wellas land-managing agencies to theimportance of those areas. Criticalhabitat also identifies areas that mayrequire special managementconsiderations or protection, and mayhelp provide protection to areas wheresignificant threats to the species havebeen identified or help to avoidaccidental damage to such areas.

In order to be included in a criticalhabitat designation, the habitat must be‘‘essential to the conservation of thespecies.’’ Critical habitat designationsidentify, to the extent known and usingthe best scientific and commercial dataavailable, habitat areas that provideessential life cycle needs of the species(i.e., areas on which are found theprimary constituent elements, asdefined at 50 CFR 424.12(b)). Section3(5)(C) of the Act states that not all areasthat can be occupied by a speciesshould be designated as critical habitatunless the Secretary determines that allsuch areas are essential to theconservation of the species. Ourregulations (50 CFR 424.12(e)) also statethat, ‘‘The Secretary shall designate ascritical habitat areas outside thegeographic area presently occupied bythe species only when a designationlimited to its present range would beinadequate to ensure the conservation ofthe species.’’

Section 4(b)(2) of the Act requires thatwe take into consideration the economicimpact, and any other relevant impact,of specifying any particular area ascritical habitat. We may exclude areasfrom critical habitat designation whenthe benefits of exclusion outweigh thebenefits of including the areas withincritical habitat, provided the exclusionwill not result in extinction of thespecies.

Our Policy on Information StandardsUnder the Endangered Species Act,published on July 1, 1994 (59 FR34271), provides criteria, establishesprocedures, and provides guidance toensure that decisions made by theService represent the best scientific andcommercial data available. It requiresthat our biologists, to the extentconsistent with the Act and with the useof the best scientific and commercialdata available, use primary and originalsources of information as the basis forrecommendations to designate criticalhabitat. When determining which areasare critical habitat, a primary source ofinformation should be the listing rulefor the species. Additional informationmay be obtained from a recovery plan,articles in peer-reviewed journals,conservation plans developed by Statesand counties, scientific status surveys

and studies, and biological assessmentsor other unpublished materials (i.e.,gray literature).

Section 4 requires that we designatecritical habitat based on what we knowat the time of the designation. Habitat isoften dynamic, however, andpopulations may move from one area toanother over time. Furthermore, werecognize that designation of criticalhabitat may not include all of thehabitat areas that may eventually bedetermined to be necessary for therecovery of the species. For thesereasons, critical habitat designations donot signal that habitat outside thedesignation is unimportant or may notbe required for recovery. Habitat areasoutside the critical habitat designationwill continue to be subject toconservation actions that may beimplemented under section 7(a)(1) ofthe Act and to the regulatory protectionsafforded by the section 7(a)(2) jeopardystandard, and the section 9 takeprohibition, as determined on the basisof the best available information at thetime of the action. It is possible thatfederally funded or assisted projectsaffecting listed species outside theirdesignated critical habitat areas couldjeopardize those species. Similarly,critical habitat designations made on thebasis of the best available information atthe time of designation will not controlthe direction and substance of futurerecovery plans, habitat conservationplans, or other species conservationplanning and recovery efforts if newinformation available to these planningefforts calls for a different outcome.

MethodsAs required by the Act and

regulations (section 4(b)(2) and 50 CFR424.12), we used the best scientificinformation available to determine areasthat contain the physical and biologicalfeatures that are essential for thesurvival and recovery of the Oahuelepaio. This information included:peer-reviewed scientific publications(Conant 1977; Banko 1981; VanderWerf1993, 1994, 1998, 2001; VanderWerf etal. 1997, 2001); the final listing rule forthe Oahu elepaio (65 FR 20760);unpublished reports by the Hawaii StateDivision of Forestry and Wildlife(VanderWerf 1999); the Hawaii NaturalHeritage Program database; theSightings database from the Occurrenceand Status of Birds in Hawaii projectmaintained at Bishop Museum inHonolulu; the Oahu Forest Bird Surveyconducted in 1991 by the Hawaii StateDivision of Forestry and Wildlife; fieldtrip reports in the ‘‘Elepaio’’ (journal ofthe Hawaii Audubon Society); responsesto the Oahu elepaio critical habitat

outreach package mailed to Federal,State, and private land managers andlandowners; and comments receivedduring the comment period.

The distribution and abundance of theOahu elepaio have declined seriously inthe last few decades (Williams 1987;Oahu elepaio final listing rule, 65 FR20760; VanderWerf et al. 2001). Thearea currently occupied by the Oahuelepaio represents only about fourpercent of the species’ original range,and the distribution has contracted intonumerous small fragments (Figure 2).Moreover, the remaining elepaiosubpopulations are small and isolated,comprising six core subpopulations thatcontain between 100 and 500 birds, andnumerous small remnantsubpopulations, most of which containfewer than 10 birds (Table 1). Even ifthe threats responsible for the decline ofthe elepaio were controlled, the existingsubpopulations would be unlikely topersist because their small sizes makethem vulnerable to extinction due to avariety of natural processes. Smallpopulations are particularly vulnerableto reduced reproductive vigor caused byinbreeding depression, and they maysuffer a loss of genetic variability overtime due to random genetic drift,resulting in decreased evolutionarypotential and ability to cope withenvironmental change (Lande 1988,IUCN 2000). Small populations are alsodemographically vulnerable toextinction caused by randomfluctuations in population size and sexratio and to catastrophes such ashurricanes (Lande 1988). Survival andreproduction of elepaio are known tofluctuate across years in response tovariation in disease prevalence andpredator populations (VanderWerf 1998,1999), possibly due to El Ninnoepisodes and variation in rainfall, whichmay exacerbate the threats associatedwith small population size (Lande1988).

Elepaio are highly territorial; eachpair defends an area of a certain size,depending on the forest type andstructure, resulting in a maximumpopulation density or carrying capacity(VanderWerf 1998). Although elepaiohave declined island-wide and the rangehas contracted, density in the remainingcore subpopulations is high, and muchof the currently occupied land is at ornear carrying capacity and cannotsupport many more elepaio than itcurrently supports (VanderWerf et al.1997, 2001). Consequently, each of thecurrently occupied areas is too small tosupport an elepaio population largeenough to be considered safe fromextinction. In order for the number ofbirds in each subpopulation to increase,



additional land must be available foryoung birds to establish new territoriesand attract mates. The potential forexpansion is especially important forthe smallest subpopulations thatcurrently contain only a fewindividuals. Because of their very smallsize and skewed sex ratio, these tinysubpopulations are unlikely to persistmore than a few generations if limitedto the currently occupied area.

Elepaio are also relatively sedentary;adults have high fidelity to theirterritory and juveniles rarely dispersemore than 1 km (0.62 mi) in search ofa territory (VanderWerf 1998). Becausethe areas currently occupied by elepaioare separated from each other by manykilometers (Figure 1) and elepaio areunlikely to disperse long distances, theexisting subpopulations probably areisolated (VanderWerf et al. 2001). TheOahu elepaio evolved in anenvironment with large areas ofcontinuous forest habitat covering muchof the island (Figure 2), and theirdispersal behavior is not adapted to afragmented landscape. In the past,subpopulations were less isolated anddispersal and genetic exchange amongdifferent parts of the island probablywas more frequent. Providing linksamong subpopulations via dispersalwould increase the overall effectivepopulation size through geneticexchange and equalization of sex ratiosand breeding opportunities, therebyhelping to alleviate the threatsassociated with small population size,and would better reflect the conditionsunder which the elepaio dispersalbehavior evolved. In particular,enlargement of small subpopulations byexpansion onto adjacent lands not onlywould increase the chances of theirlong-term survival, but also wouldimprove connectivity amongsubpopulations by enhancing theirvalue as ‘‘stepping stones’’ within thedistribution of the entire population.

Section 3(5)(A)(i) of the Act providesthat areas outside the geographical areacurrently occupied by the species maymeet the definition of critical habitatupon determination that they areessential for the conservation of thespecies. Because of the territorial natureof the Oahu elepaio, its small totalpopulation size, limited range,fragmented distribution, and resultingvulnerability to genetic, demographic,and environmental threats, we find thatinclusion of currently unoccupied areasidentified as containing the primaryconstituent elements is essential to theconservation of the species. The finalrule listing the Oahu elepaio asendangered emphasized that the ‘‘smalltotal population size, limited

distribution, and populationfragmentation make this taxonparticularly vulnerable to reducedreproductive vigor and the effects ofnaturally occurring events’’ (65 FR20760). Recovery will requirerestoration of elepaio in areas that wereformerly inhabited but that are notcurrently occupied, through naturaldispersal, translocation, or release ofcaptive birds. Unoccupied areasadjacent to currently occupied areas areneeded for recovery to allow expansionof existing subpopulations and helpalleviate the threats associated withsmall population size. Unoccupiedlands linking subpopulations areneeded for recovery to provideopportunities for dispersal amongsubpopulations, promote geneticexchange, and facilitate finding ofmates. Specifically, each of the existingcore populations in Pahole-Kahanahaiki, Makaha-Waianae Kai,Schofield Barracks West Range, thesouthern Waianae Mountains, thecentral leeward Koolau Mountains,Waikane-Kahana, and the southernleeward Koolau Mountains are smalland isolated, and are unlikely to beviable on their own. The long-termchances for persistence of thesesubpopulations would increase if eachsubpopulation increased in size byexpanding onto adjacent lands and ifthe connectivity among thesubpopulations was enhanced byoccasional dispersal of individualsacross intervening lands.

We determined the amount andspatial arrangement of critical habitatneeded to support a viable population ofOahu elepaio. Because a recovery planfor the Oahu elepaio has not beencompleted yet, in making thisdetermination we looked to thehistorical distribution of the Oahuelepaio for a model of a viablepopulation. The best and most recentinformation available on thedistribution of an apparently viableOahu elepaio population is from 1975,when extensive surveys were conductedover much of the island (Shallenberger1977, Shallenberger and Vaughn 1978,Banko 1981). Elepaio began decliningon Oahu before 1975 and already haddisappeared from some parts of theisland (Figure 2; Conant 1977, Williams1987, VanderWerf et al. 2001), but in1975 the subpopulations were stillrelatively large and birds weredistributed in two well-connectedpopulation clusters, one in the WaianaeMountains and one in the KoolauMountains. The areas occupied since1975 also are likely to be most suitablefor recovery because they supported

elepaio for a longer period. The numberand distribution of Oahu elepaio in1975 has allowed for the persistence ofa population, albeit in a declining state,for more than 25 years. We believe thatactive management of threats, includingnest predation and disease, in areasreflecting the distribution in 1975would allow for long-term recovery.This approach is consistent with theapproved recovery outline for the Oahuelepaio; if, after critical habitat for theOahu elepaio is designated, a finalapproved recovery plan for Hawaiianforest birds calls for a different approachto the conservation of the Oahu elepaio,we will consider amending the criticalhabitat designation, subject to resourceand workload priorities.

Primary Constituent ElementsIn accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR424.12, in determining which areas topropose as critical habitat, we arerequired to consider those physical andbiological features that are essential tothe conservation of the species and thatmay require special managementconsiderations and protection. Suchfeatures are termed primary constituentelements, and include but are notlimited to: space for individual andpopulation growth and for normalbehavior; food, water, air, light,minerals and other nutritional orphysiological requirements; cover orshelter; sites for nesting and rearing ofoffspring; and habitats that are protectedfrom disturbance and are representativeof the historic geographical andecological distributions of the species.

Elepaio are adaptable and able toforage and nest in a variety of foresttypes composed of both native andintroduced plant species (Conant 1977,VanderWerf 1993, 1994, 1998). Nest siteselection by elepaio is non-specialized;nests have been found in 7 native and13 introduced plant species (E.VanderWerf, unpubl. data).Shallenberger and Vaughn (1978) foundthe highest relative abundance ofelepaio in forest dominated byintroduced guava and kukui trees, butthey also found elepaio in the followingforest types (in order of decreasingabundance): mixed native-exotic; tallexotic; koa dominant; mixed koa-ohia;low exotic; ohia dominant; and ohiascrub. This distribution does not implythat elepaio prefer introduced plantspecies, but probably reflects apreference by elepaio for riparianvegetation in valleys and the highdegree of habitat disturbance andabundance of introduced plants inriparian areas. VanderWerf et al. (1997)found that (1) forest structure was more



important to elepaio than plant speciescomposition, (2) most birds occurred inareas with a continuous forest canopyand a dense understory, and (3)population density was roughly twice ashigh in tall riparian vegetation invalleys as in shorter forest on ridges.Fifty-five percent of the currentlyoccupied area consists of forestdominated by introduced plant species,23 percent is native wet forest, 17percent is native mesic forest, and 5percent is native dry forest and shrubland (VanderWerf et al. 2001).

The primary constituent elementsrequired by the Oahu elepaio forforaging, sheltering, roosting, nesting,and rearing of young are undevelopedwet, mesic, and dry forest habitatscomposed of native or introduced plantspecies. Higher population density canbe expected in tall, closed canopyriparian forest than in low scrubbyforest on ridges and summits. Inaddition, the primary constituentelements associated with the biologicalneeds of dispersal and genetic exchangeamong populations are undevelopedwet or dry shrub land and wet or drycliff habitats. Elepaio may not establishterritories in shrub or cliff habitats andmay use them only transiently, but areascontaining these habitats are importantfor linking populations by providing theopportunities for dispersal and geneticexchange.

Within the forests and shrub landsproviding the primary constituentelements, plant species compositionvaries with rainfall, elevation, anddegree of habitat disturbance, and plantspecies occur in a variety ofassemblages. Common native andintroduced species within these plantassemblages include, but are not limitedto, ohia (Metrosideros polymorpha), koa(Acacia koa), papala kepau (Pisoniaumbellifera), lama (Diospyrossandwicensis), mamaki (Pipturusalbidus), kaulu (Sapindus oahuensis),hame (Antidesma platyphyllum), alaa(Pouteria sandwicensis), aalii(Dodonaea viscosa), naupaka kuahiwi(Scaevola spp.), pukiawe (Stypheliatameiameiae), uluhe (Dicranopterislinearis), guava (Psidium guajava),strawberry guava (P. cattleianum),mango (Mangifera indica), kukui(Aleurites moluccana), christmasberry(Schinus terebinthifolius), ti (Cordylineterminalis), rose apple (Syzygiumjambos), mountain apple (S.malaccense), and Java plum (S. cumini).

Criteria Used To Identify CriticalHabitat

We used several criteria to identifyand select lands for designation ascritical habitat. We began with areas

that are currently occupied by elepaio,excluding a few very small, isolatedsubpopulations that contain only asingle male. We then added unoccupiedlands containing the primaryconstituent elements that were neededfor recovery of the species. As discussedin greater detail in the Methods section,in deciding which unoccupied areaswere essential for recovery, we used thedistribution of elepaio in 1975 as amodel of a viable population. Withinthis area of distribution in 1975, wegave preference to lands that (a)provided more preferred forest types, (b)were more recently occupied (since1975), and (c) were contiguous andformed large blocks of preferred habitator provided links between areas ofpreferred habitat. We determined theboundaries of critical habitat units bythe extent of suitable forest containingthe primary constituent elements, whichin many areas coincided with theboundaries of State Forest Reserves,Natural Area Reserves, or otherconservation lands. We did not includeurban and agricultural lands becausethey generally do not contain theprimary constituent elements and arenot suitable for elepaio. We includedlower Wailupe Valley because itcontains the primary constituentelements, is currently occupied byelepaio, and is contiguous with a largesubpopulation. Although this area iszoned for urban use, the topography andunstable soil conditions make itunsuitable for development.

We were unable to map the criticalhabitat unit boundaries in sufficientdetail to exclude all existing developedlands that do not contain the primaryconstituent elements. However, existingdevelopment features and structureswithin the boundaries of the mappedunits, such as buildings, roads,aqueducts, antennas, water tanks,agricultural fields, paved areas, lawns,and other urban landscaped areasgenerally do not contain the primaryconstituent elements and are not criticalhabitat. Federal actions limited to thoseareas, therefore, would not trigger asection 7 consultation, unless they affectthe species or primary constituentelements in adjacent critical habitat.

Application of the Section 3(5)(A)Criteria Regarding Special ManagementConsiderations or Protection

Critical habitat is defined in section 3,paragraph (5)(A) of the Act as—(i) thespecific areas within the geographic areaoccupied by a species, at the time it islisted in accordance with the Act, onwhich are found those physical orbiological features (I) essential to theconservation of the species and (II) that

may require special managementconsiderations or protection; and (ii)specific areas outside the geographicarea occupied by a species at the timeit is listed, upon a determination thatsuch areas are essential for theconservation of the species. Specialmanagement and protection are notrequired if adequate management andprotection are already in place.Adequate special management orprotection is provided by a legallyoperative plan or agreement thataddresses the maintenance andimprovement of the primary constituentelements important to the species andmanages for the long-term conservationof the species. If any areas containingthe primary constituent elementscurrently were being managed toaddress the conservation needs of theOahu elepaio and did not requirespecial management or protection, theseareas would not meet the definition ofcritical habitat in section 3(5)(A)(i) ofthe Act and would not be included inthe designation.

To determine if a plan providesadequate management or protection weconsider 3 criteria: (1) Whether the planis current and specifies the managementactions and whether such actionsprovide sufficient conservation benefitto the species; (2) whether the planprovides assurances that theconservation management strategies willbe implemented, and in determiningthis we consider whether: (a) Amanagement plan or agreement existsthat specifies the management actionsbeing implemented or to beimplemented; (b) the schedule forimplementation is timely; (c) there is ahigh probability that the fundingsource(s) or other resources necessary toimplement the actions will be available;and (d) the party(ies) have the authorityand long-term commitment toimplement the management actions, asdemonstrated, for example, by a legalinstrument providing enduringprotection and management of thelands, and (3) whether the plan providesassurances that the conservationmanagement strategies will be effective.In determining whether an action islikely to be effective, we considerwhether: (a) The plan specificallyaddresses the management needs,including reduction of threats to thespecies; (b) such actions have beensuccessful in the past; (c) there areprovisions for monitoring andassessment of the effectiveness of themanagement actions; and (d) adaptivemanagement principles have beenincorporated into the plan.

Based on information provided to usby landowners and managers to date, we



find that no areas are adequatelymanaged and protected to address thethreats to elepaio. Several areas arecovered under current managementplans and are being managed in amanner that meets some of theconservation needs of the Oahu elepaio,but in no areas does the managementadequately reduce the primary threats tothis species. Specifically, the threatfrom introduced nest predators,primarily rodents, has been successfullymanaged on a small scale in HonouliuliPreserve by The Nature Conservancy ofHawaii, in Schofield Barracks WestRange and Makua Military Reservationby the U.S. Army, and in the HonoluluWatershed Forest Reserve by the HawaiiState Division of Forestry and Wildlife,but in each case the managementactions have affected only a smallproportion of the elepaio in the area.Adequate reduction of the threat fromrodents will require larger scalemanagement that protects more elepaio.The other primary threat to the Oahuelepaio, introduced diseases carried bymosquitoes, has not been managed inany area. In several areas, such asSchofield Barracks, the threat from firealso has not been managed adequately.

The Oahu Forest National WildlifeRefuge does not meet these criteriabecause the refuge was created onlyrecently (December 2000) and currentmanagement does not yet provideadequate management for the Oahuelepaio. Refuge lands have not beenadequately surveyed yet, and it remainsuncertain whether the area is currentlyoccupied by elepaio.

The Sikes Act ImprovementsAmendment of 1997 (Sikes Act) requireseach military installation that includesland and water suitable for theconservation and management of

natural resources to complete, byNovember 17, 2001, an IntegratedNatural Resources Management Plan(INRMP). An INRMP integratesimplementation of the military missionof the installation with stewardship ofthe natural resources found there. EachINRMP is to include an assessment ofthe ecological needs on the installation,including needs to provide for theconservation of listed species; astatement of goals and priorities; adetailed description of managementactions to be implemented to providefor these ecological needs; and amonitoring and adaptive managementplan. We consult with the military onthe development and implementation ofINRMPs for installations with listedspecies. We believe that bases that havecompleted and approved INRMPs thataddress the needs of the speciesgenerally do not meet the definition ofcritical habitat discussed above, becausethey require no additional specialmanagement or protection. Therefore,we do not include these areas in criticalhabitat designations if they meet thefollowing three criteria: (1) A currentINRMP must be complete and provide aconservation benefit to the species; (2)the plan must provide assurances thatthe conservation management strategieswill be implemented; and (3) the planmust provide assurances that theconservation management strategies willbe effective, by providing for periodicmonitoring and revisions as necessary.If all of these criteria are met, then thelands covered under the plan would notmeet the definition of critical habitat. Todate, no military installation on Oahuhas completed a final INRMP thatprovides sufficient management andprotection for the elepaio. The Service

received information from the Armyindicating they understand and agreethat the current INRMP for Armyinstallations on Oahu does not obviatethe need for critical habitat designationsbecause it does not meet criteria forspecial management or protectionnecessary to ensure long-termconservation of the species (Departmentof the Army, in litt. 2001).

Critical Habitat Designation

Lands designated as critical habitatoccur in five separate units and providethe full range of primary constituentelements needed by the Oahu elepaio,including: a variety of currentlyoccupied undeveloped forested areasthat are used for foraging, roosting,sheltering, nesting, and raisingoffspring; a variety of currentlyunoccupied undeveloped forested areasthat are adjacent to occupied areas andprovide for expansion of existingsubpopulations; and shrub land andcliff habitats that link subpopulationsand can be used for dispersal. If elepaiowere restored throughout each of thecritical habitat units, the resultingdistribution would resemble thedistribution in 1975, when thesubpopulations were larger and lessisolated, the overall populationappeared to be viable, and the Oahuelepaio was not considered endangered.The area designated as critical habitat(26,661 ha) is larger than the areaoccupied in 1975 (20,900 ha) becausethe critical habitat contains not onlylands expected to support breedingelepaio populations, but alsointervening lands that provide forperiodic dispersal, which is a primarybiological need, but not for permanentoccupation.

TABLE 2.—CRITICAL HABITAT UNITS AND POTENTIAL ELEPAIO POPULATIONS

[Data on current density from VanderWerf et al. (2001). Unit 4 is not currently occupied by elepaio; the density used to estimate the potentialelepaio population of this unit is an average of the densities in the two nearest units, central and southern Koolau.]

Critical habitat unit Area Elepaio density in currently oc-cupied parts of unit

Potentialelepaio

populationin unit

1. Northern Waianae Mountains .................................................. 4,454 ha ...................................11,005 ac .................................

0.45 per ha ...............................0.18 per ac ...............................

2,004

2. Southern Waianae Mountains ................................................. 2,422 ha ...................................5,985 ac ...................................

0.39 per ha ...............................0.16 per ac ...............................

945

3. Central Koolau Mountains ....................................................... 14,801 ha .................................36,573 ac .................................

0.33 per ha ...............................0.14 per ac ...............................

4,884

4. Kalihi-Kapalama ....................................................................... 804 ha ......................................1,987 ac ...................................

0.39 per ha ...............................0.16 per ac ...............................

314

5. Southern Koolau Mountains .................................................... 4,180 ha ...................................10,329 ac .................................

0.45 per ha ...............................0.18 per ac ...............................

1,881

All units ......................................................................................... 26,661 ha .................................65,879 ac .................................

0.37 per ha ...............................0.15 per ac ...............................

10,028



The potential elepaio population inthe area designated as critical habitat isapproximately 10,028 birds, asestimated by multiplying the currentdensity of elepaio in different parts ofthe island by the area of each criticalhabitat unit (Table 2). Althoughpopulation density varies somewhatamong locations depending on thehabitat quality, we believe the currentoverall density of elepaio on Oahu, 37.6birds per square kilometer, is areasonable estimate of the potentialpopulation density throughout the

entire area designated as critical habitat.It may be possible to restore elepaio tohigher densities in some large blocks ofdense forest, but in other areas, such assteep slopes and ridges, it likely will bedifficult to establish dense populations.The densities used to calculate thesepotential populations are average valuesand the estimates are approximate.

Critical habitat for the Oahu elepaioincludes land under Federal, State, andprivate ownership, with Federal landsbeing managed by the Department ofDefense and the Department of theInterior. Designated lands include most

(99 percent) of the species’ current rangeand encompass approximately 21percent of the species’ original range.Approximately 22 percent of designatedlands are currently occupied by elepaio,and 78 percent are currentlyunoccupied but were recently occupied(since 1975). A detailed description ofeach unit and reasons for designatingeach portion of the unit as criticalhabitat are presented below. Theapproximate area and land ownershipwithin each critical habitat unit areshown in Table 3.

TABLE 3.—APPROXIMATE AREA (HECTARES, ACRES) OF CRITICAL HABITAT UNITS BY LAND OWNERSHIP

Unit Federal 1 State County Private Total

1. Northern Waianae Mountains ......... 774 ha ..................1,913 ac ...............

3,033 ha ...............7,494 ac ...............

646 ha ..................1,596 ac ...............

0.7 ha ...................2 ac ......................

4,454 ha.11,005 ac.

2. Southern Waianae Mountains ........ 616 ha ..................1,522 ac ...............

308 ha. .................761 ac ..................

......................... 1,498 ha ...............3,702 ac ...............

2,422 ha.5,985 ac.

3. Central Koolau Mountains .............. 2,852 ha ...............7,047 ac ...............

3,754 ha ...............9,276 ac ...............

308 ha ..................761 ac ..................

7,887 ha ...............19,489 ac .............

14,801 ha36,573 ac.

4. Kalihi-Kapalama .............................. .............................. 397 ha ..................981 ac ..................

179 ha ..................442 ac ..................

228 ha ..................564 ac ..................

804 ha.1,987 ac.

5. Southern Koolau Mountains ........... 3 ha ......................7 ac ......................

2,553 ha ...............6,309 ac ...............

476 ha ..................1,176 ac ...............

1,148 ha ...............2,837 ac ...............

4,180 ha.10,329 ac.

Total ............................................. 4,245 ha ...............10,489 ac .............

10,045 ha .............24,821 ac .............

1,609 ha ...............3,975 ac ...............

10,762 ha .............26,594 ac .............

26,661 ha.65,879 ac.

1 Federal lands include Department of Defense and U.S. Fish and Wildlife Service.

Unit 1: Northern Waianae Mountains

Unit 1 consists of approximately4,454 ha (11,005 ac) encompassing thehigher elevations of the northernWaianae Mountains. It is bounded onthe south by Kolekole pass, and on thenorth, east, and west by forest edgecreated by human actions. Naturalfeatures within the unit include Mt.Kaala, the highest peak on Oahu at1,227 m (4,025 feet), several other highpeaks along the spine of the WaianaeRange, and the upper portions of valleysand slopes, including Waianae Kai,Makaha, Makua, Kahanahaiki, andKuaokala valleys on the west slope,Haleauau and Mohiakea gulches on theeast slope, and several narrow valleyson the north slope. Vegetation consistsprimarily of mixed-species wet, mesic,and dry forest communities composedof native and introduced plants, withsmaller amounts of dry shrub land andcliff plant communities (HawaiiHeritage Program 1991).

Unit 1 contains two important elepaiocore subpopulations: One in upperHaleauau and Mohiakea gulches abovethe firebreak road on U.S. ArmySchofield Barracks West Range, and theother in upper Makaha and Waianae Kaivalleys on Waianae Kai State ForestReserve and City and County ofHonolulu land. The unit also includessmall scattered elepaio subpopulationsin Pahole and Kaala State Natural Area

Reserves, Mokuleia, Makua-Keaau, andKuaokala State Forest Reserves, and theupper portion of the U.S. Army MakuaMilitary Reservation. Thirty percent ofUnit 1 is currently occupied by elepaio.Of critical habitat lands on the WestRange of Schofield Barracks,approximately 70 percent are currentlyoccupied by elepaio. The subpopulationon Schofield Barracks is of particularimportance to the conservation of thespecies because it is the densest andthird largest subpopulation on theisland, contains the majority of birdsremaining in the northern WaianaeMountains, and may serve as a sourcethat supports smaller subpopulationsnearby. Elepaio in the northern WaianaeMountains are morphologically andbehaviorally distinct from elepaio inother parts of the island, andconservation of this population segmentwould not be possible without the coresubpopulation on Schofield Barracks.

In addition to protecting landsoccupied by the two core elepaiosubpopulations and six smallersubpopulations, designated lands inUnit 1 provide for expansion of thesesubpopulations by including currentlyunoccupied lands that were occupiedwithin the past 30 years and contain thetypes of forest most preferred byelepaio. Specifically, currentlyunoccupied lands in Pahole and KaalaState Natural Area Reserves, Mokuleia,

Makua-Keaau, and Kuaokala StateForest Reserves, upper Makua Valley,and upper Kahanahaiki Valley areneeded for recovery to allow the numberof birds in existing subpopulations toincrease. The current distribution ofelepaio in Unit 1 represents a remnantof what was once a single, large,continuous elepaio population in thenorthern Waianae Mountains. Inclusionof currently unoccupied forested landsthat provide for expansion and shrubland and cliff habitats that provide fordispersal among subpopulations willprovide linkage needed to approximatethe original genetic and demographicconditions that once existed in this area.

Unit 2: Southern Waianae Mountains

Unit 2 consists of approximately2,422 ha (5,985 ac) encompassing thehigher elevations of the southernWaianae Mountains. It is bounded onthe north by Kolekole Pass, and on theeast, west, and south by forest edgecreated by human actions. Naturalfeatures of the unit include several highpeaks along the spine of the southernWaianae Range, including Palikea,Kaua, Kanehoa, and Hapapa, the upperportions of Lualualei and Nanakulivalleys on the west side of themountains, and the upper portions ofnumerous narrower valleys on the eastside of the mountains. Vegetationconsists primarily of mixed-species



mesic and dry forest communitiescomposed of native and introducedplants, with smaller amounts of dryshrub land and cliff communities(Hawaii Heritage Program 1991).

Unit 2 contains the second largestOahu elepaio subpopulation,encompassing several land parcels,including Honouliuli Preserve (managedby The Nature Conservancy of Hawaii),Naval Magazine Pearl Harbor LualualeiBranch, Nanakuli State Forest Reserve,and other unmanaged State lands. Thisunit also contains several scatteredelepaio territories north of the coresubpopulation on U.S. Army SchofieldBarracks South Range. Fifty percent ofUnit 2 is currently occupied by elepaio.In addition to protecting currentlyoccupied habitat, designated lands inUnit 2 include peripheral areas ofcurrently unoccupied habitat inHonouliuli Preserve, Lualualei, andSchofield Barracks South Range that areneeded for recovery to allow expansionof the core subpopulation, and dryshrub land and cliff habitats onunmanaged State land betweenLualualei and Honouliuli and onSchofield Barracks South Range thatprovide for dispersal among parts of thesouthern Waianae subpopulation andbetween the northern and southernWaianae subpopulations.

Unit 3: Central Koolau MountainsUnit 3 is the largest unit,

encompassing 14,801 ha (36,573 ac) ofthe higher elevations of the centralKoolau Mountains. Natural features ofthe unit include the summit of theKoolau Range and the upper portions ofnumerous narrow valleys separated bysteep ridges, including (from south tonorth) Manaiki, Moanalua, SouthHalawa, North Halawa, Kalauao,Waimalu, Waimano, Manana, Waiawa,Kipapa, Kaukonahua, and Poamoho onthe leeward (western) side, and Waihee,Kaalaea, Waiahole, Waikane, andKahana on the windward (eastern) side.Vegetation consists primarily ofmontane and lowland wet and mesicforest, and smaller areas of shrub landand wet cliff plant communities (HawaiiHeritage Program 1991). The higherelevations of the unit are primarilynative forest dominated by ohia andkoa, but the lower elevations are moredisturbed and dominated by a variety ofintroduced plant species.

Unit 3 contains two important coreelepaio subpopulations: one locatedalmost entirely on private land inMoanalua, North and South Halawa,Manaiki, and Kalauao valleys at thesouthern end of the unit; the other onthe windward side in Kahana ValleyState Park and on private lands in

Waikane Valley. The unit also containsa few scattered elepaio territories inWaiahole State Forest Reserve. Thirteenpercent of Unit 3 is currently occupiedby elepaio. Designated lands include theexisting subpopulations, and alsoprovide for the expansion and recoveryof existing subpopulations by includingadjacent lands in Manaiki, Waimalu,Waimano, Manana, Waiawa, Kipapa,Kaukonahua, and Poamoho on theleeward (western) side, and in Waihee,Kaalaea, Waiahole, Waikane, andKahana on the windward (eastern) sidethat are currently unoccupied but wereoccupied since 1975. Unit 3 alsoincludes wet shrub land and cliffhabitats along the Koolau summit thatprovide for dispersal of elepaio betweenthe windward and leeward sides of theKoolau Mountains. The existing coresubpopulations are geographicallydistant from each other and probably areisolated. Restoration of elepaio inintervening areas would increase thechances of dispersal and geneticexchange between subpopulations.Currently unoccupied habitat lies on theOahu Forest National Wildlife Refuge,U.S. Army Schofield Barracks EastRange, U.S. Army Fort Shafter, Ewa andWaiahole State Forest Reserves, KahanaValley State Park, and 9 privatelyowned parcels. The narrow indentationin the southern portion of Unit 3 reflectsthe H–3 freeway and adjacent clearedareas in North Halawa Valley.

Unit 4: Kalihi-KapalamaUnit 4 consists of approximately 804

ha (1,987 ac) encompassing the higherelevations of the leeward (western) sideof the central Koolau Mountains aboveKalihi and Kapalama. It is bounded onthe north by the Likelike Highway andon the south by the Pali Highway.Natural features of the unit include theupper portions of Kalihi, Kamanaiki,and Kapalama valleys. Vegetationconsists primarily of mixed-species wetand mesic forest composed of nativeand introduced plant species (HawaiiHeritage Program 1991). The higherelevations are primarily native forestdominated by ohia and koa, but thelower elevations are more disturbed andare dominated by introduced plantspecies. This unit is not known tocontain any elepaio at present, but itwas occupied within the last 20 years,still contains suitable forest habitat, andprovides an important habitat stepping-stone that increases the chances ofdispersal and genetic exchange betweenelepaio subpopulations in the centraland southern Koolau units. This unitincludes lands within the State ofHawaii Honolulu Watershed ForestReserve, two parcels owned by the City

and County of Honolulu, and 3 privateparcels.

Unit 5: Southern Koolau MountainsUnit 5 consists of approximately

4,180 ha (10,329 ac) encompassing thehigher elevations of the southern KoolauMountains. It is bounded on the west bythe Pali Highway. Natural features of theunit include: the summit of the southernKoolau Mountains, includingKonahuanui, the highest peak in theKoolau Range at 960 m (3,150 ft), theupper portion of Maunawili Valley onthe windward (northern) side of themountains, and the upper portions ofnumerous narrow valleys separated bysteep ridges on the leeward side,including (from east to west) Kaalakei,Kuliouou, Kupaua, Pia, Kului, Wailupe,Kapakahi, Waialae Nui, Palolo, Manoa,Tantalus, and Pauoa. The vegetationconsists primarily of mixed-species wet,mesic, and dry forest communities, withsmall areas of mesic shrub land and wetcliff plant communities (HawaiiHeritage Program 1991). The higherelevations are primarily native forestdominated by ohia and koa, but thelower elevations are more disturbed andare dominated by introduced plantspecies, particularly guava, kukui,christmasberry, and mango.

Unit 5 contains the largest remainingelepaio subpopulation, located inKuliouou, Kupaua, Pia, Kului, Wailupe,Kapakahi, and Waialae Nui valleys, andtwo smaller elepaio populations locatednearby in Palolo and Manoa valleys.Twenty-nine percent of Unit 5 iscurrently occupied by elepaio. Thecurrent distribution of elepaio in thesouthern Koolau Mountains represents aremnant of what was once a single,large, continuous population. Inaddition to protecting the largestremaining subpopulation and twosmaller subpopulations, designatedlands in Unit 5 provide for recoverythrough expansion of existingsubpopulations by including currentlyunoccupied lands in Maunawili, Palolo,Manoa, Nuuanu, Tantalus, and Pauoathat were occupied since 1975 andcontain the most preferred forest types.Designated lands in Unit 5 also providefor recovery by including shrub landand wet cliff habitats along the Koolausummit that are used for dispersal andlink subpopulations on the windwardand leeward sides of the KoolauMountains, thereby increasing thepotential genetic exchange andmaintenance of optimal sex ratios.Restoration of elepaio in unoccupiedlands in Tantalus and Pauoa at thewestern end of Unit 5 would increasethe chances of dispersal and geneticexchange between the southern Koolau



subpopulation and the central Koolausubpopulation. Ownership within Unit5 consists of the Honolulu Watershed,Maunawili, and Kuliouou State ForestReserves, several parcels owned by theCity and County of Honolulu, and nineprivate parcels.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requiresFederal agencies, including the Service,to ensure that actions they fund,authorize, or carry out do not destroy oradversely modify critical habitat.Destruction or adverse modificationoccurs when a Federal action directly orindirectly alters critical habitat to theextent it appreciably diminishes thevalue of critical habitat for theconservation of the species. Individuals,organizations, States, local governments,and other non-Federal entities areaffected by the designation of criticalhabitat only if their actions occur onFederal lands, require a Federal permit,license, or other authorization, orinvolve Federal funding.

Section 7(a) of the Act requiresFederal agencies to evaluate theiractions with respect to any species thatis proposed or listed as endangered orthreatened and with respect to itscritical habitat, if any is designated orproposed. Regulations implementingthis interagency cooperation provisionof the Act are codified at 50 CFR part402. Section 7(a)(4) of the Act requiresFederal agencies to confer with us onany action that is likely to jeopardizethe continued existence of a speciesproposed for listing or result indestruction or adverse modification ofproposed critical habitat. Conferencereports provide conservationrecommendations to assist the agency ineliminating conflicts that may be causedby the proposed action. Theconservation recommendations in aconference report are advisory.

We may issue a formal conferencereport, if requested by the Federal actionagency. Formal conference reportsinclude an opinion that is preparedaccording to 50 CFR 402.14, as if thespecies was listed or critical habitat wasdesignated. We may adopt the formalconference report as the biologicalopinion when the species is listed orcritical habitat is designated, if nosubstantial new information or changesin the action alter the content of theopinion (see 50 CFR 402.10(d)).

If a species is listed or critical habitatis designated, section 7(a)(2) of the Actrequires Federal agencies to ensure thatactions they authorize, fund, or carryout are not likely to jeopardize the

continued existence of such a species ordestroy or adversely modify its criticalhabitat. If a Federal action may affect alisted species or its critical habitat, theresponsible Federal agency (actionagency) must enter into consultationwith us. Through this consultation, theFederal action agency would ensure thatthe permitted actions do not destroy oradversely modify critical habitat.

If we issue a biological opinionconcluding that a project is likely toresult in the destruction or adversemodification of critical habitat, wewould also provide reasonable andprudent alternatives to the project, ifany are identifiable. Reasonable andprudent alternatives are defined at 50CFR 402.02 as alternative actionsidentified during consultation that canbe implemented in a manner consistentwith the intended purpose of the action,that are consistent with the scope of theFederal agency’s legal authority andjurisdiction, that are economically andtechnologically feasible, and that theDirector believes would avoiddestruction or adverse modification ofcritical habitat. Reasonable and prudentalternatives can vary from slight projectmodifications to extensive redesign orrelocation of the project. Costsassociated with implementing areasonable and prudent alternative aresimilarly variable.

Regulations at 50 CFR 402.16 requireFederal agencies to reinitiateconsultation on previously reviewedactions in instances where criticalhabitat is subsequently designated andthe Federal agency has retaineddiscretionary involvement or controlover the action or such discretionaryinvolvement or control is authorized bylaw. Consequently, some Federalagencies may request reinitiation ofconsultation with us on actions forwhich formal consultation has beencompleted if those actions may affectdesignated critical habitat.

Activities on Federal lands that mayaffect the elepaio or its critical habitatwill require section 7 consultation.Activities on private or State landsrequiring a permit from a Federalagency, such as a permit from the U.S.Army Corps of Engineers under section404 of the Clean Water Act, or someother Federal action, including funding(e.g., from the Federal HighwayAdministration, Federal AviationAdministration, Federal EmergencyManagement Agency, or NaturalResources Conservation Service) willalso continue to be subject to the section7 consultation process. Federal actionsnot affecting listed species or criticalhabitat and actions on non-Federallands that are not federally funded or

permitted do not require section 7consultation.

Section 4(b)(8) of the Act requires usto evaluate briefly in any proposed orfinal regulation that designates criticalhabitat those activities involving aFederal action that may adverselymodify such habitat or that may beaffected by such designation. Activitiesthat may result in the destruction oradverse modification of critical habitatinclude those that alter the primaryconstituent elements to an extent thatthe value of critical habitat for thesurvival and recovery of the elepaio isappreciably reduced. We note that suchactivities also may jeopardize thecontinued existence of the species.Activities that may directly or indirectlyadversely affect critical habitat for theOahu elepaio include, but are notlimited to:

(1) Removing, thinning, or destroyingelepaio habitat (as defined in thePrimary Constituent Elementsdiscussion), whether by burning,mechanical, chemical, or other means(e.g., woodcutting, grading, overgrazing,construction, road building, mining,herbicide application, etc.).

(2) Appreciably decreasing habitatvalue or quality as an indirect effect ofan action (e.g., introduction orpromotion of potential nest predators,diseases or disease vectors, vertebrate orinvertebrate food competitors, orinvasive plant species; forestfragmentation; overgrazing;augmentation of feral ungulatepopulations; water diversion orimpoundment, groundwater pumping,or other activities that alter waterquality or quantity to an extent thatthese activities affect vegetationstructure or produce mosquito breedinghabitat; and activities that increase therisk of fire).

To properly portray the effects ofcritical habitat designation, we mustfirst compare the section 7 requirementsfor actions that may affect criticalhabitat with the requirements foractions that may affect a listed species.Section 7 prohibits actions funded,authorized, or carried out by Federalagencies from jeopardizing thecontinued existence of a listed speciesor destroying or adversely modifying thelisted species’ critical habitat.

Actions likely to result in thedestruction or adverse modification ofcritical habitat would almost alwaysresult in jeopardy to the speciesconcerned, particularly when the areaaffected by the proposed action isoccupied by the species concerned. Inthose cases, critical habitat provideslittle additional protection to a species,and the ramifications of its designation



are few or none. However, criticalhabitat designation in unoccupied areasmay trigger consultation under section 7of the Act where it would not haveotherwise occurred if critical habitathad not been designated.

Federal agencies already consult withus on activities in areas currentlyoccupied by the species to ensure thattheir actions do not jeopardize thecontinued existence of the species.These actions include, but are notlimited to:

(1) Regulation of activities affectingwaters of the United States by the ArmyCorps of Engineers under section 404 ofthe Clean Water Act;

(2) Regulation of water flows,damming, diversion, and channelizationby Federal agencies;

(3) Development on private or Statelands requiring permits from otherFederal agencies, such as theDepartment of Housing and UrbanDevelopment;

(4) Military training or similaractivities of the U.S. Department ofDefense (Army and Navy) on their landsor lands under their jurisdiction atSchofield Barracks, Makua MilitaryReservation, Fort Shafter, KawailoaTraining Area, and Pearl Harbor NavalMagazine Lualualei Branch;

(5) Construction of communicationsites licensed by the FederalCommunications Commission;

(6) Road construction andmaintenance, right-of-way designation,and regulation of agricultural activitiesby Federal agencies;

(7) Hazard mitigation and post-disaster repairs funded by the FederalEmergency Management Agency; and

(8) Activities not previouslymentioned that are funded or authorizedby the U.S. Department of Agriculture(Forest Service, Natural ResourcesConservation Service), Department ofDefense, Department of Transportation,Department of Energy, Department ofthe Interior (U.S. Fish and WildlifeService, U.S. Geological Survey,National Park Service), Department ofCommerce (National Oceanic andAtmospheric Administration),Environmental Protection Agency, orany other Federal agency.

If you have questions regardingwhether specific activities wouldconstitute adverse modification ofcritical habitat, contact the FieldSupervisor, Pacific Islands EcologicalServices Field Office (see ADDRESSESsection). Requests for copies of theregulations on listed wildlife and plantsand inquiries about prohibitions andpermits should be directed to the U.S.Fish and Wildlife Service, Endangered

Species Act Section 10 Program at thesame address.

Exclusions Under Section 4(b)(2)Section 4(b)(2) of the Act requires that

we designate critical habitat on the basisof the best scientific and commercialinformation available, and that weconsider the economic and otherrelevant impacts of designating aparticular area as critical habitat. Wemay exclude areas from critical habitatdesignation if the benefits of exclusionoutweigh the benefits of designation,provided the exclusion will not result inthe extinction of the species. Weconducted an analysis of the economicimpacts of designating these areas ascritical habitat prior to a finaldetermination. We find that in no areado the benefits of exclusion outweighthe benefits of inclusion, and we did notexclude any areas under Section 4(b)(2).

Currently, no habitat conservationplans (HCPs) include the Oahu elepaioas a covered species. However, webelieve that in most instances thebenefits of excluding HCPs from criticalhabitat designations will outweigh thebenefits of including them. In the eventthat future HCPs are developed withinthe boundaries of proposed ordesignated critical habitat, we will workwith applicants to ensure that the HCPsprovide for protection and managementof habitat areas essential for theconservation of this species. This willbe accomplished by either directingdevelopment and habitat modificationto nonessential areas, or appropriatelymodifying activities within essentialhabitat areas so that such activities willnot adversely modify the critical habitat.

We will provide technical assistanceand work closely with applicantsthroughout the development of anyfuture HCPs to identify lands essentialfor the long-term conservation of theOahu elepaio and appropriatemanagement for those lands. The takeminimization and mitigation measuresprovided under such HCPs would beexpected to protect the essential habitatlands designated as critical habitat inthis rule and provide for theconservation of the covered species.Furthermore, we will complete intra-Service consultation on our issuance ofsection 10(a)(1)(B) permits for theseHCPs to ensure permit issuance will notdestroy or adversely modify criticalhabitat.

Summary of Comments andRecommendations

In the proposed rule published onJune 6, 2001 (66 FR 30372), werequested that all interested partiessubmit comments on the proposal. We

also contacted all appropriate State andFederal agencies, county governments,landowners, and other interested partiesand invited them to comment. Inaddition, we requested three expertornithologists and conservationbiologists to provide peer review of theproposed critical habitat designation.The first comment period closed onAugust 6, 2001 (66 FR 30372). Thecomment period was reopened fromAugust 6 to September 6, 2001, to allowfor comments on the draft economicanalysis of the proposed critical habitatand additional comments on theproposed rule (66 FR 40960).

We received a total of 22 writtencomments during the two commentperiods. Comments were received from2 Federal agencies, 5 State agencies, 8private organizations or individuals,and 3 peer reviewers. Four commentersprovided comments in both commentperiods. We reviewed all commentsreceived for substantive issues and newdata regarding critical habitat and theOahu elepaio. Peer reviewer commentsare summarized separately in the nextparagraph. Public comments aregrouped into 4 general issues relating tothe proposed critical habitatdetermination and draft economicanalysis, and are addressed in thefollowing summary.

All three peer reviewers thought ourmethods for designating critical habitatwere sound, the best available scientificinformation was used, and the relevantscientific literature, reports, and recentresearch were summarized adequately.All three also felt that inclusion ofcurrently unoccupied areas was justifiedand well supported, and that thedefinition of primary constituentelements and the criteria used toidentify critical habitat werecomprehensive, valid, and justified. Onereviewer commented that the shortdispersal distances of elepaio offspringjustify the inclusion of large tracts ofcontiguous forest. Two reviewers feltthat the size and distribution of theunits would allow for development ofsustainable populations, but onereviewer expressed some doubt whetherthe amount of critical habitat proposed,which is similar to the area occupied in1975, was sufficient to ensure thesurvival of the species, because thedistribution in 1975 was unstable.Finally, one reviewer suggested that theimportance of wet stunted forest anddry shrubland for dispersal should bemore clearly demonstrated if possible.None of the reviewers provided newinformation about the biology ordistribution of elepaio or about areasthat should be considered essential toits conservation.



Issue 1: Biological Justification andMethodology

(1) Comment: Several commenterssupported the CH designation and feltthat critical habitat is needed becausehabitat loss is one of the primary causesin the decline of the Oahu elepaio.

Service Response: Habitat loss hasbeen an important factor in the declineof the Oahu elepaio; 56 percent of theformer range has been lost to urban andagricultural development.

(2) Comment: Several commenterssupported the inclusion of unoccupiedhabitat due to the clear need for theelepaio to expand outside currentlyoccupied areas if it is to recover.

Service Response: As stated in boththe proposed rule and this final rule, thesmall population size and fragmenteddistribution of the Oahu elepaio make itvulnerable to extinction. Each of thecurrently occupied areas is too small tosupport a viable long-term population,and recovery will require restoration ofelepaio in areas that were formerlyinhabited.

(3) Comment: The area proposed ascritical habitat is larger than necessary.One commenter stated that a smallerarea than that proposed would meet alllegal requirements and lessen theregulatory burden. Based on the area ofthe proposed critical habitat (26,853 ha,66,354 ac) and the current populationdensity of elepaio on Oahu (37.6 birdsper square kilometer), the area proposedwould provide habitat for 10,100elepaio. The commenter asserted thatelepaio occur at densities over 200 birdsper square kilometer on other islands,that it is possible to attain densities of50–100 elepaio per square kilometer onOahu, so that less land is needed tosupport the same number of elepaio.

Service Response: The critical habitatdesignation was based on thedistribution of lands required to supporta viable population of elepaio, not onthe amount of land required to supporta certain number of elepaio. Theviability of a population depends notonly on the number of birds, but also ontheir distribution. We feel thedistribution of lands in the designation,in large blocks of contiguous habitat, isnecessary for the long-term conservationof elepaio on Oahu, as a large numberof birds distributed in many tiny habitatfragments is less likely to persist thanbirds in a single large population or inseveral well-connected populations. Wealso believe the current density ofelepaio on Oahu, 37.6 birds per squarekilometer, is a reasonable estimate of theoverall potential population densitythroughout the entire area designated ascritical habitat. It probably will be

possible to restore elepaio to densities of50–100 birds per square kilometer insome large blocks of dense forest, but inother areas density probably will belower than 37.6 birds per squarekilometer because it will be difficult toestablish populations in other portionsof the former range. The density weused to estimate the potentialpopulation is an average value.

(4) Comment: Several commenterssupported the designation of criticalhabitat on military lands, citing thethreats from military training,particularly fire, to the elepaio.

Service Response: We included allareas containing the primary constituentelements that are essential to theconservation of the elepaio, regardlessof ownership. We determined that noareas, including military lands, weresufficiently protected so as not to meetthe definition of critical habitat undersection 3(5)(A)(i)(II) of the Act, orqualified for exclusion from criticalhabitat under Section 4(b)(2) of the Act.Also see comments 6 and 7.

(5) Comment: Critical habitatdesignation is not appropriate inparticular areas. One commenter statedit was not appropriate to designatecritical habitat in areas that are notoccupied by the elepaio, and that noneof the physical or biological featuresnecessary to the conservation of thespecies are present in unoccupied areas.The Army requested that an areasoutheast of Puu Pane be removed fromUnit 1 because it is marginal habitat forthe elepaio and has limited potential forrecovery.

Service Response: All currentlyunoccupied areas designated as criticalhabitat were occupied by elepaio withinthe past 25 years, and these areas stillcontain the primary constituentelements needed by the elepaio. Even ifthe threats responsible for the decline ofthe elepaio were controlled, the existingsubpopulations would be unlikely topersist because their small sizes andisolation make them vulnerable toextinction due to a variety of naturalprocesses, such as inbreedingdepression, loss of genetic variabilitydue to genetic drift, decreasedevolutionary potential and ability tocope with environmental change,random fluctuations in population sizeand sex ratio, and catastrophes such ashurricanes. Unoccupied areas that stillcontain the primary constituentelements are needed for recovery toallow the number of elepaio to increase.(Also see comment 2 and summary ofreviewer’s comments).

Since the proposed rule waspublished we visited the area southeastof Puu Pane with Army biologists, and

we agree with the Army that it ismarginal habitat for the elepaio andshould not have been included in theproposed designation. Much of this areaconsists of exposed ridges and steepslopes that support dry shrubland, andmost of the remainder is dominated byEucalyptus robusta, an alien tree that isnot favored by elepaio. The smallforested areas in the dry gulchessoutheast of Puu Pane could support atmost a few pairs of elepaio, and they areisolated from other forested areas andwould not serve as habitat steppingstones between other subpopulations. Inthis final rule we removed 48 ha (119ac) from the proposed rule that shouldnot be designated as critical habitat.

(6) Comment: The U.S. Navyrequested that lands in NAVMAG PearlHarbor Lualualei Branch be excludedfrom the critical habitat designationbecause existing protections andmanagement are sufficient, therebyresulting in their lands not requiringspecial management or protection andnot meeting the definition of criticalhabitat under Section 3(5)(A) of the Act.The Navy also stated that it hasprepared a full management strategy forthe Oahu elepaio in the pending INRMPfor NAVMAG Pearl Harbor LualualeiBranch, which includes an evaluation ofpopulation distribution, quality andquantity of nesting habitat, threats, andmanagement needs for recovery. TheNavy maintains that the managementstrategy in the INRMP providesadequate management and protectionand should exempt NAVMAG PearlHarbor Lualualei Branch from criticalhabitat.

Service Response: The primary threatsto the elepaio, predation by alien ratsand diseases carried by alienmosquitoes, have not been addressed onNavy lands. The Navy conductspredator control in a small wetland inLualualei to protect endangeredwaterbirds, but this site is severalkilometers from elepaio critical habitatand provides no benefit to elepaio. Afterreviewing the draft INRMP forNAVMAG Pearl Harbor LualualeiBranch, we have determined that it doesnot provide for adequate protection ormanagement for the Oahu elepaio. Thedraft INRMP does not include amanagement strategy for the Oahuelepaio and does not provide anevaluation of population distribution,quality and quantity of nesting habitat,threats, and management needs forrecovery.

We agree that INRMPs can provideadequate management and protection ofmilitary lands such that they no longerrequire critical habitat designation. Todetermine if an INRMP provides



adequate management or protection weconsider: (1) Whether there is a currentplan specifying the management actionsand whether such actions providesufficient conservation benefit to thespecies; (2) whether the plan providesassurances that the conservationmanagement strategies will beimplemented; and (3) whether the planprovides assurances that theconservation management strategies willbe effective, i.e., provide for periodicmonitoring and revisions as necessary.If all of these criteria are met, thenunder current Service policy the landscovered under the plan would no longermeet the definition of critical habitat.

(7) Comment: The U.S. Army statedthat current management actions for theOahu elepaio at Schofield Barracks andMakua Military Reservation and existingwildfire management programs affordadequate protection for the elepaio,suggesting these areas should beexcluded from critical habitat.

Service Response: We agree that theArmy has conducted some valuablemanagement for the elepaio, but thus faronly a small fraction of elepaio on Armylands have benefited from managementactivities such as rodent control, and thethreat to elepaio at Schofield Barracks ofwildfires resulting from trainingactivities has not been managedadequately. Larger scale rodent controland improved fire management will benecessary to meet the long-termconservation needs of the elepaio. Wehave determined that currentmanagement does not adequatelyaddress the conservation needs of theOahu elepaio, and that Army landscannot be excluded from critical habitatunder Section 3(5)(A)(i)(II).

(8) Comment: Before finaldesignation, the Service should ground-truth all suitable habitat and the knownrange of elepaio to maximize the areaavailable for recovery.

Service Response: The critical habitatdesignation was based on the bestinformation available at the time, andincluded data from numerous surveysby university, State, military, andprivate biologists. We recognize thatmore information on habitat suitabilityand distribution of the elepaio would beuseful, and the Service recently ground-truthed several areas. If new scientificinformation shows that there is a needto add or remove lands from the criticalhabitat, an amendment or correction tothe designation could be considered.

Issue 2: Policy and Regulations(9) Comment: Efforts by the Service to

protect elepaio habitat must includeincentives and support for landownersto manage habitat. Several commenters

mentioned that they have ongoingmanagement for elepaio, and fourcommenters urged the Service toprovide financial and technical supportto private landowners to implementadditional voluntary predator controland habitat management.

Service Response: The Service agreesthere is a need to provide financial andtechnical support to private landownerswho would like to help recover listedspecies. Since the proposed rule waspublished, the Partners for Fish andWildlife Program of the Service hasprovided a private land manager withmoney to manage elepaio habitatthrough the Hawaii Community-BasedEndangered Species ConservationInitiative. The Service also is working,in collaboration with the StateDepartment of Land and NaturalResources, to design potential SafeHarbor Agreements with privatelandowners under section 10 of the Act,in which the Service would providetechnical support and up to 75 percentof the cost of managing habitat forelepaio recovery. One Safe HarborAgreement is approved and funded, andthere is potential to develop more. (seealso comments 13 and 22).

(10) Comment: Several commentersquestioned whether critical habitatdesignation would provide any benefitto the elepaio, particularly on privatelyowned lands with no Federal nexus.One commenter requested that, sincethere are no discernible benefits toincluding private lands in thedesignation, such lands be excludedunder Section 4(b)(2) of the Act.Another commenter stated that themajority of land proposed as criticalhabitat already is protected by Stateconservation zoning, Natural AreaReserves, Forest Reserves, andwatershed partnerships, and that criticalhabitat designation is not necessary andwould duplicate existing zoning andland use protection.

Service Response: It is true that most(99.6%) of the critical habitat for theOahu elepaio is in areas that alreadyreceive protection from Stateregulations, zoning restrictions, privatepreserves, and partnerships, but thecritical habitat designation provides anadditional type of protection that onlyaffects actions carried out, funded, orpermitted by the Federal Government. Ifactions with a Federal nexus occur onState, County, or private lands, thencritical habitat designation will ensurethat those actions do not adverselymodify the habitat elements importantto the elepaio. Over 39,000 acres of thecritical habitat are in the ResourceSubzone of the State ConservationDistrict, which allows such actions as

commercial forestry, mining, andextraction of any material or naturalresource. An additional 1,136 acres arein the General Subzone of theConservation District, which in additionto the activities listed above, allowsfarming, nurseries, orchards, andgrazing. Critical habitat designationensures that any of these actions onState conservation lands that involve aFederal nexus will not adversely modifycritical habitat. Because StateConservation zoning already placeslimitations on land use, we expect veryfew if any economic impacts from thedesignation of critical habitat.

Critical habitat designation provideseducational as well as regulatorybenefits. Attention brought by criticalhabitat designation can help educate thepublic about the conservation needs ofa species, aid landowners and managersin focusing and concerting managementefforts, and can even result in increasedfunding opportunities (see response tocomment 9).

(11) Comment: Critical habitatdesignation will result in expensiveadditional land managementrequirements for private landowners.There is no benefit to designatingcritical habitat on the property of asmall landowner if they do not have theresources to manage the area andgovernment agencies do not have accessfor management.

Service Response: Critical habitatdesignation does not require anyadditional management to be done byprivate landowners, State agencies, orthe Federal Government. Critical habitatdesignation does not create a wildernessarea or preserve; it does not requirefencing, control of rodents, ungulates, orweeds; and it does not close an area tohunting or hiking. It requires only thatactions carried out, funded, or permittedby the Federal Government must notdestroy or adversely modify criticalhabitat. The decision to manage land tocontrol threats to the elepaio, such asnest predation or disease, is separatefrom critical habitat designation and atthe discretion of the landowner.

(12) Comment: Designation of criticalhabitat may discourage privatelandowners from entering cooperativemanagement programs such aswatershed partnerships, particularly if alandowner is concerned or uncertainabout Federal regulations.

Service Response: The goals ofwatershed partnerships are compatiblewith the conservation needs of the Oahuelepaio and with the objectives ofcritical habitat. There is no reason thatcritical habitat designation shoulddiscourage private landowners fromentering watershed partnerships. We



welcome the opportunity to discussconcerns or uncertainties about criticalhabitat regulations with any suchpartnership. Our Partnerships Programis actively involved in cooperativemanagement programs, such aswatershed partnerships, and helps guideand fund partnerships toward good landstewardship practices.

(13) Comment: Money spent on thisand future regulatory processes toenforce critical habitat could be muchbetter spent on management activities.More management, not moreregulations, can best address the declineof the elepaio.

Service Response: We agree thatgreater management of threats such aspredation and disease is needed forrecovery of the elepaio, but habitatprotection also is essential to therecovery of the elepaio, and criticalhabitat is a method of habitat protection.The Service provides financial andtechnical support for several elepaiorecovery actions, and critical habitatdesignation can lead to increasedfunding opportunities for recoveryactions (see comments 9 and 22).

(14) Comment: One commenterquestioned the Service’s policy not toinclude existing structures within theboundaries of the mapped criticalhabitat units because doing so couldcreate confusion as to whether a givenarea contains the primary constituentelements and thus whether section 7consultation is necessary.

Service Response: Within the criticalhabitat units there are numerous smallstructures that do not contain theprimary constituent elements requiredby the elepaio, such as buildings, roads,aqueducts, water tanks, and antennas.Including such structures in the criticalhabitat designation would imply thatthey are required by the elepaio andtherefore must be present for the elepaioto survive, which is not true and easilycould be misinterpreted. In the text ofthe proposed rule we therefore statedthat any such features within the criticalhabitat units are not included in thecritical habitat designation. Thealternative to describing such features inthe text is to depict each one as a ‘‘hole’’in the critical habitat. However, thesestructures are too small to be visible ona map and it was impossible to mapevery existing structure that does notcontain the primary constituentelements. A few structures, such as theH–3 freeway and the Palehua Road, arelarge enough to be mapped.

(15) Comment: One commenterobjected to the suggestion in theproposed rule that habitat cannot be‘‘critical’’ unless it contains the primaryconstituent elements, and stated that for

unoccupied areas the only relevantconsideration is whether the area isessential for the conservation of thespecies. Some unoccupied areas may bedegraded, but that does not mean theydo not require protection from furtheradverse modification for the elepaio tohave a chance at recovery.

Service Response: We recognize thatareas outside the boundaries of thecritical habitat may be suitable forelepaio recovery, and that it is possible,although perhaps expensive, to restoredegraded areas that do not currentlycontain the primary constituentelements. The focus of critical habitat,however, is the area essential to theconservation of the species. For somespecies there may not be sufficient landavailable that contains the primaryconstituent elements, and it may benecessary to restore additional habitat inorder to provide for the conservation ofthe species. In the case of the Oahuelepaio, we believe that the designatedcritical habitat does contain the areasessential to the conservation of thespecies, and that these lands alone aresufficient to provide for its recovery.This does not mean that areas outsidethe designated critical habitat units arenot suitable and cannot be used forelepaio recovery, nor does it imply thatthey should not be protected or restored.It simply reflects our conclusions thatsufficient lands are available thatalready contain the primary constituentelements.

(16) Comment: One commenter urgedthe Service not to exclude any areascontaining the primary constituentelements, including areas covered byConservation Agreements and SafeHarbor Agreements, that are beingmanaged to address the conservationneeds of the species and thereforeallegedly do not meet the definition ofcritical habitat in Section 3(5)(A) of theAct because they do not require specialmanagement or protection.

Service Response: No areas wereexcluded from the designation on thebasis that current management wasadequate and special management orprotection was not required. Currentlythere are no Conservation Agreementsor Safe Harbor Agreements that includethe Oahu elepaio.

(17) Comment: The inability to useflares and tracer ammunition atSchofield Barracks would require thatthe Army conduct all such trainingelsewhere, which would havetremendous economic impact andwould adversely affect trainingreadiness.

Service Response: Designation ofcritical habitat for the Oahu elepaio onArmy lands would not necessarily

prohibit any training activities or theuse of any type of ammunition atSchofield Barracks. The critical habitatdoes not contain any lands used fortraining, but an impact area for live-firetraining is adjacent to critical habitat.The primary potential effect on elepaiofrom military training at SchofieldBarracks is the risk of wildfires thatcross the firebreak road and burnforested areas comprising the criticalhabitat. If an adequate fire managementplan is implemented and fires that affectcritical habitat are controlled, thereshould be no effect on elepaio frommilitary training and no changes neededto the types of training conducted atSchofield Barracks.

Although it would be possible, butmore expensive, to conduct trainingwith flares and tracer ammunition at analternate site, we believe that movingsuch training is not necessary if the riskof fires resulting from use of suchmunitions at Schofield Barracks isadequately controlled. A detailed firemanagement plan has been prepared fornearby Makua Military Installation, butthe draft INRMP for Schofield Barracksdoes not contain a full fire managementplan and currently there are no specificprocedures to control wildfires atSchofield Barracks. Because most of thecritical habitat at Schofield Barracks isoccupied by elepaio, the effect ofmilitary training on elepaio wouldrequire consultation under Section 7 ofthe Act even if critical habitat were notdesignated. Since the area is occupiedby elepaio, consultations will point to aneed for a fire management planregardless of any CH designation,which, if adequately done, will mootany impact to the Army from the criticalhabitat designation. The Service expectsto work with the Army on thedevelopment of a sound firemanagement plan for Schofield Barracksand on minimizing or mitigatingpotential impacts of training on theelepaio in ways that will notcompromise training readiness.

Issue 3: Economic Issues(18) Comment: Several commenters

stated that critical habitat designationwill have an adverse economic impactto private landowners, and requestedthat a particular area be excluded fromdesignation under Section 4(b)(2)because costs outweigh benefits. Onecommenter pointed out that the drafteconomic analysis found that the areaalong Palehua Road might experience alarge economic impact, and thatexclusion of the area would notcompromise conservation objectives,would maximize efficiency of privateland use for commercial purposes, and



would not result in extinction of thespecies.

Service Response: Critical habitatdesignation would not affect any uses ofprivate land unless actions on the landwere carried out, funded, or somehowpermitted by the Federal Government.The economic analysis showed that theeconomic impact of the proposedcritical habitat designation would beminimal in most areas, and that only afew locations potentially couldexperience a moderate impact. Some ofthe areas where the economic impactmight be moderate also are of high valueto the elepaio, and we feel that thebenefits of inclusion outweigh thebenefits of exclusion.

Since publication of the proposedrule, we have re-evaluated the PalehuaRoad area and decided that forbiological reasons it should not havebeen included in the proposeddesignation, and we removed it from thefinal designation (see Summary ofChanges From the Proposed Rule).

(19) Comment: One commenterexpressed concern about the impact ofcritical habitat designation onagricultural resources, particularly thewater catchment and distributionfacilities of the Waiahole Ditch (whichis within the boundaries of Unit 3), andrecommended that a corridor beestablished around the ditch excludingit from critical habitat. This ditch is thesole source of irrigation water forseveral thousand acres of agriculturalland in south-central Oahu, and it willrequire periodic maintenance.

Service Response: Existing featuresand structures within the boundaries ofthe critical habitat units, such as theWaiahole Ditch, are not included in thecritical habitat because they do notcontain the primary constituentelements needed by the elepaio.Maintenance of these features andstructures would only be affected by thecritical habitat designation and wouldonly require section 7 consultation if themaintenance is federally funded orpermitted and if the action affected thespecies or the primary constituentelements in adjacent areas of criticalhabitat. It was not practical to create acorridor in the critical habitat aroundthe Waiahole Ditch because the ditch istoo small.

(20) Comment: One commenterobjected to the draft Economic Analysisbecause it does not meet therequirements of the Tenth CircuitCourt’s opinion in New Mexico CattleGrowers Association v. U.S. Fish andWildlife Service, No. 00–2050, May 11,2001, which requires a full analysis ofall economic impacts of a critical habitatdesignation, regardless of whether those

impacts are attributable co-extensivelyto other causes.

Service Response: On May 11, 2001,the U.S. Court of Appeals for the TenthCircuit issued a ruling that addressedthe analytical approach used by theService to estimate the economicimpacts associated with the criticalhabitat designation for the southwesternwillow flycatcher. New Mexico CattleGrowers Association v. U.S. Fish andWildlife Service, 248 F.3d 1277 (10thCir. 2001). Specifically, the courtrejected the approach used by theService to define and characterizebaseline conditions. Defining thebaseline is a critical step in an economicanalysis, as the baseline in turnidentifies the type and magnitude ofincremental impacts that are attributedto the policy or change under scrutiny.In the flycatcher analysis, the Servicedefined baseline conditions to includethe effects associated with the listing ofthe flycatcher and presented only theincremental effects of the rule.

We have revised the economicanalysis for the Oahu elepaio throughthe Addendum to specifically addressthe Tenth Circuit Court’s instructions.Specifically, the economic analysisquantifies, to the extent possible, theeffects of section 7 in its entirety oncurrent and planned activities that arereasonably expected to occur in the nearfuture within proposed critical habitat.For these reasons we believe theeconomic analysis of the critical habitatdesignation for the Oahu elepaio meetsthe requirements of the Tenth CircuitCourt’s opinion.

Issue 4: Other Relevant Issues(21) Comment: The Service and other

agencies should work together in acooperative fashion to benefitendangered species. The U.S. Navycommented that, although this criticalhabitat designation was generated as aresult of litigation, that fact should notlimit the ability of the Navy and theService to work together. A State agencycommended the Service for the processused in developing the critical habitatdesignation for the Oahu elepaio, andcommented that State and Servicebiologists have worked together toidentify and manage important habitatfor the Oahu elepaio.

Service Response: We fully agree, andwe expect to continue working closelywith all Federal and State agencies andprivate landowners and managers indeveloping effective management for theelepaio and other endangered species.We see no reason that this designation,or any other action that results fromlitigation, should affect existing positiveworking relationships.

(22) Comment: Current managementefforts fall short of meeting theconservation needs of the Oahu elepaio.Recovery of the elepaio will requirelarger, landscape-scale management,more funding, and possibly differentmethods, such as aerial broadcast ofrodenticide to control rodents.

Service Response: We agree thatcurrent management is not sufficientand that recovery of the elepaio willrequire not just habitat protection butlarge-scale active habitat management.Both the proposed rule and this finalrule clearly state that additionalmanagement will be necessary forrecovery of the elepaio. The Service hasprovided technical assistance withrodent control to the U.S. Army, theU.S. Navy, the State, and private landmanagers, and financial support forrodent control to the State and privatemanagers. We also are actively involvedin obtaining EPA registration for aerialbroadcast of rodenticide, which will bean important tool in reducing the threatfrom nest predation by rats.

(23) Comment: The critical habitatdesignation for the Oahu elepaiodirectly conflicts with approved Federalrecovery plans for 12 endangered plantspecies, which identify control ofintroduced plant species as a neededrecovery action. The proposed ruleidentifies the primary constituentelements for the elepaio as wet, mesic,and dry forest composed of both nativeand introduced plant species.Preservation of a native forest ecosystemshould be emphasized and protectedover a mixed or introduced forest.Mixed or introduced forest should beexcluded as a primary constituentelement of elepaio habitat.

Service Response: Elepaio aregeneralized in habitat use and are ableto occupy a variety of forest typescomposed of many different plants,including native and introducedspecies. Many areas currently occupiedby elepaio contain mostly introducedplants, but this does not mean thatelepaio must have those introducedplants to survive. The structure of theforest is more important to elepaio thanthe species of plants present. The plantspecies listed in the description ofprimary constituent elements areexamples of common plants in areassuitable for elepaio; it is not necessaryfor all those species to be present. Thecritical habitat designation for the Oahuelepaio does not require or advocate thepreservation of introduced forests overnative forests. Recovery actions forendangered native plant species thatinvolve removal of alien plants do notconflict with recovery of the elepaio, aslong as the alien plant species are



replaced with native plant species andthe vegetative cover is retained in thelong term. To avoid this misconceptionin the final rule, the description of theprimary constituent elements has beenchanged to wet, mesic, and dry forestcomposed of native or introduced plantspecies.

(24) Comment: Several commenterssupported the critical habitatdesignation for the Oahu elepaio, citingthe species cultural significance to theHawaiian people, its uniqueness andvalue to the Hawaiian ecosystem, itsintangible existence value, and thebenefits it provides to humancommunities that cannot be measured.

Service Response: We recognize thecultural and natural significance of theOahu elepaio. The elepaio is familiar tomany people in Hawaii, and it hasserved as a symbol not only for thenatural environment, but also forconservation and collaborativemanagement. In addition to being aguardian spirit of Hawaiian canoemakers, the elepaio was prominent inlegends and folklore. Elepaio are oftenthe first birds to sing in the morning,and their songs were thought to warnspirits of the night that their work mustend because dawn was approaching.

(25) Comment: Hunting for variousmammals and game birds currently isauthorized in portions of all five criticalhabitat units. Because nothing in theproposed rule indicates there will be acurtailment or cessation of hunting, itmust be assumed that currentauthorized hunting programs willcontinue. A well-designed huntingprogram is a vital element of gamemanagement and overall conservation. Ifhunting is considered to have negativeimpacts, or a hunting program isconsidered for expansion orimprovement, hunter groups should beinvolved in any discussions orplanning.

Service Response: Alteration of nativeecosystems by feral mammals is not oneof the primary threats to the Oahuelepaio, and no changes in authorizedhunting programs are expected as aresult of critical habitat designation forthe Oahu elepaio. The Service agreesthat in many circumstances a well-designed hunting program can be animportant component in theconservation of native ecosystems inHawaii by helping to control excessivedamage caused by large populations offeral mammals. Should a change inauthorized hunting programs resultfrom this critical habitat designation,the Service would work with Stateagencies and hunting groups to addressany concerns.

Summary of Changes From theProposed Rule

In the proposed rule we attempted touse Hawaiian language diacritical marksin the spelling of Hawaiian words, butthere were numerous conversion errorsand the marks were not printedcorrectly. We published a correction tothe proposed rule (66 FR 46428) inwhich we said we would ensure that themarks are either used correctly oreliminated. In this final rule weeliminated the diacritical marks becausewe cannot ensure they will be printedproperly in the short time before thecourt-ordered publication deadline. Werecognize the importance of using themarks to accurately portray thepronunciation of Hawaiian words andwe regret not being able to use them, butwe feel that printing the marksincorrectly would be worse than notusing them.

Based partly on public commentsreceived on the proposed determinationof critical habitat for the Oahu elepaioand partly on additional biologicalexamination of several areas, we re-evaluated our proposed designation ofcritical habitat for the Oahu elepaio.This resulted in the removal forbiological reasons of five relativelysmall areas totaling 207 ha (513 ac) inthis final determination, including: (1)48 ha (119 ac) in Unit 1 on SchofieldBarracks West Range; (2) 31 ha (77 ac)in Unit 2 around the Palehua-MaunaKapu road; (3) 63 ha (156 ac) in Unit 2in Nanakuli Valley; (4) 49 ha (121 ac) inUnit 3 in Keaiwa Heiau State RecreationArea; and (5) 16 ha (40 ac) in Unit 5 inand around Lyon Arboretum in ManoaValley. These areas comprise less than1 percent of the area originallyproposed. The designation is based onthe distribution of lands needed tosupport a viable population, not on theamount of land required to support acertain number of birds. The lands inquestion were all located on the edge ofone of the habitat units and wereunlikely to serve as habitat steppingstones between other forested areas. Amore detailed discussion andjustification for removal of each of theseareas is provided below.

On Schofield Barracks West Range weremoved 48 ha (119 ac) in the areasoutheast of Puu Pane, which was theeasternmost portion of Unit 1, becauseit is less suitable for elepaio than werealized. This area consists largely ofexposed ridges, steep dry slopes thatsupport dry shrub land, and open forestdominated by Eucalyptus robusta, anintroduced tree not favored by elepaio.The gulches contain small areas of moremesic forest that could support a few

pairs of elepaio, but these areas areisolated from other suitable forest andwould not provide habitat steppingstones between other elepaiosubpopulations.

As a result of the economic analysisand information provided to us duringthe public comment period on theproposed rule, we learned that the areaalong the Palehua Road at the southernedge of Unit 2 contains a largeconcentration of telecommunicationantennas and associated facilities,several houses, and other structures.The forest has been largely removed dueto the extensive development, and theexisting vegetation is dominated byironwood (Casuarina spp.) andEucalyptus robusta, introduced treesthat are not favored by elepaio. Theexisting structures in this area were notincluded in the proposed designationbecause they are developed features thatdo not contain the primary constituentelements required by elepaio, but tomake this more explicit and clear, weremoved a total of 31 ha (77 ac) in acorridor roughly 200 meters widecentered on the road between Palehuaand Mauna Kapu. Of this area, 24 ha (60ac) is privately owned and 7 ha (17 ac)is owned by the State.

In Nanakuli Valley we removed 63 ha(156 ac) from the southwest corner ofUnit 2 because it is does not containforest with the primary constituentelements needed by elepaio and isunlikely to be useful for dispersal. Thisvalley is much drier than we previouslyrealized and contains mostly dryshrubland and grassland. Portions of thevalley are very steep and contain almostno vegetation. This area is on the veryedge of the potential elepaiodistribution and is unlikely to serve asa link to other subpopulations becauseof its location.

In Unit 3, we removed 49 ha (121 ac)that contained developed areas of theKeaiwa Heiau State Recreation Area,including roads, parking areas,campsites, picnic areas, and restrooms.These are developed features and do notcontain the primary constituentelements needed by the elepaio, and assuch were not included in the proposedcritical habitat. To clarify this, in thisfinal rule we have moved the boundaryso it does not include the developedsection of the recreation area, but thehigher, undeveloped section of therecreation area is retained.

Finally, we removed 16 ha (40 ac) onthe edge of Unit 5 that consisted oflandscaped areas in and near LyonArboretum in Manoa Valley. Thelandscaped gardens in Lyon Arboretumare developed features that do notcontain the primary constituent



elements needed by the elepaio, and assuch were not included in the proposeddesignation. To clarify this, in this finalrule we moved the boundary so it doesnot include the lower, developedsection of the arboretum, but it stillcontains the higher, undevelopedsection.

Economic AnalysisSection 4(b)(2) of the Act requires us

to designate critical habitat on the basisof the best scientific and commercialdata available and to consider theeconomic and other relevant impacts ofdesignating a particular area as criticalhabitat. We may exclude areas fromcritical habitat upon a determinationthat the benefits of such exclusionsoutweigh the benefits of specifying suchareas as critical habitat, but we cannotexclude such areas from critical habitatif the exclusion will result in theextinction of the species.

In the addendum, the methodologywas modified to more fully describe andexplore the baseline conditionsattributable to the listing of the elepaio.This change in methodology isconsistent with the plannedmodification discussed in the Forewordto the DEA, and is consistent with theruling of the Tenth Circuit Courtconcerning the analytical approach usedby the Service to estimate economicimpacts. The results of the analysiscover economic impacts that areattributable to (1) both the listing of theelepaio as an endangered species and itscritical habitat designation and (2) justthe critical habitat designation. Ingeneral, cost and benefit estimates werenot developed for projects and activitiesin cases where: (1) The economicimpacts attributable to both the listingand the critical habitat are expected tobe small, (2) the probability of theimpacts occurring is small, (3) theimpacts are highly speculative, or (4)data needed to quantify the impacts arenot reasonably available.

An analysis of the economic impactsof critical habitat designation for theOahu elepaio was prepared by DecisionAnalysts Hawaii, Incorporated, undersubcontract to the Service throughIndustrial Economics, Incorporated, andwas made available for public reviewfrom August 6 through September 6,2001 (66 FR 40960). The final analysis,which reviewed and incorporatedpublic comments, concluded that nosignificant economic impacts areexpected from critical habitatdesignation. Few new developments,land uses, or other activities areexpected in the critical habitat unitsbecause of the mountainous terrain,poor access, and existing conservation

zoning. Most current and plannedprojects and land uses in the criticalhabitat areas have no Federalinvolvement, and thus would not beaffected by critical habitat designation.Most activities with a Federal nexusinvolve the operation and managementof existing facilities, and also would notbe affected by critical habitatdesignation. The primary economicimpact on most activities would be asmall cost associated with an increasednumber of section 7 consultations andan increased length of time required forconsultations resulting from criticalhabitat. There may be a modesteconomic impact of critical habitatdesignation on lands owned orcontrolled by the Department ofDefense.

A copy of the final economic analysisand supporting documents are includedin our administrative record and may beobtained by contacting the PacificIslands Field Office (see ADDRESSESsection). Copies of the final economicanalysis also are available on theInternet at http://pacificislands.fws.gov/wesa/endspindex.html.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order12866, this document has beenreviewed by the Office of Managementand Budget (OMB). OMB makes thefinal determination of significanceunder Executive Order 12866.

(a) This rule will not have an annualeconomic effect of $100 million oradversely affect an economic sector,productivity, jobs, the environment, orother units of government. A cost-benefit and economic analysis thereforeis not required. The Oahu elepaio waslisted as an endangered species in April2000. In fiscal years 2000 through 2001we have conducted two informal section7 consultations with other Federalagencies to ensure that their actionswould not jeopardize the continuedexistence of the Oahu elepaio. We havenot issued any section 10(a)(1)(B)incidental take permits for the elepaio.

Under the Act, critical habitat maynot be adversely modified by a Federalagency action; critical habitat does notimpose any restrictions on non-Federalpersons or agencies unless they areconducting activities funded orotherwise sponsored, authorized, orpermitted by a Federal agency. Section7 requires Federal agencies to ensurethat they do not jeopardize thecontinued existence of this species.Based upon our experience with thisspecies and its needs, we conclude thatany Federal action or authorized action

that could potentially cause adversemodification of proposed critical habitatwould currently be considered as‘‘jeopardy’’ under the Act in areasoccupied by the species. Accordingly,the designation of currently occupiedareas as critical habitat does not haveany impacts on what actions may ormay not be conducted by Federalagencies or non-Federal persons thatreceive Federal authorization or fundingbeyond the existing impacts. Thedesignation of areas as critical habitatwhere section 7 consultations would nothave occurred but for the critical habitatdesignation may have impacts on whatactions may or may not be conducted byFederal agencies or non-Federal personswho receive Federal authorization orfunding that are not attributable to thespecies listing. These impacts wereevaluated in our economic analysis(under section 4 of the Act; seeEconomic Analysis section of this rule).Non-Federal persons or agencies that donot have Federal involvement in theiractions are not restricted by thedesignation of critical habitat.

(b) This rule will not createinconsistencies with other agencies’actions. As discussed above, Federalagencies have been required to ensurethat their actions do not jeopardize thecontinued existence of the Oahu elepaiosince its listing in April 2000. Weevaluated the impact of designatingareas where section 7 consultationswould not have occurred but for thecritical habitat designation in oureconomic analysis (see EconomicAnalysis section of this rule). Theprohibition against adverse modificationof critical habitat is not expected toimpose any additional restrictions tothose that currently exist on currentlyoccupied lands and will not createinconsistencies with other agencies’actions on unoccupied lands.Specifically, construction and landmanagement activities carried out by theService on the newly created OahuForest National Wildlife Refuge areexpected to benefit the elepaio andother listed species in the long term,and those actions therefore will not beaffected by this designation. Storage ofmunitions by the U.S. Navy atNAVMAG Pearl Harbor LualualeiBranch is not expected to be affected bythis designation because the lands usedfor munitions storage and thosedesignated as critical habitat do notoverlap, and storage of munitions onadjacent lands does not affect theelepaio. Training by the U.S. Army atMakua Military Reservation andSchofield Barracks is not expected to beaffected by this designation because



wildfires caused by training exercisesare the only means by which trainingmay affect the elepaio, and the Armyhas implemented a detailed firemanagement plan for Makua and soonplans to implement a fire managementplan for Schofield Barracks.

(c) This rule will not materially affectentitlements, grants, user fees, loanprograms, or the rights and obligationsof their recipients. Federal agencies arecurrently required to ensure that theiractivities do not jeopardize thecontinued existence of a listed species,and, as discussed above, we do notanticipate that the adverse modificationprohibition resulting from criticalhabitat designation will result inadditional restrictions.

(d) OMB has determined that this ruleraises novel legal or policy issues.Therefore, this rule is significant underE.O. 12866, and, as a result, hasundergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601et seq.)

Under the Regulatory Flexibility Act(5 U.S.C. 601 et seq., as amended by theSmall Business Regulatory EnforcementAct (SBREFA) of 1996), whenever anagency is required to publish a notice ofrulemaking for any proposed or finalrule, it must prepare and make availablefor public comment a regulatoryflexibility analysis that describes theeffects of the rule on small entities (i.e.,small businesses, small organizations,and small government jurisdictions).However, no regulatory flexibilityanalysis is required if the head of theagency certifies the rule will not have asignificant economic impact on asubstantial number of small entities.The SBREFA amended the RegulatoryFlexibility Act to require Federalagencies to provide a statement of thefactual basis for certifying that a rulewill not have a significant economiceffect on a substantial number of smallentities. The SBREFA also amended theRegulatory Flexibility Act to require acertification statement. In this rule, weare certifying that the critical habitatdesignation for the Oahu elepaio willnot have a significant effect on asubstantial number of small entities.The following discussion explains ourrationale.

Small entities include smallorganizations, such as independent non-profit organizations, small governmentaljurisdictions, including school boardsand city and town governments thatserve fewer than 50,000 residents, aswell as small businesses. Smallbusinesses include manufacturing andmining concerns with fewer than 500employees, wholesale trade entities

with fewer than 100 employees, retailand service businesses with less than $5million in annual sales, general andheavy construction businesses with lessthan $27.5 million in annual business,special trade contractors doing less than$11.5 million in annual business, andagricultural businesses with annualsales less than $750,000. To determineif potential economic impacts to thesesmall entities are significant, weconsider the types of activities thatmight trigger regulatory impacts underthis rule as well as the types of projectmodifications that may result. Ingeneral, the term significant economicimpact is meant to apply to a typicalsmall business firm’s businessoperations.

To determine if the rule would affecta substantial number of small entities,we consider the number of smallentities affected within particular typesof economic activities (e.g., housingdevelopment, grazing, oil and gasproduction, timber harvesting, etc.). Weapply the ‘‘substantial number’’ testindividually to each industry todetermine if certification is appropriate.In some circumstances, especially withcritical habitat designations of limitedextent, we may aggregate across allindustries and consider whether thetotal number of small entities affected issubstantial. In estimating the numbersof small entities potentially affected, wealso consider whether their activitieshave any Federal involvement.Designation of critical habitat onlyaffects activities conducted, funded, orpermitted by Federal agencies. Somekinds of activities are unlikely to haveany Federal involvement and so will notbe affected by critical habitatdesignation.

In areas where the species is present,Federal agencies already are required toconsult with us under section 7 of theAct on activities that they fund, permit,or implement that may affect the Oahuelepaio. Federal agencies also mustconsult with us if their activities mayaffect critical habitat. Designation ofcritical habitat therefore could result inan additional economic impact on smallentities due to the requirement toreinitiate consultation for ongoingFederal activities. However, since theOahu elepaio was proposed for listing inOctober 1998, we have conducted onlytwo informal consultations and oneformal consultation, involving the OahuForest National Wildlife Refuge and theU.S. Army. As a result, the requirementto reinitiate consultation for ongoingprojects will not affect any smallentities.

In areas where the species clearly isnot present, designation of critical

habitat could trigger additional reviewof Federal activities under section 7 ofthe Act. We are aware of relatively fewactivities in the critical habitat for theOahu elepaio that have Federalinvolvement and thus would requireconsultation or reinitiation of already-completed consultations for ongoingprojects. Moreover, no activitiescurrently undertaken by small entitiesin the critical habitat units have Federalinvolvement, nor, for the reasonsexplained herein, would Federalinvolvement be expected in the future,and thus we do not anticipate that thisdesignation of critical habitat will resultin any additional regulatory impacts tosmall entities.

Current activities with Federalinvolvement that will requireconsultation are; training by the U.S.Army; storage of munitions by the U.S.Navy; Federally funded landmanagement and wildlife restorationand game-hunting projects; andimprovements to communicationsfacilities that require approval from theFCC. We are not aware of any additionalprojects that have been proposed, butpotential future activities that mighthave Federal involvement include;maintenance of water diversion andflood control facilities that may requireauthorization from the Army Corps ofEngineers under Section 404 of theClean Water Act; watershed andrestoration management projectssponsored by NRCS; projects to improveaccess and management for the OahuForest National Wildlife Refuge. Therequirement in section 7(a)(2) to avoidjeopardizing listed species anddestroying or adversely modifyingdesignated critical habitat may result inFederal agencies requiring certainmodifications to proposed projects.

The five critical habitat unitsidentified in this rule consist of 15, 6,37, 12, and 43 parcels, of which 0, 1, 16,3, and 12 parcels are owned by 0, 1, 11,3, and 9 different small entities,respectively. The majority of parcels areowned by the Federal government, theState of Hawaii, and the City andCounty of Honolulu, which are notsmall entities.

Of the lands designated as criticalhabitat for the Oahu elepaio, 99.6% arezoned for conservation. Projected usesof these lands consist of; recreation(hiking, camping, hunting, and fishing);protection of natural and culturalresources, including threatened andendangered species; watershedprotection and management;ecotourism; and in certain areas,harvesting of natural resources under anapproved management plan. Asdiscussed in the economic analysis,



most of the critical habitat lands are inmountainous areas where access isdifficult due to the steep terrain, andthese lands are not suited todevelopment or agriculture. Because useof the vast majority of lands designatedas critical habitat already is limited byexisting zoning regulations andmountainous terrain with difficultaccess, we do not anticipate asignificant decline in property values asa result of this critical habitatdesignation.

Unit 5 includes a portion of oneparcel in Wailupe Valley that is zonedfor urban use and is occupied byelepaio. Residential development of thisparcel was considered before 1970, butwas abandoned due to the unstablenature of the soil in this area. The parcelrecently was purchased by the City andCounty of Honolulu, and futuredevelopment is unlikely. Unit 2includes one parcel owned by the U.S.Navy that is partially zoned foragriculture, but this area is very dry andaccess is restricted by the Navalinstallation, making agricultureunlikely.

In general, two different mechanismsin section 7 consultations could lead toadditional regulatory requirements.First, if we conclude, in a biologicalopinion, that a proposed action is likelyto jeopardize the continued existence ofa species or adversely modify its criticalhabitat, we can offer ‘‘reasonable andprudent alternatives.’’ Reasonable andprudent alternatives are alternativeactions that can be implemented in amanner consistent with the scope of theFederal agency’s legal authority andjurisdiction, that are economically andtechnologically feasible, and that wouldavoid jeopardizing the continuedexistence of listed species or resulting inadverse modification of critical habitat.A Federal agency and an applicant mayelect to implement a reasonable andprudent alternative associated with abiological opinion that has foundjeopardy or adverse modification ofcritical habitat. An agency or applicantcould alternatively choose to seek anexemption from the requirements of theAct or proceed without implementingthe reasonable and prudent alternative.However, unless an exemption wereobtained, the Federal agency orapplicant would be at risk of violatingsection 7(a)(2) of the Act if it chose toproceed without implementing thereasonable and prudent alternatives.Secondly, if we find that a proposedaction is not likely to jeopardize thecontinued existence of a listed animalspecies, we may identify reasonable andprudent measures designed to minimizethe amount or extent of take and require

the Federal agency or applicant toimplement such measures through non-discretionary terms and conditions. Wemay also identify discretionaryconservation recommendationsdesigned to minimize or avoid theadverse effects of a proposed action onlisted species or critical habitat, helpimplement recovery plans, or to developinformation that could contribute to therecovery of the species.

Based on our experience with section7 consultations for all listed species,virtually all projects-including thosethat, in their initial proposed form,would result in jeopardy or adversemodification determinations in section7 consultations-can be implementedsuccessfully with, at most, the adoptionof reasonable and prudent alternatives.These measures, by definition, must beeconomically feasible and within thescope of authority of the Federal agencyinvolved in the consultation. As wehave a very limited consultation historyfor the Oahu elepaio, we can onlydescribe the general kinds of actionsthat may be identified in futurereasonable and prudent alternatives.These are based on our understanding ofthe needs of the species and the threatsit faces, as described in the final listingrule and this critical habitat designation.The kinds of actions that may beincluded in future reasonable andprudent alternatives include;conservation set-asides; management ofnon-native predators, particularly blackrats; management of non-nativemosquitoes that carry non-native aviandiseases; restoration of degraded habitat;and regular monitoring. These measuresare not likely to result in a significanteconomic impact to project proponents.

As required under section 4(b)(2) ofthe Act, we conducted an analysis of thepotential economic impacts of thiscritical habitat designation, and thatanalysis was made available for publicreview and comment before finalizationof this designation. Based on estimatesprovided in the economic analysis, thepotential economic impact of criticalhabitat designation for the Oahu elepaioover the next 10 years ranged from$296,000 to $1,347,000, of which thecost to small entities ranged from$40,000 to $60,000. The high estimate ofthe total potential impact includescontrol of alien rodents in all Army andnavy installations, which probably willnot be required as a result of criticalhabitat designation, and implementationof a fire management plan at SchofieldBarracks, which also is attributable toother purposes, so the lower estimate of$296,000 is a more realistic estimate ofthe impact attributable to the criticalhabitat designation. The estimate of the

potential impact to small entities varieddepending on the number of smallentities attempting to investigate theimplications of critical habitatdesignation on their land.

In summary, we have consideredwhether this rule would result in asignificant economic effect on asubstantial number of small entities. Itwould not affect a substantial number ofsmall entities. The entire critical habitatdesignation involves fewer than 120parcels, only 32 of which are owned by23 different small entities. All of theseparcels are zoned for conservation, andmost of these parcels are located inmountainous areas where access islimited. Future uses of these lands arealready limited, and are not expected tohave Federal involvement or result orsection 7 consultations. This rule wouldresult in project modifications onlywhen proposed Federal activities woulddestroy or adversely modify criticalhabitat. While this may occur, it is notexpected frequently enough to affect asubstantial number of small entities.Even when it does occur, we do notexpect it to result in a significanteconomic impact, as the measuresincluded in reasonable and prudentalternatives must be economicallyfeasible and consistent with theproposed action. The kinds of measureswe anticipate we would provide canusually be implemented at very lowcost. Therefore, we are certifying thatthe designation of critical habitat for theOahu elepaio will not have a significanteconomic impact on a substantialnumber of small entities. A regulatoryflexibility analysis is not required.

Small Business Regulatory EnforcementFairness Act (5 U.S.C. 804(2))

In the economic analysis, wedetermined whether designation ofcritical habitat would cause (a) anyeffect on the economy of $100 millionor more, (b) any increases in costs orprices for consumers, individualindustries, Federal, State, or localgovernment agencies, or geographicregions, or (c) any significant adverseeffects on competition, employment,investment, productivity, innovation, orthe ability of U.S.-based enterprises tocompete with foreign-based enterprises.Refer to the final economic analysis fora discussion of the effects of thisdetermination.

Unfunded Mandates Reform Act (2U.S.C. 1501 et seq.)

In accordance with the UnfundedMandates Reform Act (2 U.S.C. 1501 etseq.):

(a) This rule will not ‘‘significantly oruniquely’’ affect small governments. A



Small Government Agency Plan is notrequired. Small governments will onlybe affected to the extent that they mustensure that any programs involvingFederal funds, permits or otherauthorized activities will not adverselyaffect the critical habitat.

(b) This rule will not produce aFederal mandate of $100 million orgreater in any year, that is, it is not a‘‘significant regulatory action’’ underthe Unfunded Mandates Reform Act.The designation of critical habitatimposes no obligations on State or localgovernments.

Executive Order 13211On May 18, 2001, the President issued

Executive Order EO 13211 onregulations that significantly affectenergy supply, distribution, and use.Executive Order 13211 requires agenciesto prepare Statements of Energy Effectswhen undertaking certain actions.Although this is a significant regulatoryaction under Executive Order 12866,this final rule is not expected tosignificantly affect energy supplies,distribution, or use, therefore this actionis not a significant energy action and noStatement of Energy Effects is required.

TakingsIn accordance with Executive Order

12630 (‘‘Government Actions andInterference with ConstitutionallyProtected Private Property Rights’’), wehave analyzed the potential takingsimplications of designating criticalhabitat for the Oahu elepaio in a takingsimplication assessment. The takingsimplications assessment concludes thatthis final rule does not pose significanttakings implications.

FederalismIn accordance with Executive Order

13132, the rule does not have significantFederalism effects. A Federalismassessment is not required. As discussedabove, the designation of critical habitatin areas currently occupied by the Oahuelepaio would have little incrementalimpact on State and local governmentsand their activities. The designationsmay have some benefit to thesegovernments in that the areas essential

to the conservation of these species aremore clearly defined, and the primaryconstituent elements of the habitatnecessary to the survival of the speciesare identified. While this definition andidentification does not alter where andwhat federally sponsored activities mayoccur, it may assist these localgovernments in long-range planningrather than waiting for case-by-casesection 7 consultation to occur.

Civil Justice ReformIn accordance with Executive Order

12988, the Department of the Interior’sOffice of the Solicitor has determinedthat this rule does not unduly burdenthe judicial system and does meet therequirements of sections 3(a) and 3(b)(2)of the Order. We designate criticalhabitat in accordance with theprovisions of the Act. The proposed ruleuses standard property descriptions andidentifies the primary constituentelements within the designated areas toassist the public in understanding thehabitat needs of the Oahu elepaio.

Paperwork Reduction Act of 1995 (44U.S.C. 3501 et seq.)

This rule does not contain anyinformation collection requirements forwhich Office of Management andBudget approval under the PaperworkReduction Act is required.

National Environmental Policy ActWe have determined that an

Environmental Assessment or anEnvironmental Impact Statement asdefined by the National EnvironmentalPolicy Act of 1969 need not be preparedin connection with regulations adoptedpursuant to section 4(a) of theEndangered Species Act. A noticeoutlining our reason for thisdetermination was published in theFederal Register on October 25, 1983(48 FR 49244). This proposed rule doesnot constitute a major Federal actionsignificantly affecting the quality of thehuman environment.

Government-to-GovernmentRelationship With Tribes

In accordance with the President’smemorandum of April 29, 1994,

‘‘Government-to-Government RelationsWith Native American TribalGovernments’’ (59 FR 22951), ExecutiveOrder 13175, and the Department of theInterior’s manual at 512 DM 2, wereadily acknowledge our responsibilityto communicate meaningfully withfederally recognized Tribes on agovernment-to-government basis. Thedesignation of critical habitat for theOahu elepaio does not contain anyTribal lands or lands that we haveidentified as impacting Tribal trustresources.

References Cited

A complete list of all references citedin this proposed rule is available uponrequest from the Pacific Islands Fishand Wildlife Office (see ADDRESSESsection).

Author

The primary author of this documentis Eric A. VanderWerf, Pacific IslandsFish and Wildlife Office (see ADDRESSESsection).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, we amend part 17,subchapter B of chapter I, title 50 of theCode of Federal Regulations as set forthbelow:

PART 17—[AMENDED]

1. The authority citation for part 17continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11(h) revise the entry for‘‘Elepaio, Oahu’’ under ‘‘BIRDS’’ to readas follows:

§ 17.11 Endangered and threatenedwildlife.

* * * * *(h) * * *

Species

Historic range

Vertebratepopulation

where endan-gered or

threatened

Status When listed Critical habi-tat

Spe-cial

rulesCommon name Scientific name

* * * * * * *BIRDS



Species

Historic range

Vertebratepopulation

where endan-gered or

threatened

Status When listed Critical habi-tat

Spe-cial

rulesCommon name Scientific name

* * * * * * *Elepaio, Oahu ........ Chasiempis

sandwichensisibidis(Chasiempissandwichensisgayi).

U.S.A. (HI) ........................... Entire E 696 17.95(b) NA

* * * * * * *

3. Amend § 17.95(b) by adding criticalhabitat for the Oahu elepaio(Chasiempis sandwichensis ibidis) inthe same alphabetical order as thisspecies occurs in § 17.11(h), to read asfollows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *(b) Birds.

* * * * *Oahu elepaio (Chasiempis

sandwichensis ibidis)(1) Critical Habitat Units are depicted

for the City and County of Honolulu onthe maps below.

(2) (i) Within these areas, the primaryconstituent elements required by theOahu elepaio are those habitatcomponents that are essential for thebiological needs of foraging, sheltering,roosting, nesting, and rearing of young.These primary constituent elements areundeveloped wet, mesic, and dry foresthabitats with a generally continuouscanopy and a dense understory and thatare composed of native and/or

introduced plant species. Such forestsare found in valleys and on mountainslopes and ridges. The primaryconstituent elements associated with thebiological needs of dispersal and geneticexchange are undeveloped wet or dryshrub land and wet or dry cliff habitatscomposed of native and/or introducedplant species that separate elepaiopopulations. Elepaio may not establishterritories in shrub or cliff habitats andmay use them only transiently, butundeveloped areas containing thesehabitats are important for linkingpopulations by providing dispersalcorridors and promoting geneticexchange among populations.

(ii) Within the forests and shrub landsproviding the primary constituentelements, plant species compositionvaries with rainfall, elevation, anddegree of habitat disturbance, and plantspecies occur in a variety ofassemblages. Common native andintroduced species within these plantassemblages include, but are not limitedto, ohia (Metrosideros polymorpha), koa

(Acacia koa), papala kepau (Pisoniaumbellifera), lama (Diospyrossandwicensis), mamaki (Pipturusalbidus), kaulu (Sapindus oahuensis),hame (Antidesma platyphyllum), alaa(Pouteria sandwicensis), aalii(Dodonaea viscosa), naupaka kuahiwi(Scaevola spp.), pukiawe (Stypheliatameiameiae), uluhe (Dicranopterislinearis), guava (Psidium guajava),strawberry guava (P. cattleianum),mango (Mangifera indica), kukui(Aleurites moluccana), christmasberry(Schinus terebinthifolius), ti (Cordylineterminalis), rose apple (Syzygiumjambos), mountain apple (S.malaccense), and Java plum (S. cumini).

(3) Existing developed features andstructures, such as buildings, roads,aqueducts, antennas, water tanks,agricultural fields, paved areas, lawns,and other urban landscaped areas, thatdo not contain one or more of theprimary constituent elements, are notincluded as critical habitat.

(4) Map of critical habitat units for theOahu elepaio follows.



(5) Unit 1 (4,454 ha; 11,005 ac)(i) Unit 1 consists of 94 boundary

points with the following coordinates inUTM Zone 4 with the units in metersusing North American Datum of 1983(NAD83): 588465, 2375750; 587846,2376228; 587213, 2376416; 586946,2376176; 586675, 2376658; 586672,2377028; 586468, 2377154; 586672,2377219; 586430, 2377462; 586532,2377741; 586464, 2377863; 586261,2377727; 585895, 2377915; 585242,2377801; 584907, 2377864; 584433,2377671; 584139, 2377961; 583974,2378388; 584099, 2378414; 584016,2378599; 584207, 2378563; 583425,2379849; 583801, 2379814; 583831,2380171; 584075, 2380122; 584324,

2379841; 584526, 2380031; 584181,2381150; 584078, 2381295; 583938,2381385; 583738, 2381388; 583402,2381505; 583315, 2381668; 582998,2381518; 582785, 2381368; 582566,2381369; 582561, 2381485; 582694,2381702; 582685, 2381865; 582566,2382005; 582651, 2382112; 583122,2382432; 582768, 2382529; 582445,2382889; 581998, 2383075; 581881,2383019; 581546, 2383276; 581387,2383071; 581221, 2383069; 581023,2383019; 580811, 2382809; 580192,2382557; 580070, 2382662; 579894,2382772; 580060, 2383144; 580151,2383425; 580526, 2383690; 580750,2383802; 581314, 2383901; 581353,2383719; 587168, 2382252; 586876,

2381574; 587645, 2381564; 587539,2382159; 590187, 2381495; 590131,2381324; 590955, 2381123; 591864,2379621; 591408, 2379439; 591501,2379125; 591510, 2378867; 591393,2378631; 591229, 2378138; 591294,2377905; 590979, 2377773; 590984,2377387; 590770, 2377109; 590760,2377063; 590999, 2376896; 590945,2376772; 591176, 2376297; 591268,2376320; 591426, 2376305; 591624,2376158; 591620, 2375793; 591334,2375340; 590950, 2375570; 590580,2375400; 589956, 2375632; 589799,2375555; 589539, 2375014; 589285,2375190; 588919, 2375824; 588465,2375750.

(ii) Map of Unit 1 follows.



(6) Unit 2 ( 2,422 ha; 5,985 ac)(i) Unit 2 consists of 78 boundary

points with the following coordinates inUTM Zone 4 with the units in metersusing North American Datum of 1983(NAD83): 592645, 2367498; 591970,2368628; 592530, 2369066; 592575,2369415; 593190, 2369759; 593231,2369971; 592864, 2370362; 593156,2370385; 593368, 2370513; 593249,2370991; 592348, 2370899; 592469,2371381; 592374, 2371861; 592582,2372284; 592295, 2372774; 592100,2373836; 591816, 2374384; 592053,2374764; 592045, 2375115; 592504,2375529; 593245, 2375497; 594056,

2374659; 594299, 2374644; 594081,2374253; 593970, 2373860; 594207,2373793; 594437, 2374070; 594578,2374412; 594867, 2374406; 594965,2374331; 594978, 2374067; 595140,2374463; 595431, 2374602; 595604,2374352; 595772, 2374351; 595782,2374020; 596005, 2373471; 595754,2373256; 595960, 2372960; 595678,2372709; 595531, 2372434; 595485,2371908; 595272, 2371337; 595489,2370340; 595296, 2369703; 595561,2369694; 595565, 2369178; 595390,2368213; 595117, 2368245; 594830,2366778; 594015, 2366560; 593884,2366525; 593756, 2366491; 593635,

2366570; 593574, 2366695; 593629,2366713; 593594, 2366869; 593651,2366917; 593639, 2367019; 593682,2367104; 593591, 2367228; 593472,2367265; 593388, 2367176; 593425,2367112; 593379, 2367045; 593395,2367010; 593413, 2366861; 593391,2366809; 593307, 2366826; 593203,2366792; 593207, 2366684; 593121,2366632; 593137, 2366521; 593030,2366348; 592668, 2366451; 592945,2366998; 592852, 2367332; 592645,2367498.





points with the following coordinates inUTM Zone 4 with the units in metersusing North American Datum of 1983(NAD83): 615481, 2366443; 614313,2366190; 614232, 2366761; 613262,2366836; 612845, 2367394; 612829,2367639; 612488, 2368140; 611561,2368027; 611448, 2368566; 611117,2369088; 610523, 2369387; 610693,2369643; 610226, 2370083; 611040,2370565; 609681, 2371985; 609025,2371951; 609034, 2373100; 608391,2373401; 608469, 2373609; 608065,2373567; 607941, 2373859; 608199,2373978; 608109, 2374925; 607637,2375635; 607869, 2375817; 607456,2375780; 607136, 2375598; 607046,2375977; 607565, 2376766; 606428,2378568; 605381, 2378725; 606026,

2379972; 604900, 2380551; 605708,2381032; 607698, 2381439; 609468,2381214; 610319, 2381573; 611728,2381425; 611797, 2380904; 612201,2380506; 613364, 2381362; 615459,2380980; 616152, 2380161; 616780,2378903; 616513, 2378013; 616873,2376632; 616699, 2375737; 617180,2375933; 617356, 2375158; 617664,2375259; 617994, 2375029; 617757,2373739; 618311, 2372859; 618082,2372506; 618563, 2371385; 617894,2370668; 618022, 2370181; 618247,2370148; 618043, 2370014; 619043,2369685; 618878, 2369509; 619381,2369376; 619182, 2369040; 619525,2368805; 619611, 2368922; 619747,2368829; 619588, 2368664; 619928,2368585; 619650, 2368496; 619614,2368284; 620097, 2368401; 619967,

2368174; 620164, 2368022; 620005,2367870; 620257, 2367795; 619954,2367590; 620341, 2367572; 620055,2367214; 621150, 2366779; 621549,2366388; 621302, 2366064; 621511,2365913; 621381, 2365424; 621553,2365265; 621489, 2364827; 620880,2364530; 620469, 2364040; 619115,2363338; 617176, 2363590; 616868,2363761; 616638, 2364642; 615913,2365439; 615777, 2365575; 615420,2365753; 615767, 2365918; 615684,2366361; 616156, 2366495; 616990,2367187; 617469, 2367398; 618312,2367466; 619282, 2367250; 619336,2367460; 618293, 2367672; 617426,2367594; 616876, 2367352; 616189,2366748; 615713, 2366555; 615481,2366443.




(8) Unit 4 (804 ha; 1,987 ac)(i) Unit 4 consists of 35 boundary

points with the following coordinates inUTM Zone 4 with the units in metersusing North American Datum of 1983(NAD83): 619449, 2361897; 619967,2362184; 619999, 2362473; 620286,2362404; 620537, 2362773; 621409,

2363520; 621660, 2363584; 622719,2364191; 622901, 2364348; 623091,2364242; 623209, 2363699; 623046,2363507; 623201, 2363403; 623106,2363264; 623391, 2363271; 623404,2363073; 623634, 2363216; 623976,2362864; 623238, 2362105; 621688,2361633; 621467, 2361418; 621345,

2361518; 620954, 2360860; 620598,2360514; 620700, 2360831; 620572,2360908; 619869, 2360908; 619670,2360852; 619064, 2360661; 618935,2360886; 619170, 2361072; 619199,2361402; 619163, 2361470; 618977,2361595; 619449, 2361897.





points with the following coordinates inUTM Zone 4 with the units in metersusing North American Datum of 1983(NAD83): 626915, 2356759; 626560,2357502; 626675, 2357669; 626333,2357906; 626359, 2358234; 626110,2358313; 626031, 2357725; 625623,2357254; 625538, 2357354; 625351,2357186; 625091, 2357420; 625118,2357617; 625085, 2358039; 624568,2358236; 624821, 2358624; 624612,2358850; 625059, 2359019; 625083,2359182; 624571, 2359489; 624430,2359798; 624013, 2359828; 623768,

2359261; 623004, 2359366; 622941,2359584; 622499, 2359435; 621968,2359088; 621864, 2359256; 621335,2359722; 622127, 2360488; 621920,2360603; 623746, 2361359; 625281,2363179; 625896, 2363475; 626109,2363219; 626146, 2363135; 626234,2362910; 626392, 2362857; 626871,2362399; 626986, 2361859; 627500,2361686; 626946, 2361095; 627268,2360638; 627548, 2360727; 627690,2360077; 628361, 2360895; 628839,2360922; 629079, 2360676; 629519,2360722; 629341, 2360070; 630776,2359069; 631754, 2358982; 632440,2358108; 632959, 2357815; 633019,

2357425; 632769, 2356517; 632191,2356385; 630620, 2355286; 630491,2355266; 630104, 2355644; 630041,2355624; 629732, 2355117; 629510,2355214; 629279, 2356032; 629033,2356130; 628836, 2356015; 628378,2356236; 628317, 2355841; 628209,2355703; 627673, 2354542; 627125,2354591; 627125, 2355143; 627381,2355990; 627200, 2356033; 626832,2355846; 626399, 2355498; 626215,2355823; 626806, 2356493; 626915,2356759.




Dated: November 20, 2001.Joseph E. Doddridge,Acting Assistant Secretary for Fish andWildlife and Parks.[FR Doc. 01–29475 Filed 12–7–01; 8:45 am]BILLING CODE 4310–55–P


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