42362 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket Number FWS–R1–ES–2013–0028; 

4500030113] 

RIN 1018–AZ38 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Three Plant Species on 

Hawaii Island 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for Bidens micrantha 

ssp. ctenophylla (kookoolau), 

Isodendrion pyrifolium (wahine noho 

kula), and Mezoneuron kavaiense 

(uhiuhi) respectively, under the 

Endangered Species Act (Act). In total, 

approximately 11,640 acres (ac) (4,711 

hectares (ha)) in North Kona and South 

Kohala on Hawaii Island fall within the 

boundaries of the critical habitat 

designation. Approximately 72 percent 

of this area is already designated as 

critical habitat for 42 plants and the 

Blackburn’s sphinx moth (Manduca 

blackburni). We are excluding, under 

section 4(b)(2) of the Act, approximately 

7,027 ac (2,844 ha) of land on the island 

of Hawaii that meet the definition of 

critical habitat from this final critical 

habitat designation. 

DATES: This rule is effective on 

September 20, 2018. 

ADDRESSES: This final rule, the final 

economic analysis, and some supporting 

documentation used in preparing this 

final rule are available on the internet at 

http://www.regulations.gov. All of the 

comments, materials, and 

documentation that we considered in 

this rulemaking are available, by 

appointment, during normal business 

hours, at U.S. Fish and Wildlife Service, 

Pacific Islands Fish and Wildlife Office, 

300 Ala Moana Boulevard, Box 50088, 

Honolulu, HI 96850; telephone 808– 

792–9400; or facsimile 808–792–9581. 

The coordinates or plot points or both 

from which the maps are generated are 

included in the administrative record 

for this critical habitat designation and 

are available at http://www.fws.gov/ 

pacificislands, at http://

www.regulations.gov under Docket No. 

FWS–R1–ES–2013–0028, and at the 

Pacific Islands Fish and Wildlife Office 

(address above). 

FOR FURTHER INFORMATION CONTACT: 

Mary Abrams, Field Supervisor, U.S. 

Fish and Wildlife Service, Pacific 

Islands Fish and Wildlife Office, 300 

Ala Moana Boulevard, Room 3–122, 

Honolulu, HI 96850; by telephone at 

808–792–9400; or by facsimile at 808– 

792–9581. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Relay Service at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. This 

is a final rule to designate critical 

habitat for the following endangered 

plants: Bidens micrantha ssp. 

ctenophylla (listed in 2013), 

Isodendrion pyrifolium (listed in 1994), 

and Mezoneuron kavaiense (listed in 

1986). These three plants occur in the 

same ecosystem and have not had 

designated critical habitat on Hawaii 

Island. Under the Act, species that are 

determined to be endangered or 

threatened species generally require 

critical habitat to be designated, to the 

maximum extent prudent and 

determinable. Designations of critical 

habitat can only be completed by 

issuing a rule. 

Section 4(b)(2) of the Act states that 

the Secretary shall designate critical 

habitat on the basis of the best available 

scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

critical habitat areas we are designating 

in this rule constitute our current best 

assessment of the areas that meet the 

definition of critical habitat for the 

plants Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. Here we are 

designating approximately 11,640 acres 

(ac) (4,711 hectares (ha)) in five multispecies critical habitat units for these 

species. The five units are in North 

Kona and South Kohala on Hawaii 

Island, on lands owned by the National 

Park Service, State of Hawaii, and 

private entities. Approximately 72 

percent, or 8,443 ac (3,417 ha), of the 

area designated as critical habitat 

overlaps with areas already designated 

as critical habitat for listed plant and 

animal species. Therefore, 27 percent, or 

3,197 ac (1,294 ha), of the area is new 

critical habitat. 

We have prepared an economic 

analysis of the designation of critical 

habitat. In order to consider economic 

impacts, we prepared an analysis of the 

economic impacts of the critical habitat 

designations and related factors. The 

draft economic analysis (DEA) 

addressed possible economic impacts of 

critical habitat designation for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense, 

and was made available for public 

review during three comment periods. 

Following the close of the comment 

periods, we reviewed and evaluated all 

information submitted during the 

comment periods, including 

information that pertains to our 

consideration of the possible 

incremental economic impacts of this 

critical habitat designation. We have 

incorporated the comments as 

appropriate and have completed the 

final economic analysis (FEA). 

Peer review and public comment. We 

sought comments from independent 

specialists to ensure that our 

designation is based on scientifically 

sound data and analyses. We obtained 

opinions from two knowledgeable 

individuals with scientific expertise to 

review our technical assumptions and 

analysis, and whether or not we had 

used the best available scientific 

information. These peer reviewers 

generally concurred with our methods 

and conclusions, and they provided 

additional information, clarifications, 

and suggestions to improve this final 

rule. Information we received from peer 

review is incorporated into this final 

designation. We also considered all 

comments and information received 

from the public during the comment 

periods. 

Previous Federal Actions 

We listed Mezoneuron kavaiense as 

an endangered species on July 8, 1986 

(51 FR 24672) and Isodendrion 

pyrifolium as an endangered species on 

March 4, 1994 (59 FR 10305). On 

October 17, 2012, we published in the 

Federal Register a proposed rule to list 

15 species, including Bidens micrantha 

ssp. ctenophylla, as endangered, and to 

designate critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on Hawaii Island (77 FR 63928). On 

October, 29, 2013, we listed Bidens 

micrantha ssp. ctenophylla as an 

endangered species (78 FR 64638). 

We accepted public comments on our 

October 17, 2012, proposed rule to 

designate critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on Hawaii Island (77 FR 63928) for 60 

days, ending December 17, 2012. In 

addition, we published a public notice 

of the proposed rule on October 20, 

2012, in the local Honolulu Star 

Advertiser, Hawaii Tribune Herald, and 

West Hawaii Today newspapers, at the 

beginning of that comment period. On 

April 30, 2013, we announced the 

availability of the DEA on the proposed 


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designation of critical habitat, and 

reopened the comment period on our 

proposed rule, the DEA, and amended 

required determinations for another 30 

days, ending May 30, 2013 (78 FR 

25243). On April 30, 2013, we also 

announced a public information 

meeting in Kailua-Kona, Hawaii, which 

we held on May 15, 2013, followed by 

a public hearing on that same day (78 

FR 25243). On July 2, 2013, we 

announced the reopening of the 

comment period on the proposed 

designation of critical habitat and the 

DEA for an additional 60 days, ending 

September 3, 2013 (78 FR 39698). In 

that July 2, 2013, document, we also 

announced a public information 

meeting in Kailua-Kona, Hawaii, which 

we held on August 7, 2013. On May 20, 

2016, we announced an additional 

reopening of the comment period on the 

proposed critical habitat designation, 

including the economic impacts of the 

designation, ending June 6, 2016 (81 FR 

31900). 

Background 

Hawaii Island Species Addressed in 

This Final Rule 

The table below (Table 1) provides the 

scientific name, common name, listing 

status, and critical habitat status for the 

plant species that are the subjects of this 

final rule. 

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

Scientific name Common name Listing status Critical habitat status 

Bidens micrantha ssp. ctenophylla ... kookoolau ......................................... Listed as an endangered species, 

2013.

Designated in this rule. 

Isodendrion pyrifolium ....................... wahine noho kula ............................. Listed as an endangered species, 

1994.

Designated in this rule. 

Mezoneuron kavaiense ..................... uhiuhi ................................................ Listed as an endangered species, 

1986.

Designated in this rule. 

Critical Habitat Unit Map Corrections 

We designated critical habitat for 

Cyanea shipmanii, Phyllostegia 

racemosa, Phyllostegia velutina, and 

Plantago hawaiensis in 2003 (68 FR 

39624; July 2, 2003). In this final rule, 

we correct the critical habitat unit maps 

published at 50 CFR 17.99(k)(1) for 

these four species to accurately reflect 

their designated critical habitat units. 

We amend 50 CFR 17.99(k)(1) by 

removing four maps (Map 97, Unit 30— 

Cyanea stictophylla—d; Map 100, Unit 

30—Phyllostegia hawaiiensis—c; Map 

101, Unit 30—Phyllostegia racemosa— 

c; and Map 102, Unit 30—Phyllostegia 

velutina—b) that are either a duplicate 

of another unit map or labeled with the 

incorrect species name. We replace 

these four maps, using the same map 

numbers, with correctly labeled maps 

that accurately represent the geographic 

location of each species’ critical habitat 

unit. We also remove the textual 

descriptions of critical habitat 

boundaries from the entries with 

corrected maps, in accordance with our 

rule published on October 27, 2017 (82 

FR 49751). 

Determining Primary Constituent 

Elements of Critical Habitat 

Under section 4(a)(3)(A) of the Act (16 

U.S.C. 1531 et seq.), we are required to 

designate critical habitat to the 

maximum extent prudent and 

determinable concurrently with the 

publication of a final determination that 

a species is an endangered or threatened 

species. In this final rule, we are 

designating critical habitat for the plant 

Bidens micrantha ssp. ctenophylla, 

which was listed as an endangered 

species on October 29, 2013 (78 FR 

64638); Isodendrion pyrifolium, which 

was listed as an endangered species on 

March 4, 1994 (59 FR 10305); and 

Mezoneuron kavaiense, which was 

listed as an endangered species on July 

8, 1986 (51 FR 24672). These three 

species share occupied and unoccupied 

critical habitat on Hawaii Island. 

On February 11, 2016, we published 

a final rule in the Federal Register (81 

FR 7414) to amend our regulations 

concerning the procedures and criteria 

we use to designate and revise critical 

habitat, including the identification of 

primary constituent elements (PCEs). 

That rule became effective on March 14, 

2016, but, as stated in that rule, the 

amendments it sets forth apply to ‘‘rules 

for which a proposed rule was 

published after March 14, 2016.’’ We 

published our proposed critical habitat 

designation for the three plant species 

on October 17, 2012 (77 FR 63928); 

therefore, the amendments set forth in 

the February 11, 2016, final rule (81 FR 

7414) do not apply to this final 

designation of critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

In this final rule, we designate critical 

habitat for three species in five 

multiple-species critical habitat units. 

Although critical habitat is identified for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense individually, we 

have found that the conservation of each 

depends on the successful functioning 

of certain physical or biological features 

shared by all three of these species in 

the lowland dry ecosystem. Each critical 

habitat unit identified in this rule 

contains the physical or biological 

features essential to the conservation of 

those individual species that occupied 

that particular unit at the time of listing, 

or in the case of areas that were not 

occupied at the time of listing, contains 

areas essential for the conservation of 

those species identified. These 

unoccupied areas are essential for the 

conservation of that species because the 

designation allows for the expansion of 

the species’ range and reintroduction of 

individuals into areas where the species 

occurred historically, and provides area 

for recovery in the case of stochastic 

events that otherwise hold the potential 

to eliminate the species from the one or 

more locations where it is presently 

found. Under current conditions, some 

of these species are so rare in the wild 

that they are at high risk of extirpation 

or even extinction from various 

stochastic events, such as hurricanes or 

landslides. Therefore, building up 

resilience and redundancy in these 

species through the establishment of 

multiple robust populations is a key 

component of recovery. 

Each of the areas designated 

represents critical habitat for more than 

one species, based upon shared habitat 

requirements (i.e., physical or biological 

features) essential for their conservation. 

The identification of critical habitat also 

takes into account any species-specific 

conservation needs as appropriate. 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense co-occur in the 

same lowland dry ecosystem on the 

island of Hawaii. These three plant 

species share many of the same physical 

or biological features (e.g., elevation, 

annual rainfall, substrate, and 

associated native plant genera), as well 

as the same threats from development, 


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fire, and nonnative ungulates and 

plants. 

Please refer to the proposed rule (77 

FR 63928; October 17, 2012) or our 

supporting document ‘‘Supplemental 

Information for the Designation and 

Non-designation of Critical Habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense’’ available at 

http://www.regulations.gov (see 

ADDRESSES), for a description of the 

island of Hawaii and associated map, 

and for a description of the lowland dry 

ecosystem that is designated as critical 

habitat for the three species addressed 

in this final rule. 

Current Status of the Three Species 

In order to avoid confusion regarding 

the number of locations of each species 

(a location does not necessarily 

represent a viable population), we use 

the word ‘‘occurrence’’ instead of 

‘‘population.’’ Each occurrence is 

composed only of wild (i.e., not 

propagated and outplanted) individuals. 

We have updated information on the 

status of the three species that was 

presented in the proposed rule (77 FR 

63928; October 17, 2012), and provide 

the updated status below. 

Bidens micrantha ssp. ctenophylla 

(kookoolau), a perennial herb in the 

sunflower family (Asteraceae), occurs 

only on the island of Hawaii (Ganders 

and Nagata 1999, pp. 271, 273). 

Historically, Bidens micrantha ssp. 

ctenophylla was known from the north 

Kona district in the lowland dry 

ecosystem (HBMP 2010a). Currently, 

this subspecies is restricted to an area of 

less than 10 square miles (mi2) (26 

square kilometers (km2)) on the leeward 

slopes of Hualalai volcano, in the 

lowland dry ecosystem in five 

occurrences totaling fewer than 1,000 

individuals. The largest occurrence is 

found in Kaloko and Honokohau, with 

over 475 individuals widely dispersed 

throughout the area (David 2005, pp. 8– 

10; Palmer 2005a, pp. 3–4; Palmer 

2005b, pp. 4–5; Zimpfer 2011, in litt.). 

The occurrence at Kealakehe was 

reported to have been abundant and 

common in 1992, but by 2010 had 

declined to low numbers (Whistler 

2007, pp. 1–18; Bio 2008, in litt.; HBMP 

2010a; Whistler 2008, pp. 1–11). 

Currently, there are approximately 13 

individuals scattered amongst several 

locations in the Kealakehe area (HFIA 

2013, in litt.; Guinther et al. 2013). In 

addition, there are three individuals in 

Kaloko-Honokohau National Historical 

Park (NHP) (Beavers 2010, in litt.), and 

two occurrences are found to the 

northeast: an unknown number of 

individuals at Puu Waawaa, and a few 

scattered individuals at Kaupulehu 

(HBMP 2010a; Giffin 2011, pers. 

comm.). Bidens micrantha ssp. 

ctenophylla is under propagation for 

outplanting at the Future Forest Nursery 

(Hawaii). Seed banking of this 

subspecies is occurring at the Harold L. 

Lyon Arboretum Seed Conservation 

Laboratory (Oahu), and the Hawaii 

Island Seed Bank at the Hawaii Forest 

Institute (Hawaii). Bidens micrantha 

ssp. ctenophylla has been outplanted 

within fenced exclosures at KalokoHonokohau NHP (49 individuals), Koaia 

Tree Sanctuary (1 individual), Puu 

Waawaa (5 individuals), Kealakehe (124 

individuals), and at several locations as 

a result of the Federal Highway 

Administration’s (FHWA) conservation 

measures (over 600 individuals) (Boston 

2008, in litt.; HBMP 2010a; Wagner 

2013a, in litt., Wagner 2014a, in litt.; 

Wagner 2015, in litt.). 

Isodendrion pyrifolium (wahine noho 

kula), a perennial shrub in the violet 

family (Violaceae), is known from 

Niihau, Oahu, Molokai, Lanai, Maui, 

and Hawaii (Wagner et al. 1999a, p. 

1,331). Isodendrion pyrifolium was 

thought to be extinct since 1870, but 

was rediscovered in 1991, at Kealakehe, 

near Kailua on the island of Hawaii. In 

2003, Isodendrion pyrifolium was only 

known from a single occurrence of 

approximately nine individuals at 

Kealakehe on the island of Hawaii (68 

FR 39624, July 2, 2003). Currently, there 

are no extant occurrences on Oahu, 

Lanai, Molokai, or Maui. Surveys have 

documented the decline of the total 

number of individuals at Kealakehe 

(from nine individuals in 2003, to four 

individuals in 2006, to three individuals 

in 2007, to two individuals in 2012) 

(David 2007, pers. comm. in USFWS 

2008, in litt.; Wagner 2011b, in litt.) 

within two small, managed preserves 

situated in an urban setting. The larger 

26 ac (11 ha) preserve is bordered by a 

high school, residential development, 

and construction of the Kealakehe 

portion of Ane Keohokalole Highway. 

Recent surveys have documented the 

mortality of the two mature, 

reproducing individuals, leaving only 

several immature individuals in one of 

the preserves (Wagner 2014b, in litt.; 

Wagner 2016, in litt.). Three individuals 

are represented in off-site seed storage 

collections (PEPP 2011, p. 32). 

Isodendrion pyrifolium is under 

propagation for outplanting at the 

Volcano Rare Plant Facility (Hawaii) 

and at the Future Forests Nursery 

(Hawaii) (VRPF 2010, in litt.; VRPF 

2011, in litt; Wagner 2011b, in litt.). 

Seed banking for this species is 

occurring at the Volcano Rare Plant 

Facility (Hawaii), the Lyon Arboretum’s 

Seed Conservation Lab (Oahu), and the 

National Tropical Botanical Garden 

(Kauai). Thirteen Isodendrion 

pyrifolium plants have been outplanted 

at the Kaloko-Honokohau NHP, 20 

plants were outplanted in Puu Waawaa 

and Kaupulehu, and another 15 plants 

in the Kaloko area (Wagner 2011c, in 

litt.; Wagner 2013a, in litt.; Wagner 

2013b, in litt.). Critical habitat has been 

designated for this species on Oahu (77 

FR 57648; September 18, 2012), and on 

the islands of Maui and Molokai (81 FR 

17790; March 30, 2016). 

Mezoneuron kavaiense (uhiuhi), a 

medium-sized tree in the pea family 

(Fabaceae), was known historically from 

Kauai, Oahu, Lanai, Maui, and Hawaii 

(Geesink et al. 1999, pp. 647–648). At 

the time of listing in 1986, a single large 

occurrence of approximately 30 

individuals at Puu Waawaa contained 

the majority of individuals of this 

species on Hawaii Island (51 FR 24672, 

July 8, 1986; HBMP 2010c). In 1992, a 

second occurrence of 21 individuals 

was discovered at Kealakehe (USFWS 

1994, p. 14; HBMP 2010c). In 1993, fire 

within a kipuka (an area of older land 

within the younger Kaupulehu lava 

flow) destroyed 80 percent of the 

individuals known from Puu Waawaa. 

Surveys in 2006 reported the number of 

individuals at Puu Waawaa to be 

approximately 50 to 100 individuals 

(HBMP 2010c). In addition, new 

information recently documented 13 

individuals near Waikoloa Village 

(Faucette 2010, p. 3). A total of 520 

individuals have been reintroduced at 

several sites in the North Kona and 

Waikoloa regions (USFWS 2015a, in 

litt.). Currently, Mezoneuron kavaiense 

is found in 6 occurrences totaling 72 

mature and 22 immature wild 

individuals in the lowland dry 

ecosystem of Hawaii Island (USFWS 

2015a, in litt.). Due to its rarity on Kauai 

and Oahu, remaining populations and 

individuals on those islands are 

regularly monitored by staff at the Plant 

Extinction Prevention Program of 

Hawaii. Mezoneuron kavaiense is under 

propagation for outplanting at the 

Volcano Rare Plant Facility (Hawaii), 

the Olinda Rare Plant Facility (Maui), 

the Pahole Rare Plant Facility (Oahu), 

the Waimea Valley (Oahu), and the 

National Tropical Botanical Garden 

(Kauai). Seed banking for this species is 

occurring at the Volcano Rare Plant 

Facility (Hawaii), the Maui Nui 

Botanical Garden (Maui), Lyon 

Arboretum Seed Conservation 

Laboratory (Oahu), and the National 

Tropical Botanical Garden (Kauai). Seed 

collections contain representation of 


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genetic material from all islands across 

the species’ distribution. 

Due to the small population sizes, few 

numbers of individuals, and reduced 

geographic range of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense, 

we have determined that a recovery 

focus limited to the areas known to be 

occupied at the time of listing would be 

inadequate to achieve the conservation 

of these species. Some areas believed to 

be unoccupied, and that may have been 

unoccupied at the time of listing, have 

been determined to be essential for the 

conservation and recovery of the 

species; these areas provide the habitat 

necessary for the expansion of existing 

wild populations and reestablishment of 

wild populations within the historical 

range of the species. Conservation of 

suitable habitat in both occupied and 

unoccupied areas, either through critical 

habitat or conservation partnerships 

with landowners, is essential to 

facilitate the establishment of additional 

populations through natural recruitment 

or managed reintroductions. The 

recovery plans for these species note 

that augmentation and reintroduction of 

populations are necessary for the 

species’ conservation (as described 

below in ‘‘Recovery Needs’’). Population 

augmentation will increase the 

likelihood that the species will survive 

and recover in the face of normal and 

stochastic events (e.g., hurricanes, fire, 

and nonnative species introductions) 

(Mangel and Tier 1994, p. 612; Pimm et 

al. 1998, p. 777; Stacey and Taper 1992, 

p. 27). Furthermore, because so many 

important habitat areas for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

occur on lands managed by non-Federal 

entities, collaborative relationships are 

essential for their recovery, and, in some 

cases, partnerships with landowners are 

sufficient to conserve areas occupied by 

the species. 

The conservation of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

is dependent upon the protection of 

existing population sites and the 

protection of suitable unoccupied 

habitat within the species’ historical 

range, either through critical habitat or 

conservation partnerships; protection of 

these areas will provide for the requisite 

resiliency, redundancy, and 

representation of populations through 

restoration and reintroductions. 

Population resiliency is the population 

size, growth rate, and connectivity 

indicative of the ability to withstand 

stochastic disturbances. Redundancy 

refers to the spreading of risk among 

multiple populations over a large 

geographic area, and the ability to 

withstand catastrophic events. 

Representation is genetic and 

environmental diversity, and the ability 

to adapt to changing conditions over 

time. Sufficient resiliency, redundancy, 

and representation will ensure longterm viability and bring Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

to the point at which the protections of 

the Act are no longer necessary (that is, 

when delisting is appropriate). 

Summary of Changes From Proposed 

Rule 

We are designating a total of 11,640 ac 

(4,711 ha) of critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on the island of Hawaii. We received a 

number of site-specific comments 

related to critical habitat for the species, 

completed our analysis of areas 

considered for exclusion under section 

4(b)(2) of the Act or for exemption 

under section 4(a)(3) of the Act, 

reviewed the application of our criteria 

for identifying critical habitat across the 

range of these species to refine our 

designations, and completed the FEA of 

the designation as proposed. We fully 

considered all comments from the 

public and peer reviewers on the 

proposed rule and the associated 

economic analysis to develop this final 

designation of critical habitat for these 

three species. This final rule 

incorporates changes to our proposed 

critical habitat based on the comments 

that we received and have responded to 

in this document, and considers 

conservation agreements, conservation 

partnerships, and other efforts to 

conserve Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. 

Our final designation of critical 

habitat reflects the following changes 

from the proposed rule: 

(1) We updated the ownership of two 

parcels in Hawaii—Lowland Dry—Unit 

35, TMK (3) 7–4–020:005 (21.7 ac (8.8 

ha)) and TMK (3) 7–4–030:006 (24.8 ac 

(9.6 ha)) totaling 46.5 ac (18.4 ha), 

which we had indicated were under 

State of Hawaii ownership in the 

proposed rule to ownership by the 

Department of Hawaiian Home Lands 

(DHHL) in this final rule. 

(2) In response to comments, we 

provided additional detail from the 

Service’s existing recovery plans for 

Isodendrion pyrifolium and Mezoneuron 

kavaiense, and discussed how the 

recovery goals and objectives for these 

two plants relate to the recovery of 

Bidens micrantha ssp. ctenophylla, in 

order to further explain the designation 

of critical habitat in unoccupied areas 

and the inclusion of areas for the 

expansion of existing populations. 

(3) In response to comments, we 

clarified that utility facilities and 

infrastructure, and their designated, 

maintained rights-of-way, are existing 

manmade features and structures that 

are not included in the critical habitat 

designation. 

(4) Based on public comments and 

information received regarding Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

in Hawaii, we determined that 

approximately 100 ac (40 ha) of 

unoccupied proposed critical habitat do 

not meet the definition of critical 

habitat; therefore, we removed these 

areas from this final designation. These 

areas that do not meet the definition of 

critical habitat include: 34.5 ac (14 ha) 

in Hawaii—Lowland Dry—Unit 31, 20.8 

ac (8 ha) in Hawaii—Lowland Dry— 

Unit 32, 17.1 ac (7 ha) in Hawaii— 

Lowland Dry—Unit 34, and 28.7 ac (12 

ha) in Hawaii—Lowland Dry—Unit 35. 

(5) For the areas that meet the 

definition of critical habitat, we 

carefully considered the benefits of 

inclusion and the benefits of exclusion 

in proposed critical habitat under 

section 4(b)(2) of the Act, particularly in 

areas where conservation agreements 

and management plans specific to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense are in place, and 

where the maintenance and fostering of 

important conservation partnerships 

were a consideration. Based on the 

results of our analysis, we are excluding 

approximately 7,027 ac (2,844 ha) from 

our final critical habitat designation for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense (see Exclusions 

discussions, below). Two entire units of 

proposed critical habitat are excluded: 

Hawaii—Lowland Dry—Unit 32 (1,758 

ac (711 ha)), and Hawaii—Lowland 

Dry—Unit 35 (1,164 ac (471 ha)). We 

excluded portions of the proposed 

designation in three other units, 

including the following: 2,834 ac (1,147 

ha) of Hawaii—Lowland Dry—Unit 31, 

593 ac (240 ha) of Hawaii—Lowland 

Dry—Unit 33, and 678 ac (274 ha) of 

Hawaii—Lowland Dry—Unit 34. The 

total area excluded represents 

approximately 37 percent of the area 

proposed as critical habitat for the three 

species. Exclusion from critical habitat 

should not be interpreted as a 

determination that these areas are 

unimportant, that they do not provide 

physical or biological features essential 

to the conservation of the species (for 

occupied areas), or are not otherwise 


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essential for conservation (for 

unoccupied areas); exclusion merely 

reflects the Secretary’s determination 

that the benefits of excluding those 

particular areas outweigh the benefits of 

including them in the designation. 

Due to these changes in our final 

critical habitat designation, we updated 

unit descriptions and critical habitat 

maps, all of which can be found later in 

this document. This final designation of 

critical habitat represents a reduction of 

7,126 ac (2,886 ha) from our proposed 

critical habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense, 

for the reasons detailed above. 

Additional minor differences between 

proposed and final critical habitat for 

these species on the order of roughly 3 

ac (1 ha) beyond those detailed above 

are due to minor boundary adjustments 

and simple rounding error. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) of the Act would apply, but even 

in the event of a destruction or adverse 

modification finding, the obligation of 

the Federal action agency and the 

landowner is not to restore or recover 

the species, but to implement 

reasonable and prudent alternatives to 

avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features within an 

area, we focus on the primary biological 

or physical constituent elements (PCEs 

such as roost sites, nesting grounds, 

seasonal wetlands, water quality, tide, 

soil type) that are essential to the 

conservation of the species. Primary 

constituent elements are those specific 

elements of the physical or biological 

features that provide for a species’ lifehistory processes and are essential to 

the conservation of the species. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. For example, an area currently 

occupied by the species but that was not 

occupied at the time of listing may be 

essential to the conservation of the 

species and may be included in the 

critical habitat designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species, the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, other unpublished 

materials, or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act, (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to insure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species, and (3) section 9 

of the Act’s prohibitions related to listed 

plants. Federally funded or permitted 

projects affecting listed species outside 


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their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of these species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

HCPs, or other species conservation 

planning efforts if new information 

available at the time of these planning 

efforts calls for a different outcome. 

On February 11, 2016, we published 

a final rule in the Federal Register (81 

FR 7414) to amend our regulations 

concerning the procedures and criteria 

we use to designate and revise critical 

habitat. That rule became effective on 

March 14, 2016, but, as stated in that 

rule, the amendments it sets forth to 50 

CFR 424.12 apply to ‘‘rules for which a 

proposed rule was published after 

March 14, 2016.’’ We published our 

proposed critical habitat designation for 

the three plant species on October 17, 

2012 (77 FR 63928); therefore, the 

amendments to 50 CFR 424.12 

contained in the February 11, 2016, 

final rule at 81 FR 7414 do not apply to 

this final designation of critical habitat 

for the three plant species. 

Recovery Needs 

The lack of detailed scientific data on 

the life histories of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

precludes development of a robust 

quantitative model (e.g., population 

viability analysis (Morris et al. 2002, p. 

708)) to identify the optimal number, 

size, and location of critical habitat 

units needed to achieve recovery. Based 

on the best information available at this 

time, we have concluded that the 

current size and distribution of the 

extant populations are not sufficient to 

expect a reasonable probability of longterm survival and recovery of these 

plant species. 

For two of the three plant species, the 

recovery needs, outlined in the 

approved recovery plans, include: (1) 

Stabilization of existing wild 

populations; (2) protection and 

management of habitat; (3) enhancement 

of existing small populations and 

reestablishment of new populations 

within historical range; and (4) research 

on species biology and ecology 

(Recovery Plan for Caesalpinia 

kavaiensis (now Mezoneuron kavaiense) 

and Kokia drynarioides, June 1994; 

Recovery Plan for the Big Island Plant 

Cluster, September 1996). Although a 

recovery plan has not yet been 

developed for Bidens micrantha ssp. 

ctenophylla, which we listed as 

endangered in 2013 (78 FR 64638; 

October 29, 2013), we believe it is 

reasonable to apply the same approach 

to this species because it has a similar 

life history, occurs in the same habitat, 

and faces the same threats as the two 

other plant species with approved 

recovery plans that are addressed in this 

final rule. 

The overall recovery goal stated in the 

recovery plans for Isodendrion 

pyrifolium and Mezoneuron kavaiense, 

and applied to Bidens micrantha ssp. 

ctenophylla, includes the establishment 

of 8 to 10 populations with a minimum 

of 100 mature, reproducing individuals 

per population for long-lived 

perennials; 300 mature, reproducing 

individuals per population for shortlived perennials; and 500 mature, 

reproducing individuals per population 

for annuals. These are the minimum 

population targets set for considering 

delisting of the species, which we 

consider the equivalent of achieving the 

conservation of the species as defined in 

section 3 of the Act (hereafter we refer 

to these delisting objectives as defined 

in recovery plans or by the Hawaii and 

Pacific Plants Recovery Coordinating 

Committee (HPPRCC 1998) as simply 

‘‘recovery objectives’’). To be considered 

recovered, the populations of multiisland species should be distributed 

among the islands of its known 

historical range (Recovery Plan for 

Caesalpinia kavaiensis (now 

Mezoneuron kavaiense) and Kokia 

drynarioides, June 1994; Recovery Plan 

for the Big Island Plant Cluster, 

September 1996; HPPRCC 1998). A 

population, for the purposes of this 

discussion and as defined in the 

recovery plans for these species, is a 

unit in which the individuals could be 

regularly cross-pollinated and 

influenced by the same small-scale 

events (such as landslides), and which 

contains a minimum of 100, 300, or 500 

mature, reproducing individuals, 

depending on whether the species is a 

long-lived perennial, short-lived 

perennial, or annual. For all plant 

species, propagated and outplanted 

individuals are generally not initially 

counted toward recovery, as 

populations must demonstrate 

recruitment (the ability to reproduce 

and generate multiple generations) and 

viability over an extended period of 

time to be considered self-sustaining. 

Bidens micrantha ssp. ctenophylla, a 

short-lived perennial herb, is known 

only from the leeward slopes of Hualalai 

volcano on Hawaii Island. Historically, 

this subspecies was known only from 

the North Kona district in the lowland 

dry ecosystem. Currently, this 

subspecies is restricted to an area of less 

than 10 square miles (mi2) (26 square 

kilometers (km2)), in five occurrences 

totaling fewer than 1,000 individuals in 

the lowland dry ecosystem. One 

occurrence at Kaloko is considered 

reproducing, defined as offspring that 

reach reproductive maturity (produce 

viable fruit and seeds). The following 

recovery objectives apply to B. 

micrantha ssp. ctenophylla as a shortlived plant: 

• For interim stabilization, 3 

populations reproducing and increasing 

in numbers, with at least 50 mature 

individuals; 

• For downlisting (that is, 

reclassifying from an endangered 

species to a threatened species), 5 to 7 

populations documented where they 

now occur or occurred historically, that 

are naturally reproducing, stable, or 

increasing in number, with a minimum 

of 300 mature individuals per 

population; and 

• For delisting (that is, removing from 

the List of Endangered and Threatened 

Plants), 8 to 10 populations, that are 

each naturally reproducing, stable, or 

increasing in number, and secure from 

threats, with a minimum of 300 mature 

individuals per population and 

persisting at this level for a minimum of 

5 consecutive years. There is no 

previously designated critical habitat for 

this subspecies. 

Isodendrion pyrifolium, a short-lived 

perennial shrub, is known from Niihau, 

Oahu, Molokai, Lanai, Maui, and 

Hawaii. Isodendrion pyrifolium was 

thought to be extinct since 1870, but 

was rediscovered in 1991, in a single 

occurrence with 50 to 60 individuals at 

Kealakehe on the island of Hawaii. 

Currently, there are no extant 

occurrences on Niihau, Oahu, Lanai, 

Molokai, or Maui. On Hawaii Island, 

only a few immature, wild individuals 

remain at a single location, and 

approximately 90 outplanted 

individuals occur in four locations in 

the lowland dry ecosystem. One 

location at Laiopua has reproducing 

plants. The following recovery 

objectives apply to Isodendrion 

pyrifolium as a short-lived plant: 

• For interim stabilization, 3 

populations reproducing and increasing 

in numbers, with at least 50 mature 

individuals; 

• For downlisting, 5 to 7 populations 

documented on islands where they now 

occur or occurred historically, that are 

naturally reproducing, stable, or 

increasing in number, with a minimum 

of 300 mature individuals per 

population; and 

• For delisting, 8 to 10 populations, 

that are each naturally reproducing, 


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stable, or increasing in number, and 

secure from threats, with a minimum of 

300 mature individuals per population 

and persisting at this level for a 

minimum of 5 consecutive years. 

Critical habitat has been designated for 

this species on Oahu within 8 units 

totaling 1,924 ac (779 ha) (77 FR 57648; 

September 18, 2012), and on the islands 

of Maui and Molokai within 13 units 

totaling 21,703 ac (8,783 ha) (81 FR 

17790; March 30, 2016). 

Mezoneuron kavaiense, a long-lived 

tree, was known historically from Kauai, 

Oahu, Lanai, Maui, and Hawaii. 

Currently, this species is represented by 

single mature tree on Kauai, five mature 

trees and two seedlings in two 

populations on Oahu, extirpated on 

Lanai (two outplanted individuals), and 

extirpated on Maui. On Hawaii Island, 

M. kavaiense is found in six occurrences 

totaling 72 mature wild and 22 

immature wild individuals in the 

lowland dry ecosystem on Hawaii 

Island (USFWS 2015, in litt.). None of 

these occurrences has reproducing 

plants. In addition, a total of 520 

individuals have been reintroduced at 

several sites in the North Kona and 

Waikoloa regions (USFWS 2015, in litt.). 

The recovery plan for Mezoneuron 

kavaiense identifies the following 

objectives: 

• For downlisting, a minimum of 100 

mature individuals in each of three 

populations in the North Kona region on 

Hawaii Island, and 100 mature 

individuals in each of three populations 

on each of Kauai, Oahu, Lanai, and 

Maui; and 

• For delisting, a total of 8 to 10 

populations, that are each naturally 

reproducing, stable, or increasing in 

number, and secure from threats, with a 

minimum of 100 mature individuals per 

population and persisting at this level 

for a minimum of 5 consecutive years 

(USFWS 1996, p. 118). 

There is no previously designated 

critical habitat for this species. 

The recovery objectives listed above 

are intended to reduce the adverse 

effects of genetic inbreeding and 

random environmental events and 

catastrophes, such as landslides, floods, 

and hurricanes, which could destroy a 

large percentage of a species at any one 

time (Kramer et al. 2008, p. 879; Menges 

1990, pp. 56–60; Neel and Ellstrand 

2003, p. 347). These recovery objectives 

were initially developed by the HPPRCC 

and are found in the recovery plans for 

Isodendrion pyrifolium and Mezoneuron 

kavaiense, and applied to Bidens 

micrantha ssp. ctenophylla, which does 

not have an approved recovery plan. As 

stated above, these objectives describe 

the minimum population criteria to be 

met, based on the best available 

scientific data, to ensure adequate 

population resiliency (population size, 

growth rate, and connectivity; indicative 

of ability to withstand stochastic 

disturbances), redundancy (spreading 

the risk among multiple populations 

over a large geographic area; ability to 

withstand catastrophic events), and 

representation (genetic and 

environmental diversity; ability to adapt 

to changing conditions over time) to 

ensure long-term viability and bring 

these species to the point at which the 

protections of the Act are no longer 

necessary (that is, when delisting is 

appropriate). Under section 3 of the Act, 

‘‘conserve’’ means to use and the use of 

all methods and procedures which are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to this Act are no longer 

necessary; therefore, we consider 

meeting these recovery objectives as 

essential to the conservation of these 

species. These population recovery 

objectives are not necessarily the only 

recovery criteria for each species, but 

they served as the guide for our 

identification of the critical habitat areas 

essential for the conservation of the 

three species in this rule, in terms of 

providing the ability to meet the 

specified population objectives. 

In conclusion, the conservation of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense is dependent 

upon the protection of existing 

population sites, including room for 

population growth and expansion, and 

the protection of suitable unoccupied 

habitat within their historical range, to 

provide for the requisite resiliency, 

redundancy, and representation of 

populations through restoration and 

reintroductions. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific data 

available in determining those areas that 

contain the physical or biological 

features essential to the conservation of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, and for which 

designation of critical habitat is 

considered prudent, by identifying the 

occurrence data for each species and 

determining the ecosystems upon which 

they depend. This information was 

developed by using: 

• The known locations of the three 

species, including site-specific species 

information from the Hawaii 

Biodiversity Mapping Program (HBMP) 

database (HBMP 2010a; HBMP 2010b; 

HBMP 2010c), the The Nature 

Conservancy database (TNC 2007– 

Ecosystem Database of ArcMap 

Shapefiles, unpublished), and our own 

rare plant database; 

• Species information from the plant 

database housed at National Tropical 

Botanical Garden (NTBG); 

• Maps of habitat essential to the 

recovery of Hawaiian plants, as 

determined by the Hawaii and Pacific 

Plant Recovery Coordinating Committee 

(HPPRCC 1998, 32 pp. + appendices); 

• Maps of important habitat for the 

recovery of plants protected under the 

Act (USFWS 1999, pp. F12); 

• The Nature Conservancy’s 

Ecoregional Assessment of the Hawaiian 

High Islands (2006) and ecosystem maps 

(TNC 2007–Ecosystem Database of 

ArcMap Shapefiles, unpublished); 

• Color mosaic 1:19,000 scale digital 

aerial photographs for the Hawaiian 

Islands (March 2006 to January 2009); 

• Island-wide Geographic Information 

System (GIS) coverage (e.g., Gap 

Analysis Program (GAP) vegetation data 

of 2005, HabQual data of 2014, Landfire 

data of 2014); 

• 1:24,000 scale digital raster graphics 

of U.S. Geological Survey (USGS) 

topographic quadrangles; 

• Geospatial data sets associated with 

parcel data from Hawaii County (2008); 

• Species Distribution Models 

(USFWS 2013, unpublished); 

• Recent biological surveys and 

reports; and 

• Discussions with qualified 

individuals familiar with these species 

and ecosystems. 

Based upon all of this data, we 

determined the areas that were occupied 

by these species at the time of listing, 

and whether they contain the physical 

or biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection. In light of 

the recovery needs of the species, we 

also examined areas that were not 

occupied at the time of listing by one or 

more of the three species, to identify 

areas essential for the conservation of 

the species (TNC 2006b, pp. 1–2). 

Physical or Biological Features 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and regulations 

at 50 CFR 424.12, in determining which 

areas within the geographical area 

occupied by the species at the time of 

listing to designate as critical habitat, 

we consider the physical or biological 

features essential to the conservation of 

the species and which may require 

special management considerations or 


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protection. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

For plant species, ecosystems that 

provide appropriate dryland habitats, 

host species, pollinators, soil types, and 

associated plant communities are taken 

into consideration when determining 

the physical or biological features 

essential for a species. 

We derived the specific physical or 

biological features essential for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

from studies on each of the species’ 

habitat, ecology, and life history as 

described in the Critical Habitat section 

of the proposed rule to designate critical 

habitat published in the Federal 

Register on October 17, 2012 (77 FR 

63928), and in the information 

presented below. Additional 

information can be found in the final 

listing rules published in the Federal 

Register on October 29, 2013 (78 FR 

64638), for Bidens micrantha ssp. 

ctenophylla, on March 4, 1994 (59 FR 

10305), for Isodendrion pyrifolium, and 

on July 8, 1986 (51 FR 24672) for 

Mezoneuron kavaiense; as well as in the 

Recovery Plan for Caesalpinia 

kavaiensis and Kokia drynarioides 

(USFWS 1994, pp. 1–91), the Recovery 

Plan for the Big Island Plant Cluster 

(USFWS 1996, pp. 1–252), and the 2003 

Final Designation and Nondesignation 

of Critical Habitat for 46 Plant Species 

From the Island of Hawaii, HI (68 FR 

39624, July 2, 2003). We have 

reevaluated the physical and biological 

features for Isodendrion pyrifolium 

based on the features of the ecosystem 

on which its survival depends, using 

species information from the 2003 Final 

Designation and Nondesignation of 

Critical Habitat for 46 Plant Species 

From the Island of Hawaii, HI (68 FR 

39624, July 2, 2003) and new scientific 

information that has become available 

since that time. Bidens micrantha ssp. 

ctenophylla is found in locations with 

the same substrate age and soil type as 

Isodendrion pyrifolium and Mezoneuron 

kavaiense, and is known to share the 

same land cover (vegetation) type as 

Mezoneuron kavaiense throughout over 

85 percent of its range (HBMP 2010c). 

Therefore, we believe that Bidens 

micrantha ssp. ctenophylla shares the 

same physical or biological features that 

we have determined for Isodendrion 

pyrifolium and Mezoneuron kavaiense. 

We have determined that the three 

lowland dry plant species (Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense) 

addressed in this final rule require the 

physical or biological features described 

in the following paragraphs and 

summarized in Table 2, below. 

Based on the recovery needs of these 

species discussed above, it is essential 

to conserve suitable habitat in both 

occupied and unoccupied areas, which 

will in turn allow for the establishment 

of additional populations through 

natural recruitment or managed 

reintroductions. Establishment of these 

additional populations will increase the 

likelihood that the species will survive 

and recover in the face of normal and 

stochastic events (e.g., hurricanes, fire, 

and nonnative species introductions) 

(Mangel and Tier 1994, p. 612; Pimm et 

al. 1998, p. 777; Stacey and Taper 1992, 

p. 27). For these reasons, the 

designation of critical habitat limited to 

the geographic areas occupied by the 

species at the time of listing would be 

insufficient to achieve recovery 

objectives. 

In this final rule, the physical or 

biological features are described based 

on the features of the ecosystem on 

which Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense depend, the 

lowland dry ecosystem. Ecosystem 

characteristic parameters include 

elevation, precipitation, substrate (i.e., 

age of lava), and associated native plant 

genera. The lowland dry ecosystem 

consists of shrublands and forests 

generally below 3,300 feet (ft) (1,000 

meters (m)) elevation and receives less 

than 50 inches (in) (130 centimeters 

(cm)) annual rainfall, or otherwise 

bearing prevailingly dry substrate 

conditions that range from weathered 

reddish silty loams to stony clay soils, 

rocky ledges with very shallow soil, or 

relatively recent little-weathered lava 

(TNC 2006b). As conservation of each 

species is dependent upon a functioning 

ecosystem to provide its fundamental 

life requirements, such as a certain 

substrate type or minimum level of 

rainfall, we consider the physical or 

biological features present in the 

lowland dry ecosystem described in this 

rule to provide the necessary physical 

and biological features for each of the 

three species (see Table 2, below). 

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

AND MEZONEURON KAVAIENSE

Ecosystem Elevation Annual 

precipitation Substrate 

Supporting one or more of these associated native plant genera 

Canopy Subcanopy Understory 

Lowland 

Dry.

<3,300 ft 

(<1,000 m).

<50 in (<130 

cm).

Weathered silty 

loams to stony 

clay, rocky 

ledges, littleweathered lava.

Diospyros, Erythrina, 

Metrosideros, 

Myoporum, 

Pleomele, Santalum, 

Sapindus.

Chamaesyce, 

Dodonaea, 

Osteomeles, 

Psydrax, Scaevola, 

Wikstroemia.

Alyxia, Artemisia, 

Bidens, Capparis, 

Chenopodium, 

Nephrolepis, 

Peperomia, Sicyos. 

*Note: These features also represent the primary constituent elements for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and 

Mezoneuron kavaiense. 

When designating critical habitat in 

occupied areas, we focus on the 

physical or biological features that may 

be essential to the conservation of the 

species and which may require special 

management considerations or 

protections. In unoccupied habitat, we 

focus on whether the area is essential 

for the conservation of the species. The 

physical or biological features for 

occupied areas, in conjunction with the 

unoccupied areas needed to expand and 

reestablish wild populations within 

their historical range, provide a more 

accurate picture of the geographic areas 

needed for the recovery of each species. 

We believe this information will be 

helpful to Federal agencies and our 

other partners, as we collectively work 

to recover these imperiled species. 


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Primary Constituent Elements for the 

Three Species 

Under the Act and implementing 

regulations applicable to this rule, we 

are required to identify the physical or 

biological features essential to the 

conservation of the three plant species 

in areas occupied at the time of listing, 

focusing on the features’ PCEs. Primary 

constituent elements are those specific 

elements of the physical or biological 

features that provide for a species’ lifehistory processes and are essential to 

the conservation of the species. 

The PCEs identified in this final rule 

take into consideration the ecosystem 

on which these species depend for 

survival and reflect a distribution that 

we believe is essential to achieving the 

species’ recovery needs within the 

lowland dry ecosystem on Hawaii 

Island. As described above, we 

considered the current population status 

of each species, to the extent it is 

known, and assessed its status relative 

to the recovery objectives for that 

species, in terms of population goals 

(numbers of populations and 

individuals in each population, which 

contributes to population resiliency) 

and distribution (whether the species 

occurs in habitats representative of its 

historic geographical and ecological 

distribution, and are sufficiently 

redundant to withstand the loss of some 

populations over time). This analysis 

informed us as to whether the species 

requires space for population growth 

and expansion in areas occupied at the 

time of listing, or whether additional 

areas unoccupied at the time of listing 

may be required for the reestablishment 

of populations to achieve conservation. 

In this final rule, the PCEs for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

are defined based on those physical or 

biological features essential to support 

the successful functioning of the 

ecosystem upon which each species 

depends, and which may require special 

management considerations or 

protection. As the conservation of each 

species is dependent upon a functioning 

ecosystem to provide its fundamental 

life requirements, such as a certain soil 

type or minimum level of rainfall, we 

consider the physical or biological 

features present in the lowland dry 

ecosystem described in this rule to 

provide the necessary PCEs for each of 

the three species. The ecosystem’s 

features collectively provide the suite of 

environmental conditions essential to 

meeting the requirements of each 

species, including the appropriate 

microclimatic conditions for 

germination and growth of plants (e.g., 

light availability, soil nutrients, 

hydrologic regime, and temperature), 

and in all cases, space within the 

appropriate habitats for population 

growth and expansion, as well as to 

maintain the historical geographical and 

ecological distribution of each species. 

In the case of Isodendrion pyrifolium, 

due to its relatively recent rediscovery 

and limited geographic distribution at 

one known occurrence, the more general 

description of the physical or biological 

features that provide for the successful 

function of the ecosystem that is 

essential to the conservation of the 

species represents the only scientific 

information available. Accordingly, for 

the purposes of this final rule, the 

physical or biological features of a 

properly functioning lowland dry 

ecosystem are the PCEs essential to the 

conservation of the three species at 

issue here (see Table 2, above). 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

following discussion of special 

management needs is applicable to each 

of the three Hawaii Island species for 

which we are designating critical 

habitat. 

For Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, we have 

determined that the features essential to 

their conservation are those required for 

the successful functioning of the 

lowland dry ecosystem in which they 

occur (see Table 2, above). Special 

management considerations or 

protections are necessary throughout the 

critical habitat areas designated here to 

avoid further degradation or destruction 

of the habitat that provides those 

features essential to their conservation. 

The primary threats to the physical or 

biological features essential to the 

conservation of these three species 

include habitat destruction and 

modification by development, 

nonnative ungulates, competition with 

nonnative species, hurricanes, fire, 

drought, and climate change. The 

reduction of these threats will require 

the implementation of special 

management actions within each of the 

critical habitat areas identified in this 

final rule. 

All designated critical habitat may 

require special management actions to 

address the ongoing degradation and 

loss of habitat caused by residential and 

urban development. Urbanization also 

increases the likelihood of wildfires 

ignited by human sources. Without 

protection and special management, 

habitat containing the features that are 

essential for the conservation of these 

species will continue to be degraded 

and destroyed. 

All designated critical habitat may 

require active management to address 

the ongoing degradation and loss of 

native habitat caused by nonnative 

ungulates (goats and cattle). Nonnative 

ungulates also impact the habitat 

through predation and trampling. 

Without this special management, 

habitat containing the features that are 

essential for the conservation of these 

species will continue to be degraded 

and destroyed. 

All designated critical habitat may 

require active management to address 

the ongoing degradation and loss of 

native habitat caused by nonnative 

plants. Special management is also 

required to prevent the introduction and 

spread of nonnative plant species into 

native habitats. Particular attention is 

required in nonnative plant control 

efforts to avoid creating additional 

disturbances that may facilitate the 

further introduction and establishment 

of invasive plant seeds. Precautions are 

also required to avoid the inadvertent 

trampling of listed plant species in the 

course of management activities. 

The active control of nonnative plant 

species will help to address the threat 

posed by fire in all five of the 

designated critical habitat units. This 

threat is largely a result of the presence 

of nonnative plant species such as the 

grasses Pennisetum setaceum and 

Melinis minutiflora that increase the 

fuel load and quickly regenerate after a 

fire. These nonnative grass species can 

outcompete native plants that are not 

adapted to fire, creating a grass-fire 

cycle that alters ecosystem functions 

(D’Antonio and Vitousek 1992, pp. 64– 

66; Brooks et al. 2004, p. 680). 

In summary, we find that each of the 

areas we are designating as critical 

habitat contains features essential for 

the conservation of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

that may require special management 

considerations or protection to ensure 

the conservation of the three plant 

species for which we are designating 

critical habitat. These special 

management considerations and 

protections are required to preserve and 

maintain the essential features provided 

to these species by the lowland dry 

ecosystem upon which they depend. 


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Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we used the best scientific data 

available to designate critical habitat. 

We reviewed available information 

pertaining to the habitat requirements of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. In accordance 

with the Act and implementing 

regulations at 50 CFR 424.12(b) 

applicable to this final rule, we review 

available information pertaining to the 

habitat requirements of the species and 

identify areas occupied by the species at 

the time of listing and any specific areas 

outside the geographical area occupied 

by the species to be considered for 

designation as critical habitat. We are 

designating critical habitat in areas 

within the geographical area occupied 

by Bidens micrantha ssp. ctenophylla at 

the time of its listing in 2013, 

Isodendrion pyrifolium at the time of its 

listing in 1994, and Mezoneuron 

kavaiense at the time of its listing in 

1986. We also are designating critical 

habitat in areas outside the geographical 

area occupied by these species at the 

times of their listing because we have 

determined that such areas are essential 

for the conservation of these species. 

We considered several factors in the 

selection of specific boundaries for 

critical habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

We determined critical habitat unit 

boundaries taking into consideration the 

known past and present locations of the 

species, important areas of habitat 

identified by HPPRCC (HPPRCC 1998, 

entire), recovery areas described by 

species’ Recovery Plans (for Isodendrion 

pyrifolium and Mezoneuron kavaiense), 

projections of geographic ranges of 

Hawaiian plant species (Price et al. 

2012, entire), space to allow for 

increases in numbers of individuals and 

for expansion of populations to provide 

for the minimum numbers required to 

reach delisting goals (as described in 

recovery plans), and space between 

individual critical habitat units to 

provide for redundancy of populations 

across the range of the species in case 

of catastrophic events such as fire and 

hurricanes (see also Methods, above). 

For these three species, we designate 

critical habitat only in the geographic 

area of historical occurrence on Hawaii 

Island, which is restricted to the 

lowland dry ecosystem in the north 

Kona and south Kohala regions. Initial 

draft boundaries were superimposed 

over digital topographic maps of the 

island of Hawaii and further evaluated. 

In general, land areas that were 

identified as highly degraded were 

removed from the final critical habitat 

units, and natural or manmade features 

(e.g., ridge lines, valleys, streams, 

coastlines, roads, and obvious land 

features) were used to delineate the final 

critical habitat boundaries. We are 

designating critical habitat on lands that 

contain the physical or biological 

features essential to conserving these 

species, and unoccupied lands that are 

essential the species’ conservation, 

based on their shared dependence on 

the lowland dry ecosystem. 

The critical habitat is a combination 

of areas occupied by these three species 

at the time of listing, as well as areas 

that may be currently unoccupied. The 

best available scientific information 

suggests that these species either 

presently occur within, or have 

occupied, these habitats. The occupied 

areas provide the physical or biological 

features essential to the conservation of 

these species, which all depend on the 

lowland dry ecosystem. However, due 

to the small population sizes, few 

numbers of individuals, and reduced 

geographic range of each of the three 

species for which critical habitat is here 

designated, we have determined that a 

designation limited to the areas known 

to be occupied at the time of listing 

would be inadequate to achieve the 

conservation of those species. The areas 

believed to be unoccupied, and that may 

have been unoccupied at the time of 

listing, have been determined to be 

essential for the conservation and 

recovery of the species because they 

provide the habitat necessary for the 

expansion of existing wild populations 

and reestablishment of wild populations 

within the historical range of the 

species. 

We are designating critical habitat on 

lands that contain the physical or 

biological features essential to 

conserving multiple species, based on 

their shared dependence on the 

functioning ecosystem they have in 

common. Because the lowland dry 

ecosystem that supports the three plant 

species addressed here does not form a 

contiguous area, it is divided into five 

geographic units. Some of the 

designated critical habitat for the three 

plant species overlies critical habitat 

already designated for other plants on 

the island of Hawaii. Because of the 

small numbers of individuals or low 

population sizes of each of these three 

plant species, each requires suitable 

habitat and space for the expansion of 

existing populations to achieve a level 

that could approach recovery. For 

example, recent surveys of Isodendrion 

pyrifolium have documented the 

mortality of the two remaining mature, 

reproducing individuals, leaving only 

several immature individuals in the 

lowland dry ecosystem on Hawaii 

Island (Wagner 2014b, in litt.; Wagner 

2016, in litt.) and three individuals 

represented in off-site seed storage 

collections (PEPP 2011, p. 32). The 

unoccupied areas of each unit are 

essential for the expansion of this 

species to achieve viable population 

numbers and maintain its historical 

geographical and ecological 

distribution. This same reasoning 

applies to Bidens micrantha ssp. 

ctenophylla and Mezoneuron kavaiense. 

Further details are provided under Final 

Critical Habitat Designation, below. 

The critical habitat areas described 

below constitute our best assessment of 

the areas occupied by Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

at their times of listing that contain the 

physical or biological features essential 

for the recovery and conservation of the 

three plant species, and the unoccupied 

areas that are needed for the expansion 

or augmentation of reduced populations 

or reestablishment of populations. The 

approximate size of each of the five 

plant critical habitat units and the status 

of their land ownership, are identified 

in Table 3. As noted in Table 3, all areas 

designated for critical habitat 

designation are found within the 

lowland dry ecosystem. Table 4 

identifies the areas excluded from 

critical habitat designation under 

section 4(b)(2) of the Act (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act, below). 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas (such as lands covered 

by buildings, pavement, railroads, 

airports, runways, utility facilities and 

infrastructure and their designated and 

maintained rights-of-way, other paved 

areas, lawns, and other urban 

landscaped areas) because such lands 

lack the physical or biological features 

essential for the conservation of the 

three plant species. The scale of the 

maps we prepared under the parameters 

for publication within the CFR may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final rule have been 

excluded by text in the rule and are not 

designated as critical habitat. Therefore, 

Federal actions involving these areas 

would not trigger section 7 consultation 

with respect to critical habitat or the 

requirement to avoid adverse 

modification of critical habitat unless 


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the specific action would affect the physical or biological features in the 

adjacent critical habitat. 

TABLE 3—CRITICAL HABITAT DESIGNATION FOR BIDENS MICRANTHA SSP. CTENOPHYLLA, ISODENDRION PYRIFOLIUM, AND

MEZONEURON KAVAIENSE ON THE ISLAND OF HAWAII

[Totals may not sum due to rounding] 

Designated 

critical habitat 

area 

Size of section 

in acres 

Size of section 

in hectares State Federal County Private 

Corresponding 

critical habitat map in 

the Code of 

Federal Regulations 

Hawaii—Lowland Dry 

—Unit 10 .......... 2,913 1,179 2,913 ........................ ........................ ........................ Map 39a. 

—Unit 31 .......... 7,067 2,860 7,067 ........................ ........................ ........................ Map 104. 

—Unit 33 .......... 989 400 989 ........................ ........................ ........................ Map 105. 

—Unit 34 .......... 268 109 242 ........................ ........................ 27 Map 105. 

—Unit 36 .......... 402 163 5 397 ........................ ........................ Map 105. 

Total Lowland Dry.11,640 4,711 11,216 397 ........................ 27 

We are designating as critical habitat 

lands that we have determined are 

occupied at the time of listing and 

contain sufficient physical or biological 

features to support life-history processes 

essential for the conservation of the 

species, and lands outside of the 

geographical area occupied at the time 

of listing that we have determined are 

essential for the conservation of Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Units are designated based on 

sufficient elements of physical or 

biological features being present to 

support the life processes of Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Some units contain all of the identified 

elements of physical or biological 

features and support multiple life 

processes. Some units contain only 

some elements of the physical or 

biological features necessary to support 

the species’ particular use of that 

habitat. 

The critical habitat designation is 

defined by the maps, and refined by 

accompanying regulatory text, presented 

at the end of this document in the 

regulatory portion of this final rule. We 

include more detailed information on 

the boundaries of the critical habitat 

designation in the preamble of this 

document. The coordinates or plot 

points or both on which each map is 

based are available to the public on 

http://www.regulations.gov at Docket 

No. FWS–R1–ES–2013–0028, on our 

internet site at http://www.fws.gov/ 

pacificislands/, and at the field office 

responsible for the designation (see FOR

FURTHER INFORMATION CONTACT, above). 

Final Critical Habitat Designation 

We are designating 11,640 ac (4,711 

ha) as critical habitat in five units 

within the lowland dry ecosystem for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense (see Table 3, 

above, for details). Of these five units, 

8,443 ac (3,417 ha) or 72 percent, was 

already designated as critical habitat for 

other listed species. The final critical 

habitat includes land under State, 

County of Hawaii, Federal (KalokoHonokohau NHP), and private 

ownership. The critical habitat units we 

describe below constitute our current 

best assessment of those areas that meet 

the definition of critical habitat for the 

three species of plants. The five critical 

habitat units are: Hawaii—Lowland 

Dry—Unit 10, Hawaii—Lowland Dry— 

Unit 31, Hawaii—Lowland Dry—Unit 

33, Hawaii—Lowland Dry—Unit 34, and 

Hawaii—Lowland Dry—Unit 36 (see the 

Regulation Promulgation section of this 

rule, 50 CFR 17.99(k)(115), the Table of 

Protected Species Within Each Critical 

Unit for the Island of Hawaii, for the 

occupancy status of each unit). 

Because some of the final critical 

habitat for the three plants overlays 

critical habitat already designated for 

other plant species on the island of 

Hawaii, we have incorporated the maps 

of the areas newly designated as critical 

habitat in this final rule into the existing 

critical habitat unit numbering system 

established for the plants on the island 

of Hawaii in the Code of Federal 

Regulations (CFR) at 50 CFR 17.99(k). 

The maps and area descriptions 

presented here represent the critical 

habitat designation that we have 

identified for the three plant species, 

subdivided into a total of five units (see 

Table 3, above). The critical habitat unit 

numbers and the corresponding map 

numbers that will appear at 50 CFR 

17.99 are provided for ease of reference 

in the CFR. 

Descriptions of the Five Critical Habitat 

Units 

Hawaii—Lowland Dry—Unit 10 

Hawaii—Lowland Dry—Unit 10 

consists of 2,913 ac (1,179 ha) of State 

land from Puu Waawaa to Kaupulehu 

on the northwestern slope of Hualalai 

between the elevations of 1,400 and 

2,600 ft (427 and 793 m). This unit 

overlaps portions of previously 

designated plant critical habitat in unit 

Hawaii 10 (see 50 CFR 17.99(k)), and 

includes critical habitat for the 

following listed plant species: Bonamia 

menziesii, Colubrina oppositifolia, 

Hibiscadelphus hualalaiensis, Neraudia 

ovata, Nothocestrum breviflorum, and 

Pleomele hawaiiensis. This unit is 

depicted on Map 39a in the Regulation 

Promulgation section of this rule. 

This unit is occupied by Mezoneuron 

kavaiense and includes the mixed 

herbland and shrubland, the moisture 

regime, and canopy, subcanopy, and 

understory native plant species 

identified as physical or biological 

features in the lowland dry ecosystem 

(see Table 2, above). This unit also 

contains unoccupied habitat for 

Mezoneuron kavaiense that is essential 

to the conservation of this species by 

providing the PCEs necessary for the 

expansion of the existing wild 

populations. Although Hawaii— 

Lowland Dry—Unit 10 is not known to 

be occupied by Bidens micrantha ssp. 

ctenophylla and Isodendrion pyrifolium, 

we have determined this area is also 

essential for the conservation and 


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recovery of these two species because it 

provides the PCEs necessary for the 

reestablishment of wild populations 

within their historical range. Due to 

their small numbers of individuals, 

these species require suitable habitat 

and space for expansion or introduction 

to achieve population levels that could 

approach recovery. 

Hawaii—Lowland Dry—Unit 31 

Hawaii—Lowland Dry—Unit 31 

consists of 7,067 ac (2,860 ha) of State 

land from Puu Waawaa to Kaupulehu 

on the northwestern slope of Hualalai 

between the elevations of 720 and 1,960 

ft (427 and 597 m). This unit is not in 

previously designated plant critical 

habitat and comprises only newly 

designated plant critical habitat. This 

unit is depicted on Map 104 in the 

Regulation Promulgation section of this 

rule. 

This unit is occupied by Mezoneuron 

kavaiense and includes the mixed 

herbland and shrubland, the moisture 

regime, and canopy, subcanopy, and 

understory native plant species 

identified as physical or biological 

features in the lowland dry ecosystem 

(see Table 2, above). This unit also 

contains unoccupied habitat for 

Mezoneuron kavaiense that is essential 

to the conservation of this species by 

providing the PCEs necessary for the 

expansion of the existing wild 

populations. Although Hawaii— 

Lowland Dry—Unit 31 is not known to 

be occupied by Bidens micrantha ssp. 

ctenophylla and Isodendrion pyrifolium, 

we have determined this area is also 

essential for the conservation and 

recovery of these two species because it 

provides the PCEs necessary for the 

reestablishment of wild populations 

within their historical range. Due to 

their small numbers of individuals, 

these species require suitable habitat 

and space for expansion or introduction 

to achieve population levels that could 

approach recovery. 

Hawaii—Lowland Dry—Unit 33 

Hawaii—Lowland Dry—Unit 33 

consists of 989 ac (400 ha) of State land, 

from Puukala to Kalaoa on the western 

slope of Hualalai between the elevations 

of 360 and 1,080 ft (110 and 329 m). 

This unit is not in previously designated 

critical habitat and comprises only 

newly designated critical habitat. This 

unit is depicted on Map 105 in the 

Regulation Promulgation section of this 

rule. 

This unit is unoccupied by Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense; 

however, it contains the mixed herbland 

and shrubland, the moisture regime, and 

canopy, subcanopy, and understory 

native plant species identified as 

physical or biological features in the 

lowland dry ecosystem (see Table 2, 

above). Although Hawaii—Lowland 

Dry—Unit 33 is not known to be 

occupied by Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, we have 

determined this area is essential for the 

conservation and recovery of these 

lowland dry species because it provides 

the PCEs necessary for the 

reestablishment of wild populations 

within their historical range. Due to 

their small numbers of individuals or 

low population sizes, these species 

require suitable habitat and space for 

expansion or reintroduction to achieve 

population levels that could approach 

recovery. 

Hawaii—Lowland Dry—Unit 34 

Hawaii—Lowland Dry—Unit 34 

consists of 242 ac (98 ha) of State land, 

and 27 ac (11 ha) of privately owned 

land for a total of 269 ac (109 ha), from 

Kalaoa to Puukala on the western slope 

of Hualalai between the elevations of 

280 and 600 ft (85 and 183 m). This unit 

is not in previously designated critical 

habitat and comprises only newly 

designated critical habitat. This unit is 

depicted on Map 105 in the Regulation 

Promulgation section of this rule. 

This unit is unoccupied by Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense; 

however, it includes the mixed herbland 

and shrubland, the moisture regime, and 

canopy, subcanopy, and understory 

native plant species identified as 

physical or biological features in the 

lowland dry ecosystem (see Table 2, 

above). Although Hawaii—Lowland 

Dry—Unit 34 is not known to be 

occupied by Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, we have 

determined this area is essential for the 

conservation and recovery of these 

lowland dry species because it provides 

the PCEs necessary for the 

reestablishment of wild populations 

within their historical range. Due to 

their small numbers of individuals or 

low population sizes, these species 

require suitable habitat and space for 

expansion or reintroduction to achieve 

population levels that could approach 

recovery. 

Hawaii—Lowland Dry—Unit 36 

Hawaii—Lowland Dry—Unit 36 

consists of 5 ac (2 ha) of State land and 

397 ac (161 ha) of Federal land for a 

total of 402 ac (163 ha), near the 

coastline at Kaloko and Honokohau on 

the western slope of Hualalai between 

the elevations of 20 and 90 ft (6 and 27 

m). This unit is not in previously 

designated critical habitat and 

comprises only newly designated 

critical habitat. This unit is depicted on 

Map 105 in the Regulation Promulgation 

section of this rule. 

This unit is occupied by the plant 

Bidens micrantha ssp. ctenophylla, and 

includes the mixed herbland and 

shrubland, the moisture regime, and 

canopy, subcanopy, and understory 

native plant species identified as 

physical or biological features in the 

lowland dry ecosystem (see Table 2, 

above). This unit also contains 

unoccupied habitat for Bidens 

micrantha ssp. ctenophylla that is 

essential to the conservation of this 

species by providing the PCEs necessary 

for the expansion of the existing wild 

populations. Although Hawaii— 

Lowland Dry—Unit 36 is not known to 

be occupied by Isodendrion pyrifolium, 

we have determined this area is also 

essential for the conservation and 

recovery of this lowland dry species 

because it provides the PCEs necessary 

for the reestablishment of wild 

populations within its historical range. 

Due to their small numbers of 

individuals or low population sizes, 

these species require suitable habitat 

and space for expansion or 

reintroduction to achieve population 

levels that could approach recovery. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act, as 

amended, requires Federal agencies, 

including the Service, to ensure that 

actions they fund, authorize, or carry 

out are not likely to jeopardize the 

continued existence of any endangered 

species or threatened species or result in 

the destruction or adverse modification 

of designated critical habitat of such 

species. In addition, section 7(a)(4) of 

the Act requires Federal agencies to 

confer with the Service on any agency 

action that is likely to jeopardize the 

continued existence of any species 

proposed to be listed under the Act or 

result in the destruction or adverse 

modification of proposed critical 

habitat. 

We published a final rule defining 

‘‘destruction or adverse modification’’ 

on February 11, 2016 (81 FR 7214). 

‘‘Destruction or adverse modification’’ 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for the conservation of a 

listed species. Such alterations may 

include, but are not limited to, those 

that alter the physical or biological 

features essential to the conservation of 


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a species or that preclude or 

significantly delay development of such 

features. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to section 7 consultation process 

are actions on Federal lands or that 

require a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 seq.) or 

a permit from the Service under section 

10 of the Act) or that involve some other 

Federal action (such as funding from the 

FHWA, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat, and actions 

on State, County, or private lands that 

are not federally funded or authorized, 

do not require section 7 consultation. 

At the conclusion of section 7 

consultation, we may issue: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we provide 

reasonable and prudent alternatives to 

the project, if any are identifiable, that 

would avoid the likelihood of jeopardy 

and/or destruction or adverse 

modification of critical habitat. We 

define ‘‘reasonable and prudent 

alternatives’’ (at 50 CFR 402.02) as 

alternative actions identified during 

consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Director’s opinion, 

avoid the likelihood of jeopardizing the 

continued existence of the listed species 

and/or avoid the likelihood of 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate formal 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the three 

species, or would retain its current 

ability for the essential features to be 

functionally established. Activities that 

may destroy or adversely modify critical 

habitat are those that result in a direct 

or indirect alteration that appreciably 

diminishes the value of critical habitat 

for the conservation of Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Such alterations may include, but are 

not limited to, those that alter the 

physical or biological features essential 

to the conservation of these species or 

that preclude or significantly delay 

development of such features. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that may affect critical 

habitat, when carried out, funded, or 

authorized by a Federal agency, should 

result in consultation for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

These activities include, but are not 

limited to: 

(1) Actions that may appreciably 

degrade or destroy the physical or 

biological features for the species, 

including, but not limited to, 

overgrazing, maintaining or increasing 

feral ungulate levels, clearing or cutting 

native live trees and shrubs (e.g., 

woodcutting, bulldozing, construction, 

road building, mining, herbicide 

application), and taking actions that 

pose a risk of fire. 

(2) Actions that may alter watershed 

characteristics in ways that would 

appreciably reduce groundwater 

recharge or alter natural, wetland, 

aquatic, or vegetative communities. 

Such activities include new water 

diversion or impoundment, excess 

groundwater pumping, and 

manipulation of vegetation through 

activities such as the ones mentioned in 

(1), above. 

(3) Recreational activities that may 

appreciably degrade vegetation. 

(4) Mining sand or other minerals. 

(5) Introducing or facilitating the 

spread of nonnative plant species. 

(6) Importing nonnative species for 

research, agriculture, and aquaculture, 

and releasing biological control agents. 

Exemptions 

Application of Section 4(a)(3) of the Act 

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that: 

‘‘The Secretary shall not designate as 

critical habitat any lands or other 

geographical areas owned or controlled 

by the Department of Defense, or 

designated for its use, that are subject to 

an integrated natural resources 

management plan [INRMP] prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

(DOD) lands with a completed INRMP 

within the critical habitat designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impacts of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 


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When identifying the benefits of 

inclusion for an area, we consider the 

additional regulatory benefits that area 

would receive from the protection from 

adverse modification or destruction as a 

result of actions with a Federal nexus; 

the educational benefits of mapping 

essential habitat for recovery of the 

listed species; and any benefits that may 

result from a designation due to Federal, 

State, or local laws that may apply to 

critical habitat. We also look at whether 

these benefits might be reduced by the 

existence of a conservation plan. In such 

cases, we consider a variety of factors, 

including, but not limited to, whether 

the plan is finalized; how it provides for 

the conservation of the essential 

physical or biological features; whether 

there is a reasonable expectation that 

the conservation management strategies 

and actions contained in a management 

plan will be implemented into the 

future; whether the conservation 

strategies in the plan are likely to be 

effective; and whether the plan contains 

a monitoring program or adaptive 

management to ensure that the 

conservation measures are effective and 

can be adapted in the future in response 

to new information. 

When identifying the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to encourage new 

conservation partnerships and future 

conservation efforts. The Secretary 

places great weight on demonstrated 

partnerships, as in many cases they can 

lead to the implementation of 

conservation actions that provide 

benefits to the species and their habitat 

beyond those that are achievable 

through the designation of critical 

habitat and section 7 consultations, 

particularly on private lands. As most 

endangered or threatened species in 

Hawaii occur on private and other nonFederal lands, such conservation 

partnerships are of heightened 

importance on the islands of Hawaii. 

After identifying the benefits of 

inclusion and the benefits of exclusion, 

we carefully weigh the two sides to 

evaluate whether the benefits of 

exclusion outweigh those of inclusion. 

If our analysis indicates the benefits of 

exclusion outweigh the benefits of 

inclusion, we then determine whether 

exclusion would result in extinction. If 

exclusion of an area from critical habitat 

will result in extinction, we will not 

exclude it from the designation. 

Based on the information provided by 

landowners, as well as public comments 

received, we evaluated whether certain 

lands in the proposed critical habitat 

were appropriate for exclusion from this 

final designation pursuant to section 

4(b)(2) of the Act. We are excluding the 

following areas from critical habitat 

designation for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense: 

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

Unit name designated CH + area excluded, in 

acres (Hectares) Landowner or land manager Area excluded from critical habitat, in acres (Hectares) 

Hawaii—Lowland Dry—Unit 31 12,814 (4,039) Kamehameha Schools ..................................... Total 2,834 (1,147). 

Hawaii—Lowland Dry—Unit 32 1,779 (720) ..... Waikoloa Village Association (WVA) ............... Total 1,758 (712). 

Hawaii—Lowland Dry—Unit 33 1,583 (640) ..... Palamanui Global Holdings LLC; Department 

of Hawaiian Home Lands (DHHL).

502 (203). 

91 (30). 

Total 593 (233). 

Hawaii—Lowland Dry—Unit 34 961 (389) ........ Kaloko Entities; Lanihau Properties ................. 631 (255). 

47 (19). 

Total 677 (274). 

Hawaii—Lowland Dry—Unit 35 1,192 (485) ..... County of Hawaii (State); Hawaii Housing and 

Finance Development Corporation (HHFDC) 

(State); Department of Hawaiian Home 

Lands (DHHL); Forest City Kona; Queen 

Liliuokalani Trust (QLT).

165 (67). 

30 (12). 

401 (165). 

265 (107). 

302 (122). 

Total 1,164 (471). 

Consideration of Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we prepared a DEA of the 

proposed critical habitat designation 

and related factors (IEc 2013, entire). 

The draft analysis, dated April 4, 2013, 

was made available for public review 

from April 30, 2013, through May 30, 

2013 (78 FR 25243; April 30, 2013); 

from July 2, 2013, through September 3, 

2013 (78 FR 39698); and from May 20, 

2016, through June 6, 2016 (81 FR 

31900). The DEA addressed potential 

economic impacts of critical habitat 

designation for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. Following 

the close of the comment periods, a final 

analysis of the potential economic 

effects of the designation (FEA) was 

developed taking into consideration the 

public comments and any new 

information received (IEc 2016). We also 

considered the effects of the exclusion 

of lands owned by Kaloko Properties 

LLC, which resulted in Unit 34 

becoming an unoccupied unit. 

The economic impact of the final 

critical habitat designation is analyzed 

by comparing scenarios both ‘‘with 

critical habitat’’ and ‘‘without critical 

habitat.’’ The ‘‘without critical habitat’’ 

scenario represents the baseline for the 

analysis, considering protections 

already in place for the species (e.g., 

under the Federal listing and other 

Federal, State, and local regulations). 

The baseline, therefore, represents the 

costs incurred regardless of whether 

critical habitat is designated. The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for the species. The 

incremental conservation efforts and 

associated impacts are those not 

expected to occur absent the designation 

of critical habitat for the species. In 

other words, the incremental costs are 

those attributable solely to the 

designation of critical habitat above and 

beyond the baseline costs; these are the 

costs we consider in the final 

designation of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since the 

species was listed, and forecasts both 

baseline and incremental impacts likely 

to occur with designation of critical 

habitat. 

The FEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 


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conservation activities on government 

agencies, private businesses, and 

individuals. The FEA measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

development and transportation 

projects. 

The FEA looks retrospectively at costs 

that have been incurred since the listing 

of the three species (51 FR 24672, July 

8, 1986; 59 FR 10305, March 4, 1994; 78 

FR 64638, October 29, 2013), and 

considers those costs that may occur in 

the 10 years following the designation of 

critical habitat, which was determined 

to be the appropriate period for analysis 

because limited planning information 

was available for most activities to 

forecast activity levels for projects 

beyond a 10-year timeframe. The FEA 

analyzes economic impacts of the 

conservation efforts for these species 

associated with the following categories 

of activity: Residential and commercial 

development projects, and 

transportation projects. The FEA 

concluded that critical habitat 

designation is unlikely to change the 

outcome of future section 7 

consultations on projects or activities 

within occupied areas, and that 

incremental impacts due to section 7 

consultations in occupied areas will 

most likely be limited to the additional 

administrative effort of considering 

adverse modification (IEc 2016, p. 2–9). 

The FEA estimates approximately 

$35,000 over the next 10 years (an 

annualized impact of $4,700, 7 percent 

discount rate) associated with future 

section 7 consultations. Impacts on 

projects occurring in areas being 

considered for exclusion are expected to 

be $15,000 (an annualized impact of 

$2,000, 7 percent discount rate) (IEc 

2016, p. E–7). 

The FEA concluded that additional 

impacts, beyond administrative costs 

associated with section 7 consultations, 

are likely within unoccupied areas but 

limited information is available 

regarding the nature and extent of these 

impacts and precludes quantification of 

these costs. Two specific projects in 

unoccupied habitat were identified that 

may be subject to economic impacts due 

to a critical habitat designation. Prior to 

finalizing this rule, we also evaluated 

the potential economic effects related to 

a third project in Unit 34, which, based 

on a potential 4(b)(2) exclusion, would 

become an unoccupied unit. The first is 

a DHHL residential development project 

that is expected to involve the use of 

Federal funds, and would thus require 

section 7 consultation, but this area is 

being excluded from the critical habitat 

designation; therefore, any anticipated 

effects due to the designation will not 

occur. The second is a QLT mixed-use 

development project that is not likely to 

be subject to a Federal nexus and 

would, therefore, have very little chance 

of any economic impacts due to critical 

habitat designation. The QLT land is 

also being excluded from the critical 

habitat designation. The third project is 

a highway extension planned on Kaloko 

Entities property and State lands in 

proposed Unit 34. With the exclusion of 

the Kaloko Entities lands, this unit 

would be considered unoccupied, and, 

therefore, the only critical habitat the 

project would be impacting would be 

unoccupied critical habitat. However, 

the project would also still be impacting 

occupied areas on the Kaloko Entities 

lands, and, therefore, a section 7 

jeopardy analysis on the presence of the 

species within the project area would 

already be required. Because one of the 

primary threats to these species is 

habitat loss and degradation, the 

consultation process under section 7 of 

the Act for projects with a Federal nexus 

will, in evaluating the effects to these 

species, evaluate the effects of the action 

on the conservation or function of the 

habitat for the species regardless of 

whether critical habitat is designated for 

these lands, and will likely result in 

similar recommended conservation 

measures. Therefore, the cost of critical 

habitat designation on this project 

would be limited to the additional 

administrative cost of adding the 

adverse modification analysis to the 

section 7 jeopardy analysis. 

The FEA additionally considered the 

potential indirect effects of the 

designation, including, for example, 

perceptional effects on land values, or 

the potential for third-party lawsuits. 

Given the uncertainties surrounding the 

probability of any such effects occurring 

(and if so, the magnitude of any such 

effects), quantification of the potential 

indirect effects of the designation was 

not possible. The FEA acknowledges, 

however, that these uncertainties result 

in an underestimate of the quantified 

impacts of the designation (IEc 2016, p. 

2–23). 

Exclusions Based on Economic Impacts 

The Service considered the economic 

impacts of the critical habitat 

designation and the Secretary is not 

exercising his discretion to exclude any 

areas from this designation of critical 

habitat for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense based on 

economic impacts. 

A copy of the FEA may be obtained 

by contacting the Pacific Islands Fish 

and Wildlife Office (see ADDRESSES) or 

by downloading from the internet at 

http://www.regulations.gov under 

Docket No. FWS–R1–ES–2013–0028. 

Exclusions Based on Impacts on 

National Security or Homeland Security 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense where a national security 

impact might exist. In preparing this 

final rule, we have determined that no 

lands within the designation of critical 

habitat for these three species are owned 

or managed by the Department of 

Defense or Department of Homeland 

Security, and, therefore, we anticipate 

no impact on national security or 

homeland security. Consequently, the 

Secretary is not exercising his discretion 

to exclude any areas from this final 

designation based on impacts on 

national security or homeland security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether there are permitted 

conservation plans covering the species 

in the area such as HCPs, safe harbor 

agreements, or candidate conservation 

agreements, or non-permitted 

conservation agreements which reduce 

the benefits of critical habitat or 

partnerships that would be encouraged 

by exclusion from critical habitat. In 

preparing this final rule, we have 

determined that the final designation of 

critical habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

does not include any land covered by 

permitted conservation plans. We 

anticipate no impact to permitted 

conservation plans from this critical 

habitat designation. 

Private or Other Non-Federal 

Conservation Plans or Agreements and 

Partnerships 

We sometimes exclude areas from 

critical habitat designations based in 

part on the existence of private or other 

non-Federal conservation plans or 

agreements that can minimize the 

benefits of critical habitat. We may also 

exclude areas covered by conservation 

agreements if we believe a benefit of 

exclusion would be to encourage future 

conservation partnerships. A 

conservation plan or agreement 

describes actions that are designed to 

provide for the conservation needs of a 

species and its habitat, and may include 


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actions to reduce or mitigate negative 

effects on the species caused by 

activities on or adjacent to the area 

covered by the plan. Conservation plans 

or agreements can be developed by 

private entities with no Service 

involvement, or in partnership with the 

Service. 

We evaluate a variety of factors to 

determine how the benefits of any 

exclusion and the benefits of inclusion 

are affected by the existence of private 

or other non-Federal conservation plans 

or agreements and their attendant 

partnerships when we undertake a 

discretionary section 4(b)(2) exclusion 

analysis. Some of the factors that we 

will consider for non-permitted plans or 

agreements are listed below. These 

factors are not required elements of 

plans or agreements, and all items may 

not apply to every plan or agreement. 

1. The degree to which the plan or 

agreement provides for the conservation 

of the species or the essential physical 

or biological features (if present) for the 

species; 

2. Whether there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in a management plan or 

agreement will be implemented; 

3. The demonstrated implementation 

and success of the chosen conservation 

measures; 

4. The degree to which the record of 

the plan supports a conclusion that a 

critical habitat designation would 

impair the realization of benefits 

expected from the plan, agreement, or 

partnership; 

5. The extent of public participation 

in the development of the conservation 

plan; 

6. The degree to which there has been 

agency review and required 

determinations (e.g., State regulatory 

requirements), as necessary and 

appropriate; 

7. Whether National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) compliance was required; and 

8. Whether the plan or agreement 

contains a monitoring program and 

adaptive management to ensure that the 

conservation measures are effective and 

can be modified in the future in 

response to new information. 

The Secretary places great weight on 

demonstrated partnerships, as in many 

cases they can lead to the 

implementation of conservation actions 

that provide benefits to the species and 

their habitat beyond those that are 

achievable through the designation of 

critical habitat and section 7 

consultations, particularly on private 

lands, reducing the benefits of critical 

habitat. In addition, we consider the 

potential benefits of exclusion where 

voluntary conservation agreements may 

encourage future conservation actions 

and partnerships. The establishment 

and encouragement of strong 

conservation partnerships with nonFederal landowners is especially 

important in the State of Hawaii, where 

there are relatively few lands under 

Federal ownership; we cannot achieve 

the conservation and recovery of listed 

species in Hawaii without the help and 

cooperation of non-Federal landowners. 

More than 60 percent of the United 

States is privately owned (Lubowski et 

al. 2006, p. 35), and at least 80 percent 

of endangered or threatened species 

occur either partially or solely on 

private lands (Crouse et al. 2002, p. 

720). In the State of Hawaii, 84 percent 

of landownership is non-Federal (U.S. 

General Services Administration, in 

Western States Tourism Policy Council, 

2009). Given the distribution of listed 

species with respect to landownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998, p. 

1,407; Crouse et al. 2002, p. 720; James 

2002, p. 271). Building partnerships and 

promoting voluntary cooperation of 

landowners is essential to 

understanding the status of species on 

non-Federal lands and necessary to 

implement recovery actions, such as the 

reintroduction of listed species, habitat 

restoration, and habitat protection. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. 

Conservation agreements with nonFederal landowners, safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. We 

encourage non-Federal landowners to 

enter into conservation agreements 

based on a view that we can achieve 

greater species conservation on nonFederal lands through such partnerships 

than we can through regulatory methods 

alone (USFWS and NOAA 1996e (61 FR 

63854, December 2, 1996)). 

Many non-Federal landowners, 

however, are wary of the possible 

consequences of attracting endangered 

species to their property. Some evidence 

suggests that some regulatory actions by 

the government, while well intentioned 

and required by law, can (under certain 

circumstances) have unintended 

negative consequences for the 

conservation of species on non-Federal 

lands (Wilcove et al. 1996, pp. 5–6; 

Bean 2002, pp. 2–3; James 2002, pp. 

270–271; Koch 2002, pp. 2–3). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

endangered or threatened species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception can result in an anticonservation incentive because of the 

fear that maintaining habitats for 

endangered species could represent a 

risk to future economic opportunities 

(Main et al. 1999, pp. 1,264–1,265; 

Brook et al. 2003, pp. 1,644–1,648). 

Because so many important habitat 

areas for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense occur on 

lands managed by non-Federal entities, 

collaborative relationships are essential 

for their recovery. These species and 

their habitat are expected to benefit 

substantially from voluntary land 

management actions that implement 

appropriate and effective conservation 

strategies, or that add to our bank of 

knowledge about the species and their 

ecological needs. The conservation 

benefits of critical habitat, on the other 

hand, are primarily regulatory or 

prohibitive in nature. Where consistent 

with the discretion provided by the Act, 

the Service believes it is both desirable 

and necessary to implement policies 

that provide positive incentives to nonFederal landowners and land managers 

to voluntarily conserve natural 

resources and to remove or reduce 

disincentives to conservation (Wilcove 

et al. 1996, pp. 1–14; Bean 2002, p. 2). 

We believe it is imperative for the 

recovery of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense to support 

ongoing positive management efforts 

with non-Federal conservation partners, 

and to provide positive incentives for 

other non-Federal land managers who 

might be considering implementing 

voluntary conservation activities but 

have concerns about incurring 

incidental regulatory, administrative, or 

economic costs. 

Many landowners perceive critical 

habitat as an unnecessary and 

duplicative regulatory burden, 

particularly if those landowners are 

already developing and implementing 

conservation and management plans 

that benefit listed species on their lands. 

In certain cases, we believe the 

exclusion of non-Federal lands that are 

under positive conservation 

management is likely to strengthen the 

partnership between the Service and the 

landowner, which may encourage other 


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conservation partnerships with that 

landowner in the future. As an added 

benefit, by modeling positive 

conservation partnerships that may 

result in exclusion from critical habitat, 

such exclusion may also help encourage 

the formation of new partnerships with 

other landowners, with consequent 

benefits to the listed species. For all of 

these reasons, we place great weight on 

the value of conservation partnerships 

with non-Federal landowners when 

considering the potential benefits of 

inclusion versus exclusion of areas in 

critical habitat. 

We are excluding a total of 

approximately 7,027 ac (2,844 ha) of 

non-Federal lands on the island of 

Hawaii that meet the definition of 

critical habitat from the final critical 

habitat rule under section 4(b)(2) of the 

Act. We are excluding these lands 

because the continuation and 

strengthening of important conservation 

partnerships with the landowners will 

increase the likelihood of meaningful 

conservation for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, and 

increase the possibility that these 

partnerships will encourage others to 

enter into similar partnerships. 

Furthermore, the development and 

implementation of management plans 

covering portions of these excluded 

lands increase the accessibility 

necessary for surveys or monitoring 

designed to promote the conservation of 

these federally listed plant species and 

their habitat, as well as provide for other 

native species of concern, thereby 

reducing the benefits of overlying a 

designation of critical habitat. The 

Secretary has determined that the 

benefits of excluding these areas 

outweigh the benefits of including them 

in critical habitat, and that such 

exclusion will not result in the 

extinction of the species. The specific 

areas excluded are detailed in Table 4. 

Maps of each area excluded are 

provided in our supporting document 

‘‘Supplemental Information for the 

Designation and Nondesignation of 

Critical Habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense’’ 

available at http://www.regulations.gov 

under Docket No. FWS–R1–ES–2013– 

0028. Here we present (by landowner) 

an overview of each of the areas we are 

excluding based on conservation 

partnerships with the landowners, 

followed by a summary of our analysis 

of the benefits of inclusion versus the 

benefits of exclusion in each case. 

Kamehameha Schools 

In this final designation, the Secretary 

has exercised his discretionary authority 

to exclude from critical habitat lands 

that are owned by the Kamehameha 

Schools, totaling 2,834 ac (1,147 ha), 

under section 4(b)(2) of the Act. These 

lands fall within a portion of the 9,936 

ac (4,021 ha) proposed as critical habitat 

in Hawaii—Lowland Dry—Unit 31 (77 

FR 63928, October 17, 2012), have 

documented presence of Bidens 

micrantha ssp. ctenophylla and 

Mezoneuron kavaiense, and are 

considered essential to the conservation 

of Isodendrion pyrifolium. Kamehameha 

Schools is a proven conservation 

partner, as demonstrated, in part, by 

their ongoing management programs 

that provide important conservation 

benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense and their 

habitat, as well as to other federally 

listed species. These programs include 

Kamehameha Schools Natural 

Resources Management Plan (NRMP), 

the Three Mountain Alliance TMA 

Management Plan, and the management 

program on Kamehameha Schools lands 

at Kaupulehu. We have determined that 

the benefits of excluding these lands 

owned by Kamehameha Schools 

outweigh the benefits of including them 

in critical habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Kamehameha Schools is the largest 

private landowner in the State of 

Hawaii, owning approximately 375,000 

ac (151,757 ha), with approximately 

297,000 ac (120,192 ha) on Hawaii 

Island alone. Approximately 98 percent 

of these lands are dedicated to 

agriculture and conservation, and the 

remaining 2 percent of lands are in 

commercial real estate and properties. 

Kamehameha Schools is a private 

charitable educational trust established 

in 1887, through the will of Princess 

Bernice Pauahi Paki Bishop. The trust is 

used primarily to operate a 

comprehensive educational program for 

students of Hawaiian ancestry. In 

addition, part of the Kamehameha 

Schools’ mission is to protect Hawaii’s 

environment through recognition of the 

significant cultural value of the land 

and its unique flora and fauna. 

Kamehameha Schools has established a 

policy to guide the sustainable 

stewardship of its lands including 

natural resources, water resources, and 

ancestral places (Kamehameha Schools 

2013, entire). The maintenance of 

healthy, functioning native ecosystems 

is a critical component of the 

Kamehameha Schools’ integrated 

management strategy, and is sustained 

through a suite of voluntary actions 

including invasive weed control, native 

species restoration, ungulate 

management, rodent control, and 

wildfire mitigation on lands owned by 

Kamehameha Schools. 

In 1993, the North Kona Dry Forest 

Working Group was organized to 

address recovery of dry forest 

ecosystems in the region. The group 

consisted of Kamehameha Schools in 

partnership with Federal and State 

agencies, other private landowners, 

conservation organizations, scientific 

researchers, and the Service. The group 

selected a 5.8-ac (2.3-ha) parcel at 

Kaupulehu Mauka managed by 

Kamehameha Schools as a pilot project 

to demonstrate the feasibility of 

economically restoring and regenerating 

the lowland dry forest ecosystem 

(Hawaii Forest Industry Association 

(HFIA) 1998, p. 3). By 1998, the group 

had successfully demonstrated 

exclusion of ungulates, removal of 

fountain grass (Pennisetum setaceum), a 

reduction in rodent populations, and 

establishment of numerous native 

understory plant species at Kaupulehu 

Mauka. The benefits of these actions for 

endangered plant recovery include 

reduction in the threat of wildfire, 

reduction in rodent predation of fruits 

and seeds of native plant species, and 

increased regeneration of native plant 

species. 

In 1999, the North Kona Dry Forest 

Working Group received funding from 

the Service’s Private Landowner 

Incentive Program to outplant nine 

endangered plant species and as part of 

an effort to expand dry forest restoration 

efforts to larger areas within the region 

(Cordell et al. 2008, pp. 279–284). The 

group initiated this effort at Kaupulehu 

Makai (Cordell et al. 2008, pp. 279– 

284), an approximately 70-ac (28-ha) 

parcel that is managed as part of a larger 

parcel owned by the Kamehameha 

Schools. Five endangered plant species 

naturally occur within Kaupulehu 

Makai, including one of the species for 

which critical habitat is designated in 

this rule, Mezoneuron kavaiense. The 

other four naturally occurring federally 

listed plant species are Bonamia 

menziesii, Colubrina oppositifolia, 

Nothocestrum breviflorum, and 

Pleomele hawaiiensis. Four other listed 

plant species have been outplanted 

here, including Abutilon menziesii, 

Hibiscadelphus hualalaiensis, Hibiscus 

brackenridgei, and Kokia drynarioides. 

Management actions on the 70-ac (28- 

ha) parcel have included outplanting 

and care for 100 individuals of each of 

the nine endangered plant species, 

construction and enlargement of fire 


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breaks, repair and maintenance of a 

fence line to exclude goats and sheep, 

removal of fountain grass, and control of 

rodent populations. 

In 2004, additional funding was 

received from the Service’s Private 

Stewardship Grants Program for 

restoration of the lowland dry 

ecosystem within the 70-ac (28-ha) 

parcel. With the stated goal of 

discovering and demonstrating methods 

of cost effective control of fountain grass 

and other nonnative species, this project 

and its collaboration with scientific 

researchers has provided landowners 

with the tools and scientific 

documentation to restore the lowland 

dry ecosystems in the North Kona 

region (Cabin et al. 2000; Cabin et al. 

2002a; Cabin et al. 2002b; Thaxton et al. 

2010). This project also includes public 

outreach through ongoing volunteer 

participation to control nonnative plants 

and outplant native plants. Community 

volunteer participation has become a 

significant part of the continued success 

of this project, with volunteers 

consisting of school groups, native 

Hawaiian charter school groups, Youth 

Conservation Corps, and other special 

interest groups (HFIA 2006, in litt.; 

HFIA 2007, in litt.; HFIA 2008, in litt.). 

Kamehameha Schools helped 

establish the Three Mountain Alliance 

(TMA) in 2007. That year, Kamehameha 

Schools signed a memorandum of 

understanding (MOU) with the other 

members of the TMA, including the 

Service, to incorporate approximately 

253,466 ac (102,785 ha) of its lands into 

the partnership (TMA Management Plan 

2007, entire). Of the 2,834 ac (1,147 ha) 

of Kamehameha Schools land excluded 

from this critical habitat designation, 

650 ac (263 ha) at Kaupulehu, North 

Kona, are within the management area 

of the TMA, but currently only the 6 ac 

(2.3 ha) at Mauka are actively managed. 

The TMA management program is 

ongoing and includes: (1) Habitat 

protection and restoration; (2) 

watershed protection; (3) compatible 

recreation and ecotourism; (4) 

education, awareness, and public 

outreach; (5) cultural and historical 

resource protection; and (6) research, 

monitoring, and management program 

indicators (TMA Management Plan 

2007, pp. 26–38). The TMA 

management plan priorities that benefit 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their habitat 

include prioritizing feral animal control 

(through removal and fencing), weed 

control, human activities management, 

public education and awareness, small 

mammal control, climate change, and 

fire management (TMA Management 

Plan 2007, pp. 16–21). The TMA 

management plan and the commitments 

by Kamehameha Schools to implement 

the conservation actions listed above 

have led to maintenance or 

enhancement of habitat for these and 

other native species, or the emergence of 

suitable habitat where it is not present. 

The conservation priorities articulated 

in the TMA management plan have been 

implemented on the Kamehameha 

Schools property at Kaupulehu in some 

form or another since the 1993 

organization of the North Kona Dry 

Forest Working Group. Beginning with 

the experimental set-aside at Kaupulehu 

Mauka and continuing with the 

outplantings at Makai, Kamehameha 

Schools has conducted voluntary, 

ongoing conservation, and we expect 

they will continue conservation 

activities in the future. For more than 10 

years, Kamehameha Schools has carried 

out active ecosystem management at 

Kaupulehu on the 76 ac (31 ha) of 

lowland dry forest (70 ac (28 ha) at 

Makai, and approximately 6 ac (2.3 ha) 

at Mauka), with intensive management 

occurring in a 36-ac (15-ha) area. The 

entire 76-ac (31-ha) area is fenced, is 

enclosed by strategic firebreaks, and has 

been maintained as ungulate-free for the 

past 15 years. Within the 36-ac (15-ha) 

intensively managed area, additional 

management actions include the 

aggressive suppression of fountain grass 

and other priority weeds, suppression of 

rodent populations, and outplanting of 

common and rare native species 

(Hannahs 2013, in litt.). Such voluntary 

threat management and restoration 

actions provide multiple benefits to 

listed plant species, including Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

and their habitat. In association with 

their site manager of the 76 ac (28 ha) 

parcel at Kaupulehu (Hawaii Forest 

Industry Association) and the Service, 

Kamehameha Schools is working to 

complete a 10-year management plan to 

continue their ongoing active ecosystem 

management of the parcel, as well as a 

potential expansion of management 

actions into an additional 70 ac (28 ha) 

in the surrounding lowland dry 

ecosystem (Whitehead 2015, in litt.). 

In addition to implementing 

conservation actions on their lands on 

Hawaii Island, Kamehameha Schools 

has shown a commitment to 

conservation on their lands across the 

State of Hawaii. In 2011, they approved 

a 10-year Statewide Natural Resource 

Management Plan (NRMP), which sets 

the vision and direction for native 

ecosystem management on all the 

Kamehameha Schools lands in Hawaii. 

The NRMP includes broad ecologically 

and culturally based goals and strategies 

to: (1) Assess natural resources integrity; 

(2) manage priority threats to 

regeneration of native species; (3) 

restore ecosystem integrity; and (4) 

integrate and enable sustainable use. 

The NRMP further describes specific 

actions, targets, and metrics for 

monitoring implementation at annual or 

5-year intervals. For example, the NRMP 

identifies the goal of limiting habitat 

loss by suppressing or eliminating 

priority threats to the regeneration of 

native species, increasing very highquality habitat, and increasing landbased learning experiences to the 3,000 

people served annually. The NRMP 

includes the following management 

actions designed to address threats to 

the lowland dry ecosystem: (1) Weed 

control; (2) fencing/hunting to remove 

ungulates; (3) increasing native land 

cover and biodiversity; (4) maintaining 

access and fire response infrastructure; 

and (5) developing a restoration 

strategy. The NRMP also identifies the 

desired goal of increasing the area of 

habitat in restoration within the area 

being excluded from this designation. 

The Kamehameha Schools is 

currently implementing the NRMP 

across the State in coordination with 

previously established site-specific 

plans that often already include the 

conservation actions in the NRMP, such 

as the program at Kaupulehu, North 

Kona. As a partner in the West Maui 

Mountain Watershed Partnership, 

Kamehameha Schools participates in 

the conservation efforts in Paunau, 

Maui, to control erosion, manage 

ungulate populations, and eradicate 

invasive species for the purpose of 

maintaining the watershed that provides 

a continual supply of fresh water to the 

families of Maui. On Oahu, 

Kamehameha Schools is a partner in 

efforts to restore the wetlands of Uko‘a 

in order to provide a healthy native 

habitat for Hawaii’s water birds and 

other native biodiversity. Ongoing work 

includes a project to fence a 100-ac 

(40.5-ha) area to keep out ungulate 

populations and allow the native 

ecosystem to regenerate and thrive. On 

Kauai, Kamehameha Schools has 

conducted surveys on the invasive 

Australian tree fern and is now working 

on mitigation efforts to control spread of 

the fern. 

As discussed above, Kamehameha 

Schools NRMP, the TMA Management 

Plan, and the management program on 

Kamehameha Schools lands at 

Kaupulehu together have provided for 

the conservation of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense, 

and their shared essential physical or 


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biological features. Implementation of 

these programs has been ongoing for 

many years and the Service has a 

reasonable expectation that the 

conservation management strategies and 

actions contained in these conservation 

plans will continue to be implemented. 

The plans contain monitoring programs 

to ensure that the conservation 

measures are effective and can be 

modified in the future in response to 

new information. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these 

Kamehameha Schools lands. According 

to our records, between 2007 and 2016, 

there were no section 7 consultations 

conducted for projects on these 

Kamehameha Schools lands, indicating 

little likelihood of a future Federal 

nexus on these lands that would 

potentially trigger the consideration of 

adverse modification or destruction of 

critical habitat through section 7 

consultation. 

Waikoloa Village Association (WVA) 

In this final designation, the Secretary 

has exercised his discretion to exclude 

1,758 ac (712 ha) of lands from critical 

habitat, under section 4(b)(2) of the Act, 

that are owned by the WVA. These 

lands include almost the entirety of the 

1,779 ac (720 ha) proposed as critical 

habitat in Hawaii—Lowland Dry—Unit 

32; this area is occupied by one of the 

three plant species, Mezoneuron 

kavaiense, and is unoccupied but 

essential to the conservation of Bidens 

micrantha ssp. ctenophylla and 

Isodendrion pyrifolium (77 FR 63928; 

October 17, 2012). The WVA has a 

history of voluntarily facilitating and 

supporting the conservation of federally 

listed species and habitat essential to 

their recovery on their privately owned 

lands, and recently signed a MOU that 

formalizes their partnership with the 

Service. We have determined that the 

benefits of excluding these lands owned 

by the WVA outweigh the benefits of 

including them in critical habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. 

Waikoloa Village is a rapidly growing 

suburban community situated on the 

leeward slope of Mauna Kea volcano at 

approximately 1,100 ft (335 m) elevation 

in the district of South Kohala on 

Hawaii Island. The WVA, which 

represents the community through an 

elected Board of Directors, owns and 

manages the village golf course and 

approximately 10,000 ac (4,047 ha) of 

land that surround the village. In 2009, 

the non-profit Waikoloa Village Outdoor 

Circle secured funding for the Waikoloa 

Dry Forest Recovery Project from the 

State of Hawaii Forest Stewardship 

Program and Natural Resource 

Conservation Service’s (NRCS) Wildlife 

Habitat Improvement Program. The 10- 

year project (from 2009 to 2019) has 

proven successful at protecting existing 

Mezoneuron kavaiense individuals, 

restoring native forest around a remnant 

patch of lowland dry wiliwili (Erythrina 

sandwicensis) forest, and creating new 

populations of nine endangered plant 

species. The project’s management 

program includes: (1) Construction and 

maintenance of a fence to exclude 

ungulates from a 275-ac (111-ha) area of 

dry forest south of Waikoloa Village; (2) 

removal of ungulates from the fenced 

exclosure; (3) control of nonnative plant 

species to reduce competition and the 

threat of fire; (4) integrated pest 

management to reduce impacts on 

native plant species; (5) provision of 

infrastructure for propagation and 

maintenance of outplantings; (6) the 

establishment of common native and 

endangered plant species; and (7) 

education and community outreach 

activities. In 2011, a new nonprofit, the 

Waikoloa Dry Forest Initiative Inc. 

(WDFI), was formed to take over 

responsibility of the Waikoloa Dry 

Forest Recovery Project. In 2012, the 

WVA Board of Directors granted WDFI 

permission to protect and restore the 

275-ac (111-ha) dry forest area on WVA 

lands in the proposed critical habitat 

Hawaii–Lowland Dry–Unit 32 for a 

period of 75 years by way of a license 

agreement with WDFI. 

In total, the Waikoloa Dry Forest 

Recovery Project’s budget is over $1 

million, which includes funding from 

the State of Hawaii Forest Stewardship 

Program, NRCS, and in-kind 

contributions (Waikoloa Dry Forest 

Recovery Project 2009). Since 2009, the 

project has successfully completed 

construction of the fence around the 

275-ac (111-ha) dry forest area, 

conducted ungulate removal from 

within the fenced exclosure, controlled 

nonnative plant species, and propagated 

and outplanted common and federally 

listed native plant species, including the 

federally listed Abutilon sandwicense, 

Achyranthes mutica, Bonamia 

menziesii, Chrysodracon (=Pleomele) 

hawaiiensis, Hibiscus brackenridgei, 

Kokia drynarioides, Melanthera 

(=Lipochaeta) venosa, Mezoneuron 

kavaiense, Neraudia ovata, 

Nothocestrum breviflorum, Sesbania 

tomentosa, Silene hawaiiensis, Silene 

lanceolata, and Vigna o-wahuensis. In 

addition, WDFI conducts regular guided 

tours, volunteer work trips, and an 

annual festival that provides 

educational opportunities for the 

community to learn about conservation 

of listed species and the lowland dry 

ecosystem. 

In addition to cooperating with WDFI, 

in April 2014, the WVA signed an MOU 

with the Service wherein they agreed to 

implement additional important 

conservation actions beneficial to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, and the lowland 

dry ecosystem upon which they depend 

(Memorandum of Understanding 

between Waikoloa Village Association 

and U.S. Department of Interior Fish 

and Wildlife Service 2014, entire). The 

WVA agreed to set aside from 

development a 60-ac (24-ha) parcel 

adjacent to the Waikoloa Dry Forest 

Recovery Project’s 275-ac (111-ha) 

exclosure, and work cooperatively with 

the Service or other approved 

conservation partners to conduct 

activities expected to benefit Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

and the lowland dry ecosystem. 

Adaptive management strategies may 

include monitoring, fencing, ungulate 

removal, nonnative plant control, 

outplanting of target species, and other 

management actions intended to benefit 

listed species or the lowland dry 

ecosystem. Implementation has already 

been initiated on the following action 

agreed to in the MOU: set aside from 

development a 60-ac (24-ha) parcel 

adjacent to the Waikoloa Dry Forest 

Recovery Project’s 275-ac (111-ha) 

exclosure. 

As discussed above, the Waikoloa Dry 

Forest Recovery Project conducted with 

the cooperation of WVA has provided 

for the conservation of Mezoneuron 

kavaiense on WVA lands. Although the 

conservation area is unoccupied by 

Bidens micrantha ssp. ctenophylla and 

Isodendrion pyrifolium, by conserving 

Mezoneuron kavaiense, the Project also 

conserves the shared physical and 

biological features that are essential to 

the conservation of Bidens micrantha 

ssp. ctenophylla and Isodendrion 

pyrifolium. Implementation of the 

program has been ongoing for many 

years, and is expected to continue on 

the 275-ac (111-ha) dry forest reserve 

until 2087. The plan contains a 

monitoring program to ensure that the 

conservation measures are effective and 

can be modified in the future in 

response to new information. 

Furthermore, WVA’s 2014 MOU with 

the Service augments the reserve area 

with 60 ac (24 ha) of additional 


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protected habitat. The WVA’s history of 

conservation actions, their willingness 

to supplement those actions with a new 

MOU with the Service for the protection 

of additional acreage, and their steps to 

implement the MOU give the Service a 

reasonable expectation that WVA will 

continue to implement the conservation 

management strategies and actions for 

the Waikola Dry Forest Recovery Project 

and those contained in the MOU. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these WVA 

lands. According to our records, 

between 2007 and 2016, there were two 

informal consultations conducted 

regarding projects receiving Federal 

funding on WVA lands. The 2008 

consultation with NRCS involved the 

implementation of conservation actions 

for the Waikoloa Dry Forest Recovery 

Project. The project was determined not 

likely adversely affect listed species or 

critical habitat in the action area. The 

second consultation with FEMA in 2013 

involved the construction of a dip tank 

to improve fire suppression capabilities 

in West Hawaii. The project was also 

determined not likely to adversely affect 

any listed species or critical habitat in 

the action area. This history indicates 

the potential for a future Federal nexus 

on these lands that could trigger the 

consideration of adverse modification or 

destruction of critical habitat through 

section 7 consultation; however, these 

consultations were for actions aimed, 

directly or indirectly, at facilitating 

conservation efforts. Also, the presence 

of Mezoneuron kavaiense on these lands 

would trigger a section 7 consultation 

on effects to the species even without a 

critical habitat designation. As 

discussed in Benefits of Exclusion 

Outweigh the Benefits of Inclusion, 

below, we determined that the benefits 

of excluding these lands from critical 

habitat outweigh the benefits that may 

be derived from this potential Federal 

nexus. 

Palamanui Global Holdings LLC 

(Palamanui) 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands that are 

owned by Palamanui, totaling 502 ac 

(203 ha). These lands fall within a 

portion of the 1,583 ac (640 ha) 

proposed as critical habitat in Hawaii— 

Lowland Dry—Unit 33 (77 FR 63928, 

October 17, 2012), have documented 

presence of Mezoneuron kavaiense, and 

are considered essential to the 

conservation of Bidens micrantha ssp. 

ctenophylla and Isodendrion pyrifolium. 

Palamanui has demonstrated their 

willingness to work as a conservation 

partner by undertaking site management 

that provides important conservation 

benefits to the native Hawaiian species 

that depend upon the lowland dry 

ecosystem habitat. These actions 

include a voluntary conservation 

partnership and conservation agreement 

with the Service and ongoing sitespecific management on their lands for 

the conservation of rare and endangered 

species and their habitats. We have 

determined that the benefits of 

excluding these lands owned by 

Palamanui outweigh the benefits of 

including them in critical habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. 

Palamanui is developing a mixed-use 

residential and commercial project on 

725 ac (293 ha) in the land division of 

Kau, North Kona district, Hawaii Island 

(Group 70 International 2004, p. 1–5; 

Case 2013, in litt.). A portion of this 

development will provide supporting 

infrastructure for the proposed 

University of Hawaii West campus 

located on adjacent State land. In 2005, 

the area’s previous owner, Hiluhilu 

Development LLC, developed an 

integrated natural and cultural resources 

management plan (INCRMP) as part of 

a petition to reclassify the 725 ac (293 

ha) of land to the Urban District for the 

development project at North Kona 

(Land Use Commission Docket A03–744 

2005). The INCRMP addressed 

preservation, mitigation, management, 

and stewardship measures for the 

natural and cultural resources at the 

Palamanui development, and included a 

phased management program for 

biological resources with the following 

goals: (1) Creation of a lowland dry 

forest preserve and smaller reserves to 

protect rare and endangered plants; (2) 

establishment of the Palamanui Dry 

Forest Working Group; (3) hiring of a 

reserve coordinator; (4) reduction of fire 

threat; (5) construction of fences around 

preserve areas and exclosures around 

endangered tree species; (6) control of 

invasive weeds; (7) control of nonnative 

predators; (8) protection of rare and 

endangered species outside dry forest 

preserve; (9) creation of a native plant 

restoration program; (10) provision of an 

updated biological inventory of preserve 

areas and information on native 

invertebrates and the endangered 

Hawaiian hoary bat (Lasiurus cinereus 

semotus); and (11) development of an 

interpretive program for natural and 

cultural resources (Hiluhilu 

Development 2005, Exhibit D). To date, 

Palamanui has successfully 

implemented the following conservation 

actions: (1) Fencing to protect a 55-ac 

(22-ha) lowland dry forest preserve and 

other endangered plant locations 

outside the preserve; (2) maintenance of 

firebreaks to control the threat of fire at 

the preserve and other endangered plant 

locations outside the preserve; (3) 

establishment of the Palamanui Dry 

Forest Working Group and research 

partnership; and (4) partnerships with 

other landowners and practitioners to 

benefit the conservation and recovery of 

dry forest species and their habitat. 

Subsequent to the publication of the 

October 17, 2012, proposed critical 

habitat rule (77 FR 63928), Palamanui 

participated in a series of collaborative 

meetings with the Service, County of 

Hawaii, DHHL, Hawaii Department of 

Land and Natural Resources (DLNR), 

and other landowners in Hawaii— 

Lowland Dry—Units 31, 33, 34, and 35, 

to address species protection and 

recovery, and development on a 

regional scale. These discussions 

resulted in a cooperative approach to 

setting aside acreage adjacent to other 

landowners in order to protect larger 

areas of contiguous habitat from 

development. In 2015, Palamanui 

signed a MOU with the Service wherein 

they agreed to implement important 

conservation actions beneficial to the 

three species, as well as other rare and 

listed plant species and their habitat in 

the lowland dry ecosystem 

(Memorandum of Understanding 

Between Palamanui Global Holdings 

LLC and U.S. Department of Interior 

Fish and Wildlife Service 2015, entire). 

Palamanui agreed to increase the area of 

fenced and managed lowland dry forest 

protected within the 55-ac (22-ha) 

preserve by 19 ac (7.7 ha), for a total of 

approximately 75 ac (30 ha). Palamanui 

also agreed to ensure funding for 

conservation actions within the preserve 

for the next 20 years at a minimum of 

$50,000 per year. Palamanui will 

contribute conservation actions valued 

at an additional $200,000 to benefit the 

recovery of the three plant species and 

the lowland dry ecosystem, and agreed 

to work cooperatively with the Service 

or other conservation partners to 

conduct activities expected to benefit 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat. Implementation has already 

been initiated on the following actions 

agreed to in the MOU: (1) Firebreak 

maintenance around the preserve; (2) 

fence maintenance to exclude ungulates 

from the preserve, and removal of 

ungulates that breached the fence and 


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entered the preserve; (3) regular weed 

control in the preserve; and (4) 

propagation, outplanting, and 

maintenance of listed species in the 

preserve (Wagner 2016b, in litt., Wagner 

2016c, in litt). 

As discussed above, Palamanui’s 

protection of the lowland dry forest 

species and habitat through the INCRMP 

has provided for the conservation of 

Mezoneuron kavaiense and the physical 

or biological features that are essential 

to its conservation. Although the 

conservation area is unoccupied by 

Bidens micrantha ssp. ctenophylla and 

Isodendrion pyrifolium, by conserving 

Mezoneuron kavaiense, the INCRMP 

also conserves the shared physical and 

biological features that are essential to 

the conservation of Bidens micrantha 

ssp. ctenophylla and Isodendrion 

pyrifolium. The plan has had ongoing 

implementation for many years, and 

Palamanui has committed to continuing 

the effort into the future (based on their 

2015 MOU with the Service). The plan 

contains a monitoring program to ensure 

that the conservation measures are 

effective and can be modified in the 

future in response to new information. 

The 2015 MOU with the Service 

includes augmentation of the existing 

55-ac (22-ha) preserve by an additional 

19 ac (7.7 ha), as well as a commitment 

to fund conservation actions in the 

preserved areas for the next 20 years. 

Palamanui’s history of conservation 

actions, their cooperation in the 

development and finalization of the 

MOU, and their initial steps to 

implement the MOU give the Service a 

reasonable expectation that the 

conservation management strategies and 

actions contained in the MOU will 

continue to be implemented. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these Palamanui 

lands. According to our records, 

between 2007 and 2016, there were no 

section 7 consultations conducted for 

projects on these Palamanui lands, 

indicating little likelihood of a future 

Federal nexus on these lands that would 

potentially trigger the consideration of 

adverse modification or destruction of 

critical habitat through section 7 

consultation. 

Department of Hawaiian Home Lands 

(DHHL) 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands that are 

owned by DHHL, totaling 492 ac (199 

ha). These lands fall within portions of 

two proposed critical habitat units. The 

DHHL owns 91 ac (30 ha) of the 1,583 

ac (640 ha) proposed as critical habitat 

in Hawaii—Lowland Dry—Unit 33 (77 

FR 63928; October 17, 2012); this DHHL 

land has no documented presence of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, or Mezoneuron 

kavaiense but is considered essential to 

the conservation of all three. The DHHL 

also owns 401 ac (165 ha) of the 1,192 

ac (485 ha) proposed as critical habitat 

in Hawaii—Lowland Dry—Unit 35 (77 

FR 63928; October 17, 2012); this DHHL 

land has documented presence of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. Currently, the 

DHHL has the responsibility of 

managing approximately 200,000 ac 

(80,900 ha) in the State of Hawaii for the 

purposes of providing homestead 

leasing opportunities for native 

Hawaiians. The DHHL has 

demonstrated their willingness to work 

as a conservation partner by 

undertaking site management that 

provides important conservation 

benefits to the native Hawaiian species 

that depend upon the lowland dry 

ecosystem habitat. These actions 

include a voluntary conservation 

partnership and conservation agreement 

with the Service and ongoing sitespecific management on their lands for 

the conservation of rare and endangered 

species and their habitats. We have 

determined that the benefits of 

excluding these lands owned by DHHL 

outweigh the benefits of including them 

in critical habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

At Kealakehe, the DHHL is 

developing a portion of the Villages of 

Laiopua (Laiopua), a master-planned 

community with single- and multifamily residential units, recreational 

facilities, community facilities, parks, 

and archaeological and endangered 

plant preserve sites (DHHL 2009, pp. 

12–13). From 1996 to 2006, DHHL 

acquired 685 ac (277 ha) of the roughly 

1,000-ac (405-ha) development from the 

previous owner Hawaii Housing 

Finance and Development Corporation 

(HHFDC) (formerly Housing and 

Community Development Corporation 

of Hawaii (HCDCH)). The HHFDC had 

developed a mitigation plan with the 

Service and Hawaii Department of Fish 

and Wildlife (DOFAW) (Belt Collins 

1999) for the listed and other rare plant 

species affected by the proposed 

development as part of a section 7 

consultation with the Environmental 

Protection Agency (EPA) on wastewater 

treatment for Laiopua (USFWS 1990). 

The plan was finalized in 1999, and 

included the following conservation 

actions: (1) Construction requirements 

for fire prevention and control, and to 

avoid construction impacts to 

endangered plants; (2) development of 

eight mini-preserves (each 

approximately 0.03 ac, for a total of 0.24 

ac (0.1 ha)) and two principal preserves 

totaling approximately 37 ac (15 ha); (3) 

a secured and managed off-site 

mitigation area (tied to the development 

of villages 9 and 10) of approximately 

100 to 150 ac (40 to 61 ha); and (4) 

propagation and on-site planting of 

endangered and common native plant 

species, and management, monitoring, 

and reporting (Belt Collins 1999). 

The transfer agreements between the 

HHFDC and DHHL included 

acknowledgement of the need to 

conform with the portions of the 1999 

Plan related to the lands that DHHL 

acquired (including management of the 

preserves), and the need to consult with 

the Service and the DLNR on 

endangered and threatened species 

issues (HHFDC and DHHL 1997; BLNR 

et al. 2000; HCDCH and DHHL 2004; 

HCDCH and DHHL 2006). On May 17, 

2007, in association with a section 7 

consultation with the U.S. Housing and 

Urban Development (HUD) regarding 

funding under the Native American 

Housing Assistance and Self 

Determination Act of 1996 (25 U.S.C. 

4101 et seq.), the Service determined the 

DHHL development of Villages 1, 2, 4, 

and 5, and associated park and 

community facilities totaling 

approximately 235 ac (95 ha), were not 

likely to adversely affect the endangered 

Isodendrion pyrifolium and Mezoneuron 

kavaiense or any designated critical 

habitat for listed species (USFWS 2007, 

in litt.). As part the proposed action, 

DHHL agreed to: (1) Minimize impacts 

to listed species and their habitats 

during construction; (2) develop and 

implement a revised endangered species 

management plan for Isodendrion 

pyrifolium and Mezoneuron kavaiense; 

and (3) construct and manage the two 

principal preserves and the mini 

preserves (for Villages 3, 4, and 5) from 

the 1999 plan, and an archaeological 

preserve totaling approximately 66 ac 

(27 ha) (Kane 2007, in litt.). The DHHL 

subsequently committed two parcels 

(totaling 40 ac) and four mini preserves 

(each between 0.1 and 0.4 acres, for a 

total of approximately 1 ac (0.4 ha)) for 

the development, management, and 

maintenance as preserves with the sole 

purpose of protecting Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, Mezoneuron kavaiense, and 

other endangered species (Masagatani 


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2012, in litt.), and set aside an area 

identified for protection of 

archaeological resources; all protected 

areas totaled approximately 73 ac (29 

ha). The DHHL also agreed to allocate 

$250,000 per year over a 2-year period 

to fund management of the preserves. 

The 100- to 150-ac (40- to 61-ha) off-site 

mitigation area from the 1999 plan 

addressing development of Villages 9 

and 10 was not created because Village 

9 and 10 were not developed. The 

DHHL has protected all of the 21.7 ac 

(8.8 ha) for Village 10 from 

development, as discussed below. The 

HHFDC owns the land slated for Village 

9; they protected from development a 

4.2-ac (1.7-ha) portion of this area that 

is occupied by Mezoneuron kavaiense. 

Since 2010, the DHHL has committed 

approximately $1,198,052 for the 

development and management of the 

two larger preserves and four mini 

preserves at Kealakehe (Masagatani 

2012, in litt.). Conservation actions in 

the preserve areas include: (1) Fencing 

to exclude ungulates and prevent 

human trespass; (2) control and removal 

of nonnative plants; (3) control and 

prevention of the threat of fire; (4) 

propagation, outplanting, and care of 

common native and endangered plant 

species; and (5) promotion of 

community volunteer and education 

programs that support native plant 

conservation. 

Subsequent to the publication of the 

October 17, 2012, proposed rule, the 

DHHL participated in a series of 

collaborative meetings with the Service, 

County of Hawaii, DLNR, and other 

stakeholders in Hawaii—Lowland Dry— 

Units 31, 33, 34, and 35, to address 

species protection and recovery, and 

development on a regional scale. These 

discussions resulted in a cooperative 

approach to setting aside acreage 

adjacent to other landowners in order to 

protect larger areas of contiguous habitat 

from development. In 2015, the DHHL 

signed a MOU with the Service wherein 

they agreed to implement important 

conservation actions beneficial to the 

recovery of the three species, as well as 

other rare and listed plant species and 

their habitat in the lowland dry 

ecosystem (Memorandum of 

Understanding Between the Department 

of Hawaiian Home Lands and U.S. 

Department of Interior Fish and Wildlife 

Service 2015, entire). DHHL agreed to 

protect the 73 ac (29 ha) of existing 

preserves and to set aside and not 

develop two additional parcels totaling 

24 ac (10 ha) (one 2 ac (0.8 ha) area and 

another 21.7 ac (8.8 ha) area); in total 

the protected area is approximately 97 

ac (39 ha) to benefit the recovery of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, and the lowland 

dry ecosystem. The 21.7-ac (8.8-ha) 

portion of the additional 24 ac (10 ha) 

protected from development by DHHL is 

the site of proposed Village 10 and is 

adjacent to the 4.2 ac (1.7 ha) protected 

from development by the HHFDC 

(Village 9) and another 22 ac (8.9 ha) set 

aside by the County; these three areas 

together create approximately 47.9 

contiguous acres (19.4 ha) protected for 

the conservation of the three species 

and the lowland dry ecosystem. The 

DHHL also agreed in the MOU to fund 

conservation actions valued at $3.229 

million on 44 ac (18 ha) of the existing 

preserves for 40 years and within the 

additional 24 ac (10 ha) for 20 years. 

The remaining 29 ac (ha) of existing 

preserves will not be actively managed 

but will remain protected from 

development. 

Conservation actions on the 68 

managed acres include actions from the 

1999 plan (control and the prevention of 

the threat of fire; control and removal of 

nonnative plant species; and 

propagation, outplanting, and care of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, and other rare 

and endangered plant species) as well as 

the following additional actions: (1) 

Installation and maintenance of a 6-fttall, hog wire, ungulate-proof fence 

around each protected area; (2) 

construction and maintenance of a 20- 

ft (6-m) wide firebreak and fence line 

around these fences; (3) sufficient 

control of nonnative plant species to 

prepare the land for out-planting of 

covered species; (4) out-planting of 

covered species; (5) weeding after initial 

preparation and re-weeding/re-planting 

the entire area at regular intervals after 

the entire area has been weeded and 

out-planted once; and (6) allowing site 

visits by the Service. Implementation 

has already been initiated on the 

following actions agreed to in the MOU: 

(1) Fence and firebreak maintenance 

around the preserves; (2) regular weed 

control of the managed areas in the 

preserves; (3) improvements to the 

fences and gates in the existing Aupaka 

Preserve, including raising the height of 

the fence to exclude ungulates and 

removing barbed wire (a threat to the 

endangered Hawaiian hoary bat); (4) site 

preparation for outplanting; (5) 

outplanting of 200 listed plants on 5 ac 

(2 ha) per year inside the main Aupaka 

preserve; and (6) and weekly monitoring 

of all outplants (Wagner 2017b, in litt). 

As discussed above, the development 

and management of the preserves at 

Kealakehe has provided for the 

conservation of Mezoneuron kavaiense, 

Bidens micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium. The 

conservation effort has been occurring 

since DHHL took over ownership and 

management of the land, and DHHL has 

committed to continuing the effort into 

the future based on their 2015 MOU 

with the Service. The effort includes an 

annual progress evaluation to ensure 

that the conservation measures are 

effective and can be modified in the 

future in response to new information. 

The MOU augments the original 75-ac 

(29-ha) preserve with an additional 24 

ac (10 ha) and includes a commitment 

to fund conservation actions into the 

future. The DHHL’s history of 

conservation actions, their cooperation 

in the development and finalization of 

their MOU with the Service, and their 

steps to implement the MOU give the 

Service a reasonable expectation that 

the conservation management strategies 

and actions contained in the MOU will 

continue to be implemented. 

The DHHL has worked in other areas 

on the Island of Hawaii to protect and 

restore endangered and threatened 

species and their habitats. In December 

2010, the Hawaiian Homes Commission 

adopted the ‘‘Aina Mauna Legacy 

Program,’’ a 100-year plan to reforest 

approximately 87 percent of a 56,200-ac 

(22,743-ha) contiguous parcel managed 

by DHHL on the eastern slope of Mauna 

Kea, Hawaii Island. The Aina Mauna 

Legacy Program is removing all feral 

ungulates from the Aina Mauna 

landscape, and several projects have 

included fenced units where pigs and 

cattle have been removed (DHHL 2009, 

pp. 19–21). Projects that have been 

implemented to date have received 

funding from the Service’s Partners for 

Fish and Wildlife Program and included 

10-year landowner agreements between 

the Service and the landowners 

(including DHHL) to maintain the 

conservation actions; other partners 

involved include the State of Hawaii, 

the Hakalau Forest National Wildlife 

Refuge, and the Mauna Kea Watershed 

Alliance. Conservation actions that have 

been implemented for these projects 

include: (1) Management of 650 ac (263 

ha) of native koa (Acacia koa) buffer 

between the invasive nonnative gorse 

and the Hakalau Forest National 

Wildlife Refuge (USFWS 2014a, in litt.); 

(2) restoration of 2 mi (3.2 km) of 

riparian habitat along Nauhi Gulch 

(USFWS 2014b, in litt.); (3) protection 

and restoration of approximately 1,100 

ac (445 ha) of montane wet and montane 

mesic native forest within the 

Waipahoehoe Management Unit 

(USFWS 2015b, in litt.); and (4) habitat 


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restoration and protection of 525 ac (212 

ha) of the Kanakaleonui Bird Corridor. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these DHHL 

lands. According to our records, 

between 2007 and 2016, there were 

three informal consultations conducted 

regarding projects receiving Federal 

funding on DHHL lands in proposed 

Hawaii—Lowland Dry—Unit 35 (in 

2007, 2010, and 2014). The 2007 project 

funded by HUD (discussed above), 

entailed the development of four 

residential subdivisions and the 

establishment of endangered species 

preserve areas at the Villages of 

Laiopua, Kealakehe, North Kona. Based 

on the conservation measures for the 

endangered plants Isodendrion 

pyrifolium and Mezoneuron kavaiense, 

and the candidate plant (at the time) 

Bidens micrantha ssp. ctenophylla, we 

concurred that this project was not 

likely to adversely affect listed species 

or critical habitat (USFWS 2007, in litt.). 

A second consultation in 2010 involved 

the construction of Phase 1A of the Ane 

Keohokalole Highway within a right of 

way adjacent to DHHL lands containing 

Isodendrion pyrifolium. Based on the 

conservation measures for Isodendrion 

pyrifolium, we concurred that this 

project was not likely to adversely affect 

listed species or critical habitat (USFWS 

2010a, in litt.). The 2014 project, also 

funded by HUD, was for the 

construction of the Laiopua 2020 

community center, with a project 

footprint of 4.53 ac (1.83 ha). Based on 

the conservation measures incorporated 

into the project description and the 

small project footprint, we concurred 

that this project was not likely to 

adversely affect listed species or 

proposed critical habitat. This history 

indicates the potential for a future 

Federal nexus on these lands that could 

trigger section 7 consultation on effects 

to critical habitat. In addition, a future 

residential project planned for 

development on the 91 ac (30 ha) of 

DHHL lands at Kalaoa in proposed 

Hawaii—Lowland Dry—Unit 33 is likely 

to involve a Federal nexus (DHHL 2002, 

pp. 25–26). However, as discussed 

below under Benefits of Exclusion 

Outweigh the Benefits of Inclusion, we 

determined that the benefits of 

excluding these lands from critical 

habitat outweigh the benefits that may 

be derived from this potential Federal 

nexus. 

Kaloko Entities 

In this final designation, the Secretary 

has exercised his discretion to exclude 

631 ac (255 ha) of lands from critical 

habitat, under section 4(b)(2) of the Act, 

that are owned or managed by Kaloko 

Entities. These lands fall within a 

portion of the 961 ac (389 ha) proposed 

as critical habitat in Hawaii—Lowland 

Dry—Unit 34 (77 FR 63928, October 17, 

2012), have documented presence of 

Bidens micrantha ssp. ctenophylla and 

Mezoneuron kavaiense, and are 

considered essential to the conservation 

of Isodendrion pyrifolium. Kaloko 

Entities is a new conservation partner 

with a willingness to engage in ongoing 

management programs that provide 

important conservation benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat, as well as to other rare and 

federally listed species. We have 

determined that the benefits of 

excluding these lands owned or 

managed by Kaloko Entities outweigh 

the benefits of including them in critical 

habitat for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. 

The Kaloko Entities, established in 

2016, manages approximately 1,203 ac 

(487 ha) in the district of North Kona, 

on Hawaii Island, including 631 ac (255 

ha) originally proposed for designation 

of critical habitat but excluded by this 

final rule. The Kaloko Entities consists 

of: (1) Kaloko Residential Park LLC, a 

Hawaii limited liability company (new 

owner of lands formerly owned by SCD– 

TSA Kaloko Makai LLC and Kaloko 

Properties Corporation); and (2) TSA 

LLC, a Hawaii limited liability company 

(formerly known as TSA Corporation). 

Conservation activities on these 

excluded lands date back to a 2010 

section 7 consultation by the FHWA 

associated with the construction of 

Phase 1A Package B of the Ane 

Keohokalole Highway (USFWS 2010b, 

in litt.). As a result of that consultation, 

SCD–TSA Kaloko Makai LLC agreed to 

set aside 150 ac (61 ha) of this area as 

a dryland forest reserve and participate 

in implementing conservation measures 

as a condition for issuance of a county 

grading permit. SCD–TSA Kaloko Makai 

LLC worked cooperatively with FHWA 

and the County of Hawaii by providing 

access to its lands for implementation of 

FHWA-funded conservation actions in 

the 150-ac (61-ha) set-aside. The FHWA 

conservation measures that addressed 

impacts of construction of the portion of 

Ane Keohokalole Highway from 

Kealakehe Parkway to Hina Lani Street 

ended in 2015. 

In 2011, SCD–TSA Kaloko Makai, LLC 

prepared a draft habitat conservation 

plan (HCP) under State law to address 

the impacts of their planned Kaloko 

Makai Development, a mixed use 

development on 1,139 ac (461 ha) in the 

Kaloko-Kohanaiki area, Kona, Hawaii; 

approximately 605 ac (245 ha) of this 

area was included in proposed Hawaii— 

Lowland Dry—Unit 34 (77 FR 63928; 

October 17, 2012). The draft HCP was 

available for public comment as a 

supporting document with the 

publication of the October 17, 2012, 

proposed designation. The conservation 

measures in the draft HCP were 

designed to address impacts to four 

endangered species (Chrysodracon 

(Pleomele) hawaiiensis, Mezoneuron 

kavaiense, Neraudia ovata, 

Nothocestrum breviflorum), one (at the 

time) candidate plant species (Bidens 

micrantha ssp. ctenophylla), and the 

Kaloko dry forest. These measures 

included: (1) Establishment of a 

preserve to protect in perpetuity the 

150-ac (61-ha) set-aside of dry forest 

from the 2010 consultation; (2) 

propagation and planting of three listed 

plants for each listed plant taken; (3) 

implementation of a fire plan; and (4) 

removal of invasive plant species 

around listed plant species in the 

preserve (Hookuleana 2011, pp. 10–11). 

During the public comment periods 

following the publication of the October 

17, 2012, proposed critical habitat 

designation (77 FR 63928), the Service 

continued to reach out to State, County, 

and private landowners, including 

several meetings between the Service 

and representatives of SCD–TSA Kaloko 

Makai, LLC. On June 6, 2016, during the 

second reopened comment period on 

the proposed critical habitat 

designation, the Service was notified of 

the new management and consultant 

team representing the Kaloko Entities. 

The comment letter expressed an 

interest to engage in discussions with 

the Service regarding conservation of 

key habitats on their property. The 

Kaloko Entities also noted that all 

development plans for the Kaloko Makai 

Development have been deferred with 

the transfer of ownership of those lands 

from SCD–TSA Kaloko Makai LLC and 

Kaloko Properties Corporation to Kaloko 

Residential Park LLC (Mukai 2016, in 

litt.). 

In October 2016, the Kaloko Entities 

entered into a MOU with the Service 

wherein they agreed to implement 

important conservation actions 

beneficial to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, as well as 

other rare and endangered plant species 


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and their habitat in the lowland dry 

ecosystem (Memorandum of 

Understanding between Kaloko Entities 

and U.S. Department of Interior Fish 

and Wildlife Service 2016, entire). The 

MOU established a partnership between 

Kaloko Entities and the Service to 

benefit the recovery of endangered 

species and their habitats for the next 26 

years. Kaloko Entities previously agreed 

to set aside 150 ac (61 ha) as a preserve 

to benefit the conservation of 10 rare 

and endangered plant and animal 

species and the lowland dry ecosystem. 

In the 2016 MOU, Kaloko Entities 

committed to pursuing protection of the 

preserve in perpetuity via transfer or 

donation of the preserve to a third party. 

Kaloko Entities will also construct a 

fence to exclude ungulates from the 

preserve. The MOU includes a 

commitment from Kaloko Entities to 

provide $2,000,000 towards the 

implementation of on-site conservation 

actions that will benefit the recovery of 

the three plant species and the lowland 

dry ecosystem. Conservation actions 

include fence maintenance, the 

establishment of fire breaks, weeding, 

outplanting, irrigation, ungulate 

removal, monitoring, and associated 

activities (including necessary staking 

and soil surveys) to conserve covered 

species, additional species, and dry 

forest ecosystem within the preserve. 

The plan contains a monitoring program 

to ensure that the conservation 

measures are effective and can be 

modified in the future in response to 

new information. Kaloko Entities’ 

protection of the lowland dry forest 

species and habitat through their MOU 

with the Service will provide for the 

conservation of Mezoneuron kavaiense, 

Bidens micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium, and the 

physical or biological features that are 

essential to their conservation. 

Implementation has already been 

initiated on the following action agreed 

to in the MOU: Provide funding towards 

the implementation of on-site 

conservation actions. 

As discussed above, Kaloko Entities’ 

protection of the lowland dry forest 

species and habitat through the 2010 

section 7 consultation by the FHWA has 

provided for the conservation of 

Mezoneuron kavaiense, Bidens 

micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium on Kaloko 

Entities lands. The 2016 MOU with the 

Service includes a commitment to fund 

$2,000,000 towards the implementation 

of conservation actions in the preserve. 

The effort includes an annual progress 

evaluation to ensure that the 

conservation measures are effective and 

can be modified in the future in 

response to new information. Kaloko 

Entities’ history of conservation actions, 

their cooperation in the development 

and finalization of the MOU, and their 

initial steps to implement the MOU give 

the Service a reasonable expectation 

that the conservation management 

strategies and actions contained in the 

MOU will continue to be implemented. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these Kaloko 

Entities lands. According to our records, 

between 2007 and 2016, there were two 

informal consultations regarding 

projects receiving Federal funding on 

Kaloko Entities lands. In 2008, the 

Service concluded that the construction 

of the Kaloko Transitional Housing 

Project funded by HUD on lands 

previously owned TSA Corporation was 

not likely to adversely affect listed 

species or critical habitat. In 2010, the 

second consultation (discussed earlier 

in this summary) involved construction 

of Phase 1A Package B of Ane 

Keohokalole Highway funded by the 

FHWA, and incorporated measures to 

minimize impacts to the endangered 

plants, Nothocestrum breviflorum, 

Mezoneuron kavaiense, Neraudia ovata, 

and Chrysodracon (Pleomele) 

hawaiiensis, and the (at that time) 

candidate Bidens micrantha ssp. 

ctenophylla on lands owned by Kaloko 

Properties Corporation and Stanford 

Carr Development. This consultation 

resulted in the 150-ac (61-ha) short-term 

set-aside (facilitated by the County) 

protected from development, and 

$500,000 committed by FHWA for 

conservation actions in the set-aside 

over a 5-year period ending in 2015. 

Based on the above conservation 

measures, we concurred that this project 

was not likely to adversely affect listed 

species or existing critical habitat. This 

history, as well as the planned future 

extension of the Ane Keohokalole 

Highway discussed in the FEA (IEc 

2016, p. 2–8), indicates the potential for 

a future Federal nexus on these lands 

that could trigger section 7 consultation 

on effects to critical habitat, although 

the presence of Bidens micrantha ssp. 

ctenophylla and Mezoneuron kavaiense 

on these lands would trigger a section 

7 consultation on effects to the species 

even without a critical habitat 

designation. As discussed below under 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion, we determined 

that the benefits of excluding these 

lands from critical habitat outweigh the 

benefits that may be derived from this 

potential Federal nexus. 

Lanihau Properties 

In this final designation, the Secretary 

has exercised his discretion to exclude 

47 ac (19 ha) of lands from critical 

habitat, under section 4(b)(2) of the Act, 

that are owned by Lanihau Properties. 

These lands fall within a portion of the 

961 ac (389 ha) proposed as critical 

habitat in Hawaii— Lowland Dry—Unit 

34 (77 FR 63928, October 17, 2012), 

have documented presence of Bidens 

micrantha ssp. ctenophylla, and are 

considered essential to the conservation 

of Isodendrion pyrifolium and 

Mezoneuron kavaiense. Lanihau 

Properties has demonstrated their 

willingness to work as a conservation 

partner by undertaking site management 

that provides important conservation 

benefits to the native Hawaiian species 

that depend upon the lowland dry 

ecosystem habitat. These actions 

include a voluntary conservation 

partnership and a conservation MOU 

with the Service and ongoing sitespecific management on their lands for 

the conservation of rare and endangered 

species and their habitats. We have 

determined that the benefits of 

excluding these lands owned by 

Lanihau Properties outweigh the 

benefits of including them in critical 

habitat for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. 

Lanihau Properties, LLC, and its 

affiliates the Palani Ranch Company and 

the Kaumalumalu, LCC (collectively 

with Lanihau Properties called the 

‘‘Lanihau Group’’) manage certain lands 

in the district of North Kona, on Hawaii 

Island. Subsequent to the publication of 

the October 17, 2012, proposed critical 

habitat rule (77 FR 63928), Lanihau 

Properties participated in a series of 

collaborative meetings along with the 

Service, County of Hawaii, DHHL, 

DLNR, and other stakeholders in 

Hawaii—Lowland Dry—Units 31, 33, 

34, and 35, to address species protection 

and recovery, and development on a 

regional scale. These discussions 

resulted in a cooperative approach to 

setting aside acreage adjacent to other 

landowners in order to protect larger 

areas of contiguous habitat from 

development. 

In 2014, Lanihau Properties entered 

into a MOU with the Service wherein 

they agreed to implement important 

conservation actions beneficial to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, as well as other 

rare and endangered plant species and 

their habitat in the lowland dry 


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ecosystem (Memorandum of 

Understanding between Lanihau 

Properties and U.S. Department of 

Interior Fish and Wildlife Service 2014, 

entire). Lanihau Properties agreed to set 

aside and not undertake development in 

an approximately 16-ac (6-ha) area, 

adding 11.4 ac (4.6 ha) to 4.6 ac (1.9 ha) 

previously set aside as a dryland forest 

reserve as a condition for issuance of a 

county grading permit associated with 

the construction of Phase 1A Package B 

of the Ane Keohokalole Highway 

(USFWS 2010, in litt.), and to work 

cooperatively with the Service to allow 

entry access and work by the Service (or 

entities working under contract, grant, 

or cooperative agreement with the 

Service including the County of Hawaii) 

to conduct activities in the nodevelopment area expected to benefit 

the conservation of the three species 

and the lowland dry ecosystem for the 

next 20 years. Conservation measures 

that the Service may undertake in the 

no-development area include: (1) 

Fencing to exclude ungulates; (2) 

control of nonnative plant species; (3) 

outplanting of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, as well as 

other rare and common native plant 

species; and (4) provision of 

supplemental water to outplanted 

individuals, and other actions preapproved by the Lanihau Properties. 

Implementation has already been 

initiated on the following action agreed 

to in the MOU: Set aside and not 

undertake development in an 

approximately 16-ac (6-ha) area of lands 

under its management. 

As discussed above, Lanihau 

Properties’ protection of the lowland 

dry forest species and habitat through 

their 2014 MOU with the Service will 

provide for the conservation of 

Mezoneuron kavaiense, Bidens 

micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium, and the 

physical or biological features that are 

essential to their conservation. In light 

of their prior conservation efforts and 

the fact that they have begun 

implementation of the 2014 MOU, there 

is a reasonable expectation that the 

conservation management strategies and 

actions contained in the MOU will 

continue to be implemented. The plan 

contains a monitoring program to ensure 

that the conservation measures are 

effective and can be modified in the 

future in response to new information. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these Lanihau 

Properties lands. According to our 

records, between 2007 and 2016, there 

was one informal consultation finalized 

in 2010 regarding projects receiving 

Federal funding on Lanihau Properties 

lands. The consultation involved 

construction of Phase 1A Package B of 

Ane Keohokalole Highway funded by 

the FHWA and incorporated measures 

to minimize impacts to the endangered 

plants, Nothocestrum breviflorum, 

Mezoneuron kavaiense, Neraudia ovata, 

and Chrysodracon (Pleomele) 

hawaiiensis, and the (at that time) 

candidate Bidens micrantha ssp. 

ctenophylla on lands owned by Lanihau 

Properties and Stanford Carr 

Development. This consultation 

resulted in 150-ac (61-ha) set-aside 

(facilitated by the County) protected 

from development, and $500,000 

committed by FHWA for conservation 

actions in the 150-ac (61-ha) set-aside 

over 5 years. Based on the above 

conservation measures, we concurred 

that this project was not likely to 

adversely affect listed species or 

existing critical habitat. While this 

history indicates a small potential for a 

future Federal nexus on these lands that 

could trigger the consideration of 

adverse modification or destruction of 

critical habitat through section 7 

consultation, the presence of Bidens 

micrantha ssp. ctenophylla these lands 

would trigger a section 7 consultation 

on effects to the species even without a 

critical habitat designation. As 

discussed below under Benefits of 

Exclusion Outweigh the Benefits of 

Inclusion, we determined that the 

benefits of excluding these lands from 

critical habitat outweigh the benefits 

that may be derived from this potential 

Federal nexus. 

County of Hawaii 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned by the 

State of Hawaii that are under 

management of the County of Hawaii (or 

County), totaling 165 ac (67 ha). These 

lands fall within a portion of the 1,192 

ac (485 ha) proposed as critical habitat 

in Hawaii—Lowland Dry—Unit 35 (77 

FR 63928; October 17, 2012), have 

documented presence of Mezoneuron 

kavaiense, and are considered essential 

to the conservation of Bidens micrantha 

ssp. ctenophylla and Isodendrion 

pyrifolium. The County has 

demonstrated their willingness to work 

as a conservation partner by 

undertaking site management that 

provides important conservation 

benefits to the native Hawaiian species 

that depend upon the lowland dry 

ecosystem habitat. These actions 

include a voluntary conservation 

partnership and conservation agreement 

with the Service and ongoing sitespecific management on their lands for 

the conservation of rare and endangered 

species and their habitats. We have 

determined that the benefits of 

excluding these lands managed by the 

County outweigh the benefits of 

including them in critical habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. 

The County of Hawaii owns or 

manages over 10,000 ac (4,047 ha) on 

Hawaii Island and is pursuing the 

development of a regional park on 193 

ac (78 ha) in Kealakehe, North Kona, 

Hawaii Island. In 2011, the Governor of 

the State of Hawaii set aside these 193 

ac (78 ha) from the DLNR to be under 

the control and management of the 

County for the purposes of wastewater 

reclamation, a golf course, and/or a 

public park (Governor’s Executive Order 

No. 4355). 

The County has been voluntarily 

cooperating with the Service in the 

conservation of rare and endangered 

species and their habitats for several 

years. In 2010, in association with their 

management of the construction of 

Phase 1A Package B of the Ane 

Keohokalole Highway by the FWHA, the 

County helped negotiate protection from 

development of over 150 ac (61 ha) of 

lowland dry ecosystem habitat in the 

Kaloko dry forest known to contain 

numerous listed plant species (USFWS 

2010, in litt.). This project did not 

involve County lands, but the land has 

since come under County management 

through an easement. Subsequent to the 

publication of the October 17, 2012, 

proposed rule, the County participated 

in a series of collaborative meetings 

with the Service, DHHL, DLNR, and 

other stakeholders in Hawaii—Lowland 

Dry—Units 31, 33, 34, and 35, to 

address species protection and recovery, 

and development on a regional scale. 

These discussions resulted in a 

cooperative approach to setting aside 

acreage adjacent to other landowners in 

order to protect larger areas of 

contiguous habitat from development. 

In 2015, the County entered into an 

MOU with the Service wherein they 

agreed to implement important 

conservation actions beneficial to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, as well as other 

rare and listed plant species and their 

habitat in the lowland dry ecosystem 

(Memorandum of Understanding 

Between County of Hawaii and U.S. 

Department of Interior Fish and Wildlife 

Service 2015, entire). The County agreed 


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to set aside and not develop 

approximately 30 ac (12 ha) of lands 

under its management, and conduct 

conservation actions valued at $1.534 

million on a total of 50.1 ac (20.3 ha) to 

benefit the recovery of the three plant 

species, as well as other rare and listed 

plant species and their habitat in the 

lowland dry ecosystem, over the next 20 

years. The 50.1 ac (20.3 ha) where 

conservation actions will occur includes 

30 ac (12 ha) managed by the County, 

4.2 ac (1.7 ha) managed by HHFDC, and 

15.9 ac (6.4 ha) owned by Lanihau 

Properties. Of the total 30 ac (12 ha) of 

County land protected from 

development, 22 ac (8.9 ha) are adjacent 

to the 4.2 ac (1.7 ha) set aside by the 

HHFDC and another 21.7 ac (8.8 ha) set 

aside by DHHL; these three areas 

together create approximately 47.9 

contiguous acres (19.4 ha) protected for 

the conservation of the three species 

and the lowland dry ecosystem. The 

remaining 8 ac (3.2 ha) of County setaside are located within the proposed 

Kealakehe Regional Park and adjacent to 

an existing 3.4-ac (1.4-ha) preserve 

managed by the County but owned by 

the Hawaiian DLNR. Because the 

conservation actions will occur in some 

areas jointly managed by the County 

and other agencies or at offsite 

locations, the County will work 

cooperatively and in partnership with 

these landowners. These conservation 

actions include: (1) Fencing to exclude 

ungulates; (2) control and prevention of 

the threat of fire; (3) control of 

nonnative plant species; and (4) other 

management actions expected to benefit 

the recovery of listed plant species and 

the lowland dry ecosystem. 

Implementation has already been 

initiated on the following action agreed 

to in the MOU: Set aside and not 

develop approximately 30 ac (12 ha) of 

lands under its management. The 

County continues to meet with the 

Service to implement the MOU. 

As discussed above, the County’s 

protection of the lowland dry forest 

species and habitat through their 2015 

MOU with the Service will provide for 

the conservation of Mezoneuron 

kavaiense, Bidens micrantha ssp. 

ctenophylla, and Isodendrion 

pyrifolium, and the physical or 

biological features that are essential to 

their conservation. In light of their prior 

conservation efforts and the fact that 

they have begun implementation of the 

2015 MOU, there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in the MOU will continue to 

be implemented. The plan contains a 

monitoring program to ensure that the 

conservation measures are effective and 

can be modified in the future in 

response to new information. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these County 

lands. According to our records, 

between 2007 and 2016, there was one 

informal consultation conducted 

regarding a project receiving Federal 

funding on lands under management of 

the County. In 2013, the FHWA 

consulted with the Service regarding the 

widening of Queen Kaahumanu 

Highway, adjacent to KalokoHonokohau NHP in Kailua-Kona, 

Hawaii. The Service concurred the 

proposed project was not likely to 

adversely affect listed species or 

designated critical habitat, including 

proposed critical habitat delineated by 

Hawaii—Lowland Dry—Unit 35. While 

this history indicates there is a small 

potential for a future Federal nexus on 

these lands that could trigger the 

consideration of adverse modification or 

destruction of critical habitat through 

section 7 consultation, the presence of 

Mezoneuron kavaiense on these lands 

would trigger a section 7 consultation 

on effects to the species even without a 

critical habitat designation. As 

discussed below in our summary of 

benefits of exclusion outweighing the 

benefits of inclusion, by landowner, we 

determined that the benefits of 

excluding these lands from critical 

habitat outweigh the benefits that may 

be derived from this potential Federal 

nexus. 

Hawaii Housing Finance and 

Development Corporation (HHFDC) 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned by the 

State of Hawaii that are under 

management of the HHFDC totaling 30 

ac (12 ha). These lands fall within a 

portion of the 1,192 ac (485 ha) 

proposed as critical habitat in Hawaii— 

Lowland Dry—Unit 35 (77 FR 63928; 

October 17, 2012), have documented 

presence of Mezoneuron kavaiense, and 

are considered essential to the 

conservation of Bidens micrantha ssp. 

ctenophylla and Isodendrion pyrifolium. 

The HHFDC is a new conservation 

partner with a willingness to engage in 

ongoing management programs that 

provide important conservation benefits 

to Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, and their 

habitat, as well as to other rare and 

federally listed species. We have 

determined that the benefits of 

excluding these lands managed by 

HHFDC outweigh the benefits of 

including them in critical habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. 

The HHFDC was established in 2006, 

and is tasked with developing and 

financing low- and moderate-income 

housing projects and administering 

homeownership programs. The HHFDC 

has the development rights to a 36.6-ac 

(14.8-ha) parcel, Tax Map Key (3) 7–4– 

020: 004, of Village 9 at the former 

Villages of Laiopua project in 

Kealakehe, North Kona, Hawaii; 

approximately 30 ac (12 ha) of this 

parcel was proposed as critical habitat 

(77 FR 63928; October 17, 2012). In 

2012, the Hawaii State Judiciary 

selected a 10-ac (4-ha) portion of the 

parcel as the future site of the Kona 

Judiciary Complex; however, during the 

extended due diligence process, surveys 

detected the presence of the endangered 

Mezoneuron kavaiense within the 

HHFDC parcel, which led to the 

decision to pursue development of the 

Judiciary Complex at another location 

(Hawaii State Judiciary 2013, in litt.; 

Hawaii State Judiciary 2014, in litt.). 

Subsequent to the publication of the 

October 17, 2012, proposed rule (77 FR 

63928), the HHFDC, in partnership with 

the Service, County of Hawaii, DHHL, 

DLNR, and other stakeholders in 

Hawaii—Lowland Dry—Units 31, 33, 

34, and 35, participated in a series of 

meetings to address species protection 

and recovery, and development on a 

regional scale. These discussions 

resulted in a cooperative approach to 

setting aside acreage adjacent to other 

landowners in order to protect larger 

areas of contiguous habitat from 

development. 

In 2016, the HHFDC entered into an 

MOU with the Service wherein they 

agreed to implement important 

conservation actions beneficial to the 

three species, as well as other rare and 

listed plant species and their habitat in 

the lowland dry ecosystem 

(Memorandum of Understanding 

Between Hawaii Housing Finance and 

Development Corporation and U.S. 

Department of Interior Fish and Wildlife 

Service 2016, entire). The HHFDC 

agreed to set aside and not develop 

approximately 4.2 ac (1.7 ha) of lands 

under its management (at the site of the 

proposed Village 9 at Laiopua) to 

provide protection and management for 

one of the seven remaining mature 

individuals of Mezoneuron kavaiense in 

proposed Unit 35, as well as other rare 

and listed plant species and their 

habitat in the lowland dry ecosystem, 


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over the next 20 years. The 4.2 ac (1.7 

ha) protected from development by the 

HHFDC are adjacent to the 22 ac (8.9 ha) 

set aside by the County and another 21.7 

ac (8.8 ha) set aside by the DHHL; these 

three areas together create 

approximately 47.9 contiguous acres 

(19.4 ha) protected for the conservation 

of the three species and the lowland dry 

ecosystem. Because the conservation 

actions will occur in some areas jointly 

managed by the HHFDC and other 

agencies, the HHFDC will work 

cooperatively and in partnership with 

these landowners and the Service. 

These conservation actions include: (1) 

Fencing to exclude ungulates; (2) 

control and prevention of the threat of 

fire; (3) control of nonnative plant 

species; and (4) other management 

actions expected to benefit the recovery 

of listed plant species and the lowland 

dry ecosystem. Implementation has 

already been initiated on the following 

action agreed to in the MOU: set aside 

and not develop approximately 4.2 ac 

(1.7 ha) of lands under its management. 

The HHFDC continues to meet with the 

Service to implement the MOU. 

As discussed above, HHFDC’s 

protection of the lowland dry forest 

species and habitat through their 2016 

MOU with the Service will provide for 

the conservation of Mezoneuron 

kavaiense, Bidens micrantha ssp. 

ctenophylla, and Isodendrion 

pyrifolium, and the physical or 

biological features that are essential to 

their conservation. In light of their prior 

conservation efforts and the fact that 

they have begun implementation of the 

2016 MOU, there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in the MOU will continue to 

be implemented. The plan contains a 

monitoring program to ensure that the 

conservation measures are effective and 

can be modified in the future in 

response to new information. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these lands 

managed by HHFDC lands. According to 

our records, between 2007 and 2016, 

there were no section 7 consultations 

conducted for projects on these HHFDC 

lands, indicating little likelihood of a 

future Federal nexus on these lands that 

would potentially trigger the 

consideration of adverse modification or 

destruction of critical habitat through 

section 7 consultation. 

Forest City Hawaii Kona LLC (Forest 

City Kona) 

In this final designation, the Secretary 

has exercised his discretion to exclude 

265 ac (107 ha) of lands from critical 

habitat, under section 4(b)(2) of the Act, 

that are owned by Forest City Kona. 

These lands fall within a portion of the 

1,192 ac (485 ha) proposed as critical 

habitat in Hawaii—Lowland Dry—Unit 

35 (77 FR 63928, October 17, 2012), 

have documented presence of Bidens 

micrantha ssp. ctenophylla, and are 

considered essential to the conservation 

of Isodendrion pyrifolium and 

Mezoneuron kavaiense. Forest City 

Kona is a new conservation partner with 

a willingness to engage in ongoing 

management programs that provide 

important conservation benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat, as well as to other rare and 

federally listed species. We have 

determined that the benefits of 

excluding lands owned by Forest City 

Kona outweigh the benefits of including 

them in critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Forest City Kona is a wholly owned 

subsidiary of the national real estate 

company, Forest City Enterprises, Inc. 

Forest City Kona was selected by the 

HHFDC to be the developer of the 

Kamakana Villages housing project on 

approximately 272 ac (110 ha) in 

Keahuolu, North Kona district, Hawaii 

Island (James 2012, in litt.). The 

Kamakana Villages project is planned to 

consist of residential (50 percent 

affordable housing), commercial, mixeduse, parks, open space, archaeological 

preserves, and schools. Subsequent to 

the publication of the October 17, 2012, 

proposed critical habitat rule (77 FR 

63928), Forest City Kona participated in 

a series of collaborative meetings with 

the Service, DHHL, DLNR, and other 

stakeholders in Hawaii—Lowland Dry— 

Units 31, 33, 34, and 35, to address 

species protection and recovery, and 

development on a regional scale. These 

discussions resulted in a cooperative 

approach to setting aside acreage 

adjacent to other landowners in order to 

protect larger areas of contiguous habitat 

from development. 

In 2016, Forest City Kona entered into 

a MOU with the Service and HHFDC 

wherein they agreed to implement 

important conservation actions 

beneficial to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, as well as 

other rare and listed plant species and 

their habitat in the lowland dry 

ecosystem (Memorandum of 

Understanding between Forest City 

Kona and U.S. Department of Interior 

Fish and Wildlife Service 2016, entire). 

Forest City Kona agreed to set aside and 

not undertake development in two 

areas, totaling 20 ac (8 ha), and to work 

cooperatively with the Service or 

approved conservation partners to 

conduct activities expected to benefit 

the conservation of the three species 

and the lowland dry ecosystem in these 

areas for the next 20 years. In the larger 

of the two areas, 12 ac (5 ha) in size, 

Forest City Kona will fence and 

maintain a firebreak around the 

perimeter. The MOU’s conservation 

actions include installation of 

maintenance of fencing to exclude 

ungulates, the installation and 

maintenance of a firebreak, and control 

of nonnative plant species. The MOU 

includes an agreement by Forest City 

Kona to provide $500,000 towards the 

implementation of on-site or off-site 

conservation actions within the North 

Kona region that will benefit the 

recovery of the three plant species and 

the lowland dry ecosystem. These 

actions may include additional fencing, 

firebreaks, and weeding, as well as 

propagation, outplanting, and care of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, and other rare 

and common native plant species. 

Implementation has already been 

initiated on the following actions agreed 

to in the MOU: (1) Set aside and not 

undertake development in two areas, 

totaling 20 ac (8 ha) of lands under its 

management; and (2) provide funding 

towards the implementation of on-site 

or off-site conservation actions within 

the North Kona region to conserve and 

recover the three plant species and the 

lowland dry ecosystem. Forest City 

Kona continues to meet with the Service 

to implement the MOU. 

As discussed above, Forest City 

Kona’s protection of the lowland dry 

forest species and habitat through their 

2016 MOU with the Service will 

provide for the conservation of 

Mezoneuron kavaiense, Bidens 

micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium, and the 

physical or biological features that are 

essential to their conservation. In light 

of their prior conservation efforts and 

the fact that they have begun 

implementation of the 2016 MOU, there 

is a reasonable expectation that the 

conservation management strategies and 

actions contained in the MOU will 

continue to be implemented. The plan 

contains a monitoring program to ensure 

that the conservation measures are 


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effective and can be modified in the 

future in response to new information. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these Forest City 

Kona lands. According to our records, 

between 2007 and 2016, there were no 

section 7 consultations conducted for 

projects on these Forest City Kona 

lands, indicating little likelihood of a 

future Federal nexus on these lands that 

would potentially trigger the 

consideration of adverse modification or 

destruction of critical habitat through 

section 7 consultation. 

Queen Liliuokalani Trust (QLT) 

In this final designation, the Secretary 

has exercised his discretion to exclude 

302 ac (122 ha) of lands from critical 

habitat, under section 4(b)(2) of the Act, 

that are owned by QLT. These lands fall 

within a portion of the 1,192 ac (485 ha) 

proposed as critical habitat in Hawaii— 

Lowland Dry—Unit 35 (77 FR 63928, 

October 17, 2012), have no documented 

presence of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense, but are 

considered essential to the conservation 

of all three. The QLT is a proven 

conservation partner, as demonstrated, 

in part, by their history of conservation 

programs and site management that 

provide important conservation benefits 

to federally listed plants and their 

habitat. These programs include a 

voluntary conservation agreement with 

the Service dating back to 2004 under 

the Service’s Partners for Fish and 

Wildlife Program, outplanting and site 

maintenance for federally listed species, 

and the initiation of a service learning 

program to engage the public in 

conservation actions. We have 

determined that the benefits of 

excluding these lands owned by QLT 

outweigh the benefits of including them 

in critical habitat for Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

The mission of the Queen 

Liliuokalani Trust, founded in 1909, is 

to provide services to benefit orphaned 

and destitute Hawaiian children and 

their families. On Hawaii Island, QLT 

properties total approximately 6,200 ac 

(2,509 ha), including the nearly intact, 

3,400-ac (1,376-ha) ahupua‘a of 

Keahuolu ̄u in Kona, and the 2,800 ac 

(1,133 ha) of agricultural and 

conservation lands of Honohina on the 

windward side. In 2004, the QLT 

entered into an agreement with the 

Service’s Partners for Fish and Wildlife 

Program to conduct research on the 

propagation of two endangered plants, 

Isodendrion pyrifolium and Neraudia 

ovata, in order to secure genetic 

material in ex situ (off-site) storage and 

provide individuals of each species for 

reintroduction or restoration projects. 

The Service and the QLT each 

contributed $10,000 toward the 

completion of this project. The QLT 

voluntarily contributed additional funds 

toward purchase of an all-terrain 

vehicle, fencing to exclude ungulates, 

and construction of a greenhouse, and 

renewed and extended the 2004 

agreement through 2007. The QLT also 

initiated management of outplanting 

sites, installed irrigation, and conducted 

reintroduction of select native species. 

In February 2014, the QLT entered 

into a MOU with the Service wherein 

they agreed to implement important 

conservation actions beneficial to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense, as well as other 

rare and listed plant species and their 

habitat in the lowland dry ecosystem 

(Memorandum of Understanding 

between Queen Liliuokalani Trust and 

U.S. Department of Interior Fish and 

Wildlife Service 2014, entire). The 

management program will be 

implemented within a portion of an 

already existing 25-ac (10-ha) Historic 

Preserve Area for a period of 20 years 

and includes: (1) Fencing to exclude 

ungulates; (2) control and prevention of 

the threat of fire; (3) propagation and 

outplanting of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, as well as 

six other rare or listed plant species; (4) 

weed control; (5) watering and 

maintenance of outplanted individuals; 

(6) monitoring and reporting; (7) 

analysis of success criteria; and (8) 

adaptive management. To date, they 

have installed exclusion fencing around 

the Historic Preserve Area and have 

begun implementation of their intensive 

management program. The QLT also 

agreed to set aside and not undertake 

development in a separate 28-ac (11-ha) 

area and work cooperatively with the 

Service or other conservation partners to 

conduct activities such as those 

mentioned above to benefit the 

conservation of the three species and 

the lowland dry ecosystem. This area 

will be available for the conservation 

and propagation efforts for the three 

species and other listed and rare species 

of the lowland dry ecosystem. 

In addition to the agreements detailed 

above, the QLT developed a culturally 

and place-based service learning 

program that has involved over 1,300 

beneficiaries, school groups, and other 

community members in removing 

invasive species. The QLT continues to 

spend over $12,000 per year to control 

invasive species, such as fountain grass 

(Pennisetum setaceum) and haole koa 

(Leucaena leucocephala). Other 

significant expenditures include funds 

spent on security in response to 

trespassing and vandalism on its Kona 

lands (QLT 2013, in litt.). 

As discussed above, QLT’s protection 

of the lowland dry forest species and 

habitat through their 2014 MOU with 

the Service will provide for the 

conservation of Mezoneuron kavaiense, 

Bidens micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium, and the 

physical or biological features that are 

essential to their conservation. In light 

of their prior conservation efforts and 

the fact that they have begun 

implementation of the 2014 MOU, there 

is a reasonable expectation that the 

conservation management strategies and 

actions contained in the MOU will 

continue to be implemented. The plan 

contains a monitoring program to ensure 

that the conservation measures are 

effective and can be modified in the 

future in response to new information. 

Because critical habitat designation 

provides regulatory protection against 

Federal actions that are found likely to 

destroy or adversely modify critical 

habitat, we looked at the section 7 

consultation history on these QLT 

lands. According to our records, 

between 2007 and 2016, there were no 

consultations conducted regarding 

projects receiving Federal funding on 

these QLT lands, indicating little 

likelihood of a future Federal nexus on 

these lands that would potentially 

trigger the consideration of adverse 

modification or destruction of critical 

habitat through section 7 consultation. 

Our DEA and FEA identified one 

anticipated future project slated for 

development on QLT lands; however, 

the Trust’s project is unlikely to involve 

the use of Federal funding or require 

Federal permitting, and, therefore, 

section 7 consultation is unlikely (IEc 

2016, p. 2–12). The Benefits of Inclusion 

and Exclusion 

Benefits of Inclusion—We find there 

are minimal benefits to including the 

areas described above in critical habitat. 

As discussed earlier in this document, 

the primary effect of designating any 

particular area as critical habitat is the 

requirement for Federal agencies to 

consult under section 7 of the Act to 

ensure actions they carry out, authorize, 

or fund do not destroy or adversely 

modify designated critical habitat. In 

areas where a federally listed species is 

likely present, Federal agencies are 

obligated under section 7 of the Act to 

consult with us on actions that may 


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affect that species to ensure that such 

actions are not likely to jeopardize the 

species’ continued existence. This 

requirement to consult to ensure Federal 

actions are not likely to jeopardize 

federally listed species in the area in 

question operates regardless of critical 

habitat. In areas where listed species are 

not likely present, section 7 

consultation may not be triggered by a 

Federal action unless critical habitat is 

designated. Thus the benefit of critical 

habitat may potentially be greater in 

unoccupied areas, since consultation 

may be triggered solely by the critical 

habitat designation. An evaluation of 

our consultation history on the island of 

Hawaii demonstrates that there is some 

potential for a Federal nexus resulting 

in a section 7 consultation, as has 

occurred nine times in the last 9 years 

(2007 to 2016) for actions in the 

excluded areas; however, the 

consultations were all informal, and the 

Service concurred in each case that the 

action was not likely to adversely affect 

the listed species or any critical habitat 

within the project area, in some cases 

due to conservation measures included 

in the project. 

In areas of critical habitat unoccupied 

by but essential to a species, such as 

QLT-owned lands and the portion of 

DHHL-owned lands in Hawaii— 

Lowland Dry—Unit 33, critical habitat 

designation can provide a conservation 

benefit because Federal agencies are 

required to consult with the Service to 

ensure that their actions are not likely 

to destroy or adversely modify critical 

habitat, and conservation measures are 

subsequently recommended for 

offsetting adverse project impacts to 

habitat. However, in these two 

particular cases, the likelihood that 

conservation benefits would be gained 

from a critical habitat adverse 

modification analysis is very limited. 

There is no history of section 7 

consultations on the excluded QLT 

lands over the last 9 years, and the only 

future development project expected on 

these lands is unlikely to involve the 

use of Federal funding or require 

Federal permitting and, therefore, 

would not have a Federal nexus that 

would trigger a consultation (IEc 2016, 

p. 2–13). 

With respect to the unoccupied 

portions of DHHL lands in Hawaii— 

Lowland Dry—Unit 33, although there 

is no history of section 7 consultations, 

there is a future development project 

proposed for these 91 ac (37 ha) that 

would likely have a Federal nexus. 

However, the DHHL has a strong history 

of implementation in the development 

and management of the preserves at 

Kealakehe that have provided for the 

conservation of Mezoneuron kavaiense, 

Bidens micrantha ssp. ctenophylla, and 

Isodendrion pyrifolium, and in 2015 

DHHL entered into an MOU with the 

Service in which DHHL agreed to 

preserve a total of approximately 97 ac 

(39 ha) of land for the conservation and 

recovery of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense, and their 

lowland dry ecosystem. In addition, 

under the MOU, DHHL agreed to install 

and maintain a fence around the 

preserve lands and to construct and 

maintain a firebreak around the fence, 

control nonnative plant species, 

conduct out-planting, weed and 

maintain the area, and conduct other 

related conservation activities. As 

discussed above, implementation of this 

MOU has been initiated. For these 

reasons, we believe that the MOU 

minimizes the benefits of designating 

the 91 ac (37 ha) of DHHL lands in 

Hawaii—Lowland Dry—Unit 33 for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense. 

If a future Federal nexus were to 

occur for an action taking place within 

an area occupied by one or more listed 

species, section 7 consultation would 

already be triggered by the presence of 

the species, and the Federal agency 

would consider the effects of its actions 

on the species through a jeopardy 

analysis. Because one of the primary 

threats to these species is habitat loss 

and degradation, the consultation 

process will, in evaluating the effects to 

these species, evaluate the effects of the 

action on the conservation or function 

of the habitat for the species regardless 

of whether critical habitat is designated 

for these lands. As noted in our FEA 

(IEc 2016, p. 1–7), the Service’s 

recommendations for offsetting adverse 

project impacts to habitat that is 

occupied by a listed bird, invertebrate, 

or plant species under the jeopardy 

standard are often the same as 

recommendations we would make to 

offset adverse impacts to critical habitat, 

with the exception of the conservation 

project’s location. As a consequence of 

shared threats and habitat requirements, 

any potential project modifications to 

provide for the conservation of one of 

these species would likely be the same 

as modifications requested for the 

others; thus, there would be little if any 

benefit from additional section 7 

consultation for those species for which 

an area is designated as unoccupied but 

essential critical habitat for a species 

when it is also designated as occupied 

habitat for one of the other species. 

Although the standards for jeopardy 

and adverse modification are not the 

same, any additional conservation that 

could be attained through the section 7 

prohibition on adverse modification 

analysis would not likely be significant 

in this case because of the consultation 

history. Most of the excluded areas in 

this rule are occupied by Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, or Mezoneuron kavaiense, 

and, therefore, in all seven previous 

consultations a jeopardy analysis was 

completed and recommendations for 

offsetting adverse impacts to habitat 

were incorporated into the projects. 

Furthermore, the State of Hawaii 

prohibits take of any federally listed 

endangered or threatened plants (HRS 

section 195D–4). Violation of this State 

law can result in a misdemeanor 

conviction with both criminal fines and 

administrative fines that graduate for 

subsequent convictions. This 

prohibition may lessen the benefit of a 

critical habitat designation on these 

lands that are occupied by Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and/or Mezoneuron 

kavaiense. 

The existing conservation programs 

being implemented by these landowners 

also may reduce the regulatory benefits 

of critical habitat. The designation of 

critical habitat carries no requirement 

that non-Federal landowners undertake 

any proactive conservation measures, 

for example with regard to the 

maintenance, restoration, or 

enhancement of habitat for listed 

species. Any voluntary action by a nonFederal landowner that contributes to 

the maintenance, restoration, or 

enhancement of habitat is, therefore, a 

valuable benefit to the listed species. 

The benefits of overlaying a designation 

of critical habitat may be further 

reduced by the fact that the 

development and implementation of 

management plans covering portions of 

these excluded lands increase the 

accessibility necessary for surveys or 

monitoring designed to promote the 

conservation of these federally listed 

plant species and their habitat. We have 

evaluated each of the conservation plans 

below to determine the appropriate 

weight that should be given to the plans 

in reducing the benefits of critical 

habitat. 

Another potential benefit of including 

lands in a critical habitat designation is 

that the designation can serve to educate 

landowners, State and local government 

agencies, and the public regarding the 

potential conservation value of an area, 

and may help focus conservation efforts 

on areas of high conservation value for 

certain species. Any information about 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 


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Mezoneuron kavaiense and their habitat 

that reaches a wider audience, including 

parties engaged in conservation 

activities, is valuable. However, in the 

case of all the lands excluded from this 

designation, the educational value of 

critical habitat is limited because the 

conservation value of these lands to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense is well 

recognized through extensive 

coordination and outreach with State 

and local government agencies and the 

public after critical habitat was 

proposed. 

During 2012, the Service held 

multiple informational meetings with 

the DHHL, DLNR, HHFDC, QLT, Forest 

City Kona, other nongovernmental 

organizations (NGOs) and private 

landowners, about the proposed critical 

habitat for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. In 2013, the 

Service participated in a community 

forum and held a public informational 

meeting to educate local community 

members about the limited distribution 

of the three federally listed species, the 

threats to the native flora of Hawaii and 

the ecosystems upon which they rely, 

and the importance of native flora and 

fauna to the Hawaiian community and 

economy. On August 7, 2013, the 

Service held a public information 

meeting in the Kailua-Kona area of west 

Hawaii specifically to highlight the 

proposed critical habitat. In 2013 and 

2014, the Service, along with several 

landowners participated in a series of 

meetings to address protection and 

recovery of listed species and their 

habitat while balancing individual 

landowner priorities on a regional scale. 

The process of proposing and finalizing 

critical habitat provided the opportunity 

for peer review and public comment. 

Through this process, all of these 

excluded lands were clearly identified 

as meeting the definition of critical 

habitat for the three plant species. The 

Service has posted maps of the areas 

excluded as supplemental materials 

under Docket No. FWS–R1–ES–2013– 

0028 at http://www.regulations.gov. The 

maps identify and further underscore 

the importance of these areas for the 

conservation of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. It is 

unlikely that designation of critical 

habitat will reach a wider audience or 

provide new information concerning the 

conservation value of this area. 

Furthermore, the landowners 

excluded from this designation have 

already taken proactive steps to manage 

for the conservation of these species, as 

demonstrated by their ongoing 

conservation efforts and participation in 

conservation agreements. Several 

landowners have a history of 

conservation efforts that date back many 

years. Also, three of the landowners 

(Kamehameha Schools, WVA, and QLT) 

conduct public outreach and education 

programs that engage the public in 

conservation awareness. Therefore, for 

the lands excluded from this 

designation, the benefit of critical 

habitat in terms of education is reduced. 

There is a long history of critical 

habitat designation in Hawaii, and 

neither the State nor county 

jurisdictions have ever initiated their 

own additional requirements in areas 

because they were identified as critical 

habitat. Therefore, based on this history, 

we believe this potential benefit of 

critical habitat is limited. 

Benefits of Exclusion—The benefits of 

excluding the areas described above 

from designated critical habitat are 

relatively substantial. Excluding the 

areas owned and/or managed by these 

landowners from critical habitat 

designation will provide significant 

benefit in terms of sustaining and 

enhancing the partnership between the 

Service and these landowners and 

partners, with positive consequences for 

conservation for the species that are the 

subject of this rule as well as other 

species that may benefit from such 

partnerships in the future. As described 

above, partnerships with non-Federal 

landowners are vital to the conservation 

of listed species, especially on nonFederal lands; therefore, the Service is 

committed to supporting and 

encouraging such partnerships through 

the recognition of positive conservation 

contributions. In the cases considered 

here, excluding these areas from critical 

habitat, both managed and unmanaged, 

will help foster the partnerships the 

landowners and land managers in 

question have developed with Federal 

and State agencies and local 

conservation organizations; will 

encourage the continued 

implementation of voluntary 

conservation actions for the benefit of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their habitat 

on these lands; and may also serve as a 

model and aid in fostering future 

cooperative relationships with other 

parties here and in other locations for 

the benefit of other endangered or 

threatened species. 

The designation of critical habitat, on 

the other hand, could have an 

unintended negative effect on our 

relationship with some non-Federal 

landowners due to the perceived 

imposition of government regulation. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999, p. 1,263; Bean 2002, 

p. 2). The magnitude of this negative 

outcome is greatly amplified in 

situations where active management 

measures (such as reintroduction, fire 

management, and control of invasive 

species) are necessary for species 

conservation (Bean 2002, pp. 3–4). We 

believe the judicious exclusion of 

specific areas of non-federally owned 

lands from critical habitat designation 

can contribute to species recovery and 

provide a superior level of conservation 

than critical habitat. Therefore, we 

consider the positive effect of excluding 

active conservation partners from 

critical habitat to be a significant benefit 

of exclusion. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion—We have 

reviewed and evaluated the exclusion of 

7,027 ac (2,844 ha) of land owned and/ 

or managed by 10 landowners on the 

island of Hawaii from critical habitat 

designation (see Table 4, above). The 

benefits of including these lands in the 

designation are comparatively small. We 

see a low likelihood of these areas 

substantially benefitting from the 

application of section 7 to critical 

habitat, as reflected in the consultation 

history between 2007 and 2016. All 

seven of the section 7 consultations in 

the excluded areas have resulted ‘‘in not 

likely to adversely affect’’ 

determinations. There are three future 

projects planned for development on 

these excluded lands. One of them is 

planned for occupied habitat (on Kaloko 

Makai land) and, therefore, would 

already be subject to a jeopardy analysis 

in a section 7 consultation, which 

minimizes the benefits of designating 

this area as critical habitat. In evaluating 

the effects to these species in a jeopardy 

analysis, we evaluate the effects of the 

action on the conservation or function 

of the habitat for the species regardless 

of whether critical habitat is designated 

for these lands, and the Service’s 

recommendations for offsetting adverse 

project impacts to occupied habitat are 

often the same as any recommendations 

we would make to offset adverse 

impacts to critical habitat. The two 

other projects are planned for 

unoccupied habitat, but only one (on 

DHHL land) would have a Federal 

nexus and, therefore, a potential benefit 

from critical habitat designation. 

However, the section 7 consultation for 

the project on DHHL land would be 


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unlikely to result in benefits for these 

species beyond the current and 

anticipated future benefits gained 

through the conservation partnership 

DHHL has with the Service. 

Furthermore, the potential 

educational and informational benefits 

of critical habitat designation on lands 

containing the physical or biological 

features essential to the conservation of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense would be 

minimal, because the landowners and 

land managers under consideration have 

demonstrated their knowledge of the 

species and their habitat needs in the 

process of developing their partnerships 

with the Service. Additionally, the 

current active conservation efforts on 

some of these lands contribute to our 

knowledge of the species through 

monitoring and adaptive management. 

Finally, as described above, 

Kamehameha Schools, WVA, and QLT 

have developed or participated in an 

active community outreach programs 

that have increased community 

awareness of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. 

In contrast, the benefits derived from 

excluding these owners and enhancing 

our partnership with these landowners 

and land managers is significant. 

Because voluntary conservation efforts 

for the benefit of listed species on nonFederal lands are so valuable, the 

Service considers the maintenance and 

encouragement of conservation 

partnerships to be a significant benefit 

of exclusion. The development and 

maintenance of effective working 

partnerships with non-Federal 

landowners for the conservation of 

listed species is particularly important 

in areas such as Hawaii, a State with 

relatively little Federal landownership 

but many species of conservation 

concern. Excluding these areas from 

critical habitat will help foster the 

partnerships the landowners and land 

managers in question have developed 

with Federal and State agencies and 

local conservation organizations, and 

will encourage the continued 

implementation of voluntary 

conservation actions for the benefit of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their habitat 

on these lands. In addition, these 

partnerships not only provide a benefit 

for the conservation of these species, but 

may also serve as a model and aid in 

fostering future cooperative 

relationships with other parties in this 

area of Hawaii Island and in other 

locations for the benefit of other 

endangered or threatened species. 

Therefore, in consideration of the 

factors discussed above under Benefits 

of Exclusion, including the relevant 

impacts to current and future 

partnerships, we have determined that 

the benefits of exclusion of lands owned 

and/or managed by the 10 landowners 

considered here and identified in Table 

4, above, outweigh the benefits of 

designating these non-Federal lands as 

critical habitat. Below, we provide a 

summary of how the benefits of 

exclusion outweigh the benefits of 

inclusion for each landowner. 

Kamehameha Schools 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned by 

Kamehameha Schools, totaling 2,834 ac 

(1,147 ha) on the island of Hawaii. 

Kamehameha Schools has been a proven 

conservation partner over the last two 

decades, as demonstrated, in part, by 

their ongoing management programs, 

including the Kamehameha Schools 

NRMP, the TMA Management Plan, and 

the management program on 

Kamehameha Schools land at 

Kaupulehu. 

The section 7 consultation history of 

these Kamehameha Schools lands (no 

consultations over the last 9 years) 

indicates there is little potential for a 

future Federal nexus that would create 

a benefit to including these lands in 

critical habitat. If a future Federal nexus 

were to occur for an action taking place 

on these lands, a section 7 consultation 

would already be triggered by the 

presence of Bidens micrantha ssp. 

ctenophylla and Mezoneuron kavaiense, 

and the Federal agency would consider 

the effects of its actions on the species 

through a section 7 consultation on the 

species. Because one of the primary 

threats to these species is habitat loss 

and degradation, the consultation 

process under section 7 of the Act for 

projects with a Federal nexus will, in 

evaluating the effects to these species, 

evaluate the effects of the action on the 

conservation or function of the habitat 

for the species regardless of whether 

critical habitat is designated for these 

lands, and will likely result in similar 

recommended conservation measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by Kamehameha Schools 

as critical habitat. First, the significant 

management actions already underway 

by Kamehameha Schools to restore and 

support the lowland dry habitat upon 

which Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense depend 

reduce the benefit of including the lands 

where these management actions occur 

in critical habitat. Since critical habitat 

does not require active management to 

maintain or improve habitat, the 

conservation actions in the 

Kamehameha Schools NRMP, the TMA 

Management Plan, and the management 

program on Kamehameha Schools lands 

at Kaupulehu provide benefits on the 

managed portions of these non-Federal 

lands beyond those that can be achieved 

through critical habitat designation and 

section 7 consultations. Additionally, 

this landowner and the public are 

already educated about the conservation 

value of these areas due to Kamehameha 

Schools’ conservation actions, their 

active outreach and education program, 

and the extensive coordination and 

outreach with State and local 

government agencies and the public 

after critical habitat on these lands was 

proposed; the designation of critical 

habitat would not increase 

Kamehameha School’s or the public’s 

awareness in this regard. Finally, the 

State of Hawaii’s take prohibition on 

federally listed plants (HRS section 

195D–4) will also lessen the benefit of 

a critical habitat designation on these 

lands since they are occupied by Bidens 

micrantha ssp. ctenophylla and 

Mezoneuron kavaiense. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like 

Kamehameha Schools to partner with 

the Service in the future, by removing 

any real or perceived disincentives for 

engaging in conservation activities, and 

thereby provide a benefit by 

encouraging future conservation 

partnerships and beneficial management 

actions. Furthermore, we give great 

weight to the benefits of excluding areas 

where we have conservation 

partnerships, especially on non-Federal 

lands, and excluding Kamehameha 

Schools lands even where active 

management is not occurring is likely to 

strengthen the partnership between the 

Service and the landowner, which may 

encourage other conservation 

opportunities with Kamehameha 

Schools in the future and increased 

conservation of listed species and their 

habitat on Kamehameha Schools lands. 

Because Kamehameha Schools is a large 

landowner in the area where habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense occurs, 

managing approximately 297,000 ac 

(120,192 ha) on Hawaii Island, its 

partnership with the Service is not only 

beneficial to the conservation of the 

species on Kamehameha Schools land 


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through protection and enhancement of 

habitat, but also potentially a very 

positive influence on other landowners 

considering partnerships with the 

Service. The exclusion highlights a 

positive conservation partnership model 

with a large landowner, and thereby 

may encourage the formation of new 

partnerships with other landowners, 

with consequent benefits to Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, Mezoneuron kavaiense, and 

other listed species. 

The benefits of excluding these 

Kamehameha Schools lands from 

critical habitat are sufficient to outweigh 

the potential benefits that may be 

realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because of limited 

potential for a Federal nexus on these 

lands and because the presence of 

Bidens micrantha ssp. ctenophylla and 

Mezoneuron kavaiense would already 

require section 7 consultation regardless 

of whether or not critical habitat is 

designated. In occupied habitat, the 

section 7 prohibition on adverse 

modification would be unlikely to 

provide additional conservation benefits 

beyond what would be attained through 

the jeopardy analysis for these species. 

The current efforts underway by 

Kamehameha Schools demonstrate the 

willingness of the landowner to 

contribute to the conservation of listed 

species and their habitat, and provide 

significant benefits for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on the managed portions of these nonFederal lands beyond those that can be 

achieved through critical habitat and 

section 7 consultations. Furthermore, 

significant conservation benefits would 

be realized through the exclusion of all 

these Kamehameha Schools lands, both 

managed and unmanaged, by continuing 

and strengthening our positive 

relationship with Kamehameha Schools, 

as well as encouraging additional 

beneficial conservation partnerships in 

the future. The combination of 

conservation gained from continuing 

management actions by Kamehameha 

Schools and the importance of 

maintaining, enhancing, and developing 

conservation partnerships provides 

greater benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense than what 

could be provided through the 

designation of critical habitat. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding Kamehameha Schools’ 

lands outweigh those of including them 

in critical habitat. As detailed below, 

the Secretary has further determined 

that such exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

Waikoloa Village Association (WVA) 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned by 

WVA, totaling 1,758 (712 ha) on the 

island of Hawaii. The WVA has been 

involved in conservation since 2009, 

through the State Forest Stewardship 

Agreement, the 2012 Waikoloa Dry 

Forest Initiative License Agreement, and 

more recently their MOU with the 

Service. 

The section 7 consultation history of 

these WVA lands (two informal 

consultations over the last 9 years) 

indicates there is potential for a future 

Federal nexus that could create a benefit 

to including these lands in critical 

habitat. However, we believe that the 

benefits gained from supporting the 

positive conservation partnership with 

this landowner in the State of Hawaii by 

excluding these lands from critical 

habitat (discussed below) are greater 

than the benefit that would be gained 

from the designation of critical habitat. 

If a future Federal nexus were to occur 

for an action taking place on these WVA 

lands, a section 7 consultation would 

already be triggered by the presence of 

Mezoneuron kavaiense, and the Federal 

agency would consider the effects of its 

actions on the species through a 

jeopardy analysis. Because one of the 

primary threats to these species is 

habitat loss and degradation, the 

consultation process under section 7 of 

the Act for projects with a Federal nexus 

will, in evaluating the effects to these 

species, evaluate the effects of the action 

on the conservation or function of the 

habitat for the species regardless of 

whether critical habitat is designated for 

these lands, and likely result in similar 

recommended conservation measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by WVA as critical habitat. 

This landowner and the public are 

already educated about the conservation 

value of these areas for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

due to WDFI’s conservation actions, 

their active public outreach and 

education program, and the Service’s 

extensive coordination and outreach 

with State and local government 

agencies and the public after critical 

habitat on these lands was proposed; the 

designation of critical habitat would not 

increase WVA’s or the public’s 

awareness in this regard. The State of 

Hawaii’s take prohibition on federally 

listed plants (HRS section 195D–4) will 

also lessen the benefit of a critical 

habitat designation on these lands since 

they are occupied by Mezoneuron 

kavaiense. In addition, the 2014 MOU 

with the Service contains conservation 

actions that will restore and support the 

lowland dry habitat upon which Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend, and so the benefit of including 

the lands where the management 

actions occur in critical habitat is 

reduced. Since critical habitat does not 

require active management to maintain 

or improve habitat, the conservation 

actions in the MOU are expected to 

provide benefits on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat designation and 

section 7 consultations. However, we 

have also taken into consideration that 

this is a new conservation agreement 

and full implementation has not yet 

been demonstrated. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like WVA to 

partner with the Service in the future, 

by removing any real or perceived 

disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding other WVA lands where 

active management is not occurring is 

likely to strengthen the partnership 

between the Service and WVA, which 

may encourage other conservation 

opportunities with the landowner in the 

future and increased conservation of 

listed species and their habitat on WVA 

lands. Because WVA is a large 

landowner in the area where habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, or Mezoneuron 

kavaiense occurs, managing 

approximately 10,000 ac (4,047 ha) on 

Hawaii Island, its partnership with the 

Service is not only beneficial to the 

conservation of the species on WVA 

land through protection and 

enhancement of habitat, but also 

potentially a very positive influence on 

other landowners considering 

partnerships with the Service. The 

exclusion highlights a positive 

conservation partnership model with a 

large landowner, and thereby may 


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encourage the formation of new 

partnerships with other landowners, 

with consequent benefits to Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense, 

and other listed species 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because the 

presence of the species would already 

require a section 7 consultation 

regardless of whether or not critical 

habitat is designated. In occupied 

habitat, the section 7 prohibition on 

adverse modification would be unlikely 

to provide significant additional 

conservation benefits beyond what 

would be attained through the section 7 

consultation due to the presence of 

Mezoneuron kavaiense. The current 

conservation efforts underway by WVA 

demonstrate the willingness of WVA to 

contribute to the conservation of listed 

species and their habitat, and provide 

significant benefits for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on the managed portions of these nonFederal lands beyond those that can be 

achieved through critical habitat and 

section 7 consultations. WVAs current 

conservation efforts (including 

development of the MOU), combined 

with our outreach to State and local 

governments and the public, indicate 

that the educational value of critical 

habitat would be minimal. The State’s 

prohibition on the take of listed plants 

will also minimize the benefits of 

critical habitat in this case because the 

excluded lands are occupied by 

Mezoneuron kavaiense. On the other 

hand, significant conservation benefits 

would be realized through the exclusion 

of all these WVA lands, both managed 

and unmanaged, by continuing and 

strengthening our positive relationship 

with WVA, as well as encouraging 

additional beneficial conservation 

partnerships in the future. The 

combination of conservation gained 

from continuing management actions by 

WVA and the importance of 

maintaining, enhancing, and developing 

conservation partnerships provides 

greater benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense than what 

could be provided through the 

designation of critical habitat on these 

WVA lands. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding WVA lands outweigh those 

of including them in critical habitat. As 

detailed below, the Secretary has further 

determined that such exclusion will not 

result in the extinction of Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, or Mezoneuron kavaiense. 

Palamanui Global Holdings, LLC 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned or 

managed by Palamanui Global Holdings 

LLC (Palamanui), totaling 502 ac (203 

ha) on the island of Hawaii. Palamanui 

has been involved since 2005 in 

conservation programs that provide 

important conservation benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat, as well as to other rare and 

federally listed species, such as their 

INCRMP, their new MOU with the 

Service, and their collaboration with 

other landowners in the originally 

Hawaii—Lowland Dry—Units 31, 33, 

34, and 35. 

The section 7 consultation history of 

these Palamanui lands (no consultations 

over the last 9 years) indicates there is 

little potential for a future Federal nexus 

that would create a benefit to including 

these lands in critical habitat. If a future 

Federal nexus were to occur for an 

action taking place on these Palamanui 

lands, a section 7 consultation would 

already be triggered by the presence of 

Mezoneuron kavaiense, and the Federal 

agency would consider the effects of its 

actions on the species through a section 

7 consultation on the species. Because 

one of the primary threats to these 

species is habitat loss and degradation, 

the consultation process under section 7 

of the Act for projects with a Federal 

nexus will, in evaluating the effects to 

these species, evaluate the effects of the 

action on the conservation or function 

of the habitat for the species regardless 

of whether critical habitat is designated 

for these lands, and will likely result in 

similar recommended conservation 

measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by Palamanui as critical 

habitat. First, the management actions 

already underway by Palamanui to 

restore and support the lowland dry 

habitat upon which Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend reduce the benefit of including 

the lands where these management 

actions occur in critical habitat. Since 

critical habitat does not require active 

management to maintain or improve 

habitat, the conservation actions 

included in the ICNRMP and the 2015 

MOU with the Service provide benefits 

on the managed portions of these nonFederal lands beyond those that can be 

achieved through critical habitat and 

section 7 consultations. In addition, the 

landowner and public are already aware 

of the conservation value of these areas 

due to Palamanui’s conservation actions 

and the extensive coordination and 

outreach with State and local 

government agencies and the public 

after critical habitat on these lands was 

proposed; the designation of critical 

habitat would not increase Palamanui’s 

or the public’s awareness in this regard. 

Finally, the State of Hawaii’s take 

prohibition on federally listed plants 

(HRS section 195D–4) will also lessen 

the benefit of a critical habitat 

designation on these lands since they 

are occupied by Mezoneuron kavaiense. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like 

Palamanui to partner with the Service in 

the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding other Palamanui lands where 

active management is not occurring is 

likely to strengthen the partnership 

between the Service and the landowner, 

which may encourage additional 

conservation partnerships with 

Palamanui in the future and increased 

conservation of listed species and their 

habitat on Palamanui lands. The 

exclusion highlights a positive 

conservation partnership model with 

the landowner, and thereby may help 

encourage the formation of new 

partnerships with other landowners, 

yielding benefits to Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

beyond what could be realized through 

critical habitat designation and section 

7 consultations on these areas. 

The benefits of excluding these 

Palamanui lands from critical habitat 

are sufficient to outweigh the potential 

benefits that may be realized through 

the designation of critical habitat. The 

regulatory benefit of designating critical 

habitat, afforded through the section 

7(a)(2) consultation process, is minimal 

because of limited potential on these 

lands for a Federal nexus and because 

the presence of Mezoneuron kavaiense 

would already require section 7 

consultation regardless of whether or 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42395 

not critical habitat is designated. In 

occupied habitat, the section 7 

prohibition on adverse modification 

would be unlikely to provide additional 

conservation benefits beyond what 

would be attained through the jeopardy 

analysis for these species. The current 

conservation efforts underway by 

Palamanui demonstrate the willingness 

of Palamanui to contribute to the 

conservation of listed species and their 

habitat, and provide significant benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. Palamanui’s current 

conservation efforts (including 

development of the MOU), combined 

with our outreach to State and local 

governments and the public, indicate 

that the educational value of critical 

habitat would be minimal. The State’s 

prohibition on the take of listed plants 

will also minimize the benefits of 

critical habitat in this case because the 

excluded lands are occupied by 

Mezoneuron kavaiense. On the other 

hand, significant conservation benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense would be 

realized through the exclusion of these 

Palamanui lands, by continuing and 

strengthening our positive relationship 

with Palamanui, as well as encouraging 

additional beneficial conservation 

partnerships in the future. The 

combination of conservation gained 

from continuing management actions by 

Palamanui and the importance of 

maintaining, enhancing, and developing 

conservation partnerships provides 

greater benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense than what 

could be provided through the 

designation of critical habitat on this 

Palamanui land. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding Palamanui’s lands 

outweigh those of including them in 

critical habitat. As detailed below, the 

Secretary has further determined that 

such exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

Department of Hawaiian Home Lands 

(DHHL) 

In this final designation, the Secretary 

has exercised his authority to exclude 

492 ac (199 ha) of lands from critical 

habitat, under section 4(b)(2) of the Act, 

that are under management by DHHL. 

This landowner is a conservation 

partner with a willingness to engage in 

ongoing management programs that 

provide important conservation benefits 

to Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat, as well as to other rare and 

federally listed species as demonstrated, 

by their history of conservation actions 

at Laiopua, their new MOU with the 

Service, and their collaboration with 

other landowners in Hawaii—Lowland 

Dry—Units 31, 33, 34, and 35. 

The section 7 consultation history of 

these DHHL lands over the last 9 years 

includes three informal consultations in 

Hawaii—Lowland Dry—Unit 35, 

indicating there is potential for a future 

Federal nexus that would create a 

benefit to including these lands in 

critical habitat. However, we believe 

that the benefits gained from supporting 

the positive conservation partnership 

with this large landowner in the State of 

Hawaii by excluding these lands from 

critical habitat (discussed below) are 

greater than the benefit that would be 

gained from the designation of critical 

habitat. Furthermore, if a future Federal 

nexus were to occur for an action taking 

place on the DHHL lands in Hawaii— 

Lowland Dry—Unit 35, a section 7 

consultation would already be triggered 

by the presence of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense, 

and the Federal agency would consider 

the effects of its actions on the species 

through a jeopardy analysis. Because 

one of the primary threats to these 

species is habitat loss and degradation, 

the consultation process under section 7 

of the Act for projects with a Federal 

nexus will, in evaluating the effects to 

these species, evaluate the effects of the 

action on the conservation or function 

of the habitat for the species regardless 

of whether critical habitat is designated 

for these lands, and likely result in 

similar recommended conservation 

measures. 

With respect to the unoccupied 

portions of DHHL lands in Hawaii— 

Lowland Dry—Unit 33, although there 

is no history of section 7 consultations, 

there is a future project that would 

likely have a Federal nexus. As 

mentioned earlier, DHHL is planning to 

develop all of these lands under their 

ownership in Hawaii—Lowland Dry— 

Unit 33. However, DHHL has a strong 

history of implementation of 

conservation efforts at the Kealakehe 

preserves, and in 2015, DHHL entered 

into an MOU with the Service in which 

DHHL agreed to preserve a total 97.05 

ac (39 ha) of land for the conservation 

and recovery of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense and their 

lowland dry ecosystem, and to conduct 

related conservation activities. We do 

not anticipate that critical habitat 

designation on these DHHL lands would 

result in benefits for these species 

beyond the current and anticipated 

future benefits gained through the 

conservation partnership DHHL has 

with the Service. 

Several additional factors serve to 

further reduce the benefit of designating 

these lands as critical habitat. The 

management actions already underway 

at the Kealakehe preserves to restore 

and support the lowland dry habitat 

upon which Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense depend 

reduce the benefit of including the lands 

where the management actions occur in 

critical habitat. Since critical habitat 

does not require active management to 

maintain or improve habitat, the 

conservation actions included in the 

conservation effort at Kealakehe and the 

2015 MOU with the Service are 

expected to provide benefits on the 

managed portions of these non-Federal 

lands beyond those that can be achieved 

through critical habitat and section 7 

consultations. Additionally, this 

landowner and the public are already 

educated about the conservation value 

of these areas for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense due to 

DHHL’s conservation actions and the 

Service’s extensive coordination and 

outreach with State and local 

government agencies and the public 

after critical habitat on these lands was 

proposed; the designation of critical 

habitat would not increase DHHL’s or 

the public’s awareness in this regard. 

Also, the State of Hawaii’s take 

prohibition on federally listed plants 

(HRS section 195D–4) will also lessen 

the benefit of a critical habitat 

designation on these DHHL lands in 

proposed Unit 35 since they are 

occupied by Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

where there are existing plans and 

programs can encourage landowners 

like DHHL to partner with the Service 

in the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 


sradovich on DSK3GMQ082PROD with RULES2
42396 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 

especially on non-Federal lands, and 

excluding other DHHL lands where 

active management is not occurring is 

likely to strengthen the partnership 

between the Service and the landowner, 

which may encourage additional 

partnerships with DHHL in the future 

and increased conservation of listed 

species and their habitat on DHHL 

lands. Because DHHL is a large 

landowner/manager in the State of 

Hawaii, managing 200,000 ac (80,900 

ha), its partnership with the Service is 

not only beneficial to the conservation 

of Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on DHHL land 

through protection and enhancement of 

habitat, but also potentially a very 

positive influence on other landowners 

considering partnerships with the 

Service. The exclusion highlights a 

positive conservation partnership model 

with a large landowner/manager in the 

State, and thereby may encourage the 

formation of new partnerships with 

other landowners, yielding benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense beyond what 

could be realized through critical 

habitat designation and section 7 

consultations on these areas. 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal. In the occupied 

proposed Unit 35, the presence of the 

species would already require a 

jeopardy analysis and section 7 

prohibition on adverse modification 

with critical habitat would be unlikely 

to provide additional conservation 

benefits on those lands beyond what 

would be attained through the jeopardy 

analysis for these species on those 

lands; the conservations measures that 

would be recommended to avoid 

impacts to habitat would likely be the 

same as those already recommended to 

avoid impacts to the species. In 

unoccupied Unit 33, there could be a 

benefit to designating critical habitat; 

however, we do not anticipate that 

critical habitat designation on these 

DHHL lands would result in benefits for 

these species beyond the current and 

anticipated future benefits gained 

through the conservation partnership 

DHHL has with the Service. The current 

conservation efforts underway by DHHL 

demonstrate the willingness of DHHL to 

contribute to the conservation of listed 

species and their habitat, and provide 

significant benefits for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on the managed portions of these nonFederal lands beyond those that can be 

achieved through critical habitat and 

section 7 consultations. These current 

conservation activities on these lands 

and development of the MOU, 

combined with our outreach to State 

and local governments and the public, 

indicate that the educational value of 

critical habitat would be minimal. On 

the other hand, significant conservation 

benefits would be realized through the 

exclusion of these DHHL lands, by 

continuing and strengthening our 

positive relationship with DHHL, as 

well as encouraging additional 

beneficial conservation partnerships in 

the future. The combination of 

conservation gained from continuing 

management actions by DHHL and the 

importance of maintaining, enhancing, 

and developing conservation 

partnerships provides greater benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense than what could 

be provided through critical habitat and 

section 7 consultations. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding DHHL lands outweigh 

those of including them in critical 

habitat. As detailed below, the Secretary 

has further determined that such 

exclusion will not result in the 

extinction of Isodendrion pyrifolium, 

Mezoneuron kavaiense, or Bidens 

micrantha ssp. ctenophylla. 

Kaloko Entities 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned or 

managed by Kaloko Entities, totaling 

631 ac (255 ha) on the island of Hawaii. 

Kaloko Entities is a new conservation 

partner with a willingness to engage in 

management programs and partnerships 

that will provide important 

conservation benefits to Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

and their habitat, as well as to other rare 

and federally listed species, as 

demonstrated by their MOU with the 

Service and their collaboration with 

other landowners in the originally 

proposed Hawaii—Lowland Dry—Units 

31, 33, 34, and 35. 

The section 7 consultation history of 

these Kaloko Entities lands (two 

informal consultations over the last 9 

years) indicates there is a potential for 

a future Federal nexus that would create 

a benefit to including these lands in 

critical habitat. However, we believe 

that the benefits gained from supporting 

the positive conservation partnership 

with this landowner by excluding these 

lands from critical habitat (discussed 

below) are greater than the benefit that 

would be gained from the designation of 

critical habitat. Furthermore, if a future 

Federal nexus were to occur for an 

action taking place on these Kaloko 

Entities lands, a section 7 consultation 

would already be triggered by the 

presence of Bidens micrantha ssp. 

ctenophylla and Mezoneuron kavaiense, 

and the Federal agency would consider 

the effects of its actions on the species 

through a section 7 consultation on the 

species. Because one of the primary 

threats to these species is habitat loss 

and degradation, the consultation 

process under section 7 of the Act for 

projects with a Federal nexus will, in 

evaluating the effects to these species, 

evaluate the effects of the action on the 

conservation or function of the habitat 

for the species regardless of whether 

critical habitat is designated for these 

lands, and likely result in similar 

recommended conservation measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by Kaloko Entities as 

critical habitat. The management actions 

already underway by Kaloko Entities to 

restore and support the lowland dry 

habitat upon which Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend reduce the benefit of including 

the lands where the management 

actions occur in a critical habitat 

designation. Since critical habitat does 

not require active management to 

maintain or improve habitat, the 

conservation actions in the MOU 

provide benefits on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat designation and 

section 7 consultations. In addition, the 

landowner and the public are already 

educated about conservation value of 

these areas for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense due to 

Kaloko Entities’ conservation actions 

and the Service’s extensive coordination 

and outreach with State and local 

government agencies and the public 

after critical habitat on these lands was 

proposed; the designation of critical 

habitat would not increase Kaloko 

Entities’ or the public’s awareness in 

this regard. Finally, the State of 

Hawaii’s take prohibition on federally 

listed plants (HRS section 195D–4) will 

also lessen the benefit of a critical 

habitat designation on these lands since 

they are occupied by Bidens micrantha 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42397 

ssp. ctenophylla and Mezoneuron 

kavaiense. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like Kaloko 

Entities to partner with the Service in 

the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding Kaloko Entities lands even 

where active management is not 

occurring is likely to strengthen the 

partnership between the Service and the 

landowner, which may encourage 

additional partnerships with Kaloko 

Entities in the future and increased 

conservation of listed species and their 

habitat on Kaloko Entities lands. The 

exclusion highlights a positive 

conservation partnership model with 

the landowner, and thereby may help 

encourage the formation of new 

partnerships with other landowners, 

yielding benefits to Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

beyond what could be realized through 

critical habitat designation and section 

7 consultations on these areas. 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because the 

presence of Bidens micrantha ssp. 

ctenophylla and Mezoneuron kavaiense 

would already require section 7 

consultation regardless whether critical 

habitat is designated. In occupied 

habitat, the section 7 prohibition on 

adverse modification would be unlikely 

to provide additional conservation 

benefits beyond what would be attained 

through the jeopardy analysis for these 

species. The current conservation efforts 

underway by Kaloko Entities 

demonstrate the willingness of Kaloko 

Entities to contribute to the 

conservation of listed species and their 

habitat, and provide significant benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. The current conservation 

efforts (including development of the 

MOU), combined with our outreach to 

State and local governments and the 

public, indicate that the educational 

value of critical habitat would be 

minimal. The State’s prohibition on the 

take of listed plants will also minimize 

the benefits of critical habitat in this 

case because the excluded lands are 

occupied by two of the species. On the 

other hand, significant conservation 

benefits would be realized through the 

exclusion of these Kaloko Entities lands, 

by continuing and strengthening our 

positive relationship with Kaloko 

Entities, as well as encouraging 

additional beneficial conservation 

partnerships in the future. The 

combination of conservation gained 

from continuing management actions by 

Kaloko Entities and the importance of 

maintaining, enhancing, and developing 

conservation partnerships provides 

greater benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense than what 

could be provided through the 

designation of critical habitat on these 

Kaloko Entities lands. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding Kaloko Entities lands 

outweigh those of including them in 

critical habitat. As detailed below, the 

Secretary has further determined that 

such exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

Lanihau Properties 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned or 

managed by Lanihau Properties, totaling 

47 ac (19 ha) on the island of Hawaii. 

Lanihau Properties is a new 

conservation partner with a willingness 

to engage in management programs that 

will provide important conservation 

benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense and their 

habitat, as well as to other rare and 

federally listed species, as demonstrated 

by their MOU with the Service and their 

collaboration with other landowners in 

the originally proposed Hawaii— 

Lowland Dry—Units 31, 33, 34, and 35. 

The section 7 consultation history of 

these Lanihau Properties lands (one 

informal consultation over the last 9 

years) indicates there is a small 

potential for a future Federal nexus that 

would create a benefit to including 

these lands in critical habitat. However, 

we believe that the benefits gained from 

supporting the positive conservation 

partnership with this landowner by 

excluding these lands from critical 

habitat (discussed below) are greater 

than the benefit that would be gained 

from the designation of critical habitat. 

Furthermore, if a future Federal nexus 

were to occur for an action taking place 

on these Lanihau Properties lands, a 

section 7 consultation would already be 

triggered by the presence of Bidens 

micrantha ssp. ctenophylla, and the 

Federal agency would consider the 

effects of its actions on the species 

through a section 7 consultation on the 

species. Because one of the primary 

threats to these species is habitat loss 

and degradation, the consultation 

process under section 7 of the Act for 

projects with a Federal nexus will, in 

evaluating the effects to these species, 

evaluate the effects of the action on the 

conservation or function of the habitat 

for the species regardless of whether 

critical habitat is designated for these 

lands, and likely result in similar 

recommended conservation measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by Lanihau Properties as 

critical habitat. The management actions 

already underway by Lanihau Properties 

to restore and support the lowland dry 

habitat upon which Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend reduce the benefit of including 

the lands where the management 

actions occur in a critical habitat 

designation. Since critical habitat does 

not require active management to 

maintain or improve habitat, the 

conservation actions in the MOU 

provide benefits on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat designation and 

section 7 consultations. In addition, the 

landowner and the public are already 

educated about conservation value of 

these areas for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense due to 

Lanihau Properties’ conservation 

actions and the Service’s extensive 

coordination and outreach with State 

and local government agencies and the 

public after critical habitat on these 

lands was proposed; the designation of 

critical habitat would not increase 

Lanihau Properties’ or the public’s 

awareness in this regard. Finally, the 

State of Hawaii’s take prohibition on 

federally listed plants (HRS section 

195D–4) will also lessen the benefit of 

a critical habitat designation on these 

lands since they are occupied by Bidens 

micrantha ssp. ctenophylla. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like Lanihau 


sradovich on DSK3GMQ082PROD with RULES2
42398 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 

Properties to partner with the Service in 

the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding Lanihau Properties lands 

even where active management is not 

occurring is likely to strengthen the 

partnership between the Service and the 

landowner, which may encourage 

additional partnerships with Lanihau 

Properties in the future and increased 

conservation of listed species and their 

habitat on Lanihau Properties lands. 

The exclusion highlights a positive 

conservation partnership model with 

the landowner, and thereby may help 

encourage the formation of new 

partnerships with other landowners, 

yielding benefits to Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

beyond what could be realized through 

critical habitat designation and section 

7 consultations on these areas. 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because the 

presence of Bidens micrantha ssp. 

ctenophylla would already require a 

section 7 consultation regardless of 

whether or not critical habitat is 

designated. In occupied habitat, the 

section 7 prohibition on adverse 

modification would be unlikely to 

provide additional conservation benefits 

beyond what would be attained through 

the section 7 consultation on species 

present. The current conservation efforts 

underway by Lanihau Properties 

demonstrate the willingness of Lanihau 

Properties to contribute to the 

conservation of listed species and their 

habitat, and provide significant benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. The current conservation 

efforts (including development of the 

MOU), combined with our outreach to 

State and local governments and the 

public, indicate that the educational 

value of critical habitat would be 

minimal. The State’s prohibition on the 

take of listed plants will also minimize 

the benefits of critical habitat in this 

case because the excluded lands are 

occupied by Bidens micrantha ssp. 

ctenophylla. On the other hand, 

significant conservation benefits would 

be realized through the exclusion of 

these Lanihau Properties lands by 

continuing and strengthening our 

positive relationship with Lanihau 

Properties, as well as encouraging 

additional beneficial conservation 

partnerships in the future. The 

combination of conservation gained 

from continuing management actions by 

Lanihau Properties and the importance 

of maintaining, enhancing, and 

developing conservation partnerships 

provides greater benefits to Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

than what could be provided through 

the designation of critical habitat on 

these Lanihau Properties lands. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding Lanihau Properties lands 

outweigh those of including them in 

critical habitat. As detailed below, the 

Secretary has further determined that 

such exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

County of Hawaii 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat State-owned lands 

managed by the County of Hawaii, 

totaling 165 ac (67 ha) on the island of 

Hawaii. The County is a proven 

conservation partner, as shown, in part, 

in voluntary conservation actions dating 

back to 2010, their new MOU with the 

Service, and their collaboration with 

other landowners in Hawaii—Lowland 

Dry—Units 31, 33, 34, and 35, which all 

demonstrate a willingness to engage in 

ongoing management programs that 

provide important conservation benefits 

to Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat. 

The section 7 consultation history of 

these County lands (one informal 

consultation over the last 9 years) 

indicates there is a small potential for a 

future Federal nexus that would create 

a benefit to including these lands in 

critical habitat. However, we believe 

that the benefits gained from supporting 

the positive conservation partnership 

with this landowner by excluding these 

lands from critical habitat (discussed 

below) are greater than the benefit that 

would be gained from the designation of 

critical habitat. Furthermore, if a future 

Federal nexus were to occur for an 

action taking place on these County 

lands, a section 7 consultation would 

already be triggered by the presence of 

Mezoneuron kavaiense and the Federal 

agency would consider the effects of its 

actions on the species through a section 

7 consultation on the species. Because 

one of the primary threats to these 

species is habitat loss and degradation, 

the consultation process under section 7 

of the Act for projects with a Federal 

nexus will, in evaluating the effects to 

these species, evaluate the effects of the 

action on the conservation or function 

of the habitat for the species regardless 

of whether critical habitat is designated 

for these lands, and likely result in 

similar recommended conservation 

measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands managed by the County as critical 

habitat. The management actions 

already underway by the County to 

restore and support the lowland dry 

habitat upon which Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend reduce the benefit of including 

the lands where the management 

actions occur in a critical habitat 

designation. Since critical habitat does 

not require active management to 

maintain or improve habitat, the 

conservation actions in the MOU 

provide benefits on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. In addition, the 

landowner and the public are already 

educated about conservation value of 

these areas for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense due to the 

County’s prior conservation actions and 

the Service’s extensive coordination and 

outreach with State and local 

government agencies and the public 

after critical habitat on these lands was 

proposed; the designation of critical 

habitat would not increase the County 

of Hawaii’s or the public’s awareness in 

this regard. The State of Hawaii’s take 

prohibition on federally listed plants 

(HRS section 195D–4) will also lessen 

the benefit of a critical habitat 

designation on these lands since they 

are occupied by Mezoneuron kavaiense. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage land managers like the 

County to partner with the Service in 

the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 


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conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have demonstrated partnerships, 

especially on non-Federal lands, and 

excluding County-managed lands from 

critical habitat even where active 

management is not occurring is likely to 

strengthen the partnership between the 

Service and the landowner, which may 

encourage additional partnerships with 

the County in the future and increased 

conservation of listed species and their 

habitat on County lands. Because the 

County of Hawaii is a large landowner/ 

manager in the area where habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense occurs, 

managing over 10,000 ac (4,047 ha) on 

Hawaii Island, its partnership with the 

Service is not only beneficial to the 

conservation of the species on County 

land through protection and 

enhancement of habitat, but also 

potentially a very positive influence on 

other landowners considering 

partnerships with the Service. The 

exclusion highlights a positive 

conservation partnership model with a 

large landowner/manager in the State, 

and thereby may encourage the 

formation of new partnerships with 

other landowners, yielding benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense beyond what 

could be realized through critical 

habitat designation and section 7 

consultations on these areas. 

The benefits of excluding these lands 

managed by the County of Hawaii from 

critical habitat are sufficient to outweigh 

the potential benefits that may be 

realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because the 

presence of Mezoneuron kavaiense 

would already require section 7 

consultation regardless of whether or 

not critical habitat is designated. In 

occupied habitat, the section 7 

prohibition on adverse modification 

would be unlikely to provide additional 

conservation benefits beyond what 

would be attained through the jeopardy 

analysis for these species. The current 

conservation efforts underway by the 

County demonstrate the willingness of 

the County to contribute to the 

conservation of listed species and their 

habitat, and provide significant benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. The County’s current 

conservation efforts (including 

development of the MOU), combined 

with our outreach to State and local 

governments and the public, indicate 

that the educational value of critical 

habitat would be minimal. The State’s 

prohibition on the take of listed plants 

will also minimize the benefits of 

critical habitat in this case because the 

excluded lands are occupied by 

Mezoneuron kavaiense. On the other 

hand, significant conservation benefits 

would be realized through the exclusion 

of these County lands, by continuing 

and strengthening our positive 

relationship with the County of Hawaii, 

as well as encouraging additional 

beneficial conservation partnerships in 

the future. The combination of 

conservation gained from continuing 

management actions by the County and 

the importance of maintaining, 

enhancing, and developing conservation 

partnerships provides greater benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense than what could 

be provided through the designation of 

critical habitat on these County lands. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding these County of Hawaii 

lands outweigh those of including them 

in critical habitat. As detailed below, 

the Secretary has further determined 

that such exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

Hawaii Housing and Finance 

Development Corporation 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat State-owned lands 

managed by HHFDC, totaling 30 ac (12 

ha) on the island of Hawaii. HHFDC is 

a new conservation partner with a 

willingness to engage in management 

programs that will provide important 

conservation benefits to Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

and their habitat, as well as to other rare 

and federally listed species, as 

demonstrated by their MOU with the 

Service and their collaboration with 

other landowners in Hawaii—Lowland 

Dry—Units 31, 33, 34, and 35. 

The section 7 consultation history of 

these HHFDC lands (no consultations 

over the last 9 years) indicates there is 

little potential for a future Federal nexus 

that would create a benefit to including 

these lands in critical habitat. If a future 

Federal nexus were to occur for an 

action taking place on these HHFDC 

lands, a section 7 consultation would 

already be triggered by the presence of 

Mezoneuron kavaiense, and the Federal 

agency would consider the effects of its 

actions on the species through a section 

7 consultation on the species. Because 

one of the primary threats to these 

species is habitat loss and degradation, 

the consultation process under section 7 

of the Act for projects with a Federal 

nexus will, in evaluating the effects to 

these species, evaluate the effects of the 

action on the conservation or function 

of the habitat for the species regardless 

of whether critical habitat is designated 

for these lands, and will likely result in 

similar recommended conservation 

measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands managed by HHFDC as critical 

habitat. First, the management actions 

already underway by HHFDC to restore 

and support the lowland dry habitat 

upon which Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense depend 

reduce the benefit of including the lands 

where these management actions occur 

in a critical habitat designation. Since 

critical habitat does not require active 

management to maintain or improve 

habitat, the conservation actions in the 

MOU provide benefits on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. In addition, the 

landowner and the public are already 

educated about conservation value of 

these areas due to HHFDC’s 

conservation actions and the extensive 

coordination and outreach with State 

and local government agencies and the 

public after critical habitat on these 

lands was proposed; the designation of 

critical habitat would not increase 

HHFDC’s or the public’s awareness in 

this regard. Finally, the State of 

Hawaii’s take prohibition on federally 

listed plants (HRS section 195D–4) will 

also lessen the benefit of a critical 

habitat designation on these lands since 

they are occupied by Mezoneuron 

kavaiense. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage land managers like 

HHFDC to partner with the Service in 

the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 


sradovich on DSK3GMQ082PROD with RULES2
42400 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding other HHFDC lands from 

critical habitat where active 

management is not occurring is likely to 

strengthen the partnership between the 

Service and the landowner, which may 

encourage additional partnerships with 

the HHFDC in the future and increased 

conservation of listed species and their 

habitat on HHFDC lands. The exclusion 

highlights a positive conservation 

partnership model with a land manager, 

and thereby may encourage the 

formation of new partnerships with 

other landowner/managers, yielding 

benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense beyond 

what could be realized through critical 

habitat designation and section 7 

consultations on these areas. 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because of limited 

potential on these lands for a Federal 

nexus and because the presence of 

Mezoneuron kavaiense would already 

require section 7 consultation regardless 

of whether or not critical habitat is 

designated. In occupied habitat, the 

section 7 prohibition on adverse 

modification would be unlikely to 

provide additional conservation benefits 

beyond what would be attained through 

the jeopardy analysis for these species. 

The current conservation efforts 

underway by HHFDC demonstrate the 

willingness of HHFDC to contribute to 

the conservation of listed species and 

their habitat, and provide significant 

benefits for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense on the 

managed portions of these non-Federal 

lands beyond those that can be achieved 

through critical habitat and section 7 

consultations. HHFDC’s current 

conservation efforts (including 

development of the MOU), combined 

with our outreach to State and local 

governments and the public, indicate 

that the educational value of critical 

habitat would be minimal. The State’s 

prohibition on the take of listed plants 

will also minimize the benefits of 

critical habitat in this case because the 

excluded lands are occupied by 

Mezoneuron kavaiense. On the other 

hand, significant conservation benefits 

would be realized through the exclusion 

of these HHFDC lands by continuing 

and strengthening our positive 

relationship with HHFDC, as well as 

encouraging additional beneficial 

conservation partnerships in the future. 

The combination of conservation gained 

from continuing management actions by 

HHFDC and the importance of 

maintaining, enhancing, and developing 

conservation partnerships provides 

greater benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense than what 

could be provided through the 

designation of critical habitat on these 

HHFDC lands. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding HHFDC’s lands outweigh 

those of including them in critical 

habitat. As detailed below, the Secretary 

has further determined that such 

exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

Forest City Kona, LLC 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned by 

Forest City Kona, totaling 265 ac (107 

ha) on the island of Hawaii. Forest City 

Kona is a new conservation partner with 

a willingness to engage in management 

programs that will provide important 

conservation benefits to Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

and their habitat, as well as to other rare 

and federally listed species, as 

demonstrated by their MOU with the 

Service and their collaboration with 

other landowners in Hawaii—Lowland 

Dry—Units 31, 33, 34, and 35. 

The section 7 consultation history of 

these Forest City Kona lands (no 

consultations over the last 9 years) 

indicates there is little potential for a 

future Federal nexus that would create 

a benefit to including these lands in 

critical habitat. If a future Federal nexus 

were to occur for an action taking place 

on these Forest City Kona lands, a 

section 7 consultation would already be 

triggered by the presence of Bidens 

micrantha ssp. ctenophylla, and the 

Federal agency would consider the 

effects of its actions on the species 

through a section 7 consultation on the 

species. Because one of the primary 

threats to these species is habitat loss 

and degradation, the consultation 

process under section 7 of the Act for 

projects with a Federal nexus will, in 

evaluating the effects to these species, 

evaluate the effects of the action on the 

conservation or function of the habitat 

for the species regardless of whether 

critical habitat is designated for these 

lands, and will likely result in similar 

recommended conservation measures. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by Forest City Kona as 

critical habitat. First, the management 

actions already underway by Forest City 

Kona to restore and support the lowland 

dry habitat upon which Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend reduce the benefit of including 

the lands where these management 

actions occur in a critical habitat 

designation. Since critical habitat does 

not require active management to 

maintain or improve habitat, the 

conservation actions in the MOU 

provide benefits on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. In addition, the 

landowner and the public are already 

educated about conservation value of 

these areas due to Forest City Kona’s 

conservation actions and the extensive 

coordination and outreach with State 

and local government agencies and the 

public after critical habitat on these 

lands was proposed; the designation of 

critical habitat would not increase 

Forest City Kona’s or the public’s 

awareness in this regard. Finally, the 

State of Hawaii’s take prohibition on 

federally listed plants (HRS section 

195D–4) will also lessen the benefit of 

a critical habitat designation on these 

lands since they are occupied by Bidens 

micrantha ssp. ctenophylla. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like Forest 

City Kona to partner with the Services 

in the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding Forest City Kona lands from 

critical habitat even where active 

management is not occurring is likely to 

strengthen the partnership between the 

Service and the landowner, which may 

encourage additional partnerships with 

Forest City Kona in the future and 

increased conservation of listed species 

and their habitat on Forest City Kona 

lands. The exclusion highlights a 

positive conservation partnership model 

with the landowner, and thereby may be 

influential in the formation of new 

partnerships with other landowners, 


sradovich on DSK3GMQ082PROD with RULES2
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yielding benefits to Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

beyond what could be realized through 

critical habitat designation and section 

7 consultations on these areas. 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because of limited 

potential on these lands for a Federal 

nexus and because the presence of 

Bidens micrantha ssp. ctenophylla 

would already require section 7 

consultation regardless of whether or 

not critical habitat is designated. In 

occupied habitat, the section 7 

prohibition on adverse modification 

would be unlikely to provide additional 

conservation benefits beyond what 

would be attained through the jeopardy 

analysis for these species. The current 

conservation efforts underway by Forest 

City Kona demonstrate the willingness 

of Forest City Kona to contribute to the 

conservation of listed species and their 

habitat, and provide significant benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. Forest City Kona’s 

current conservation efforts (including 

development of the MOU), combined 

with our outreach to State and local 

governments and the public, indicate 

that the educational value of critical 

habitat would be minimal. The State’s 

prohibition on the take of listed plants 

will also minimize the benefits of 

critical habitat in this case because the 

excluded lands are occupied by Bidens 

micrantha ssp. ctenophylla. On the 

other hand, significant conservation 

benefits would be realized through the 

exclusion of these Forest City Kona 

lands by continuing and strengthening 

our positive relationship with Forest 

City Kona, as well as encouraging 

additional beneficial conservation 

partnerships in the future. The 

combination of conservation gained 

from continuing management actions by 

Forest City Kona and the importance of 

maintaining, enhancing, and developing 

conservation partnerships provides 

greater benefits to Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense than what 

could be provided through the 

designation of critical habitat on these 

Forest City Kona lands. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding Forest City Kona’s lands 

outweigh those of including them in 

critical habitat. As detailed below, the 

Secretary has further determined that 

such exclusion will not result in the 

extinction of Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, or 

Mezoneuron kavaiense. 

Queen Liliuokalani Trust (QLT) 

In this final designation, the Secretary 

has exercised his authority to exclude 

from critical habitat lands owned by 

Queen Liliuokalani Trust, totaling 302 

ac (122 ha) on the island of Hawaii. The 

QLT is a proven conservation partner, as 

demonstrated in several conservation 

efforts including a Partners for Fish and 

Wildlife Program Agreement and a new 

MOU with the Service, showing a 

willingness to engage in ongoing 

management programs that provide 

important conservation benefits to 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense and their 

habitat, as well as to other rare and 

federally listed species. 

The section 7 consultation history of 

these QLT lands (no consultations over 

the last 9 years) indicates there is little 

potential for a future Federal nexus that 

would create a benefit to including 

these lands in critical habitat. The only 

future development project planned for 

these QLT lands is not expected to have 

a Federal nexus, and, therefore, critical 

habitat would provide no benefit 

through the section 7 consultation 

process. 

Several additional factors serve to 

reduce the benefit of designating these 

lands owned by QLT as critical habitat. 

First, the management actions already 

underway by QLT to restore and 

support the lowland dry habitat upon 

which Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense depend, 

reduce the benefit of including the lands 

where these management actions occur 

in critical habitat. Since critical habitat 

does not require active management to 

maintain or improve habitat, the 

conservation actions of QLT provide 

benefits on the managed portions of 

these non-Federal lands beyond those 

that can be achieved through critical 

habitat and section 7 consultations. 

Furthermore, QLT has begun 

implementation on the 2014 MOU with 

the Service that contains conservation 

actions that will restore and support the 

lowland dry habitat upon which Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

depend, and so the benefit of including 

the lands where the management 

actions occur in critical habitat is 

reduced. Additionally, this landowner 

and the public are already educated 

about conservation value of these areas 

due to QLT’s conservation actions, their 

active outreach and education program, 

and the Service’s extensive coordination 

and outreach with State and local 

government agencies and the public 

after critical habitat on these lands was 

proposed; the designation of critical 

habitat would not increase QLT’s or the 

public’s awareness in this regard. 

The benefits of exclusion, on the other 

hand, are significant. Excluding areas 

covered by existing plans and programs 

can encourage landowners like QLT to 

partner with the Services in the future, 

by removing any real or perceived 

disincentives for engaging in 

conservation activities, and thereby 

provide a benefit by encouraging future 

conservation partnerships and 

beneficial management actions. 

Furthermore, we give great weight to the 

benefits of excluding areas where we 

have conservation partnerships, 

especially on non-Federal lands, and 

excluding these QLT lands even where 

active management is not occurring is 

likely to strengthen the partnership 

between the Service and the landowner, 

which may encourage additional 

partnerships with QLT in the future and 

increased conservation of listed species 

and their habitat on QLT lands. The 

exclusion highlights a positive 

conservation partnership model with 

the landowner, and thereby may be 

influential in the formation of new 

partnerships with other landowners, 

yielding benefits to Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

beyond what could be realized through 

critical habitat designation and section 

7 consultations on these areas. 

The benefits of excluding these lands 

from critical habitat are sufficient to 

outweigh the potential benefits that may 

be realized through the designation of 

critical habitat. The regulatory benefit of 

designating critical habitat, afforded 

through the section 7(a)(2) consultation 

process, is minimal because of limited 

potential on these lands for a Federal 

nexus. The current conservation efforts 

underway by QLT demonstrate the 

willingness of QLT to contribute to the 

conservation of listed species and their 

habitat, and provide significant benefits 

for Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense on the managed 

portions of these non-Federal lands 

beyond those that can be achieved 

through critical habitat and section 7 

consultations. The outreach and 


sradovich on DSK3GMQ082PROD with RULES2
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education programs of QLT, as well as 

our outreach to State and local 

governments and the public, indicate 

that the educational value of critical 

habitat on these lands would be 

minimal. On the other hand, significant 

conservation benefits would be realized 

through the exclusion of these QLT 

lands, by continuing and strengthening 

our positive relationship with QLT, as 

well as encouraging additional 

beneficial conservation partnerships in 

the future. 

The Secretary has therefore concluded 

that, in this particular case, the benefits 

of excluding QLT lands outweigh those 

of including them in critical habitat. As 

detailed below, the Secretary has further 

determined that such exclusion will not 

result in the extinction of Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, or Mezoneuron kavaiense. 

Exclusion Will Not Result in Extinction 

of the Species 

We have determined that the 

exclusion of 7,027 ac (2,844 ha) from the 

designation of critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on the island of Hawaii owned and/or 

managed by the 10 landowners 

identified here will not result in 

extinction of the species. The exclusion 

of these lands is likely to improve our 

ability to maintain current and form 

new conservation partnerships with 

non-Federal landowners in areas 

essential to the conservation of Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

As discussed above, reintroduction and 

reestablishment of populations into 

areas that are not currently occupied by 

the species will be required to achieve 

their conservation. Exclusion is not 

likely to reduce the likelihood that 

reintroductions would occur or be 

successful. Exclusion of lands that are 

managed by non-Federal landowners for 

restoration or maintenance of suitable 

native habitat is more likely to facilitate 

robust partnerships with non-Federal 

landowners that would be required to 

support a reintroduction program that 

would be effective in conserving these 

species. The establishment and 

encouragement of strong conservation 

partnerships with non-Federal 

landowners is especially important in 

the State of Hawaii, where there are 

relatively few lands under Federal 

ownership; we cannot achieve the 

conservation and recovery of listed 

species in Hawaii without the help and 

cooperation of non-Federal landowners. 

Excluding lands covered by voluntary 

conservation partnerships in Hawaii is 

likely to restore, maintain, and increase 

the strength and number of partnerships 

with non-Federal landowners that are 

needed to recover the species. 

An important consideration as we 

evaluate these exclusions and their 

potential effect on the species in 

question is that critical habitat does not 

carry with it a regulatory requirement to 

restore or actively manage habitat for 

the benefit of listed species; the 

regulatory effect of critical habitat is 

only the avoidance of destruction or 

adverse modification of critical habitat 

should an action with a Federal nexus 

occur. It is, therefore, advantageous for 

the conservation of the species to 

support the proactive efforts of nonFederal landowners who are 

contributing to the enhancement of 

essential habitat features for listed 

species through exclusion. 

As described above, at least some of 

the area excluded is likely to support 

recovery efforts for these species, 

although for purposes of this analysis 

we do not count on that. However, the 

remaining designated critical habitat 

will accommodate the expansion of 

existing populations and the 

establishment of new populations of 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrfolium, and Mezoneuron 

kavaiense that will help prevent 

extinction. Although some of the areas 

where these species occur are being 

excluded from critical habitat, the 

11,640 ac (4,711 ha) of critical habitat 

designated in this final rule and the 

sufficient numbers of individuals 

remaining in the critical habitat 

designation are adequate to facilitate the 

recovery of each species. 

These three species are also subject to 

other protections as well; these 

protections remain in effect even absent 

the designation of critical habitat. 

Section 195D–4 of Hawaii Revised 

Statutes (endangered species and 

threatened species) stipulates that 

species determined to be endangered or 

threatened under the Federal 

Endangered Species Act shall be 

deemed endangered or threatened under 

the State law. Thus, these species are 

already protected under State law, and 

unlike the Federal Endangered Species 

Act, State law prohibits the take of 

plants. Under the State law, it is 

unlawful, with some exceptions, to 

‘‘take’’ such species, or to possess, sell, 

carry or transport them. The statutory 

protections under State law provide 

additional assurances that exclusion of 

these areas from critical habitat will not 

result in extinction of Bidens micrantha 

ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Bidens micrantha ssp. ctenophylla is 

currently known from five occurrences 

totaling fewer than 1,000 individuals 

within the lowland dry ecosystem of the 

North Kona region on Hawaii Island. 

One of the locations where the 

subspecies occurs is on land owned by 

Kaloko Entities that is excluded from 

this critical habitat designation, but 

these individuals of Bidens micrantha 

ssp. ctenophylla are protected by the 

State prohibition on the take of listed 

plants. As part of their 2016 MOU with 

the Service, Kaloko Entities is 

preserving a 150-ac (61-ha) area to 

protect Bidens micrantha ssp. 

ctenophylla and nine other species, and 

will provide enhanced protection 

through fencing around the area. 

However, the Service is not relying on 

the actions of Kaloko Entities to prevent 

the extinction of Bidens micrantha ssp. 

ctenophylla. As described above in 

‘‘Recovery Needs,’’ the future of this 

subspecies depends on the outplanting 

of cultivated individuals into suitable 

habitat to establish new populations. 

Plants are under propagation, and seed 

banking is taking place at facilities on 

Hawaii and Oahu, and Bidens 

micrantha ssp. ctenophylla has already 

been outplanted in several areas on 

Hawaii Island. Although three of the 

locations (across five different 

landownerships) where Bidens 

micrantha ssp. ctenophylla currently 

occurs are being excluded from critical 

habitat, this rule designates 11,640 ac 

(4,711 ha) of both occupied and 

unoccupied critical habitat for this 

subspecies on Hawaii Island where it is 

possible the subspecies could be 

reintroduced. The State’s prohibition on 

the take of listed plants, combined with 

the designation of other critical habitat 

on the Island of Hawaii, is sufficient to 

prevent extinction of this subspecies. 

Isodendrion pyrifolium currently has 

only a few immature individuals left in 

the wild in the Kealakehe area. These 

individuals are on land owned by DHHL 

that is excluded from this critical 

habitat designation. However, DHHL 

already provides enhanced protection 

for these individuals through fencing 

around the plants, and these individuals 

are protected by the State prohibition on 

the take of plants. In addition, the 

recovery of this species will rely on the 

outplanting of cultivated individuals in 

suitable habitat on Hawaii Island and 

other suitable habitat in the State of 

Hawaii. Plants are under propagation, 

and seed banking is taking place at 

facilities on Hawaii and Kauai, and 

Isodendrion pyrifolium has already been 

outplanted in several areas of Hawaii 

Island. Recent management efforts have 

resulted in 90 outplanted individuals 

distributed in four occurrences (in 


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addition to the Kealakehe area). We 

have also designated critical habitat for 

this species on Oahu within 8 units 

totaling 1,924 ac (779 ha) (77 FR 57648; 

September 18, 2012), and on the islands 

of Maui and Molokai within 13 units 

totaling 21,703 ac (8,783 ha) (81 FR 

17790; March 30, 2016). Even though 

the DHHL land is excluded, this rule 

designates 11,640 ac (4,711 ha) of 

critical habitat for the species on Hawaii 

Island. Combined, these measures will 

prevent extinction of Isodendrion 

pyrifolium. 

Currently, Mezoneuron kavaiense is 

found in six occurrences totaling 72 

mature and 22 immature wild 

individuals in the lowland dry 

ecosystem of Hawaii Island, mainly in 

the Kealakehe, Puu Waawaa, and 

Waikoloa Village areas. These 

individuals are protected by the State 

prohibition on taking listed plants. In 

addition, as with the other two species, 

the recovery of this species will rely on 

the outplanting of cultivated 

individuals. Monitoring and recovery 

actions are being implemented for wild 

and outplanted populations on Kauai, 

Oahu, and Lanai. Plants are under 

propagation and seed banking is taking 

place at facilities on Hawaii, Maui, 

Oahu, and Kauai. On Kauai, there is an 

occurrence of Mezoneuron kavaiense in 

Waimea Canyon. On Oahu, there are 

two occurrences with a total of five 

individuals. On Lanai, the species is 

extirpated in the wild; however, two 

individuals have been reintroduced into 

a fenced exclosure. Seed collections 

contain representation of genetic 

material of Mezoneuron kavaiense from 

all islands across the species’ 

distribution. Although we are excluding 

some areas that had been proposed for 

critical habitat designation, this rule 

designates 11,640 ac (4,711 ha) of 

critical habitat for the species, including 

occupied and unoccupied habitat with 

room for reintroduction. The final 

designation of critical habitat for 

Mezoneuron kavaiense includes the area 

at Puu Waawaa that contains the 

majority (67 percent) of remaining 

mature wild individuals, and the largest 

outplanting of the species (254 plants). 

Combined, these measures will prevent 

the extinction of Mezoneuron kavaiense. 

We have thoroughly considered the 

effect of each of the exclusions made in 

this final rule. For all of the reasons 

described above, the Secretary has 

determined that these exclusions will 

not result in the extinction of the 

species concerned, and is exercising his 

discretion under section 4(b)(2) of the 

Act to exclude from this final critical 

habitat designation portions of the 

proposed critical habitat units that are 

within the areas identified in Table 4, 

totaling 7,027 ac (2,844 ha). 

Maps of areas essential to the 

conservation of the species covered in 

this rule, identified through designated 

critical habitat, or through partnerships 

and conservation agreements with 

landowners and land managers but 

excluded from critical habitat under 

section 4(b)(2) of the Act, are available 

in the document ‘‘Supplementary 

Information for the Designation and 

Non-Designation of Critical Habitat on 

Hawaii for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense,’’ available 

on the internet at http://

www.regulations.gov under Docket No. 

FWS–R1–ES–2013–0028. 

The total area excluded from critical 

habitat designation in this rule is 

summarized by landowner in the 

following table. 

TABLE 5—TOTAL AREA (ac, ha) EXCLUDED FROM CRITICAL HABITAT BY

LANDOWNER OR LAND MANAGER

Landowner or land manager 

Area 

excluded in ac 

(ha) 

Kamehameha Schools ....... 2,834 (1,147) 

Waikoloa Village Association .................................. 1,758 (712) 

Palamanui Global Holdings 

LLC .................................. 502 (203) 

Department of Hawaiian 

Home Lands .................... 492 (199) 

Kaloko Entities .................... 631 (255) 

Lanihau Properties ............. 47 (19) 

County of Hawaii ................ 165 (67) 

Hawaii Housing and Finance Development Corporation ........................... 30 (12) 

Forest City Kona ................. 265 (107) 

Queen Liliuokalani Trust ..... 302 (122) 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat on Hawaii Island for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense during four 

comment periods. We also contacted 

appropriate Federal, State, and local 

agencies; scientific organizations; and 

other interested parties and invited 

them to comment on the proposed rule 

and DEA during these comment periods. 

During the first comment period, we 

received 20 letters addressing the 

proposed critical habitat designation. 

During the second comment period, we 

received 87 letters addressing the 

proposed critical habitat designation or 

the DEA. During the May 15, 2013, 

public hearing, 39 individuals or 

organizations made comments on the 

designation of critical habitat for the 

three species. During the fourth 

comment period, we received 9 letters 

addressing the proposed critical habitat 

designation. All substantive information 

provided during comment periods has 

either been incorporated directly into 

this final determination or is addressed 

below. Comments we received are 

grouped into 11 general issues relating 

to the proposed critical habitat 

designation for the three species. 

Peer Review 

In accordance with our peer review 

policy published in the Federal Register 

on July 1, 1994 (59 FR 34270), we 

solicited expert opinions on our 

combined proposed listing and critical 

habitat rule (77 FR 63928; October 17, 

2012) from 14 knowledgeable 

individuals with scientific expertise on 

the Hawaii Island plants and the other 

species included in the proposed 

rulemaking, including familiarity with 

the species, the geographic region in 

which these species occur, and 

conservation biology principles. We 

received responses from 11 of the peer 

reviewers on the combined proposed 

listing and critical habitat rule; 

however, only two peer reviewers 

provided comments specifically 

addressing the proposed critical habitat 

designation. These peer reviewers 

generally supported our methodology 

and conclusions. We reviewed all 

comments received from the peer 

reviewers for substantive issues and 

new information regarding the 

designation of critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

Peer reviewers’ comments are addressed 

in the following summary and 

incorporated into the final rule as 

appropriate. 

Comments From Peer Reviewers 

(1) Comment: One peer reviewer 

expressed appreciation for emphasis 

placed on ecosystem approaches to 

preservation of species and the effects of 

global climate change. The peer 

reviewer also commented that we 

cannot be certain that areas that are 

identified as unoccupied by a species 

within the proposed critical habitat 

designation actually have no 

representatives of that species in the 

area. The peer reviewer added that it is 

very difficult to obtain evidence of 

absence for species in an area because 

of the intensive level of sampling 

required, and that it is doubtful that this 

level of sampling has been achieved for 

most of these species and the areas 

where they could occur. 


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Our Response: We recognize that 

biological survey efforts for many native 

species and ecosystems may be 

infrequent or lack complete coverage, 

and that presence of a species may later 

be detected in a critical habitat unit that 

was considered unoccupied by a 

species. To ascertain the occupancy 

status of critical habitat units, the 

Service uses the best available 

occurrence data and other scientific and 

commercial information available to us 

at the time of our determination (see 

Methods, above). Our understanding of 

species’ biological needs and 

distribution is updated as we obtain 

new information from sources such as 

additional survey data and recent 

advances in species distribution 

modeling. Any updated occurrence data 

that the Service obtains for a listed 

species are used to inform ongoing 

recovery efforts and any further 

rulemaking for that species. These data 

also are incorporated into the technical 

assistance we provide to action agencies 

during the section 7 consultation 

process and our section 7 analyses. 

(2) Comment: One peer reviewer 

expressed concern that the land set 

aside for protection in the Kaloko area 

is not adequately protected from feral 

animals, particularly goats that have 

been observed near Kaloko-Honokohau 

NHP in recent months. The peer 

reviewer emphasized that this area 

merits a high ranking for protection for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiensis, and that funds 

should be procured to construct an 

ungulate-proof fence around the entire 

150 ac (61 ha), allowing outplanting to 

continue on a larger scale with 

assurances that the plants will persist 

and not be consumed by feral goats. 

Our Response: We appreciate the 

information provided by the peer 

reviewer regarding the land set-aside for 

protection at Kaloko, and agree that the 

area constitutes some of the best 

remaining habitat for the recovery of 

listed plant species. The peer reviewer 

is correct in stating that the entire 150- 

ac (61-ha) area is not protected from 

goats by ungulate-proof fencing at this 

time. The Service is working with the 

landowners and developer to construct 

an ungulate-proof fence, remove 

ungulates, control nonnative plants, 

maintain firebreaks, and allow for 

outplanting of listed plant species. 

Comments From State Agencies 

(3) Comment: The State of Hawaii 

DOFAW stated a concern regarding the 

proposed critical habitat designation at 

Puu Waawaa because that area is not an 

area where the DOFAW is planning on 

concentrating recovery efforts for these 

species. The DOFAW commented that 

the proposed critical habitat for the 

three species at Puu Waawaa is in a 

currently grazed area of scattered native 

trees with an understory dominated by 

invasive fountain grass, particularly 

below the highway, and that the area 

below the highway is not a suitable area 

in which to recover these species. The 

DOFAW further stated that conservation 

efforts will be much more effective in 

higher elevation (above 2,400 feet (ft) 

(731 meters (m)), wetter (mesic-dry to 

mesic, as opposed to dry) habitat, where 

more intact native ecosystems occur. 

The DOFAW proposed that the critical 

habitat boundary polygon be adjusted to 

include only those areas above the 

highway, excluding the area below the 

highway because it is extremely 

degraded. The DOFAW questioned how 

the critical habitat designation would 

affect the management and recovery 

efforts for these species currently in 

place at Puu Waawaa. 

Our Response: The State DOFAW is a 

valued conservation partner in the 

recovery of endangered species and 

their habitats. We appreciate the 

DOFAW’s strategic approach to focus 

efforts in areas that may benefit the 

recovery of additional listed species and 

where recovery is likely to be 

accomplished more readily due to 

reduced competition with nonnative 

plant species. The designation of critical 

habitat will not direct or require the 

State DOFAW to implement recovery 

and/or management actions in a specific 

area, and the State is encouraged to 

continue their recovery efforts how and 

where they determine most appropriate. 

Based on geographic analysis program 

(GAP) vegetation data, we recognize that 

certain areas of the proposed critical 

habitat within Unit 31 at Puu Waawaa 

are characterized as alien grassland 

dominated by fountain grass or kiawe 

(GAP 2005). We also understand that 

the State of Hawaii DLNR manages 

month-to-month grazing leases at Puu 

Waawaa that are allowed for the dual 

purposes of fuels reduction and 

commercial cattle production (Parsons 

2014, pers. comm.). However, our 

analysis indicates that these areas 

contain both the physical and biological 

features essential for the recovery and 

conservation of the three plant species, 

as well as unoccupied areas that are 

needed for the expansion or 

augmentation of reduced populations or 

the reestablishment of populations. The 

Recovery Plans for these species note 

that augmentation and reintroduction of 

populations are necessary for the 

species’ conservation (as described 

above in Recovery Needs section). 

Survey data indicate 47 separate 

locations of Mezoneuron kavaiense 

individuals in the area west of 

Mamalahoa Highway that are 

distributed evenly throughout the lower 

elevations of Unit 31 (DOFAW 2006, 

unpublished). While it can be assumed 

that areas at higher elevation (above 

2,400 ft (731 m)), with higher rainfall 

(mesic) and higher incidence of native 

species, may provide favorable 

conditions for plant growth and 

recovery, data are not available at this 

time to inform whether introduction of 

these three species from the lowland dry 

to the lowland mesic or montane mesic 

ecosystem is likely to be successful. 

Mezoneuron kavaiense and the two 

other species are primarily known to 

occur at elevations of 2,400 ft (730 m) 

and below on Hawaii Island, the 

majority of which occur below 

Mamalahoa Highway in Unit 31 

(USWFS 1994, pp. 13–16). Therefore, 

we have not adjusted the proposed 

boundaries of the Unit 31 in this final 

critical habitat rule. The Service will 

continue our collaborative approach 

with the State and DOFAW on the 

management and recovery of 

endangered species and their habitats. 

We will also continue to evaluate new 

data and information regarding the 

threat of climate change and the ability 

of critical habitat to provide the areas 

essential to species’ recovery. 

(4) Comment: The DHHL 

recommended that the Service consult 

with the Hawaiian Homes Commission, 

the DHHL, the Office of Native 

Hawaiian Relations, and the native 

Hawaiian beneficiaries of the Hawaiian 

Homes Commission Act, as well as 

provide knowledge of species, habitat, 

and management and protection prior to 

designation of critical habitat. 

Our Response: We met with DHHL 

representatives on August 24, 2012, 

prior to publishing our proposed rule 

(77 FR 63928; October 17, 2012). At the 

meeting, we provided information 

regarding our compilation of available 

information on species and habitat areas 

on Hawaii Island, and requested 

updated information from DHHL. At the 

time we published our proposed rule 

(77 FR 63928; October 17, 2012), we 

notified elected officials, the Hawaii 

County Planning Department, and 

several Hawaiian organizations 

including Kamehameha Schools, the 

Office of Hawaiian Affairs (OHA) 

(offices for Honolulu, Maui, Molokai, 

and Lanai), DHHL, the State Historic 

Preservation Division, and Kahea (the 

Hawaiian-Environmental Alliance). 

Following publication of our proposed 

rule, we met with DHHL representatives 


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(December 4, 2012, and April 10, 2013) 

and presented a joint workshop with 

DHHL planning staff at the April 23, 

2013, Hawaiian Homes Commission 

meeting, in Kapolei, Oahu. In addition, 

we have consulted with staff from the 

Department of the Interior’s Office of 

Native Hawaiian Relations and included 

them in meetings with DHHL. We 

reviewed and incorporated new 

information from these meetings into 

this final rule. 

(5) Comment: The DHHL requested 

that the Secretary of the Interior 

consider the effects of designation of 

critical habitat on Hawaiian Home 

Lands in a similar manner to the effects 

it has on tribal lands, including the 

impact of tribal sovereignty. The DHHL 

also referenced Secretarial Order 3206, 

which describes guidelines for the 

Service when dealing with Indian tribes 

relating to endangered species on Indian 

tribal lands and calls on the Service to 

forge close working relationships with 

Indian tribes to preserve endangered 

species while respecting tribal authority 

over their lands. The DHHL further 

commented that the Hawaiian Home 

Lands Recovery Act (Pub. L. 104–42) 

requires the Secretary to follow certain 

procedures when determining whether 

the consent of the United States is 

necessary for an amendment to the 

Hawaiian Homes Commission Act (Pub. 

L. 67–34) and when determining 

whether to approve an exchange of 

Hawaiian Home Lands with other lands. 

Our Response: In accordance with the 

President’s memorandum of April 29, 

1994 (Government-to-Government 

Relations With Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination With Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems; to incorporate 

native intelligence and knowledge of 

species, habitat, and place-based 

management and protection; to 

acknowledge that tribal lands are not 

subject to the same controls as Federal 

public lands; to remain sensitive to 

Indian culture; and to make information 

available to tribes. In addition, a 2004 

consolidated appropriations bill (Pub. L. 

108–199) established the Office of 

Native Hawaiian Relations within the 

Secretary’s Office and its duties include 

effectuating and implementing the 

special legal relationship between the 

Native Hawaiian people and the United 

States, and fully integrating the 

principle and practice of meaningful, 

regular, and appropriate consultation 

with the Native Hawaiian people by 

assuring timely notification of and prior 

consultation with the Native Hawaiian 

people before any Federal agency takes 

any actions that may have the potential 

to significantly affect Native Hawaiian 

resources, rights, or lands. A 2011 

Memorandum of Understanding (MOU) 

signed by the Department of the Interior 

states that ‘‘Federal agencies are 

required to consult with Native 

Hawaiian organizations before taking 

any action that may have the potential 

to significantly affect Native Hawaiian 

resources, rights, or lands.’’ Although 

native Hawaiians do not yet have a 

formal government-to-government 

relationship with the Federal 

Government, we endeavor to fully 

engage and work directly with native 

Hawaiians as much as possible. At the 

time we published our proposed rule 

(77 FR 63928; October 17, 2012), we 

notified several Hawaiian organizations 

as described in our response to 

Comment (4). We have considered all 

comments provided by the DHHL and 

these other organizations in this final 

rule. 

(6) Comment: The DHHL requested an 

extension of the public comment period 

to allow an additional 60 days for public 

review and comment on the proposed 

critical habitat designation and DEA. 

The additional time was requested to 

gather and assess information regarding 

the benefits of exclusion or inclusion of 

DHHL lands. 

Our Response: On July 2, 2013 (78 FR 

39698), we reopened the public 

comment period on the proposed 

critical habitat designation and DEA for 

an additional 60 days, ending on 

September 3, 2013. Further, on May 20, 

2016, we announced another reopening 

of the comment period on the proposed 

critical habitat designation, including 

the economic impacts of the 

designation, ending June 6, 2016 (81 FR 

31900). 

(7) Comment: The Hawaii State 

Department of Agriculture (HDOA) 

stated that exclusion of agricultural 

lands from critical habitat designation is 

important for Hawaii’s food 

sustainability. The HDOA further 

commented that critical habitat 

designation on agricultural land hurts 

Hawaii’s agricultural production by 

limiting potential uses on the land and 

reducing the market value of the land. 

They reiterated concerns of cattle 

producers that critical habitat 

designation amounts to a downzoning 

(i.e., State land use district 

reclassification from Agriculture to 

Conservation) of property and would 

negatively affect the development 

potential of their lands, and 

consequently would negatively affect 

the financial well-being of rancher’s 

operations. 

Our Response: We understand the 

HDOA’s concern with maintaining food 

sustainability but we have no 

information to suggest that the critical 

habitat designation will limit the ability 

of agricultural lands to produce food 

crops. According to the State land use 

dockets that establish ‘‘Important 

Agricultural Lands’’ (IALs) on the island 

of Hawaii, there are no IALs within this 

final critical habitat designation (IAL 

2013). The designation of critical habitat 

does not deny anyone economically 

viable use of their property (see our 

response to Comment (31) for an 

explanation of the regulatory 

consequence of a critical habitat 

designation). 

Regarding downzoning, according to 

the State’s DLNR Office of Conservation 

and Coastal Lands and the State Office 

of Planning, critical habitat designation 

does not automatically generate a 

district reclassification or downzoning 

(e.g., redistricting from development use 

to conservation). According to the State 

Office of Planning, the presence of 

critical habitat is taken into 

consideration during the redistricting 

process (both during the 5-year 

boundary reviews and review of 

petitions for boundary amendments); 

however, the presence of critical habitat 

does not necessarily mean that an area 

will be redistricted to the Conservation 

District. The DLNR and State Office of 

Planning were unable to identify an 

instance in which critical habitat 

specifically affected a districting 

decision. 

The FEA acknowledges that there is 

uncertainty with regard to whether or 

not the County of Hawaii will require 

landowners to implement conservation 

measures or conduct environmental 

assessments as a result of the 

designation of critical habitat. 

Uncertainty exists regarding whether or 

not critical habitat designation will 

cause the County to request additional 

assessments or reporting, or require 

additional conservation efforts when a 

landowner applies for a change in 

zoning. As described in section 2.6 of 

the FEA, the County Planning 

Department indicated that while critical 

habitat designation is taken into 

consideration, the presence of a listed 


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species weighs more heavily in the 

decision-making process. The County 

was unable to identify an instance in 

which the presence of critical habitat 

generated additional conservation 

recommendations or a request for an 

environmental assessment. 

(8) Comment: The County of Hawaii 

Planning Department commented that 

their policy (‘‘Policy Env-1.5’’) requires 

that areas identified as critical habitat be 

considered sensitive and are inventoried 

as part of the County permitting process, 

and, therefore, the Kona Community 

Development Plan (KCDP) already 

recognizes the sensitive nature of the 

majority of lands that the Service is now 

designating as critical habitat for these 

three plant species. 

Our Response: We recognize that 

‘‘Policy ENV–1.5: Sensitive Resources’’ 

in the KCDP addresses areas already 

designated critical habitat and 

predominantly native ecosystems. In 

addition, we appreciate that authors of 

the KCDP voluntarily compiled 

information on critical habitat, 

anchialine ponds, and rare plants and 

animals using data from the Hawaii 

Natural Heritage Program (HNHP) 

database. The KCDP includes a map 

showing native vegetation within the 

plan area and a map showing designated 

critical habitat; this map also shows 

habitat of the Bidens micrantha ssp. 

ctenophylla and Mezoneuron kavaiense 

within the Kona Urban Area (KCDP 

2008, Figures 4–8b and 4–8c). Because 

the KCDP was published in 2008, and 

the HNHP, which was a source of 

information for the map, no longer 

exists, we will work with the Planning 

Department and provide updates on 

sensitive resources, as appropriate, 

including the critical habitat 

designations in this final rule. 

Even though the KCDP already 

recognizes the sensitive nature of these 

lands, the Service is not relieved of its 

statutory obligation to designate critical 

habitat based on the contention that it 

will not provide additional conservation 

benefit (see, e.g., Center for Biological 

Diversity v. Norton, 240 F. Supp. 2d 

1090 (D. Ariz. 2003)). If an area provides 

the physical or biological features 

essential to the conservation of the 

species, even if that area is already 

managed or protected, that area still 

qualifies as critical habitat under the 

statutory definition of critical habitat if 

special management or protection is 

required. 

(9) Comment: The County of Hawaii 

Planning Department commented on the 

lack of timely input by the Service 

during the KCDP planning process, 

which included years of community and 

government input, including Federal 

agencies. They stated that if the Service 

had provided data during the KCDP 

planning process about areas now being 

proposed for critical habitat, it may have 

altered the Kona Urban Area boundary 

designation. 

Our Response: While we were not 

heavily involved in the KCDP planning 

process, there was extensive 

information that the Service had earlier 

made available to the public regarding 

two of these species. We previously 

proposed critical habitat for one of the 

three species, Isodendrion pyrifolium, in 

the KCDP area in 2002 (67 FR 36968; 

May 28, 2002). In addition, before its 

listing in 2013, Bidens micrantha ssp. 

ctenophylla had been included as a 

candidate for protection under the Act 

since 1980, and is recognized in 

numerous surveys and reports in the 

Kona area (Char 1990; Char 1992; 

Warshauer and Gerrish 1993; Belt 

Collins Hawaii 1999; Hart 2003, in litt.; 

Whistler 2007). Futhermore, in the 

development of this critical habitat 

designation, the Service used the HNHP 

database as a primary source of 

information on rare species occurrence 

data; this is the same source that the 

KCDP referenced for information on 

sensitive resources such as rare plants 

and animals, and native habitats. 

(10) Comment: The County of Hawaii 

Planning Department commented that 

the KCDP Greenbelt may be an 

appropriate tool to provide protection 

for the species’ habitats within the Kona 

Urban Area boundary designation. The 

Greenbelt is defined as areas of largely 

undeveloped, wild, agricultural land 

surrounding or neighboring urban areas 

and is intended as a strategic planning 

tool to prevent urban sprawl by keeping 

land permanently open. The Greenbelt 

may also serve multipurpose uses, such 

as for drainage (e.g., flow ways or 

retention basins), sensitive resource 

preserves, or wildfire protection buffers. 

Our Response: We have reviewed the 

KCDP and commend the plan for 

addressing the desire for open space and 

preventing urban sprawl. We also 

support the use of native plant species 

in landscaping, including endangered 

and threatened plant species, provided 

proper permits and approvals are 

secured. While we recognize that 

Greenbelt areas are intended in some 

instances to protect sensitive resources, 

these areas are not likely to support 

species recovery because they: (1) Are 

too small in size; (2) increase habitat 

fragmentation; and (3) allow uses such 

as various transportation features, parks, 

playgrounds, and other activities that 

are incompatible with native ecosystem 

restoration (Kona CDP 2008, pp. 4–40– 

4–41, SC12). 

Comments From Elected Officials 

(11) Comment: Hawaii 

Congresswoman Colleen Hanabusa 

requested that the Service conduct a 

public information meeting regarding 

the proposed critical habitat for three 

species on the island of Hawaii during 

the public comment period for the 

proposed critical habitat. 

Our Response: The Service held two 

public information meetings regarding 

the proposed critical habitat designation 

for the three Hawaii Island species, the 

first on May 15, 2013, and the second 

on August 7, 2013; both public 

information meetings were held at the 

Kona Civic Center. Announcements of 

the meetings were published in the 

Federal Register on April 30, 2013 (78 

FR 25243), and July 2, 2013 (78 FR 

39698), respectively. In addition, the 

Service sent letters to all interested 

parties, including elected officials, 

Federal and State agencies, native 

Hawaiian organizations, private 

landowners, and other stakeholders, 

notifying each of the public information 

meetings. 

(12) Comment: Hawaii County Mayor 

William Kenoi expressed strong 

reservations about the proposed critical 

habitat designation and commented that 

areas within the proposed critical 

habitat designation have been proposed 

for some type of active use or 

development for at least 25 years. Mayor 

Kenoi commented that the proposed use 

of these properties are a result of a 

quarter-century of land use decisions, 

planning, and coordination, and 

represent an integral part of the growth 

of this fast-growing region. Mayor Kenoi 

also expressed support for the Service’s 

efforts to protect native species in 

accordance with the Act, and urged the 

Service and all stakeholders to seek 

common ground. 

Our Response: We acknowledge 

Mayor Kenoi’s concerns related to the 

proposed critical habitat designation 

and its overlap with current land use 

proposals. Under the Act, any species 

determined to be endangered or 

threatened requires critical habitat to be 

designated, to the maximum extent 

prudent and determinable. By 

definition, in section 3(5)(A) of the Act, 

critical habitat for an endangered or 

threatened species includes the specific 

areas within the geographical area 

occupied by a species, at the time it is 

listed in accordance with the provisions 

of section 4 of the Act, on which are 

found those physical or biological 

features essential to the conservation of 

the species and which may require 

special management considerations or 

protection; and specific areas outside 


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the geographical area occupied by a 

species at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, upon a 

determination that such areas are 

essential for the conservation of the 

species. Although this designation may 

overlap areas proposed for the land uses 

mentioned by the commenter, these 

areas meet the definition of critical 

habitat and are therefore included in 

this final designation. However, under 

section 4(b)(2), we designate, and make 

revisions to, critical habitat based on the 

best scientific data available and after 

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact. In this 

final rule, we have excluded several 

areas based on relevant impacts (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act, above). 

(13) Comment: Hawaii County 

Councilmember Karen Eoff commented 

on the importance in maintaining 

cultural, environmental, and economic 

balance, and expressed support for 

designating adequate critical habitat for 

Hawaii Island’s endangered native plant 

and animal species. She further stated 

that protection of the island’s fragile 

ecosystem, and cultural and natural 

environment, will enhance the visitor 

industry and economy. The 

councilmember also commented that 

collaborative efforts among the Service, 

DHHL, QLT, OHA, and State and 

County agencies, in tandem with the 

directives and guidelines outlined in the 

KCDP, will ensure perpetuation of 

traditional cultural practices, ensure 

protection of the island’s natural 

resources, and safeguard balanced 

economic development. 

Our Response: We appreciate the 

councilmember’s comments in support 

of the protection of Hawaii’s endangered 

plant and animal species and her 

suggestion to work collaboratively with 

all stakeholders (see our response to 

Comments (37) and (40), below, 

regarding our outreach to and 

collaboration with stakeholders). See 

our response to Comments (8) and (9) 

regarding our consideration of the KCDP 

in this final rule. 

Comments Regarding Exclusions 

(14) Comment: The Kamehameha 

Schools, WVA, Palamanui, Kaloko 

Entities (previously Kaloko Properties 

Corporation, SCD–TSA Kaloko Makai 

LLC, TSA Corporation), Lanihau 

Properties, QLT, Forest City Kona, State 

of Hawaii lands assigned to the County 

of Hawaii, DHHL, and the HHFDC 

requested exclusion of their lands from 

the proposed critical habitat designation 

or expressed opposition to the 

designation of their lands. Numerous 

other public commenters wrote in 

support of excluding these lands from 

critical habitat. 

Our Response: We used the best 

available scientific information to 

determine habitat essential to the 

conservation of the species (see 

Methods, above), and further refined the 

critical habitat boundaries based on new 

information received since publication 

of the proposed rule on October 17, 

2012 (77 FR 63928), and release of our 

DEA of the Hawaii Island proposed 

critical habitat on April 30, 2013 (78 FR 

25243). Under section 4(b)(2) of the Act, 

we designate and make revisions to 

critical habitat based on the best 

scientific data available and after taking 

into consideration the economic impact, 

the impact on national security, and any 

other relevant impact. Some of these 

landowners have long-standing 

partnerships with the Service, and/or 

demonstrated commitment and success 

for conservation of endangered species 

and the ecosystems on which they 

depend. The Service has worked with 

the other landowners to execute MOUs 

to benefit the three critical habitat 

species and the lowland dry ecosystem. 

For the reasons described above (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act), the lands under 

control of Kamehameha Schools, WVA, 

Palamanui, Kaloko Entities, Lanihau 

Properties, QLT, Forest City Kona, State 

of Hawaii lands assigned to the County 

of Hawaii, the HHFDC, and the DHHL 

have been excluded from critical habitat 

in this final rule. 

(15) Comment: The Hawaii Electric 

Light Company (HELCO) stated that the 

Service’s conclusion that the proposed 

rule will not ‘‘significantly affect energy 

supply, distribution, and use’’ is 

erroneous. They stated that if HELCO’s 

electrical facilities are included in the 

critical habitat designation, their ability 

to provide reliable power where it is 

needed will be compromised because 

the designation might impede its ability 

to maintain, replace, or repair existing 

facilities or install additional facilities 

necessary to meet demand and thereby 

cause a significant adverse effect on 

energy distribution. The HELCO stated 

that their 6700 and 6800 circuits 

provide stability and redundancy for the 

grid, which is particularly essential, due 

to their proximity to the Keahole Power 

Plant. They also stated that the Service 

failed to take into account the impact of 

the proposed rules on energy supply, 

distribution, and use, as required by 

Executive Order 13211 of May 18, 2011, 

and that consequently, the Service 

should prepare a Statement of Energy 

Effects that addresses HELCO’s 

electrical facilities. Another commenter 

stated that areas with the HELCO’s 

existing electrical facilities should be 

excluded from the critical habitat 

designations, and proposed a buffer of 

250 ft (76 m) around all electrical 

facilities and requested exclusion of 

these areas from the critical habitat 

designation to allow for necessary 

maintenance and vegetation clearing. 

The commenter also requested that 

maps of the proposed critical habitat be 

revised to reflect exclusion of these 

areas, and that the Service add mention 

of ‘‘electrical utility infrastructure and a 

250 ft (76 m) buffer around such 

electrical infrastructure’’ to the list of 

examples of manmade features and 

structures that are not included in the 

final critical habitat designation. 

Our Response: In our proposed rule 

(77 FR 63928; October 17, 2012), we 

state that existing manmade features 

and structures such as buildings, roads, 

railroads, airports, runways, other paved 

areas, lawns, and other urban 

landscaped areas are not included in the 

critical habitat designation. In this final 

rule, we add clarification to include 

utility facilities and infrastructure and 

their designated, maintained rights-ofway as examples of existing manmade 

features and structures (see § 17.99 

Critical habitat; plants on the Hawaiian 

Islands.). Any such structures or 

features and the land under them that is 

inside critical habitat boundaries shown 

on the maps in this final rule are 

excluded by text in this final rule and 

are not designated as critical habitat (see 

above, Criteria Used to Identify Critical 

Habitat). It has always been our intent 

and practice to not include any existing 

designated, maintained rights-of-way for 

utility facilities and infrastructure in the 

areas designated as critical habitat. 

Federal actions involving these areas 

will not trigger section 7 consultation 

unless the specific action will also affect 

adjacent critical habitat or its physical 

or biological features. We believe the 

clarification for utility facilities and 

infrastructure and their existing 

designated, maintained rights-of-way 

allows for maintenance and vegetation 

clearing, therefore, exclusion of a 250-ft 

(76-m) buffer around electrical 

infrastructure and facilities is neither 

necessary nor appropriate. As stated 

above, it is our practice to consider 

utility rights-of-way as part of the 

development/infrastructure footprint, 

although, there are circumstances where 

a portion of the designated right-of-way 

may not be regularly maintained; 

therefore, this area may contain physical 

or biological features that define critical 

habitat. For example, a utility company 


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may have a designated right-of-way for 

a utility line where only a small portion 

of the right-of-way is maintained 

(mowed, graded) as an access route. In 

this situation, if the un-maintained 

portion of the right-of-way contains the 

designated physical or biological 

features, the Service would recommend 

the action agency consult on the 

project’s effects to critical habitat. 

According to Executive Order 13211, 

a ‘‘Significant energy action’’ means any 

action by an agency that is a significant 

regulatory action under Executive Order 

12866 or any successor order, and is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs 

(OIRA) as a significant energy action (66 

FR 28355; May 22, 2001). As discussed 

in the Required Determinations section 

below, the OIRA determined this rule 

was not significant. The economic 

analysis for this critical habitat 

designation could not identify any 

energy projects planned or proposed 

within the proposed critical habitat 

designation, and, therefore, section A.4 

of Appendix A of the FEA, ‘‘Potential 

Impacts to the Energy Industry,’’ states 

that the designation of critical habitat is 

not anticipated to result in any impacts 

to the energy industry. 

(16) Comment: Several commenters 

requested that the Kaloko Makai 

property be excluded from critical 

habitat designation in light of the 

willingness of SCD–TSA Kaloko Makai, 

LLC to convey 40 ac (1 ha) (out of the 

roughly 630 ac (255 ha) of the Kaloko 

Makai property proposed as critical 

habitat) to Hawaii Health Systems 

Corporation (HHSC) at no cost for the 

development of a new regional acute 

care hospital, to set aside 150 ac (61 ac) 

in perpetuity for a dryland forest 

preserve, and to fence and remove 

ungulates and nonnative species from 

the preserve. Concern was raised that if 

the Kaloko Makai property is designated 

as critical habitat there is little chance 

that the Kaloko Makai project will be 

developed, and, as a result, the roads, 

water, sewer, and other infrastructure 

that are necessary for the hospital 

operations would not be built. 

Our Response: The Service received 

notification in a June 6, 2016, letter, of 

the new management of this property 

representing a group called the Kaloko 

Entities that includes: (1) Kaloko 

Properties LLC, a Hawaii limited 

liability company (formerly known as 

Kaloko Properties Corporation); (2) 

Kaloko Residential Park LLC, a Hawaii 

limited liability company (owner of the 

Kaloko Makai lands formerly owned by 

SCD–TSA Kaloko Makai LLC); and (3) 

TSA LLC, a Hawaii limited liability 

company (formerly known as TSA 

Corporation). The letter expressed an 

interest to re-engage in discussions with 

the Service regarding a partnership or 

conservation agreement. As discussed in 

our response to Comment (14) above, 

and for the reasons discussed in the 

Consideration of Impacts Under Section 

4(b)(2) of the Act, the lands owned by 

Kaloko Entities have been excluded 

from this critical habitat designation. 

Comments Regarding the Methodology 

Used To Determine Critical Habitat 

(17) Comment: Several commenters 

opposed the designation of critical 

habitat in unoccupied areas. One 

commenter stated that where 

unoccupied habitat is involved, courts 

have determined that ‘‘[e]ssential for 

conservation is the standard for 

unoccupied habitat . . . and is a more 

demanding standard than that of 

occupied critical habitat,’’ citing 

Homebuilders Association of No. 

California v. U.S. Fish & Wildlife 

Service, 616 F.3d 983, 990 (9th Cir. 

2010). Another commenter challenged 

the Service to substantiate the 

presumption that loss of unoccupied 

habitat will significantly decrease the 

likelihood of conserving the species or 

jeopardize the conservation and 

preservation of the species. 

Our Response: We used the best 

available scientific information to 

determine critical habitat for the species 

(see Methods, above), and further 

refined the critical habitat boundaries 

based on new information received 

since publication of the proposed rule 

on October 17, 2012 (77 FR 63928) and 

release of our DEA of the Hawaii Island 

proposed critical habitat on April 30, 

2013 (78 FR 25243). In this final rule, 

the critical habitat designation is a 

combination of areas occupied by the 

species and areas that may be 

unoccupied. For areas considered 

occupied, the best available scientific 

information suggests that these areas 

were occupied by Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiensis at the times 

of their listing. However, due to the 

small population sizes, few numbers of 

individuals, and reduced geographic 

range of each of the three species for 

which critical habitat is here designated, 

we have determined that a designation 

limited to the known present range of 

the area occupied by each species at the 

time of its listing would be inadequate 

to achieve the conservation of those 

species. The areas believed to be 

unoccupied have been determined to be 

essential for the conservation and 

recovery of the species because they 

provide the physical or biological 

features necessary for the expansion of 

existing wild populations and the 

reestablishment of wild populations 

within the historical range of the 

species. These areas within the 

designated unit provide the physical 

and biological features of the lowland 

dry ecosystem for the three plants and 

also provide essential habitat that is 

necessary for the expansion of the 

existing wild populations of the three 

species which occupy other sites in the 

unit. Due to the small numbers of 

individuals or low population sizes of 

each of these three species, suitable 

habitat and space for expansion or 

reintroduction are essential to achieving 

population levels necessary for recovery 

these species. See our response to 

Comment (12) above regarding the 

definition of critical habitat and criteria 

for our determination of why 

unoccupied areas are essential to the 

conservation of the three species in this 

final rule (see also Criteria Used to 

Identify Critical Habitat, above). 

(18) Comment: Several commenters 

disputed the use of an ecosystem 

approach in our determination of PCEs 

for each species and cited the 

regulations for determining critical 

habitat at 50 CFR 424.12(b). In addition, 

commenters argued that the proposed 

ecosystem critical habitat designations 

are overly generalized and, therefore, 

lack the necessary analysis and 

explanation required by the Act for each 

species, adding that the courts have 

consistently held that such a 

generalization of critical habitat is 

unacceptable. 

Our Response: Under the Act and its 

implementing regulations, in areas 

occupied at the time of listing, we are 

required to identify the physical and 

biological features essential to the 

conservation of the species for which 

we propose critical habitat. The PCEs 

are those specific elements of the 

physical and biological features that 

provide for a species’ life-history 

processes and are essential to the 

conservation of the species. These 

species need a functioning ecosystem to 

survive and recovery. Further, in many 

cases, due to our limited knowledge of 

specific life-history requirements for the 

species that are little-studied and occur 

in remote and inaccessible areas, the 

physical and biological features that 

provide for the successful functioning of 

the ecosystem on which these species 

depend represent the best, and, in many 

cases, the only, scientific information 

available. Accordingly, the physical and 

biological features of the ecosystem are, 

at least in part, the physical and 


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biological features essential to the 

conservation of those species. 

Collectively, these features provide the 

suite of environmental conditions 

essential to meeting the fundamental 

requirements of each species. 

In this case, the physical and 

biological features that we identified for 

these species represent the PCEs for 

these species, and reflect a distribution 

that we concluded is essential to the 

species’ recovery needs within the 

lowland dry ecosystem. The ecosystems’ 

features include the appropriate 

microclimatic conditions for 

germination and growth of the plants 

(e.g., light availability, soil nutrients, 

hydrologic regime, and temperature) 

and space within the appropriate 

habitats for population growth and 

expansion, as well as maintenance of 

the historical geographical and 

ecological distribution of each species. 

The PCEs are defined by elevation, 

annual levels of precipitation, substrate 

type and slope, and the potential to 

maintain characteristic native plant 

genera in the canopy, subcanopy, and 

understory levels of the vegetative 

community. The physical and biological 

features/PCEs of a functioning 

ecosystem for the lowland dry 

ecosystem identified as essential to the 

conservation of the three species are 

described in Table 2 of this final rule 

and were derived from several sources, 

including: (a) The Nature Conservancy’s 

Ecoregional Assessment of the Hawaiian 

High Islands (2006) and ecosystem maps 

(2007); (b) Natural Resource 

Conservation Service’s (NRCS) soil type 

analysis data layer for GIS (geographic 

information systems) mapping (NRCS 

2008); (c) Hawaii Island vegetation 

analyses by Gagne and Cuddihy (1999, 

pp. 45–114); (d) plant databases from 

the National Tropical Botanical Garden 

(2011); (e) geographic information 

system maps of habitat essential to the 

recovery of Hawaiian plants (HPPRCC 

1998); (f) GAP (geographic analysis 

program) vegetation data (GAP 2005); (g) 

Federal Register documents, such as 

listing rules and 5-year status reviews; 

(h) recent biological surveys and 

scientific reports regarding species and 

their habitats; and (i) discussions with 

qualified individuals familiar with these 

species and ecosystems. 

(19) Comment: One commenter stated 

that most of the area proposed for 

critical habitat is affected by various 

threats (wildfires, nonnative plants, and 

nonnative ungulates), is not currently 

good habitat for endangered plant 

species, and would require difficult, 

expensive measures to rehabilitate, 

requiring at the very least some fencing 

and firebreaks. The commenter stated 

that development could be planned to 

avoid, protect, and restore remnant sites 

with high-quality habitat. 

Our Response: We agree with the 

commenter’s statement that various 

threats affect most, if not all, of the 

habitat for the three species. Fire, 

nonnative plant species, and ungulates 

are identified as primary threats to the 

physical and biological features of the 

lowland dry ecosystem essential to the 

conservation of the three species. We 

also agree that the areas designated 

require special management 

considerations or protections. (e.g., 

firebreaks, fencing, control of nonnative 

plant species). In addition, active 

management of the species themselves 

(e.g., ex situ (off-site) germplasm 

storage, and collection, propagation, 

outplanting and maintenance) will 

likely be necessary for the conservation 

of the three species (USFWS 1994, pp. 

39–48; USFWS 1999, pp. 71, 117–119, 

126). With protection and active 

management, we expect the areas 

identified in this final rule to provide 

the areas essential to the conservation of 

the three species. While development 

adjacent to protected areas may include 

paved or landscaped areas that may 

reduce the potential for invasion by or 

the harmful effects of nonnative plant 

species, higher levels of human activity 

associated with development also 

creates the potential of ignition sources, 

vandalism, and theft. During the 

proposed rule’s comment periods and in 

the development of this final rule, we 

worked with the State, County, and 

affected landowners in a cooperative 

planning process that addressed 

development and the areas essential to 

the conservation of the three species. 

(20) Comment: Several commenters 

stated the possibility that other potential 

conservation areas and resources are 

available for protection of the target 

species throughout west Hawaii and 

Hawaii Island, and that the Service’s 

methods of only using available 

historical surveys and past studies 

prepared by landowners unnecessarily 

skews the designation of possible 

critical habitat areas toward areas that 

are being slated for development, such 

as the Kona Urban Area. A commenter 

suggested that a proper scientific 

method would include a contemporary 

analysis of the entire island of Hawaii 

for the areas that have the necessary 

physical and biological attributes 

necessary for establishing a critical 

habitat area. 

Our Response: As required by section 

4(b) of the Act, we used the best 

scientific data available in determining 

those areas that contain the physical or 

biological features essential to the 

conservation of the three species by 

identifying the occurrence data for each 

species and determining the ecosystems 

upon which they depend. The 

information we used is described in our 

October 17, 2012, proposed rule (77 FR 

63928) and in this final rule (see 

Methods, above). In response to the 

commenter’s suggestion that our 

analysis consider areas across the entire 

Hawaii Island, we did not consider 

including areas outside the species’ 

known historic range as critical habitat. 

The introduction of a species outside its 

historically known range may cause 

additional concerns, such as 

hybridization with other closely related 

species (in the case of Bidens micrantha 

ssp. ctenophylla) (Giffin 2011, pers. 

comm.), or exposing species to other 

known or unknown threats. Regarding 

the consideration of available habitat on 

State and Federal lands, the final 

designation includes significant areas of 

State and Federal lands, totaling 11,613 

ac (4,699 ha) out of the 11,640-ac (4,711- 

ha) designation. 

(21) Comment: One commenter stated 

that areas with soil types classified as 

pahoehoe lava flows or aa lava flows are 

not suitable for critical habitat 

designation because such areas do not 

provide the PCEs of the lowland dry 

ecosystem substrate, which consists of 

‘‘weathered silty loams to stony clay, 

rocky ledges, and little-weathered lava.’’ 

Our Response: We disagree with the 

commenter’s statements that pahoehoe 

and aa lava provide neither the PCEs of 

the lowland dry ecosystem nor suitable 

habitat for the three species. As 

described by Gagne and Cuddihy (1999, 

pp. 67–74), the substrate of the lowland 

dry ecosystem ranges from weathered 

reddish silty loams to stony clay soils, 

rocky ledges with very shallow soil, or 

relatively recent, little-weathered lava. 

In addition, all three species are known 

from primarily pahoehoe and aa soil 

types on relatively recent lava flows (51 

FR 24672, July 8, 1986; 59 FR 10305, 

March 4, 1994; HBMP 2010a, HBMP 

2010b, HBMP 2010c). 

(22) Comment: One commenter stated 

that there is no benefit of critical habitat 

designation in areas occupied by the 

species. The commenter stated that 

according to information presented in 

the Service’s DEA, in areas where the 

species is present, the level of 

protection afforded by a critical habitat 

designation is similar to the level of 

protection already present without the 

designation. 

Our Response: This comment may be 

in reference to discussion of 

incremental economic impacts in the 

DEA (also discussed in the FEA) which 

recognizes that the presence of listed 


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plants provides extensive baseline 

protection because projects or activities 

with a Federal nexus would be subject 

to section 7 consultation regardless of 

critical habitat designation. It is, 

therefore, unlikely that critical habitat 

designation will change the outcome of 

future section 7 consultations within 

areas occupied by the species. However, 

critical habitat provides other benefits. 

One of the benefits of a critical habitat 

designation is that it serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This can help focus and promote 

conservation efforts by identifying areas 

of high conservation value for the listed 

plants. Any additional information 

about the needs of the listed plants or 

their habitat that reaches a wider 

audience is of benefit to future 

conservation efforts. See also the second 

half of our response to Comment (8) 

regarding the benefit of critical habitat. 

(23) Comment: One commenter stated 

that by focusing on areas where there 

are perceived threats caused by 

urbanization, the resulting proposed 

critical habitat identifies areas in and 

around areas planned for urbanization. 

The commenter suggested that the 

Service first consider lands within the 

State Conservation District and the 

protections afforded these lands in 

identification of potential critical 

habitat. Consideration of urban lands or 

lands planned for urban growth for 

critical habitat designation should only 

occur after all other sites protected 

through zoning have been thoroughly 

exhausted. 

Our Response: As stated previously, 

the State is a valued conservation 

partner in the recovery of endangered 

species and their habitats and we 

appreciate their strategic approach. 

Species that occur in the lowland dry 

ecosystem face numerous threats in 

addition to urban development, 

including habitat destruction by 

ungulates, nonnative plants, fire, and 

climate change; predation or herbivory 

by ungulates, nonnative vertebrates, and 

invertebrates; and other threats such as 

hybridization (77 FR 63928; October 17, 

2012). Hawaii Revised Statute (HRS) 

183C establishes the authority of the 

Hawaii DLNR to regulate uses and 

permitting within the Conservation 

District but does not address 

endangered and threatened species or 

designated critical habitat. In the case of 

species such as Bidens micrantha ssp. 

ctenophylla, the historical range of the 

species may be extremely restricted (see 

Current Status of the Species, above), 

and, therefore, areas that contain the 

physical and biological features or areas 

determined to be essential for their 

conservation may not correspond to the 

existing Conservation District. The best 

available scientific information led us to 

a proposed designation of critical 

habitat wherein ten percent fell within 

the Urban District (1,921 ac (778 ha)), 16 

percent within the Conservation District 

(2,955 ac (1,196 ha)), and 74 percent in 

the Agricultural District (13,892 ac 

(5,622 ha)). See our response to 

Comment (12), above, regarding our 

analysis and the information used to 

determine the areas of critical habitat for 

the three species in our proposed rule 

(77 FR 63928; October 17, 2012) and in 

this final rule (see also Methods and 

Criteria Used to Identify Critical 

Habitat, above). 

(24) Comment: One commenter 

questioned the Service’s consideration 

for exclusion of certain groups with 

plans for commercial or residential 

development within the proposed 

critical habitat designation, stating that 

such development would undoubtedly 

degrade and destroy the physical and 

biological features, and the resulting 

traffic would have detrimental effects on 

the species’ habitat. Another commenter 

opposed the Service’s consideration of 

the areas proposed for exclusion from 

critical habitat under section 4(b)(2) of 

the Act for the purposes of widespread 

urban development and sprawl that 

further fragment, modify, and destruct 

these species’ critical habitat. 

Our Response: We appreciate the 

commenters’ concern for possible 

impact to and assurances of 

conservation for areas considered for 

exclusion from the proposed critical 

habitat designation in the proposed rule 

(77 FR 63928; October 17, 2012). 

Section 4(b)(2) of the Act states that the 

Secretary must designate or make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impacts of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. The Secretary may exclude an 

area from critical habitat based on 

economic impacts, impacts to national 

security, or any other relevant impacts. 

In this final rule, the Service carefully 

considered the factors above and 

present the results of our analysis for 

each area excluded under 4(b)(2) of the 

Act (see Consideration of Impacts Under 

Section 4(b)(2) of the Act, above). 

(25) Comment: Two commenters 

stated that lands within the critical 

habitat designation will have limited 

access and thereby not allow people to 

malama aina (care for the land). 

Our Response: The designation of 

critical habitat does not affect land 

ownership or establish a wilderness 

area, preserve, or wildlife refuge, nor 

does it open or restrict a privatelyowned area to human access or use. Past 

or ongoing activities to care for the land, 

such as habitat management, reduction 

of species’ threats, and increasing 

species numbers are expected to benefit 

the species recovery, and, therefore, 

such activities would be encouraged 

within designated critical habitat. 

Comments Regarding Regulatory 

Authority and Requirements 

(26) Comment: Two commenters 

stated that designating non-Federal land 

(Kamakana Villages, Kaloko Makai) as 

critical habitat will provide no benefit to 

any listed or proposed endangered 

species that is not already provided 

under Hawaii State law. The commenter 

stated that section 9 of the Act does not 

prohibit the ‘‘taking’’ of federally listed 

plants from non-Federal lands and cited 

16 U.S.C. 1538(a)(2)(B), which defers to 

State laws and regulations. The 

commenter stated that under HRS 

195D–4(e), it is unlawful to ‘‘take’’ any 

endangered or threatened plant species 

in the State of Hawaii, and, therefore, 

with respect to plants, the State law is 

more protective than the Act and critical 

habitat designation on non-Federal land. 

Another commenter stated that the DEA 

clearly indicates no additional 

protection of endangered species will be 

afforded by the proposed critical habitat 

designation other than that which 

already exists under State law. 

Our Response: Unlike the automatic 

conferral of State law protection for all 

federally listed species (see HRS 195D– 

4(a)), there are no provisions in State 

law (HRS 195D–4(e)) that reference 

federally designated critical habitat. 

When considering the benefits of 

inclusion of an area in critical habitat, 

we consider the regulatory benefits that 

area would receive from the protection 

from adverse modification or 

destruction as a result of consultation 

under section 7(a)(2) of the Act for 

actions with a Federal nexus; the 

educational benefits of mapping habitat 

essential for recovery of the listed 

species; and any benefits that may result 

from a designation due to State or 

Federal laws that may apply to critical 

habitat. Benefits could include public 

awareness of the presence of listed 


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species and the importance of habitat 

protection, and in cases where a Federal 

nexus exists, increased habitat 

protection due to the protection from 

adverse modification or destruction of 

critical habitat. Also, State law only 

protects existing plants from take. If an 

area is unoccupied, there are no 

provisions for protection under State 

law. See also the second half of our 

response to Comment (8). 

(27) Comment: Several commenters 

expressed concern about the potential 

negative effects of critical habitat 

designation on their lands because of 

the interplay of Federal and Hawaii 

State law. For example, they were 

concerned that designation of critical 

habitat could lead to reclassification of 

land by the State into the conservation 

district pursuant to HRS 195D–5.1 and 

HRS 205–1(3). The commenters stated 

that critical habitat designation will put 

the State of Hawaii Land Use 

Commission (LUC) Urban District 

classification at risk because under HRS 

195D–5.1, the DLNR is required to 

initiate land use district boundary 

amendments to put lands that are 

considered habitat for flora and fauna 

into the State LUC Conservation 

District. Multiple commenters stated 

that the proposed critical habitat 

designation will result in a redistricting 

or ‘‘down-zoning’’ of the designated area 

to the conservation district due to HRS 

section 195D–5.1, resulting in the loss of 

projects and associated investments, 

entitlements, and other benefits. 

Our Response: HRS section 195D–5.1 

states that the DLNR, ‘‘shall initiate 

amendments to the conservation district 

boundaries consistent with section 205– 

4 in order to include high quality native 

forests and the habitat of rare native 

species of flora and fauna within the 

conservation district.’’ HRS section 205– 

2(e) specifies that ‘‘conservation 

districts shall include areas necessary 

for * * * conserving indigenous or 

endemic plants, fish and wildlife, 

including those which are threatened or 

endangered * * *.’’ Unlike the 

automatic conferral of State law 

protection for all federally listed species 

(see HRS 195D–4(a)), these provisions 

do not explicitly reference federally 

designated critical habitat and, to our 

knowledge, DLNR has not proposed 

amendments in the past to include all 

designated critical habitat in the 

conservation district. State law only 

permits other State departments or 

agencies, the county in which the land 

is situated, and any person with a 

property interest in the land to petition 

the State LUC for a change in the 

boundary of a district (HRS section 205– 

4). 

The Hawaii Department of Business, 

Economic Development & Tourism’s 

(DBEDT) Office of Planning also 

conducts a periodic review of district 

boundaries taking into account current 

land uses, environmental concerns, and 

other factors, and may propose changes 

to the LUC. The State LUC determines 

whether changes proposed by DLNR, 

DBEDT, other State agencies, counties, 

or landowners should be enacted. In 

doing so, State law requires LUC to take 

into account specific criteria, set forth at 

HRS section 205–17. While the LUC is 

specifically directed to consider the 

impact of the proposed reclassification 

on ‘‘the preservation or maintenance of 

important natural systems or habitats,’’ 

it is also specifically directed to 

consider five other impacts in its 

decision: (a) Maintenance of valued 

cultural, historical, or natural resources; 

(b) maintenance of other natural 

resources relevant to Hawaii’s economy, 

including, but not limited to, 

agricultural resources; (c) commitment 

of State funds and resources; (d) 

provision for employment opportunities 

and economic development; and (e) 

provision for housing opportunities for 

all income groups, particularly the low, 

low-moderate, and gap groups (HRS 

section 205.17). Approval of 

redistricting requires six affirmative 

votes from the nine commissioners, 

with the decision based on a ‘‘clear 

preponderance of the evidence that the 

proposed boundary is reasonable’’ (HRS 

section 205–4). In addition, the LUC 

must hold a hearing on all petitions to 

redistrict areas greater than 15 ac (6 ha), 

and must admit as intervening parties 

all persons who have some property 

interest in the land, thus giving private 

property owners opposing redistricting 

the opportunity to present evidence 

(HRS section 205–4). The relevant State 

endangered and threatened species 

statute contains no reference to 

designated critical habitat. Also, as 

stated above, unlike the automatic 

conferral of State law protection for all 

federally listed species, State law does 

not require initiation of the amendment 

process for federally designated critical 

habitat (HRS section 195D–5.1, HRS 

section 195D–4(a)). 

(28) Comment: One commenter stated 

that the consequences of critical habitat 

designation are broader than section 7 

consultation. The commenter stated that 

the existence of the critical habitat 

designation would undoubtedly be used 

to oppose any ongoing or proposed 

actions in the designated area by State 

and county agencies. 

Our Response: See response to 

Comment (27) above regarding critical 

habitat and State and County land use 

processes. In addition, HRS 343 

provides a comprehensive review of the 

environmental impact statement (EIS) 

process, and describes the applicability 

and requirements for environmental 

assessments (EA), regardless of the 

underlying land classification. HRS 343 

does not trigger land reclassification as 

a result of critical habitat designation, 

nor does it stipulate prohibitions against 

proposed actions or proposed land use 

changes in areas designated as critical 

habitat, whether or not these areas are 

in the conservation district. It states that 

an EIS is required for any proposed land 

reclassifications under 343–5(2) and 

343–5(7) and ‘‘any use within any land 

classified as a conservation district by 

the state land use commission under 

Chapter 205.’’ HRS 343, therefore, 

provides guidelines for the EIS process 

and EA process regarding: (a) Land 

reclassification, and (b) proposed 

actions or proposed land use changes on 

lands that are already classified as 

conservation. 

(29) Comment: One commenter stated 

that the Service must also consider its 

designation of critical habitat for plants 

in the context of the Hawaii Endangered 

Species Act, HRS 195 (Hawaii ESA). 

The commenter stated that ‘‘impacts of 

plant designations in Hawaii are 

consequently more sweeping than in the 

rest of the nation because the Hawaii 

ESA makes it broadly unlawful for any 

person to ‘take’ a ‘land plant’’’ under 

HRS 195D–4(e)(2), subjecting violators 

to the full force of civil and criminal 

penalties under the Hawaii ESA (citing 

HRS 195D–2 which defines ‘‘Taking’’ to 

include collecting, cutting, uprooting, 

destroying, injuring, or possessing the 

endangered land plant, without regard 

to where it is located, including private 

property). 

Our Response: HRS 195D covers 

conservation of aquatic life, wildlife, 

and land plants in the State of Hawaii. 

The sections of HRS 195D relevant to 

this discussion are HRS sections 195D– 

4 and 195D–5.1. HRS section 195D–4 

recognizes the Federal status 

(endangered or threatened) of flora and 

fauna in Hawaii as determined by the 

Department of the Interior. This section 

also outlines State regulations for 

possession, trade, or other uses of these 

species, as well as prohibitions 

regarding endangered and threatened 

species on both Federal and non-Federal 

land, but makes no mention of critical 

habitat under HRS 195D–4. HRS section 

195D–5.1, ‘‘Protection of Hawaii’s 

unique flora and fauna,’’ states that the 

DLNR shall initiate amendments to the 

conservation district boundaries 

consistent with section 205–4 in order 

to include high-quality native forests 


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and the habitat for rare native species of 

flora and fauna within the conservation 

district. Neither of these sections of HRS 

195D includes statements invoking 

automatic prohibitions against adverse 

modification of critical habitat on 

private lands. 

(30) Comment: Several commenters 

claimed that the regulatory flexibility 

analysis provided in the proposed rule 

was flawed and inadequate. One 

commenter cited the Regulatory 

Flexibility Act (RFA) 5 U.S.C. 601 et 

seq., as amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, which states that an agency must 

either certify that a rule will not have a 

significant impact on a substantial 

number of small entities, or it must 

complete an Initial Regulatory 

Flexibility Analysis (IRFA) (see 5 U.S.C. 

603). The commenters stated that the 

Service did not perform an adequate 

analysis of the impacts on small 

businesses, as required by law, stating 

that under the RFA a ‘‘small business’’ 

has the same meaning as a ‘‘small 

business concern’’ (see 5 U.S.C. 601). 

Our Response: Section 4(b)(2) of the 

Act requires us to consider the 

economic impact of designating a 

particular area as critical habitat for an 

endangered or threatened species. We 

also evaluate potential economic 

impacts of a rulemaking pursuant to 

both Executive Order 12866 (E.O. 

12866), which states that a rulemaking 

will be determined to be economically 

significant if it will result in an impact 

of more than $100 million in any given 

year, and the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.) as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.). Under 

the RFA, when an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule of these 

sections of HRS 195D includes 

statements invoking automatic 

prohibitions against adverse 

modification of critical habitat on 

private lands. 

(30) Comment: Several commenters 

claimed that the regulatory flexibility 

analysis provided in the proposed rule 

was flawed and inadequate. One 

commenter cited the Regulatory 

Flexibility Act (RFA) 5 U.S.C. 601 et 

seq., as amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, which states that an agency must 

either certify that a rule will not have a 

significant impact on a substantial 

number of small entities, or it must 

complete an Initial Regulatory 

Flexibility Analysis (IRFA) (see 5 U.S.C. 

603). The commenters stated that the 

Service did not perform an adequate 

analysis of the impacts on small 

businesses, as required by law, stating 

that under the RFA a ‘‘small business’’ 

has the same meaning as a ‘‘small 

business concern’’ (see 5 U.S.C. 601). 

Our Response: Section 4(b)(2) of the 

Act requires us to consider the 

economic impact of designating a 

particular area as critical habitat for an 

endangered or threatened species. We 

also evaluate potential economic 

impacts of a rulemaking pursuant to 

both Executive Order 12866 (E.O. 

12866), which states that a rulemaking 

will be determined to be economically 

significant if it will result in an impact 

of more than $100 million in any given 

year, and the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.) as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.). Under 

the RFA, when an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions), except when the head of 

the agency certifies the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

The SBREFA amended the RFA to 

require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that a rule will not 

have a significant economic impact on 

a substantial number of small entities. 

To understand the potential impacts 

of a critical habitat designation, we 

evaluate in our economic analysis the 

incremental impacts of the designation 

as identified by evaluating the 

additional protections or conservation 

measures afforded the species through 

the designation beyond those that the 

species receives by being federally 

listed. Under E.O. 12866, we are 

required to evaluate the direct and 

indirect impacts of the designation. The 

evaluation of these potential impacts is 

discussed in our DEA and FEA. 

Additionally, under the RFA and 

following recent case law, we are to 

evaluate the potential impacts to small 

businesses, but this evaluation is 

limited to impacts to directly regulated 

entities. The designation of critical 

habitat only has regulatory impact only 

through section 7 of the Act, under 

which a Federal action agency is 

required to consult with us on any 

project that is funded, permitted, or 

otherwise authorized that may affect 

designated critical habitat. In other 

words, critical habitat only has a 

regulatory impact if a Federal nexus 

exists. Critical habitat has no regulatory 

effect or impact under the Act on 

actions that do not have a Federal 

nexus. Since Federal action agencies are 

the only directly regulated entities as a 

result of the designation of critical 

habitat, it is therefore reasonable for us 

to conclude that the designation of 

critical habitat does not directly regulate 

small business entities and, therefore, 

does not significantly impact them. As 

a result, we believe that we have 

accurately assessed potential impacts to 

small business entities in the 

rulemaking, and can reasonably certify 

that this designation will not have a 

significant impact on a substantial 

number of small business entities. For a 

further discussion of our rationale, 

please see Required Determinations, 

below. 

(31) Comment: One commenter stated 

that critical habitat is in violation of the 

U.S. Constitution, Article 1, section 8, 

based on the assertion that critical 

habitat designation would constitute 

Federal ownership of private property 

within the State of Hawaii. Several 

commenters stated that the designation 

of critical habitat is a taking of property 

without just compensation. One 

commenter stated that the proposed 

designation involves a significant 

amount of private land that has already 

been granted land use entitlements to 

allow for development of housing, 

schools, and commercial and other 

important uses, and the designation will 

significantly compromise and perhaps 

eliminate the ability for those private 

individuals to develop their land, 

thereby rendering those land use 

entitlements void. 

Our Response: Critical habitat 

designation does not confer ownership 

of private property to the Federal 

Government, nor does the Act restrict 

all uses of critical habitat, but only 

imposes restrictions under section 

7(a)(2) on Federal agency actions that 

may result in destruction or adverse 

modification of designated critical 

habitat. The mere promulgation of a 

regulation, like the enactment of a 

statute, does not take private, State, 

Federal, or county property, unless the 

regulation on its face denies the 

property owners all economically 

beneficial or productive use of their 

land. The designation of critical habitat 

does not deny anyone economically 

viable use of their property. The Act 

does not automatically restrict all uses 

of critical habitat, but only imposes 

restrictions under section 7(a)(2) on 

Federal agency actions that may result 


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in destruction or adverse modification 

of designated critical habitat. 

Furthermore, if in the course of a 

consultation with a Federal agency, the 

resulting biological opinion concludes 

that a proposed action is likely to result 

in destruction or adverse modification 

of critical habitat, we are required to 

suggest reasonable and prudent 

alternatives that can be implemented in 

a manner consistent with the intended 

purpose of the action, that can be 

implemented consistent with the scope 

of the Federal agency’s legal authority 

and jurisdiction, and that are 

economically and technologically 

feasible. 

While non-Federal entities that 

receive Federal funding, assistance, or 

permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Regarding the assertion that critical 

habitat constitutes a taking, the Act does 

not authorize the Service to regulate 

private actions on private lands or 

confiscate private property as a result of 

critical habitat designation. Designation 

of critical habitat does not affect land 

ownership, or establish any closures, or 

restrictions on use or access to the 

designated areas. Critical habitat 

designation also does not establish 

specific land management standards or 

prescriptions, although Federal agencies 

are prohibited from carrying out, 

funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. 

(32) Comment: Several commenters 

stated that the proposed rule did not 

include a DEA, as would be required 

under the February 28, 2012, 

Presidential Memorandum for the 

Secretary of the Interior, ‘‘Memorandum 

on Proposed Revised Habitat for the 

Spotted Owl: Minimizing Regulatory 

Burdens.’’ One commenter further 

stated that the Service’s proceeding with 

the proposed critical habitat rule 

without a timely DEA, contrary to 

President Obama’s directive, ‘‘is 

arbitrary and capricious, does not meet 

the requirements for transparency, and 

compounds the uncertainty and 

economic dislocation that has been 

identified as a defect in the current 

critical habitat designation process.’’ 

Our Response: The February 28, 2012, 

Presidential Memorandum directed the 

Secretary of the Interior to propose 

revisions to the current regulations 

(which were promulgated in 1984, and 

required that an economic analysis be 

completed after critical habitat has been 

proposed) to provide that the economic 

analysis be completed and made 

available for public comment at the time 

of the publication of a proposed rule to 

designate critical habitat. As directed, 

the Service published a proposed rule 

for revisions to the regulations for 

impact analyses for critical habitat on 

August 24, 2012 (77 FR 51503) and 

accepted comments for 60 days, ending 

October 23, 2012. While we were still 

accepting public comments on the 

August 24, 2012, proposed rule, we 

published the proposed rule to list 15 

species, including Bidens micrantha 

ssp. ctenophylla, as endangered, and to 

designate critical habitat for Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense 

on Hawaii Island (77 FR 63928; October 

17, 2012). Therefore, in publishing the 

proposed rule, we followed the 

regulations in place at that time. The 

public, including landowners within 

proposed critical habitat, were provided 

with an opportunity to comment on the 

proposed rule and DEA (see our 

response to Comment (37) for more 

information regarding the timing and 

duration of comment periods for the 

proposed rule). In this final rule, we 

have fully considered and included 

responses to all substantive comments 

related to the DEA (see Comments on 

the Draft Economic Analysis, below). 

Comments Regarding Partnership and 

Collaboration 

(33) Comment: Several commenters 

suggested that the Service convene a 

stakeholders meeting or task force to 

develop a comprehensive conservation 

plan for the region that balances 

protection of species and sustainable 

urban development to truly embrace the 

ecological approach for identifying 

critical habitat. Multiple commenters 

stated that more can be done through 

cooperative partnerships between the 

Service and the affected landowners to 

contribute to the recovery of the three 

species while ensuring the mission and 

work of the Service and various 

stakeholders will be achieved. Several 

commenters cited Hawaii House 

Concurrent Resolution 96 H.D. 2 S.D. 1 

passed by the 2013 Hawaii State 

Legislature requesting the Service work 

with the affected persons and counties 

in establishing reasonable critical 

habitat designations for endangered 

species in the State. 

Our Response: The Service has 

worked cooperatively with the State, 

County, and private landowners to 

conserve the lowland dry ecosystem in 

the North Kona region by participating 

on working groups, contributing costshare funding, and providing technical 

assistance. Prior to publication of the 

October 17, 2012, proposed rule, the 

Service conducted informational 

meetings with several affected State 

agencies, landowners, and other 

interested parties. The Service, along 

with the County of Hawaii, DHHL, 

DLNR, and other parties with an interest 

in Hawaii—Lowland Dry—Units 31, 33, 

34, and 35, participated in a series of 

meetings where the long-term goals and 

objectives of each party were presented. 

The process provided a forum to discuss 

species protection and recovery and 

development on a regional scale. 

Although goals and objectives for 

development are not always 

reconcilable with goals and objectives of 

a critical habitat designation, we have 

considered the information presented in 

these meetings, as well as public 

comments, in making this final critical 

habitat designation. These discussions 

resulted, in some instances, a 

cooperative approach to setting aside 

acreage adjacent to other landowners in 

order to protect larger areas of 

contiguous habitat from development. 

The Service and several landowners 

have worked in partnership to execute 

MOUs that are intended to benefit the 

three critical habitat species and the 

lowland dry ecosystem. See our analysis 

above (Consideration of Impacts Under 

Section 4(b)(2) of the Act) for a 

description of several areas that are 

excluded from the critical habitat 

designation in this final rule. 

(34) Comment: One commenter 

expressed concern whether proper 

monitoring and oversight protocols were 

in place to ensure for successful 

implementation of conservation 

agreements between the Federal 

Government and its partners. The same 

commenter expressed concern regarding 

the fate of the areas protected or 

managed following the expiration or 

termination of the current partnerships 

and/or agreements. 

Our Response: The conservation 

agreements between the Service and our 

public and private partners include 

specific obligations for implementation 

of voluntary conservation actions, 

monitoring, and reporting, and review 

by the Service. Upon expiration or 

termination of the agreement, it is our 

hope that the parties will seek to 

continue the partnership and all 

possible opportunities for the continued 

care and maintenance of listed species 

and their habitats. Endangered and 

threatened species in the areas covered 

by conservation agreements will be 

afforded protection under State and 

Federal laws. To the extent such lands 

are being excluded from critical habitat 


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by this rule, we may reconsider 

designating critical habitat should our 

partnership for the conservation of 

listed species prove to be unsuccessful 

or short-lived. 

(35) Comment: One commenter 

recommended that the transfer of 

development rights to the Federal 

Government be considered as a means 

for the protection and survival of 

endangered plants. 

Our Response: It is the landowner’s 

discretion to consider whether an 

easement or other transfer of 

development rights to another entity is 

appropriate given the landowner’s 

current and future planned uses for 

their land. Several of the conservation 

agreements contain landowner 

commitments to ‘‘No Development 

Areas’’ and allow for actions to benefit 

the recovery of the three species and the 

lowland dry ecosystem during the term 

of the agreements. The Service is willing 

to provide technical assistance to 

partners who indicate an interest to 

protect native species and their habitats 

by voluntarily putting a conservation 

easement on their property. The Service 

also remains committed to working 

cooperatively with landowners who 

may not be interested in a conservation 

easement but want to manage their 

lands for the conservation of listed 

species and their habitats. 

Comments Regarding the Accuracy and 

Adequacy of the Rule 

(36) Comment: The DOFAW stated 

that the maps in the Federal Register 

could be improved as they are difficult 

to read and understand because: (a) The 

maps are unclear as to whether each 

map is for all three species or if species 

are mapped separately, and (b) the maps 

are not precise enough to determine 

exactly where the boundaries fall, so it 

is difficult to make substantive 

comments as to their appropriateness 

for the species involved. 

Our Response: The maps provided in 

the final rule identify the areas 

designated as critical habitat and 

identify the species for which each unit 

is designated. The species are not 

mapped separately; therefore, each 

ecosystem unit may contain both 

occupied and/or unoccupied critical 

habitat for one or more species as 

provided in the unit descriptions in the 

preamble of this rule and in the October 

17, 2012, proposed rule, as well as in 

the map titles. We have limited ability 

to provide finer-scale maps in a 

regulatory document due to required 

Federal Register printing standards; 

however, we provided the DOFAW with 

more detailed maps showing the level of 

detail requested as well as the ArcGIS 

layer of the proposed critical habitat 

units. 

(37) Comment: One commenter stated 

that the proposed rule contained 

insufficient information for the public to 

determine the extent and location of 

unoccupied habitat that is being 

proposed for designation and that the 

proposal does not provide sufficient 

detail, including maps and descriptions, 

to allow the landowners to readily 

identify the extent of their land holdings 

that may be impacted by the proposed 

designation. The commenter expressed 

concern that the inadequacy of the 

information may result in the failure of 

interested parties to provide comment 

because they were not aware that their 

land was included in the proposed 

critical habitat designation. 

Our Response: On October 17, 2012, 

we published the proposed rule to list 

15 Hawaii Island species as endangered 

throughout their ranges, and to 

designate critical habitat for three 

species in the Federal Register (77 FR 

63928). We sent letters to all appropriate 

State and Federal agencies, county 

governments, elected officials, scientific 

organizations, and other interested 

parties notifying them of the proposed 

rule and invited them to comment. Due 

to the scale of map required for 

publishing in the Federal Register, we 

were unable to provide finer-scaled 

maps in the proposed rule. However, we 

sent personalized letters with an 

enclosed map showing each 

landowner’s property, Tax Map Key 

(TMK) parcel information, and the 

proposed critical habitat designation to 

all landowners whose property 

overlapped with the proposed critical 

habitat. In addition, the proposed rule 

directed reviewers to contact the Service 

for further clarification on any part of 

the proposed rule, and provided contact 

information. 

During the initial comment period on 

our proposed rule (77 FR 63928; 

October 17, 2012), we became aware 

that there were errors in the 

landownership information in the 

geospatial data sets associated with 

parcel data from Hawaii County (2008), 

which were used to identify affected 

landowners. We recognize that some 

landowners whose properties 

overlapped with the proposed critical 

habitat did not receive notification 

letters due to errors in landownership 

information we received from the State 

or missing landowner information in the 

State’s geospatial data sets. We received 

updated information on land ownership 

from Kaloko Makai in their December 

17, 2012, comment letter, from the 

Hawaii Housing and Finance 

Development Corporation (HHFDC) in 

their November 29, 2012, comment 

letter, and from the DHHL through 

meetings and correspondence following 

publication of the October 17, 2012, 

proposed rule (77 FR 63928). We 

incorporated all updated land 

ownership information into this final 

rule. 

Shortly after publishing our April 30, 

2013, document announcing the 

availability of and seeking public 

comments on the DEA of the proposed 

critical habitat, reopening the comment 

period on the October 17, 2012, 

proposed rule, and announcing the 

public information meeting and public 

hearing held on May 15, 2013 (78 FR 

25243), we sent letters to all of the 

affected landowners that we were able 

to identify. In that letter we provided 

information on the proposed rule (77 FR 

63928; October 17, 2012), the DEA, and 

the public hearing held on May 15, 

2013, in Kailua-Kona, Hawaii. In 

addition, we contacted all appropriate 

Federal and State agencies, county 

governments, elected officials, scientific 

organizations, and other interested 

parties and invited them to comment. In 

addition, on October 20, 2012, we 

published a public notice of the 

proposed rule in the local Honolulu Star 

Advertiser, Hawaii Tribune Herald, and 

West Hawaii Today newspapers. 

(38) Comment: One commenter noted 

that Table 5B in the proposed rule 

identified 679 ac (275 ha) under 

consideration for exclusion on lands 

owned by Kaloko Properties Corp., 

Lanihau Properties, SCD TSA Kaloko 

Makai, and TSA Corporation; however, 

the proposed rule failed to identify the 

29 ac (8 ha) of the 702 ac (284 ha) 

privatel owned land of the proposed 

designation within Unit 34 that were 

not considered for exclusion and 

requested clarification on the location of 

these lands. 

Our Response: The information in our 

files indicates that the 29 privately 

owned acres referenced by the 

commenter are located within TMK 

parcel 3–7–3–009:013. These lands are 

located north of Hulikoa Street and are 

not excluded from this final critical 

habitat designation. 

(39) Comment: One commenter noted 

that Figure 5–C in the proposed rule 

incorrectly identified a portion of Unit 

34 as being owned by TSA Corporation 

(77 FR 63995); the correct owner is 

SCD–TSA Kaloko Makai LLC. The 

commenter noted that, of the 702 ac 

(284 ha) of private lands proposed for 

critical habitat designation in Unit 34, 

more than 83 percent of that land (606 

ac (245 ha)) is owned by SCD–TSA and 

planned for development as part of the 

Kaloko Makai project. 


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Our Response: We appreciate the 

information provided by the 

commenter. The landowners in Figures 

5–A and 5–C in the proposed rule were 

incorrectly identified. We apologize for 

this error and any confusion this may 

have caused. We updated ownership 

information in our files regarding the 

lands owned SCD–TSA Kaloko Makai 

and notified the correct owners of the 

opportunity to provide comment on the 

proposed rule during three additional 

comment periods (78 FR 25243, April 

30, 2013; 78 FR 39698, July 2, 2013; 81 

FR 31900, May 20, 2016). 

(40) Comment: One commenter 

expressed concern regarding the quality 

and completeness of the scientific 

materials the Service relied on to 

prepare the proposed rule and suggested 

that a public hearing would also provide 

an opportunity for the scientific 

community to provide input into the 

decision making. 

Our Response: Under section 

4(b)(1)(A) of the Act, we make a 

determination whether a species is 

endangered or threatened solely on the 

basis of the best scientific and 

commercial data available. All scientific 

materials are available for review. 

Although not included with the 

proposed rule itself, information on how 

to obtain a list of our supporting 

documentation used was provided in 

the proposed rule under Public 

Comments and References Cited (77 FR 

63928; October 17, 2012). In addition, 

lists of references cited in the proposed 

rule (77 FR 63928; October 17, 2012) 

and in this final rule are available on the 

internet at http://www.regulations.gov, 

and upon request from the Pacific 

Islands Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT, above). 

We also solicited scientific peer review 

of the proposed listing and critical 

habitat designation from 14 qualified 

reviewers and received responses from 

11 reviewers regarding the proposed 

listing and 2 of these reviewers also 

commented on the proposed critical 

habitat designation (see our responses to 

Comments (1) and (2), above). Finally, 

in addition to the initial 60-day public 

comment period, the Service reopened 

the public comment period three times 

on the proposed critical habitat rule and 

draft economic analysis, allowing the 

public an additional 30, 60, and 15 days 

to submit comments, for a total of 165 

days to comment on our proposed 

critical habitat designation. We also 

held a public information meeting and 

hearing in Kailua-Kona, Hawaii, on May 

15, 2013, and another public 

information meeting in Kailua-Kona, 

Hawaii, on August 7, 2013. 

(41) Comment: One commenter stated 

that the proposed rule is silent on 

whether Unit 36 is occupied by 

Mezoneuron kavaiense. 

Our Response: In the Descriptions of 

Proposed Critical Habitat discussion in 

the October 17, 2012, proposed rule, we 

identified the species within each unit 

for which the unit was considered 

occupied. In the unit description for 

Hawaii—Lowland Dry—Unit 36, we 

stated that the unit is occupied by 

Bidens micrantha ssp. ctenophylla. 

Therefore, Hawaii—Lowland Dry—Unit 

36 is not occupied by the other two 

species, Isodendrion pyrifolium and 

Mezoneuron kavaiense. In addition, in 

the Proposed Regulation Promulgation 

section of the October 17, 2012, 

proposed rule, proposed 50 CFR 

17.99(k)(121), the Table of Protected 

Species Within Each Critical Unit for 

the Island of Hawaii, set forth the unit 

name and occupancy status of each unit. 

(42) Comment: One commenter stated 

that Service has not provided any 

analysis on the minimum amount of 

land needed to justify designation of 

18,766 total ac (7,597 ha) in proposed 

critical habitat for West Hawaii (Kona 

area). 

Our Response: Our final designation 

of critical habitat includes 11,640 ac 

(4,711 ha) for Bidens micrantha ssp. 

ctenophylla, Isodendrion pyrifolium, 

and Mezoneuron kavaiense in West 

Hawaii (Kona area). The designated 

acres meet the definition of critical 

habitat for these three species, and our 

analyses determined them to be 

essential for the conservation of these 

species. As required by section 4(b) of 

the Act, we used the best scientific data 

available in determining those areas that 

contain the physical or biological 

features essential to the conservation of 

the three species, and for which 

designation of critical habitat is 

considered prudent, by identifying the 

occurrence data for each species and 

determining the ecosystems upon which 

they depend. The information we used 

is described in our proposed rule (77 FR 

63928; October 17, 2012) and in this 

final rule (see Methods, above). See also 

our response to Comment (12) and 

Criteria Used to Identify Critical 

Habitat. 

(43) Comment: One commenter stated 

that the description of Unit 35 does not 

suggest reintroduction of the three 

species for which critical habitat is 

proposed as a means of increasing the 

populations of any species, but instead 

attempts to justify the proposed 

designation by relying exclusively on 

the land within Unit 35 as ‘‘providing 

the PCEs necessary for the expansion of 

the existing wild populations.’’ The 

commenter stated that this is in stark 

contrast to the Service’s rationale for 

other units, for which it relies upon 

additional space for the reintroduction 

of the species. 

Our Response: We did not include a 

statement regarding reintroduction of 

the three species because Unit 35 is 

occupied by the three species for which 

critical habitat is proposed. However, 

because of the small numbers of 

individuals of the three species in Unit 

35 and low population sizes, we have 

determined, similar to other units, that 

the three species do require suitable 

habitat and space for expansion or 

reintroduction within Unit 35 to achieve 

population levels that could approach 

recovery. However, the entirety of Unit 

35 has been excluded from this final 

critical habitat designation for the 

reasons described in Consideration of 

Impacts Under Section 4(b)(2) of the 

Act. 

(44) Comment: Two commenters 

stated that the proposed rule has 

significant takings implications; 

therefore, a takings implications 

assessment is required. The two 

commenters further stated that the 

takings analysis presented in the 

proposed rule is inadequate and violates 

the letter and intent of Executive Order 

12630 (‘‘Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights’’). They stated 

that because a taking implications 

assessment (TIA) has not been 

published with the proposed rule, 

landowners are deprived of the ability 

to rationally or reasonably comment on 

the conclusion of the Service that the 

‘‘designation of critical habitat for each 

of these species does not pose 

significant takings implications within 

or affected by the proposed 

designation.’’ 

Our Response: Executive Order 12630 

requires that a taking implications 

assessment (TIA) be made available to 

the public if there are significant takings 

implications. If there are not significant 

takings implications, there is no 

requirement that this issue be addressed 

in a rulemaking. In our proposed rule 

(77 FR 63928; October 17, 2012) we 

stated that we analyzed the potential 

takings implications of critical habitat 

designation for three species and found 

that this designation of critical habitat 

does not pose significant takings 

implications for lands within or affected 

by the proposed designation. We 

prepared a TIA for this final rulemaking 

and have affirmed that the designation 

of critical habitat for three Hawaii Island 

species does not pose significant takings 

implications for lands within or affected 

by the designation. 


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Comments Regarding Landowner 

Notification 

(45) Comment: One commenter 

claimed that due to inconsistencies in 

property identification, and lack of 

notice to landowners, such as Stanford 

Carr Development—TSA (SCD–TSA), 

the proposed rule has not been fairly 

presented for public comment. The 

commenter cited 50 CFR 424.16, which 

states that in the case of any proposed 

rule to list a species or to designate or 

revise critical habitat, the Secretary 

shall give notice of the proposed 

regulation to any Federal agencies, local 

authorities, or private individuals or 

organizations known to be affected by 

the rule. 

Our Response: See our response to 

Comment (37) regarding adequate 

notification of the publication of the 

proposed rule, opportunity for public 

comment, and availability of 

information and resources in order for 

the public to comment on the proposed 

rule. In addition, we have incorporated 

information received during the public 

comment period and updated the 

information on land ownership 

accordingly. The Service provided 

adequate notification of the publication 

of the proposed rule, opportunity for 

public comment, and availability of 

information and resources in order for 

the public to comment on the proposed 

rule. We also sent personalized letters 

and with an enclosed map showing each 

landowner’s property, Tax Map Key 

(TMK) parcel information, and the 

proposed critical habitat designation to 

all landowners whose property 

overlapped with the proposed critical 

habitat. We sent letters to the addresses 

contained in the landownership 

information in the geospatial data sets 

associated with parcel data from Hawaii 

County (2008). We became aware that 

representatives of SCD–TSA to whom 

the letters were addressed may not have 

notified SCD–TSA upon receipt of the 

correspondence sent shortly after 

publication of the October 17, 2012, 

proposed rule. During each subsequent 

comment period, the Service sent letters 

directly to this landowner providing 

notification of the comment period and 

information on the proposed 

designation. 

(46) Comment: Two commenters 

stated that the Service failed to notify 

Hualalai PIA-Kona, LLC (PIA) of the 

proposed critical habitat designation as 

required by 50 CFR 424.16, which 

requires the Secretary to give notice to 

‘‘private individuals or organizations 

known to be affected by the rule.’’ The 

commenters added that PIA is listed as 

an owner of record in the County of 

Hawaii real property tax records on 

lands leased from Kamehameha Schools 

within Unit 31 of the proposed critical 

habitat designation. The commenters 

noted that this is contrary to the 

Service’s collaboration with PIA’s 

predecessor during preparation of two 

Service recovery plans (USFWS 1994, 

USFWS 1996). 

Our Response: We sent a letter 

notifying Kamehameha Schools, the 

owner of the lands leased by PIA, of the 

proposed critical habitat designation 

based on the addresses contained in the 

landownership information in the 

geospatial data sets associated with 

parcel data from Hawaii County (2008). 

We have updated our landownership 

information with PIA’s address and 

contact information, and they received 

notification regarding opportunity to 

comment on the proposed designation 

during subsequent comment periods on 

the proposed rule (78 FR 25243, April 

30, 2013; 78 FR 39698, July 2, 2013; 81 

FR 31900, May 20, 2016). See also our 

response to Comment (37) concerning 

notifications of, and opportunities to 

comment on, the proposed rule. 

Other Comments 

(47) Comment: One commenter 

requested clarification on whether 

federally funded programs administered 

by a State agency such as the State of 

Hawaii Department of Health (DOH) 

management of the National Pollutant 

Discharge Elimination System (NPDES) 

permit program, a county agency such 

as the County of Hawaii Planning 

Department management of the Coastal 

Zone Management (CZM)/Special 

Management Area (SMA), or 

connections to a highway improvement 

or utility infrastructure improvements 

approval process will trigger the Act’s 

section 7(a)(2) consultation process. 

Our Response: The State of Hawaii 

DOH, Clean Water Branch is given the 

authority to implement the NPDES 

permits process. The NPDES Multi 

Sector General Permit (MGP) (EPA 

2008) Construction General Permit 

(CGP) (EPA 2012) requires applicants to 

provide a determination regarding the 

protection of federally listed endangered 

or threatened species or their designated 

critical habitat(s) and the supporting 

documentation, if necessary (MGP 2008, 

Appendix E; CGP 2012, Appendix D). 

The Stormwater Pollution Prevention 

Plan (SWPPP) guidelines also direct 

applicants to follow similar guidelines 

for protection of federally listed 

endangered and threatened species or 

designated critical habitat(s) similar to 

those included in the MGP and CGP. 

The CZM/SMA program is administered 

by the Office of State Planning within 

the State of Hawaii Department of 

Business Economic Development and 

Tourism. Neither CZM policy (Hawaii 

Revised Statutes (HRS) 205A–2(c)) nor 

SMA guidelines (HRS 205A–26) for the 

review of developments address the 

protection of endangered and threatened 

species or designated critical habitat(s). 

We are unaware of any requirements of 

the NPDES or SWPPP permit processes 

that would require consultation under 

section 7 of the Act. 

(48) Comment: Several commenters 

stated that recent critical habitat 

designations have been initiated 

primarily as a result of the Service’s 

2011 Multi-District Litigation settlement 

with environmental groups. One 

commenter added that the settlement 

unfairly places the burden on 

landowners and other stakeholders 

affected by the critical habitat 

designations. 

Our Response: We agree that the final 

listing rule for Bidens micrantha ssp. 

ctenophylla (78 FR 64638; October 29, 

2013) meets a requirement under the 

Service’s 2011 Multi District Litigation 

settlement. In accordance with 

4(a)(3)(A)(i), we are required to 

designate critical habitat concurrently 

with making a determination that a 

species is an endangered species or a 

threatened species to the maximum 

prudent and determinable. When the 

final listing rule for Bidens micrantha 

ssp. ctenophylla published (78 FR 

64638; October 29, 2013), we had 

already proposed critical habitat for 

Bidens micrantha ssp. ctenophylla, 

Isodendrion pyrifolium, and 

Mezoneuron kavaiense (77 FR 63928; 

October 17, 2012), but we had not yet 

finished developing this final rule. In 

the intervening time, we repeatedly 

reopened the comment period on the 

proposed critical habitat designation (78 

FR 25243, April 30, 2013; 78 FR 39698, 

July 2, 2013; 81 FR 31900, May 20, 

2016) to ensure that we had the best 

scientific and commercial information 

for our final determination of critical 

habitat. In this rule, we designate 

critical habitat for the three plant 

species. Please also see our response to 

Comment (31) regarding the regulatory 

consequences of a critical habitat 

designation. 

(49) Comment: One commenter stated 

that the Service considered the 1999 

mitigation plan (‘‘Mitigation Plan for 

Endangered Species at Villages of 

La’i’opua, Kealakehe, North Kona, 

Hawaii’’ prepared for the Hawaii 

Housing and Community Development 

Corporation (HCDCH) (Belt Collins 

1999)) during its development of the 

critical habitat designation, even though 

Service did not mention they were 


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considering this document in previous 

correspondence regarding Forest City 

Kona’s development; the commenter 

specifically cited the Service’s April 8, 

2008, and March 12, 2010, comment 

letters. 

Our Response: The 1999 mitigation 

plan that the commenter mentions 

identifies a framework of specific 

conservation actions to mitigate impacts 

of the development on Bidens 

micrantha ssp. ctenophylla, Isodendrion 

pyrifolium, and Mezoneuron kavaiense. 

At a May 2013 meeting, representatives 

of the Service, Forest City Kona, and 

HHFDC discussed the 1999 mitigation 

plan only as a possible framework to 

address the concerns of Forest City 

Kona related to their development and 

conservation of the three species in the 

proposed Hawaii—Lowland Dry—Unit 

35. The information we used to 

determine the proposed critical habitat 

designation of Hawaii—Lowland Dry— 

Unit 35 was described in our proposed 

rule (77 FR 63928; October 17, 2012). 

See also our response to Comments (1) 

and (12) above, and Criteria Used to 

Identify Critical Habitat. Finally, as 

discussed in our response to Comment 

(14) above and for the reasons described 

in Consideration of Impacts Under 

Section 4(b)(2) of the Act, the lands 

owned by Forest City Kona have been 

excluded from this critical habitat 

designation. 

(50) Comment: One commenter stated 

that a disproportionate amount of 

Federal land is being considered for 

designation when compared with the 

amount of Federal land in the State of 

Hawaii. The commenter stated the 

Federal Government owned 

approximately 321,400 ac (130,066 ha) 

of land in 2007, out of the total 

approximately 4,112,388 ac (1,664,224 

ha) in the State, or approximately 7.82 

percent, and said the percentage of 

Federal lands proposed as critical 

habitat for the three plant species 

involves approximately 2.11 percent of 

the total acreage. 

Our Response: According to section 

4(b)(2) of the Act, we designate critical 

habitat based on the best available 

scientific data available and after taking 

into consideration the economic impact, 

the impact on national security, and any 

other relevant impact of specifying any 

particular area as critical habitat; land 

ownership is not one of the criteria we 

consider when identifying areas that 

meet the definition of critical habitat. 

See our response to Comments (12) and 

(18) above regarding our analysis and 

the information used to determine 

critical habitat boundaries in our 

proposed rule (77 FR 63928; October 17, 

2012) and in this final rule (see also 

Methods and Criteria Used to Identify 

Critical Habitat, above). 

(51) Comment: One commenter 

expressed opposition to the designation 

of critical habitat and instead supported 

focusing efforts and government 

resources on good species management 

and recovery planning: The keys to 

long-term protection and species 

recovery. The commenter stated that by 

working with community-based, natural 

resources nongovernmental 

organizations (such as the Aha Moku 

Council) and landowners (such as the 

QLT), plants and animals will benefit 

more than they would from a critical 

habitat designation. 

Our Response: We recognize the 

importance of partnerships and 

voluntary conservation efforts for 

species protection and recovery. The 

Service welcomes information and 

contributions of place-based knowledge, 

traditional ecological knowledge, and 

community-based natural resource 

management and planning organizations 

such as the Aha Moku Council in efforts 

to conserve listed species. We notified 

the DLNR and other organizations that 

possess traditional ecological, placebased knowledge, such as the DHHL, 

the OHA, the QLT, the Kamehameha 

Schools, and The Hawaiian 

Environmental Alliance (KAHEA), 

during the multiple public comment 

periods on the proposed critical habitat 

designation. Ongoing partnerships with 

the DHHL, the Kamehameha Schools, 

and the QLT are described below (see 

‘‘Private or Other Non-Federal 

Conservation Plans or Agreements and 

Partnerships,’’ above). 

Comments on the Draft Economic 

Analysis 

Comments by State Agencies 

(52) Comment: Several commenters, 

including the State of Hawaii 

Department of Accounting and General 

Services (DAGS), HHFDC, OHA, DHHL, 

the County Planning Department, 

County Department of Parks and 

Recreation, the Office of the Mayor, the 

Office of the Prosecuting Attorney, and 

the State House of Representatives, 

commented that the DEA 

underestimates the incremental impacts 

of the proposed critical habitat 

designation. The commenters stated that 

the DEA does not take into 

consideration that the designation will 

result in the elimination of ongoing or 

planned projects in the Kona Urban 

Area, including Kaloko Makai, 

Kamakana Villages, the Judiciary 

project, Laiopua 2020, the QLT project, 

and other major development cores 

within Transit Oriented Development 

Areas, identified in the KCDP. The 

commenters provided information about 

expenditures that have been made thus 

far for these projects, and state that 

these expenditures, along with the value 

of any entitlements attached to the 

projects, will be lost as a result of 

critical habitat designation. In addition, 

they commented that the designation 

will result in the redistricting of critical 

habitat to the Conservation District due 

to HRS section 195D–5.1, resulting in 

the loss of projects and associated 

investments, entitlements, and other 

benefits. 

Our Response: While consultations on 

planned projects may result in 

conservation recommendations such as 

those described in section 1.4 of the 

DEA and FEA, critical habitat does not 

preclude the implementation of these 

projects. With respect to the 

requirements of the Act, as described in 

section 1.4 of the DEA and FEA, the 

presence of the plants across the 

proposed designation may result in 

conservation recommendations for 

projects in these areas regardless of the 

critical habitat designation. Where the 

plants are present, projects or activities 

with a Federal nexus would be subject 

to section 7 consultation even absent 

critical habitat designation, and it is 

unlikely that critical habitat designation 

would change the outcome of these 

section 7 consultations. Only two 

projects are identified as likely to occur 

where plants are not present (as 

described in section 2.3 of the DEA) 

and, for reasons described in 

Consideration of Impacts Under Section 

4(b)(2) of the Act, these lands are 

excluded from final critical habitat 

designation in this rule. 

The DEA acknowledges, however, 

that critical habitat designation may 

affect the other State and local land 

management authorities, as well as the 

behavior of individual landowners or 

buyers. Additional discussion of these 

potential indirect impacts is included in 

the FEA (see section 2.6). While 

information limitations prevent the 

quantification of such impacts, the 

qualitative discussion is considered in 

evaluating impacts of the designation. 

Section 2.6 of the DEA and FEA also 

includes a discussion of the potential 

for critical habitat designation to result 

in redistricting to the Conservation 

district (for more information, please see 

our response to Comment (7) above). 

(53) Comment: Several commenters, 

including DAGS, OHA, and the County 

Planning Department, commented that 

the DEA does not take into 

consideration the significant project 

delays that will result from the 

designation of critical habitat. One 


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commenter stated that the Hawaii State 

Legislature has delayed the funding for 

the Kona Judiciary project due to the 

uncertainty caused by the designation. 

Our Response: Section 2.6 of the FEA 

includes a discussion of the potential 

for the critical habitat designation to 

result in impacts associated with time 

delays. We recognize that both public 

and private entities may experience 

time delays for projects and other 

activities due to requirements associated 

with the section 7 consultation process. 

However, it is highly uncertain to what 

degree the critical habitat designation 

might cause incremental project delays 

above and beyond those that would be 

experienced due to the listing of the 

species and other review processes that 

are not related to the Act (e.g., 

environmental assessments, EISs, etc.). 

Due to the degree of uncertainty with 

respect to whether incremental project 

delays will occur and, if so, to what 

extent, the economic analysis does not 

quantify impacts associated with delays 

but instead describes the potential 

impacts qualitatively for the Service’s 

consideration alongside the quantified 

impacts in this report. The FEA notes 

that should incremental project delays 

occur, incremental costs may include 

carrying costs on project-related debt 

due to the delays. 

(54) Comment: Several commenters, 

including HDOA, DAGS, the County 

Planning Department, the Hawaii 

Cattlemen’s Council, and the Land Use 

Research Foundation, commented that 

the DEA does not take into 

consideration the indirect effects of the 

designation, including perceptional 

effects and regulatory uncertainty that 

result in the loss of property value and 

that may deter investment in the 

designated area and beyond. The 

commenters stated that these effects will 

jeopardize planned projects and result 

in the loss of investors, developers, 

property value, market value, future 

economic benefits, project components, 

economic activities related to 

development, jobs, tax revenue, and 

other potential benefits. 

Our Response: The DEA and FEA 

include a discussion of the potential for 

regulatory uncertainty and perception 

effects (see section 2.6 of the FEA). We 

acknowledge that public attitudes about 

the limits and costs that the Act may 

impose can cause real economic effects 

to the owners of property, regardless of 

whether such limits are actually 

imposed. Over time, as public 

understanding grows regarding the exact 

parameters of regulatory requirements 

placed on designated lands, particularly 

where no Federal nexus compelling 

section 7 consultation exists, the 

uncertainty and perception effects of 

critical habitat designation on properties 

may subside. Ideally, to estimate the 

amount by which land values may be 

diminished and the duration of this 

effect, we would conduct a retrospective 

study of existing critical habitat 

designations. We would use statistical 

analysis of land sales transactions to 

compare the value of similar parcels 

located within and outside of critical 

habitat. However, such primary 

research, which requires substantial 

collection and generation of new data, is 

beyond the scope of this effort. 

Furthermore, while some research has 

been conducted on the effect of the Act 

on perception and land use decisions, 

the results of these studies are not 

transferrable to this situation (see 

section 2.6 of the FEA for more 

information). As no studies exist that 

have evaluated the potential 

perceptional effect of critical habitat on 

land values in Hawaii, and because 

significant uncertainty exists regarding 

whether these perceptional impacts will 

occur and, if they do, the magnitude of 

the impacts, the FEA does not quantify 

these potential indirect effects, but 

instead presents this qualitative 

description of their potential for 

consideration alongside the quantified 

impacts in this report. 

(55) Comment: The DHHL commented 

that by concluding that the critical 

habitat designation is unlikely to change 

the outcome of future section 7 

consultations in occupied areas, the 

DEA essentially concludes that critical 

habitat has no effect on occupied areas 

and that, therefore, there is no benefit in 

designation. Further, DHHL stated that 

the DEA is fundamentally flawed in its 

gross underestimation of the economic 

impact to DHHL based on the cost of 

conservation measures (i.e., offsets of 50 

to 150 ac (20 to 61 ha) of land) that the 

FWS may require as a result of section 

7 consultation on DHHL lands within 

Hawaii—Lowland Dry—Unit 33 of the 

proposed critical habitat designation, 

and that such requirements would 

severely affect its ability to fulfill its 

mission to native Hawaiians. 

Our Response: Please see the second 

half of our response to Comment (8) 

regarding the benefits of designating 

critical habitat. The potential 

conservation offset described (of 50 to 

150 ac (20 to 61 ha)) is relevant to this 

project regardless of whether critical 

habitat is designated, and the costs are 

accordingly not described as costs of the 

critical habitat rule in the DEA or FEA. 

In addition, for reasons described above 

in Consideration of Impacts Under 

Section 4(b)(2) of the Act, 315 ac (127 

ha) of lands owned by DHHL in Unit 35 

are excluded from the critical habitat 

designation in this final rule. The FEA 

has been updated to include additional 

information on the Kalaoa Homestead 

Development in Hawaii—Lowland 

Dry—Unit 33. These lands are also 

excluded from the critical habitat 

designation in this final rule (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act). 

(56) Comment: The DOFAW 

expressed concern that the DEA does 

not mention the presence of cattle 

grazing in the proposed critical habitat 

units 10 and 31. It stated that the 

designation could affect the ability of 

permittees to receive Federal 

agricultural aid. In addition, DOFAW 

stated that the DEA does not mention 

the effects of critical habitat designation 

on public hunting opportunities in these 

areas, and that the designation could 

affect the ability of DOFAW to utilize 

Federal Aid in Wildlife Restoration 

grant funds to manage and implement 

hunting activities in the area. Lastly, the 

comment states that the costs of 

administrative effort to participate in 

section 7 consultations and other costs 

of the designation should be included in 

the costs of units 10 and 31 presented 

in the DEA. 

Our Response: The FEA highlights the 

presence of grazing areas within 

proposed critical habitat Hawaii— 

Lowland Dry—Units 31 and 10. We 

expect that critical habitat would trigger 

only minor, if any, administrative costs 

of consultation with respect to these 

grazing activities. The only section 7 

consultations that have occurred on 

grazing activities are associated with 

Federal assistance programs, such as the 

Natural Resource Conservation Service’s 

(NRCS) Environmental Quality 

Incentive Program (EQIP) and Wildlife 

Habitat Incentive Program (WHIP) 

programs, which generally support 

ecologically beneficial projects that are 

unlikely to negatively affect critical 

habitat. As a result, we do not anticipate 

that the critical habitat designation 

would prevent permittees from 

receiving aid through the programs. The 

direct effects of the designation are most 

likely to be limited to additional 

administrative effort by the Federal 

agencies involved in the consultation as 

part of future section 7 consultations in 

the case that grazers work with Federal 

programs. In addition, the Service does 

not anticipate that the critical habitat 

designation will result in changes to the 

management of hunting activities in the 

case that the State receives Federal Aid 

program funding; as a result, the 

designation would generate only minor, 

if any, additional administrative costs of 

section 7 consultation. Furthermore, 


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both units are occupied by listed plant 

species, so a section 7 jeopardy analysis 

would already be required, and any 

conservation measures that resulted 

from such a consultation would likely 

be the same measures that would result 

from a section 7 consultation on critical 

habitat for these three plant species. 

Public Comments 

(57) Comment: Several commenters 

expressed concern that the designation 

of critical habitat in the Kona Urban 

Area would constrain community and 

infrastructure growth; would constrain 

development of affordable housing, job 

opportunities, and hospitals; and would 

result in the loss of development 

investments and entitlements. The 

commenters stated that the proposed 

rule fails to take in to account the 

adverse economic and social impacts of 

the critical habitat designation on the 

long-planned development activities 

along transit routes and the urban 

corridor as identified in the KDCP. 

Our Response: The DEA assessed the 

potential impacts of the proposed 

critical habitat designation on the 

ongoing and planned projects in the 

Kona Urban Area (see our response to 

Comment (52), above). Subsequently, 

the Service, along with the County of 

Hawaii, DHHL, DLNR, and other 

stakeholders in Hawaii—Lowland Dry— 

Units 31, 33, 34, and 35, participated in 

a series of meetings facilitated by a 

professional mediator. The mediation 

process provided a forum to address 

species protection and recovery, and 

development on a regional scale. The 

Service continued to reach out to State, 

County, and private stakeholders to 

continue ongoing and develop new 

voluntary cooperative partnerships. In 

this rule, a total of 5,268 ac (2,132 ha) 

is excluded from critical habitat 

designation in proposed Hawaii— 

Lowland Dry—Units 31, 33, 34, and 35 

(see Consideration of Impacts Under 

Section 4(b)(2) of the Act, above). 

(58) Comment: One commenter stated 

that the DEA fails to consider 

independent economic analysis of the 

‘‘Socio-Economic impact of critical 

habitat designation for the Keahuolu 

Lands of the Queen Liliuokalani Trust 

(QLT)’’ by John M. Knox & Associates 

(2013). 

Our Response: Information provided 

in the analysis cited by the commenter 

(John M. Knox & Associates 2013) was 

included in the DEA (IEc 2013, pp. 2– 

11–2–13, 2–16–2–18). In the case that 

critical habitat designation results in 

changes to the planned development, 

the DEA identifies the several impacts 

that may result; these include impacts to 

the development’s revenue-generating 

capacity, regional socio-economic 

benefits, and the need for alternative 

programs to provide the services to 

beneficiaries (IEc 2013, pp. 2–16–2–17). 

For reasons described above, these lands 

are excluded from the critical habitat 

designation in this final rule (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act). 

(59) Comment: Commenters stated 

that no economic analysis was 

conducted on the proposed Kealakehe 

Regional Park and the Hawaii Health 

Systems Corporation’s (HHSC) hospital 

project. 

Our Response: The FEA included an 

assessment of the potential impacts of 

the proposed designation on the Kaloko 

Makai project, identified in Exhibit 2–4 

of the FEA, which includes the HHSC’s 

hospital project. The FEA clarifies that 

Kaloko Makai project is a mixed-use 

project that includes the hospital. In 

addition, the FEA included an 

assessment of the potential impacts of 

the proposed designation on the 

Kealakehe Regional Park Project; it is 

identified as the Regional Park Project 

in Exhibit 2–4. The FEA clarifies that 

the name of the project is the Kealakehe 

Regional Park Project. For the reasons 

described above (see Consideration of 

Impacts Under Section 4(b)(2) of the 

Act), Kaloko Entities land is excluded 

from this final critical habitat 

designation. 

(60) Comment: One commenter stated 

that the DEA did not address the 

impacts of the critical habitat 

designation on the proposed Laiopua 

2020 (L2020) project. The commenter 

stated that costs will include mitigating 

for adverse modification of critical 

habitat, which they guess will be on the 

order of tens of millions of dollars, and 

negotiating agreements with the Service, 

which they estimate at tens of 

thousands of dollars. For example, they 

commented that the cost through 

acquisition or foregone development for 

50 to 150 ac (20 to 61 ha) is alone 

millions of dollars, with ongoing 

management expenses of at least 

$150,000, likely in perpetuity. The 

commenter also stated that the 

designation will have an immediate 

economic impact by delaying 

employment opportunities for 

numerous construction jobs. The 

commenter also stated that the DEA 

does not recognize the 52-ac (21–ac) 

project area as unoccupied. 

Our Response: The L2020 project 

occurs on land (TMK parcels: (3)7–4– 

021:002, 003, and 023), leased from 

DHHL and within a portion of the 

DHHL Villages of Laiopua Project in 

Unit 35 (IEc 2013, pp. 2–6–2–9). We 

disagree with the commenter’s 

statements that the L2020 project site is 

unoccupied. The lands owned by DHHL 

within Unit 35, including the L2020 

project area, are considered occupied by 

one or more of the three species for 

which critical habitat is proposed (77 

FR 63928, October 17, 2012; Gerrish and 

Leonard Bisel Associates LLC 2008, p. 

2). As such, the DEA concludes that the 

project is unlikely to be affected by the 

designation beyond potential additional 

administrative effort as part of section 7 

consultation. Section 2.6 of the FEA 

addresses the potential for other impacts 

generated by the designation, including 

time delays. 

The Service and DHHL have worked 

in partnership to execute a 

memorandum of understanding (MOU) 

that is intended to benefit the three 

plant species and the lowland dry 

ecosystem. For the reasons described 

above (see Consideration of Impacts 

Under Section 4(b)(2) of the Act), lands 

owned by DHHL and leased to L2020 

are excluded from the final critical 

habitat designation. 

(61) Comment: The Kaupulehu Water 

Company stated that a significant 

portion of their current water source 

and transmission infrastructure (i.e., 

wells and transmission lines), as well as 

proposed water service infrastructure, 

falls within a portion of Unit 31 being 

considered for exclusion. They stated 

that this infrastructure is essential to the 

continued operations of the Kaupulehu 

Water Company, and that the proposed 

designation will adversely affect their 

ability to complete new facilities in a 

timely manner, impede their ability to 

serve customers, increase the cost and 

expense of operating their water system, 

result in increased rates and charges to 

customers, and result in a significant 

economic impact to their small 

business. They stated that the DEA does 

not include these impacts. 

Our Response: For the reasons 

described above (see Consideration of 

Impacts Under Section 4(b)(2) of the 

Act), areas that were being considered 

for exclusion in Unit 31 in the proposed 

rule are excluded from this final critical 

habitat designation. 

(62) Comment: One commenter 

commented that the DEA notes that 

section 7 consultation is likely for the 

Kaloko Makai Project, but does not 

explain what would trigger that 

consultation (IEc 2013, p. A–4). The 

commenter added that consultation 

could be required for a number of 

reasons, including funding from U.S. 

Department of Housing and Urban 

Development or the U.S. Department of 

Veterans Affairs (commonplace for large 

scale residential housing projects). The 

commenter further stated that a single 


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section 7 consultation would, at a 

minimum, stall development. 

Additional consultations, as would be 

required over the life of this 30-year 

project, and the related mitigation 

measures would likely preclude 

development altogether. The commenter 

cited an average annual cost of $370.3 

million estimated for mitigation 

expenditures required by habitat 

conservation plans (HCPs) and 

associated with incidental take permits 

(ITPs) pursuant to section 10 of the Act 

(ELI 2007, pp. 52–53). 

Our Response: The DEA quantified 

costs associated with one future section 

7 consultation for the Kaloko Makai 

project. To the extent that the 

development plans change over the life 

of the 30-year project, additional 

consultations or reinitiation of the 

initial consultation may occur. It is 

difficult to predict whether and how 

often additional review will occur 

absent information on whether and how 

plans for this land may evolve over 

time. However, we expect any effect of 

critical habitat designation on any 

future consultations would be similarly 

limited to additional administrative 

effort. As described in section 2.3 of the 

DEA, the project is located in an 

occupied area of the proposed 

designation, and consultation is 

therefore unlikely to result in additional 

conservation recommendations. For the 

reasons described above (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act), Kaloko Entities land 

is excluded from this final critical 

habitat designation. 

(63) Comment: One commenter stated 

that the proposed rule fails to recognize 

the cultural and economic consequences 

of the critical habitat designation on the 

lands owned by a native Hawaiian trust 

(QLT), contrary to the purpose of the 

regulatory flexibility analysis. Two 

commenters representing Kamakana 

Villages (Forest City Kona land) and 

Kaloko Makai (Koloko Entities land) 

stated that the Service did not perform 

an adequate analysis of the impacts on 

small businesses, as required by law. 

Our Response: Under the Regulatory 

Flexibility Act (RFA; 5 U.S.C. 601 et 

seq., as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996), whenever an agency 

must publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare and make available for public 

comment a regulatory flexibility 

analysis that describes the effects of the 

rule on small entities (small businesses, 

small organizations, and small 

government jurisdictions) directly 

regulated by the rulemaking. The 

regulatory mechanism through which 

critical habitat protections are realized 

is section 7 of the Act, which requires 

Federal agencies, in consultation with 

the Service, to insure that any action 

authorized, funded, or carried by the 

agency is not likely to destroy or 

adversely modify critical habitat. Only 

Federal action agencies are subject to a 

regulatory requirement (i.e., to avoid 

adverse modification) as the result of 

the designation. Because Federal 

agencies are not small entities, the 

Service certified that the proposed 

critical habitat rule would not have a 

significant economic impact on a 

substantial number of small entities. 

We acknowledge, however, that in 

some cases, third-party proponents of 

the action subject to permitting or 

funding may participate in a section 7 

consultation and thus may be indirectly 

affected. Therefore, the focus of the 

DEA’s threshold analysis of impacts to 

small entities pursuant to the RFA, as 

amended by the SBREFA of 1996, is to 

identify the third-party entities likely to 

be involved and potentially indirectly 

affected by the future section 7 

consultations on development and 

transportation projects likely to occur 

within proposed critical habitat (IEc 

2013, chapter 2, p. A–4). As described 

in section 2.5 of the DEA, the QLT 

project is unlikely to have a Federal 

nexus that would lead to section 7 

consultation with the Service. In 

addition, for the reasons described 

above (see Consideration of Impacts 

Under Section 4(b)(2) of the Act), the 

lands owned by QLT, Forest City Kona, 

and Koloko Entities are excluded from 

this final critical habitat designation. 

(64) Comment: Two commenters 

stated that the DEA’s analysis of only 

the incremental impacts resulting from 

critical habitat designation is flawed 

and does not comport with the law. One 

commenter stated that because the DEA 

uses a review of consultation records 

conducted in 2002 to estimate 

consultation costs, the analysis is not 

based on the best available cost 

information. 

Our Response: While the research 

undertaken to inform the estimates of 

administrative effort for consultations 

was conducted in 2002, the cost model 

relies on current wage rate information 

and continued communication with the 

Service and participating agencies to 

groundtruth the estimates. The research 

undertaken in 2002 focused on the 

range of hours spent in different types 

of consultation. However, the costs 

assigned to this effort reference current 

hourly wage rates for participating 

agency personnel. 

(65) Comment: Two commenters 

stated that the Service must prepare a 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) analysis 

on the proposed rule to ensure that we 

make an informed decision regarding 

the impact of critical habitat designation 

on the environment. 

Our Response: It is the Service’s 

position that, outside the jurisdiction of 

the Circuit Court of the United States for 

the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA in connection with 

designating critical habitat under the 

Act. This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). The designation 

of critical habitat for the three Hawaii 

Island species is entirely within the 

Ninth Circuit jurisdiction; therefore, we 

did not prepare an environmental 

analysis in connection with this critical 

habitat designation. 

(66) Comment: One commenter 

expressed support for the examples of 

conservation recommendations to offset 

habitat loss (i.e., acquire, restore, and 

manage habitat in perpetuity to 

compensate habitat disturbed as a result 

of a project or activity), citing those 

identified by the County of Hawaii 

Planning Department where the 

presence of listed species resulted in 

conservation requirements including: 

(1) Setting aside land for conservation; 

(2) establishing buffer zones around 

individual species; (3) requiring that 

landscaping be done using native plant 

species; and (4) relocating roadways or 

buildings to avoid species (IEc 2013, p. 

2–16). 

Our Response: We support the 

conservation requirements identified by 

the County and look forward to 

continuing to work together with the 

County to conserve endangered species 

and their habitats. 

(67) Comment: One commenter stated 

that the baseline assumptions of the 

Service’s economic analysis are flawed. 

The commenter stated that section 9 and 

10 of the Act are irrelevant on nonFederal land that contains no 

endangered species of fish or wildlife. 

The commenter argues that the Service 

dismisses section 7 costs as part of the 

baseline and, therefore, is conflating the 

jeopardy prohibition with the 

prohibition against adverse modification 

of critical habitat, in disregard of the 

plain language in 16 U.S.C. 1536. 

Our Response: Section 7(a)(2) of the 

Act states that ‘‘[e]ach Federal agency 

shall, in consultation with and with the 

assistance of the Secretary, insure that 

any action authorized, funded, or 

carried out by such agency . . . is not 

likely to jeopardize the continued 


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existence of any endangered species or 

threatened species or result in the 

destruction or adverse modification of 

[critical] habitat of such species . . .’’ If 

jeopardy or adverse modification is 

determined, reasonable and prudent 

alternatives are recommended. These 

recommendations focus on avoiding 

jeopardy and adverse modification by 

creating measures to restore and 

conserve temporarily disturbed areas 

and incorporating those measures into 

project plans (IEc 2013, p. E–8). Project 

modifications recommended to avoid 

jeopardy are similar to those 

recommended to avoid adverse 

modification of habitat, and include 

such modifications as ‘‘avoid 

destruction of individual listed plants,’’ 

‘‘control feral ungulates,’’ and 

‘‘propagate and outplant’’ (IEc 2013, p. 

E–14). However, the DEA and FEA 

recognize that the analyses for jeopardy 

and those for adverse modification can 

differ. The economic impacts of 

conservation measures undertaken to 

avoid jeopardy to the species are 

considered baseline impacts in the DEA 

and FEA, as they are not generated by 

the critical habitat designation. Baseline 

conservation measures and associated 

economic impacts are not affected by 

decisions related to critical habitat 

designation for the species (IEc 2013, p. 

1–4). 

(68) Comment: A commenter claimed 

that the Service based its analysis on 

insufficient information and limited 

consultation, and that information 

relating to the economic impact on all 

affected parties, particularly property 

and business owners in the designation 

area be solicited, reviewed, and 

considered. 

Our Response: The DEA was prepared 

for the Service by Industrial Economics, 

Incorporated (IEc). The primary sources 

of information for the DEA are 

communications with, and data 

provided by, personnel from the 

Service, State and local government 

agencies, private landowners, and other 

stakeholders. Specifically, in developing 

the DEA and finalizing the FEA, IEc 

referenced publicly available 

information, including relevant public 

comments submitted on the proposed 

rule (77 FR 63928; October 17, 2012) 

and the DEA, and agency planning 

documents (e.g., development plans). A 

complete list of references is provided 

in the FEA (IEc 2016, pp. R–1—R–4). 

(69) Comment: Under the DEA, it is 

not clear if the Act and section 7 

limitations would be triggered by 

registering lots for sale under the 

Interstate Land Sales Full Disclosure 

Act, 15 U.S.C. 1701 et seq. 

Our Response: The designation of 

critical habitat establishes an affirmative 

obligation for Federal agencies to insure 

their activities do not destroy or 

adversely modify that critical habitat in 

accordance with the requirements of 

section 7(a)(2) of the Act. In this case, 

the registration by a non-Federal entity 

of lots for sale in accordance with the 

Interstate Land Sales Full Disclosure 

Act does not in and of itself constitute 

an affirmative Federal agency action 

requiring compliance with section 7 of 

the Act. We are unaware of any section 

7 consultations occurring in Hawaii 

involving the U.S. Department of 

Housing and Urban Development (HUD) 

and the Interstate Land Sales Full 

Disclosure Act. We have completed 

numerous consultations with HUD 

involving grants or other funding 

actions, but none that we know of was 

triggered by the Interstate Land Sales 

Full Disclosure Act. 

(70) Comment: One commenter noted 

that the economic impacts of the 

proposed critical habitat designation 

have not been thoroughly vetted. The 

proposed designation includes at least 

6,364 ac (257 ha) of privately owned 

lands, and the commenter asserted the 

proposed designation will have a 

devastating impact on the value and use 

of those lands. The commenter also 

requested an extension of time to 

provide comments on the proposed rule 

and DEA. 

Our Response: In our April 30, 2013 

(78 FR 25243), publication, we 

announced the availability of the DEA 

and reopened for 30 days (ending May 

30, 2013) the comment period on our 

October 17, 2012, combined listing and 

critical habitat proposal (77 FR 63928). 

In the April 30, 2013, publication, we 

also announced the public information 

meeting and public hearing held on May 

15, 2013, in Kailua-Kona, Hawaii. The 

DEA presented an analysis of the 

potential economic impacts associated 

with the proposed critical habitat 

designation for the three species. 

Shortly after publishing our April 30, 

2013, document, we sent letters to all of 

the affected landowners that we were 

able to identify. In that letter we 

provided information on the proposed 

rule published on October 17, 2012 (77 

FR 63928), the DEA, and the public 

hearing held on May 15, 2013, in 

Kailua-Kona, Hawaii. In addition, we 

contacted all appropriate Federal and 

State agencies, county governments, 

elected officials, scientific 

organizations, and other interested 

parties and invited them to comment. 

On July 2, 2013 (78 FR 39698), we 

again reopened the public comment 

period on the proposed critical habitat 

designation and DEA for another 60 

days, ending September 3, 2013, and 

then on May 20, 2016 (81 FR 31900), we 

reopened the comment period for an 

additional 15 days, ending on June 6, 

2016. In this final rule, we have fully 

considered and included responses to 

all substantive comments related to the 

DEA and the information in the FEA. 

(71) Comment: Several commenters 

expressed concern that the Ane 

Keohokalole Highway extension project 

will be negatively affected by the critical 

habitat designation. They state that the 

designation may result in project delays 

or prevent the project from occurring 

altogether. 

Our Response: In the DEA and FEA, 

the Ane Keohokalole Highway project 

(Phase 3) was identified as a future 

project occurring within occupied 

habitat in proposed critical habitat Unit 

34, on lands owned by Kaloko 

Properties LLC and the State of Hawaii. 

Because areas occupied by Bidens 

micrantha ssp. ctenophylla and 

Mezoneuron kavaiense and owned by 

Kaloko Properties LLC (now Kaloko 

Entities LLC) are being excluded from 

the final critical habitat designation, the 

only critical habitat the Ane 

Keohokalole Highway project will 

potentially impact is unoccupied habitat 

on lands owned by State of Hawaii. 

Therefore, we examined the potential 

effects of the designation of this nowunoccupied critical habitat unit 

(because the occupied portion is 

excluded). This project is likely to have 

a Federal nexus that would lead to a 

section 7 consultation with the Service 

in the event the State and/or county 

receives Federal funding from the U.S. 

Department of Transportation, FHWA. 

A section 7 consultation for this project 

would include an analysis of whether 

effects of the project would likely 

jeopardize Bidens micrantha ssp. 

ctenophylla, which is present on the 

excluded lands and in the likely path of 

the highway project, and also whether 

the project would destroy or adversely 

modify the unoccupied critical habitat 

on State lands. Because FHWA would 

already be consulting on the presence of 

the species on Koloko Entities’ land, the 

section 7 costs associated with this 

project in critical habitat in Unit 34 

would be limited to the incremental 

costs of the additional adverse 

modification analysis and any resulting 

project modification recommendations. 

The project may potentially impact 

some of the 268 ac (109 ha) of critical 

habitat in Unit 34, but we have no 

information on specific acreage in the 

critical habitat unit that would actually 

be affected by the project. In addition, 

there is significant uncertainty regarding 


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effects attributable to critical habitat 

because potential conservation 

measures would likely be developed for 

the project as a whole. However, we 

acknowledge that the Service may 

recommend measures to avoid or 

minimize habitat destruction in the 

critical habitat unit including fencing to 

exclude ungulates, nonnative species 

control, out-planting of native species, 

and other related conservation 

activities, and/or mitigation in the form 

of habitat protection. Based on our 

Incremental Effects Memorandum (IEc 

2016, Appendix E, p. 8), we estimate 

that the requested mitigation may be at 

a ratio of 2 or more acres preserved for 

every one acre impacted (depending on 

the severity of impact, type/location/ 

condition/rarity of habitat impacted, 

and the amount of habitat needed for 

recovery of the species). Therefore, 

while we cannot quantify the impacts, 

there may be some incremental 

economic effects directly attributable to 

the designation of this unoccupied 

critical habitat unit. 

Refer to Comments (52) and (53), 

above, and chapter 2 of the FEA for a 

discussion of potential indirect effects 

on projects such as this, including the 

possibility for delay. Since FHWA will 

likely need to consult under section 7 of 

the Act due to potential impacts of the 

project on the occupied habitat nearby, 

regardless of whether or not this 

unoccupied unit is designated, any 

delays due to the consultation process 

may not be solely attributable to critical 

habitat designation. 

Finally, with regard to the 

commenters’ concerns that designation 

of critical habitat may prevent the 

highway extension from occurring, we 

cannot predict the outcome of the 

consultation process; however, if the 

Service concludes that the project is 

likely to result in the destruction or 

adverse modification of critical habitat, 

as those terms are used in section 7, it 

must suggest reasonable and prudent 

alternatives which the Secretary 

believes would not violate section 

7(a)(2) of the Act. If there are no 

reasonable and prudent alternatives and 

other criteria are met, the Act provides 

for an exemption process. See 16 U.S.C. 

1536(e)–(p). 

(72) Comment: One commenter, on 

behalf of the Waikoloa Village 

Association (WVA), claimed that the 

WVA is a small entity negatively 

impacted by the proposed designation, 

and that the proposed rule will have a 

significant economic impact on the 

WVA. This impact must be considered 

in a regulatory flexibility analysis 

prepared pursuant to the Regulatory 

Flexibility Act (RFA; 5 U.S.C. 601 et 

seq. as amended by the SBREFA of 

1996). 

Our Response: See our response to 

Comment (30) concerning our 

considerations under the RFA. We 

acknowledge, however, that in some 

cases, third-party proponents of the 

action subject to permitting or funding 

may participate in a section 7 

consultation and thus may be indirectly 

affected. For these consultations, the 

DEA estimated that third parties incur 

approximately $900 in administrative 

costs to participate in the consultation 

(IEc 2013, Appendix B, Exhibit B–1). 

For projects located in occupied areas of 

the proposed critical habitat 

designation, such as the WVA, 

incremental impacts are likely limited 

to these administrative costs for 

participation in the consultations (IEc 

2013, chapter 1). In addition, for the 

reasons described above (see 

Consideration of Impacts Under Section 

4(b)(2) of the Act), the lands owned by 

WVA are excluded from the final 

critical habitat designation. 

(73) Comment: On behalf of the 

Hawaii Judiciary, DAGS requested that 

the Service exempt or exclude Unit 35 

in its entirety based on the following: (a) 

Timely completion of the new Kona 

Judiciary complex will result in greater 

social and economic benefits than the 

assumed social and economic benefits 

associated with the critical habitat 

designation; (b) critical habitat 

designation will result in significant 

adverse impacts on ongoing and future 

developments due to the need for 

additional consultation at the Federal 

and State level, resulting in project 

delays and uncertainties; and (c) the 

Service has not provided any scientific 

documentation or justifications to 

substantiate that exclusion of Unit 35 

will result in the extinction of the 

endangered species. 

Our Response: Section 4(b)(2) of the 

Act states that the Secretary must 

designate or make revisions to critical 

habitat on the basis of the best available 

scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impacts of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. Any such exclusion is at the 

discretion of the Secretary; exclusion of 

any area is not a requirement of the Act. 

The entirety of Unit 35 is excluded from 

critical habitat designation in this final 

rule due in part to conservation 

partnerships established with each 

separate landowner in the unit; these 

partnerships and our analysis of the 

benefits of inclusion and exclusion are 

described above (see Consideration of 

Impacts Under Section 4(b)(2) of the 

Act). 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866, 13563 and 

13771) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) will review all significant 

rules. The OIRA has determined that 

this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Executive Order 13771—Reducing 

Regulation and Controlling Regulatory 

Costs 

This rule is not an Executive Order 

(E.O.) 13771 (82 FR 9339, February 3, 

2017) regulatory action because this rule 

is not significant under E.O. 12866. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA; 5 

U.S.C. 801 et seq.) of 1996, whenever an 

agency is required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effects of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of the 


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agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA amended the RFA to 

require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

In this final rule, we are certifying that 

this critical habitat designation for the 

three species will not have a significant 

economic impact on a substantial 

number of small entities. The following 

discussion explains our rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

The Service’s current understanding 

of the requirements under the RFA, as 

amended, and following recent court 

decisions, is that Federal agencies are 

required to evaluate the potential 

incremental impacts of rulemaking on 

those entities directly regulated by the 

rulemaking itself. The regulatory 

mechanism through which critical 

habitat protections are realized is 

section 7 of the Act, which requires 

Federal agencies, in consultation with 

the Service, to ensure that any action 

authorized, funded, or carried out by the 

agency is not likely to destroy or 

adversely modify critical habitat. 

Consequently, only Federal action 

agencies will be directly regulated by 

this designation. There is no 

requirement under RFA to evaluate the 

potential impacts to entities not directly 

regulated. Moreover, Federal agencies 

are not small entities. Therefore, 

because no small entities are directly 

regulated by this rulemaking, the 

Service certifies that this final critical 

habitat designation will not have a 

significant economic impact on a 

substantial number of small entities. 

During the development of this final 

rule, we reviewed and evaluated all 

information submitted during the 

comment periods that may pertain to 

our consideration of the possible 

incremental impacts of this critical 

habitat designation. Based on this 

information, we affirm our certification 

that this final critical habitat 

designation will not have significant 

economic impact on a substantial 

number of small entities, and a 

regulatory flexibility analysis is not 

required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. OMB 

has provided guidance for 

implementing this Executive Order that 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’ 

when compared to not taking the 

regulatory action under consideration. 

Our economic analysis finds that none 

of these criteria is relevant to this 

analysis. Thus, based on information in 

the economic analysis, energy-related 

impacts associated with conservation 

activities for the three species within 

critical habitat are not expected. As 

such, the designation of critical habitat 

is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq. ) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) The designation of critical habitat 

imposes no obligation on State or local 

governments. By definition, Federal 

agencies are not considered small 

entities, although the activities they 

fund or permit may be proposed or 

carried out by small entities. 

Consequently, we do not believe that 

the critical habitat designation will 

significantly or uniquely affect small 


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government entities. As such, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for each of 

the three species in a takings 

implications assessment. The Act only 

regulates Federal actions and does not 

regulate private actions on private lands 

or confiscate private property as a result 

of critical habitat designation. 

Designation of critical habitat does not 

affect land ownership, or establish any 

closures, or restrictions on use of or 

access to the designated areas. 

Furthermore, the designation of critical 

habitat does not affect landowner 

actions that do not require Federal 

funding or permits. A takings 

implications assessment has been 

completed and concludes that this 

designation of critical habitat for the 

three species does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this rule does not have 

significant Federalism effects. A 

federalism impact summary statement is 

not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

Hawaii. We received comments from 

Hawaii elected officials; Hawaii 

Department of Accounting and General 

Services; Hawaii Department of 

Agriculture; Hawaii Department of 

Business, Economic Development and 

Tourism, -Hawaii Housing Finance and 

Development Corporation; Hawaii 

Department of Hawaiian Home Lands; 

Hawaii Department of Education; 

Hawaii Division of Forestry and 

Wildlife; Office of Hawaiian Affairs; 

Hawaii County Office of the Prosecuting 

Attorney; Hawaii County Planning 

Department; and the University of 

Hawaii. We addressed these comments 

above, under Summary of Comments 

and Recommendations. From a 

federalism perspective, the designation 

of critical habitat directly affects only 

the responsibilities of Federal agencies. 

The Act imposes no other duties with 

respect to critical habitat, either for 

States and local governments, or for 

anyone else. As a result, the rule does 

not have substantial direct effects either 

on the States, or on the relationship 

between national government and the 

States, or on the distribution of powers 

and responsibilities among the various 

levels of government. The designation 

may have some benefit to these 

governments because the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical and 

biological features of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information may assist local 

governments in long-range planning. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act would 

be required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. To assist the 

public in understanding the habitat 

needs of the three species, this rule 

identifies the elements of physical and 

biological features essential to the 

conservation of the three species. The 

designated areas of critical habitat are 

presented on maps, and the rule 

provides several options for the 

interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the national Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. See 

Douglas County v. Babbitt, 48 F.3d 1495 

(9th Cir. 1995), cert. denied 516 U.S. 

1042 (1996). 

References Cited 

A complete list of references cited in 

this rule is available on the internet at 

http://www.regulations.gov and upon 

request from the Pacific Islands Fish 

and Wildlife Office (see FOR FURTHER

INFORMATION CONTACT, above). 

Authors 

The primary authors of this document 

are the staff members of the Pacific 

Islands Fish and Wildlife Office. 

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 the 

Code of Federal Regulations, as set forth 

below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.99: 

■ a. By revising paragraphs (k) 

introductory text and (k)(1); 

■ b. By redesignating paragraphs (k)(40) 

through (52) as paragraphs (k)(41) 

through (53); 

■ c. By adding new paragraph (k)(40); 

■ d. By further redesignating newly 

designated paragraphs (k)(46) through 

(53) as paragraphs (k)(48) through (55); 

■ e. By adding new paragraphs (k)(46) 

and (47); 

■ f. By revising the map in paragraph 

(k)(97)(ii); 

■ g. By revising paragraphs (k)(100), 

(101), and (102); 

■ h. By redesignating paragraphs 

(k)(104) and (105) as paragraphs (k)(115) 

and (116); 

■ i. By adding new paragraphs (k)(104) 

and (105) and paragraphs (k)(106) 

through (114); 


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Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42425 

■ j. By revising newly designated 

paragraph (k)(115); and 

■ k. In paragraph (l)(1): 

■ i. By adding entries for ‘‘Family 

Asteraceae: Bidens micrantha ssp. 

ctenophylla’’ and ‘‘Family Fabaceae: 

Mezoneuron kavaiense’’ in alphabetical 

order by family name; and 

■ ii. By revising the entry for ‘‘Family 

Violaceae: Isodendrion pyrifolium 

(wahine noho kula)’’. 

The additions and revisions read as 

follows: 

§ 17.99 Critical habitat; plants on the 

Hawaiian Islands. 

* * * * * 

(k) Maps and critical habitat unit 

descriptions for the island of Hawaii, 

HI. Critical habitat units are described 

below. Coordinates are in UTM Zone 4 

with units in meters using North 

American Datum of 1983 (NAD83). The 

following map shows the general 

locations of the critical habitat units 

designated on the island of Hawaii. 

Existing manmade features and 

structures, such as buildings, roads, 

railroads, airports, runways, utility 

facilities and infrastructure and their 

designated and maintained rights-ofway, other paved areas, lawns, and 

other urban landscaped areas are not 

included in the critical habitat 

designation. Federal actions limited to 

those areas, therefore, would not trigger 

a consultation under section 7 of the Act 

unless they may affect the species or 

physical or biological features in 

adjacent critical habitat. 

(1)Note: Map 1, Index map, follows: 

BILLING CODE 4333–15–P 

BILLING CODE 4333–15–C 

* * * * * 

(40) Hawaii 10—Bidens micrantha 

ssp. ctenophylla—a (1,179 ha; 2,914 ac). 

(i) This unit is also critical habitat for 

Hawaii 10—Isodendrion pyrifolium—a 

and Hawaii 10—Mezoneuron 

kavaiense—a (see paragraphs (k)(46) 

and (47), respectively, of this section). 

(ii) Note: Map 39a follows: 

BILLING CODE 4333–15–P 


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BILLING CODE 4333–15–C 

* * * * * 

(46) Hawaii 10—Isodendrion 

pyrifolium—a (1,179 ha; 2,914 ac). See 

paragraph (k)(40)(ii) of this section for 

the map of this unit. 

(47) Hawaii 10—Mezoneuron 

kavaiense—a (1,179 ha; 2,914 ac). See 

paragraph (k)(40)(ii) of this section for 

the map of this unit. 

* * * * * 

(97) * * * 

(ii) Note: Map 97 follows: 

BILLING CODE 4333–15–P 


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BILLING CODE 4333–15–C 

* * * * * 

(100) Hawaii 30—Phyllostegia 

racemosa—c (267 ha, 659 ac). 

(i) [Reserved] 

(ii) Note: Map 100 follows: 

BILLING CODE 4333–15–P 


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BILLING CODE 4333–15–C 

(101) Hawaii 30—Phyllostegia 

velutina—b (1,180 ha, 2,916 ac). 

(i) [Reserved] 

(ii) Note: Map 101 follows: 

BILLING CODE 4333–15–P 


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Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42429 

BILLING CODE 4333–15–C 

(102) Hawaii 30—Plantago 

hawaiensis—c (1,219 ha, 3,012 ac). 

(i) [Reserved] 

(ii) Note: Map 102 follows: 

BILLING CODE 4333–15–P 


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BILLING CODE 4333–15–C 

* * * * * 

(104) Hawaii 31—Bidens micrantha 

ssp. ctenophylla—b (2,860 ha; 7,066 ac). 

(i) This unit is also critical habitat for 

Hawaii 31—Isodendrion pyrifolium—b 

and Hawaii 31—Mezoneuron 

kavaiense—b (see paragraphs (k)(105) 

and (106), respectively, of this section). 

(ii) Note: Map 104 follows: 

BILLING CODE 4333–15–P 


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Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42431 

BILLING CODE 4333–15–C 

(105) Hawaii 31—Isodendrion 

pyrifolium—b (2,860 ha; 7,066 ac). See 

paragraph (k)(104)(ii) of this section for 

the map of this unit. 

(106) Hawaii 31—Mezoneuron 

kavaiense—b (2,860 ha; 7,066 ac). See 

paragraph (k)(104)(ii) of this section for 

the map of this unit. 

(107) Hawaii 33—Bidens micrantha 

ssp. ctenophylla—d (400 ha; 989 ac). 

(i) This unit is also critical habitat for 

Hawaii 33–Isodendrion pyrifolium—d 

and Hawaii 33—Mezoneuron 

kavaiense—d (see paragraphs (k)(108) 

and (109), respectively, of this section). 

(ii) Note: Map 105 follows: 

BILLING CODE 4333–15–P 


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42432 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 

BILLING CODE 4333–15–C 

(108) Hawaii 33—Isodendrion 

pyrifolium—d (400 ha; 989 ac). See 

paragraph (k)(107)(ii) of this section for 

the map of this unit. 

(109) Hawaii 33—Mezoneuron 

kavaiense—d (400 ha; 989 ac). See 

paragraph (k)(107)(ii) of this section for 

the map of this unit. 

(110) Hawaii 34—Bidens micrantha 

ssp. ctenophylla—e (371 ha; 917 ac). 

(i) This unit is also critical habitat for 

Hawaii 34—Isodendrion pyrifolium—e 

and Hawaii 34—Mezoneuron 


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Map 105 

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

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

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

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

Lowland Dry 

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Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42433 

kavaiense— e (see paragraphs (k)(111) 

and (112), respectively, of this section). 

(ii) See paragraph (k)(107)(ii) of this 

section for the map of this unit. 

(111) Hawaii 34—Isodendrion 

pyrifolium—e (371 ha; 917 ac). See 

paragraph (k)(107)(ii) of this section for 

the map of this unit. 

(112) Hawaii 34—Mezoneuron 

kavaiense—e (371 ha; 917 ac). See 

paragraph (k)(107)(ii) of this section for 

the map of this unit. 

(113) Hawaii 36—Bidens micrantha 

ssp. ctenophylla—g (163 ha; 402 ac). 

(i) This unit is also critical habitat for 

Hawaii 36—Isodendrion pyrifolium—g 

(see paragraph (k)(114) of this section). 

(ii) See paragraph (k)(107)(ii) of this 

section for the map of this unit. 

(114) Hawaii 36—Isodendrion 

pyrifolium—g (163 ha; 402 ac). See 

paragraph (k)(107)(ii) of this section for 

the map of this unit. 

(115) Table of Protected Species 

Within Each Critical Habitat Unit for the 

Island of Hawaii. 

Unit name Species occupied Species unoccupied 

Hawaii 1—Clermontia lindseyana—a ............................ Clermontia lindseyana ................................. Clermontia lindseyana. 

Hawaii 1—Clermontia peleana—a ................................ Clermontia peleana ...................................... Clermontia peleana. 

Hawaii 1—Clermontia pyrularia—a ............................... ...................................................................... Clermontia pyrularia. 

Hawaii 1—Cyanea shipmanii—a ................................... Cyanea shipmanii ........................................ Cyanea shipmanii. 

Hawaii 1—Phyllostegia racemosa—a ........................... Phyllostegia racemosa ................................. Phyllostegia racemosa. 

Hawaii 2—Clermontia lindseyana—b ............................ Clermontia lindseyana ................................. Clermontia lindseyana. 

Hawaii 2—Clermontia pyrularia—b ............................... Clermontia pyrularia ..................................... Clermontia pyrularia. 

Hawaii 2—Phyllostegia racemosa—b ........................... Phyllostegia racemosa ................................. Phyllostegia racemosa. 

Hawaii 3—Clermontia peleana—b ................................ Clermontia peleana ...................................... Clermontia peleana. 

Hawaii 3—Cyanea platyphylla—a ................................. Cyanea platyphylla ...................................... Cyanea platyphylla. 

Hawaii 3—Cyrtandra giffardii—a ................................... Cyrtandra giffardii ........................................ Cyrtandra giffardii. 

Hawaii 3—Cyrtandra tintinnabula—a ............................ Cyrtandra tintinnabula .................................. Cyrtandra tintinnabula. 

Hawaii 3—Phyllostegia warshaueri—a .......................... Phyllostegia warshaueri ............................... Phyllostegia warshaueri. 

Hawaii 4—Isodendrion hosakae—a .............................. ...................................................................... Isodendrion hosakae. 

Hawaii 4—Isodendrion hosakae—b .............................. ...................................................................... Isodendrion hosakae. 

Hawaii 4—Isodendrion hosakae—c .............................. ...................................................................... Isodendrion hosakae. 

Hawaii 4—Isodendrion hosakae—d .............................. ...................................................................... Isodendrion hosakae. 

Hawaii 4—Isodendrion hosakae—e .............................. ...................................................................... Isodendrion hosakae. 

Hawaii 4—Isodendrion hosakae—f ............................... Isodendrion hosakae ................................... Isodendrion hosakae. 

Hawaii 4—Vigna o-wahuensis—a ................................. ...................................................................... Vigna o-wahuensis. 

Hawaii 4—Vigna o-wahuensis—b ................................. ...................................................................... Vigna o-wahuensis. 

Hawaii 4—Vigna o-wahuensis—c ................................. ...................................................................... Vigna o-wahuensis. 

Hawaii 5—Nothocestrum breviflorum—a ...................... ...................................................................... Nothocestrum breviflorum. 

Hawaii 6—Nothocestrum breviflorum—b ...................... Nothocestrum breviflorum ............................ Nothocestrum breviflorum. 

Hawaii 7—Pleomele hawaiiensis—a ............................. Pleomele hawaiiensis .................................. Pleomele hawaiiensis. 

Hawaii 8—Clermontia drepanomorpha—a .................... Clermontia drepanomorpha ......................... Clermontia drepanomorpha. 

Hawaii 8—Phyllostegia warshaueri—b .......................... Phyllostegia warshaueri ............................... Phyllostegia warshaueri. 

Hawaii 9—Achyranthes mutica—a ................................ ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—b ................................ Achyranthes mutica ..................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—c ................................ ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—d ................................ ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—e ................................ ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—f ................................. ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—g ................................ ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—h ................................ ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—i ................................. ...................................................................... Achyranthes mutica. 

Hawaii 9—Achyranthes mutica—j ................................. ...................................................................... Achyranthes mutica. 

Hawaii 10—Argyroxiphium kauense—a ........................ ...................................................................... Argyroxiphium kauense. 

Hawaii 10—Bidens micrantha ssp. ctenophylla—a ....... ...................................................................... Bidens micrantha ssp. ctenophylla. 

Hawaii 10—Bonamia menziesii—a ............................... ...................................................................... Bonamia menziesii. 

Hawaii 10—Colubrina oppositifolia—a .......................... Colubrina oppositifolia ................................. Colubrina oppositifolia. 

Hawaii 10—Delissea undulata—a ................................. ...................................................................... Delissea undulata. 

Hawaii 10—Delissea undulata—b ................................. Delissea undulata ........................................ Delissea undulata. 

Hawaii 10—Hibiscadelphus hualalaiensis—a ............... Hibiscadelphus hualalaiensis ....................... Hibiscadelphus hualalaiensis. 

Hawaii 10—Hibiscus brackenridgei—a ......................... Hibiscus brackenridgei ................................. Hibiscus brackenridgei. 

Hawaii 10—Isodendrion pyrifolium—a .......................... ...................................................................... Isodendrion pyrifolium. 

Hawaii 10—Mezoneuron kavaiense—a ........................ Mezoneuron kavaiense ................................ Mezoneuron kavaiense. 

Hawaii 10—Neraudia ovata—a ..................................... ...................................................................... Neraudia ovata. 

Hawaii 10—Nothocestrum breviflorum—c ..................... Nothocestrum breviflorum ............................ Nothocestrum breviflorum. 

Hawaii 10—Pleomele hawaiiensis—b ........................... Pleomele hawaiiensis .................................. Pleomele hawaiiensis. 

Hawaii 10—Solanum incompletum—a .......................... ...................................................................... Solanum incompletum. 

Hawaii 10—Zanthoxylum dipetalum ssp. 

tomentosum—a.

Zanthoxylum dipetalum ssp. tomentosum ... Zanthoxylum dipetalum ssp. tomentosum. 

Hawaii 11—Cyanea hamatiflora ssp. carlsonii—a ........ Cyanea hamatiflora ssp. carlsonii ............... Cyanea hamatiflora ssp. carlsonii. 

Hawaii 11—Solanum incompletum—b .......................... ...................................................................... Solanum incompletum. 

Hawaii 14—Cyanea hamatiflora ssp. carlsonii—b ........ ...................................................................... Cyanea hamatiflora ssp. carlsonii. 

Hawaii 15—Cyanea hamatiflora ssp. carlsonii—c ........ ...................................................................... Cyanea hamatiflora ssp. carlsonii. 

Hawaii 15—Cyanea stictophylla—a .............................. Cyanea stictophylla ...................................... Cyanea stictophylla. 

Hawaii 16—Cyanea hamatiflora ssp. carlsonii—d ........ Cyanea hamatiflora ssp. carlsonii ............... Cyanea hamatiflora ssp. carlsonii. 

Hawaii 16—Cyanea stictophylla—b .............................. Cyanea stictophylla ...................................... Cyanea stictophylla. 

Hawaii 17—Diellia erecta—a ......................................... Diellia erecta ................................................ Diellia erecta. 

Hawaii 17—Flueggea neowawraea—a ......................... Flueggea neowawraea ................................ Flueggea neowawraea. 

Hawaii 18—Colubrina oppositifolia—b .......................... Colubrina oppositifolia ................................. Colubrina oppositifolia. 


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42434 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 

Unit name Species occupied Species unoccupied 

Hawaii 18—Diellia erecta—b ......................................... Diellia erecta ................................................ Diellia erecta. 

Hawaii 18—Flueggea neowawraea—b ......................... Flueggea neowawraea ................................ Flueggea neowawraea. 

Hawaii 18—Gouania vitifolia—a .................................... Gouania vitifolia ........................................... Gouania vitifolia. 

Hawaii 18—Neraudia ovata—d ..................................... Neraudia ovata ............................................ Neraudia ovata. 

Hawaii 18—Pleomele hawaiiensis—c ........................... Pleomele hawaiiensis .................................. Pleomele hawaiiensis. 

Hawaii 19—Mariscus fauriei—a .................................... Mariscus fauriei ............................................ Mariscus fauriei. 

Hawaii 20—Sesbania tomentosa—a ............................. Sesbania tomentosa .................................... Sesbania tomentosa. 

Hawaii 21—Ischaemum byrone—a ............................... ...................................................................... Ischaemum byrone. 

Hawaii 22—Ischaemum byrone—b ............................... Ischaemum byrone ...................................... Ischaemum byrone. 

Hawaii 23—Pleomele hawaiiensis—d ........................... Pleomele hawaiiensis .................................. Pleomele hawaiiensis. 

Hawaii 23—Sesbania tomentosa—b ............................. Sesbania tomentosa .................................... Sesbania tomentosa. 

Hawaii 24—Argyroxiphium kauense—b ........................ Argyroxiphium kauense ............................... Argyroxiphium kauense. 

Hawaii 24—Asplenium fragile var. insulare—a ............. Asplenium fragile var. insulare .................... Asplenium fragile var. insulare. 

Hawaii 24—Cyanea stictophylla—c ............................... ...................................................................... Cyanea stictophylla. 

Hawaii 24—Melicope zahlbruckneri—a ......................... ...................................................................... Melicope zahlbruckneri. 

Hawaii 24—Phyllostegia velutina—a ............................. Phyllostegia velutina .................................... Phyllostegia velutina. 

Hawaii 24—Plantago hawaiensis—a ............................. Plantago hawaiensis .................................... Plantago hawaiensis. 

Hawaii 25—Argyroxiphium kauense—c ........................ Argyroxiphium kauense ............................... Argyroxiphium kauense. 

Hawaii 25—Plantago hawaiensis—b ............................. Plantago hawaiensis .................................... Plantago hawaiensis. 

Hawaii 25—Silene hawaiiensis—a ................................ Silene hawaiiensis ....................................... Silene hawaiiensis. 

Hawaii 26—Hibiscadelphus giffardianus—a .................. Hibiscadelphus giffardianus ......................... Hibiscadelphus giffardianus. 

Hawaii 26—Melicope zahlbruckneri—b ......................... Melicope zahlbruckneri ................................ Melicope zahlbruckneri. 

Hawaii 27—Portulaca sclerocarpa—a ........................... Portulaca sclerocarpa .................................. Portulaca sclerocarpa. 

Hawaii 27—Silene hawaiiensis—b ................................ Silene hawaiiensis ....................................... Silene hawaiiensis. 

Hawaii 28—Adenophorus periens—a ........................... Adenophorus periens ................................... Adenophorus periens. 

Hawaii 29—Clermontia peleana—c ............................... Clermontia peleana ...................................... Clermontia peleana. 

Hawaii 29—Cyanea platyphylla—b ............................... Cyanea platyphylla ...................................... Cyanea platyphylla. 

Hawaii 29—Cyrtandra giffardii—b ................................. ...................................................................... Cyrtandra giffardii. 

Hawaii 29—Cyrtandra tintinnabula—b .......................... ...................................................................... Cyrtandra tintinnabula. 

Hawaii 30—Argyroxiphium kauense—d ........................ Argyroxiphium kauense ............................... Argyroxiphium kauense. 

Hawaii 30—Clermontia lindseyana—c .......................... Clermontia lindseyana ................................. Clermontia lindseyana. 

Hawaii 30—Cyanea shipmanii—b ................................. Cyanea shipmanii ........................................ Cyanea shipmanii. 

Hawaii 30—Cyanea shipmanii—c ................................. ...................................................................... Cyanea shipmanii. 

Hawaii 30—Cyanea stictophylla—d .............................. ...................................................................... Cyanea stictophylla. 

Hawaii 30—Cyrtandra giffardii—c ................................. Cyrtandra giffardii ........................................ Cyrtandra giffardii. 

Hawaii 30—Phyllostegia racemosa—c .......................... ...................................................................... Phyllostegia racemosa. 

Hawaii 30—Phyllostegia velutina—b ............................. Phyllostegia velutina .................................... Phyllostegia velutina. 

Hawaii 30—Plantago hawaiensis—c ............................. Plantago hawaiensis .................................... Plantago hawaiensis. 

Hawaii 30—Sicyos alba—a ........................................... Sicyos alba .................................................. Sicyos alba. 

Hawaii 31—Bidens micrantha ssp. ctenophylla—b ....... ...................................................................... Bidens micrantha ssp. ctenophylla. 

Hawaii 31—Isodendrion pyrifolium—b .......................... ...................................................................... Isodendrion pyrifolium. 

Hawaii 31—Mezoneuron kavaiense—b ........................ Mezoneuron kavaiense ................................ Mezoneuron kavaiense. 

Hawaii 33—Bidens micrantha ssp. ctenophylla—d ....... ...................................................................... Bidens micrantha ssp. ctenophylla. 

Hawaii 33—Isodendrion pyrifolium—d .......................... ...................................................................... Isodendrion pyrifolium. 

Hawaii 33—Mezoneuron kavaiense—d ........................ ...................................................................... Mezoneuron kavaiense. 

Hawaii 34—Bidens micrantha ssp. ctenophylla—e ....... ...................................................................... Bidens micrantha ssp. ctenophylla. 

Hawaii 34—Isodendrion pyrifolium—e .......................... ...................................................................... Isodendrion pyrifolium. 

Hawaii 34—Mezoneuron kavaiense—e ........................ ...................................................................... Mezoneuron kavaiense. 

Hawaii 36—Bidens micrantha ssp. ctenophylla—g ....... Bidens micrantha ssp. ctenophylla .............. Bidens micrantha ssp. ctenophylla. 

Hawaii 36—–Isodendrion pyrifolium—g ........................ ...................................................................... Isodendrion pyrifolium. 

* * * * * 

(l) * * * 

(1) * * * 

* * * * * 

FAMILY ASTERACEAE: Bidens 

micrantha ssp. ctenophylla 

(KOOKOOLAU) 

Hawaii 10—Bidens micrantha ssp. 

ctenophylla—a, Hawaii 31—Bidens 

micrantha ssp. ctenophylla—b, Hawaii 

33—Bidens micrantha ssp. 

ctenophylla—d, Hawaii 34—Bidens 

micrantha ssp. ctenophylla—e, and 

Hawaii 36—Bidens micrantha ssp. 

ctenophylla—g, identified in the legal 

descriptions in paragraph (k) of this 

section, constitute critical habitat for 

Bidens micrantha ssp. ctenophylla on 

Hawaii Island. In units Hawaii 10— 

Bidens micrantha ssp. ctenophylla—a, 

Hawaii 31—Bidens micrantha ssp. 

ctenophylla—b, Hawaii 33—Bidens 

micrantha ssp. ctenophylla—d, Hawaii 

34—Bidens micrantha ssp. 

ctenophylla—e, and Hawaii 36—Bidens 

micrantha ssp. ctenophylla—g, the 

physical and biological features of 

critical habitat are: 

(i) Elevation: Less than 3,300 ft (1,000 

m). 

(ii) Annual precipitation: Less than 50 

in (130 cm). 

(iii) Substrate: Weathered silty loams 

to stony clay, rocky ledges, littleweathered lava. 

(iv) Canopy: Diospyros, Erythrina, 

Metrosideros, Myoporum, Pleomele, 

Santalum, Sapindus. 

(v) Subcanopy: Chamaesyce, 

Dodonaea, Osteomeles, Psydrax, 

Scaevola, Wikstroemia. 

(vi) Understory: Alyxia, Artemisia, 

Bidens, Capparis, Chenopodium, 

Nephrolepis, Peperomia, Sicyos. 

* * * * * 

FAMILY FABACEAE: Mezoneuron 

kavaiense (UHIUHI) 

Hawaii 10—Mezoneuron kavaiense— 

a, Hawaii 31—Mezoneuron kavaiense— 

b, Hawaii 33—Mezoneuron kavaiense— 

d, and Hawaii 34—Mezoneuron 

kavaiense—e, identified in the legal 

descriptions in paragraph (k) of this 


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Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42435 

section, constitute critical habitat for 

Mezoneuron kavaiense on Hawaii 

Island. In units Hawaii 10—Mezoneuron 

kavaiense—a, Hawaii 31—Mezoneuron 

kavaiense—b, Hawaii 33—Mezoneuron 

kavaiense—d, and Hawaii 34— 

Mezoneuron kavaiense—e, the physical 

and biological features of critical habitat 

are: 

(i) Elevation: Less than 3,300 ft (1,000 

m). 

(ii) Annual precipitation: Less than 50 

in (130 cm). 

(iii) Substrate: Weathered silty loams 

to stony clay, rocky ledges, littleweathered lava. 

(iv) Canopy: Diospyros, Erythrina, 

Metrosideros, Myoporum, Pleomele, 

Santalum, Sapindus. 

(v) Subcanopy: Chamaesyce, 

Dodonaea, Osteomeles, Psydrax, 

Scaevola, Wikstroemia. 

(vi) Understory: Alyxia, Artemisia, 

Bidens, Capparis, Chenopodium, 

Nephrolepis, Peperomia, Sicyos. 

* * * * * 

FAMILY VIOLACEAE: Isodendrion 

pyrifolium (WAHINE NOHO KULA) 

Hawaii 10—Isodendrion pyrifolium— 

a, Hawaii 31—Isodendrion pyrifolium— 

b, Hawaii 33—–Isodendrion 

pyrifolium—d, Hawaii 34—Isodendrion 

pyrifolium—e, and Hawaii 36— 

Isodendrion pyrifolium—g, identified in 

the legal descriptions in paragraph (k) of 

this section, constitute critical habitat 

for Isodendrion pyrfolium on Hawaii 

Island. In units Hawaii 10—Isodendrion 

pyrifolium—a, Hawaii 31—Isodendrion 

pyrifolium—b, Hawaii 33—– 

Isodendrion pyrifolium—d, Hawaii 34— 

Isodendrion pyrifolium—e, and Hawaii 

36—Isodendrion pyrifolium—g, the 

physical and biological features of 

critical habitat are: 

(i) Elevation: Less than 3,300 ft (1,000 

m). 

(ii) Annual precipitation: Less than 50 

in (130 cm). 

(iii) Substrate: Weathered silty loams 

to stony clay, rocky ledges, littleweathered lava. 

(iv) Canopy: Diospyros, Erythrina, 

Metrosideros, Myoporum, Pleomele, 

Santalum, Sapindus. 

(v) Subcanopy: Chamaesyce, 

Dodonaea, Osteomeles, Psydrax, 

Scaevola, Wikstroemia. 

(vi) Understory: Alyxia, Artemisia, 

Bidens, Capparis, Chenopodium, 

Nephrolepis, Peperomia, Sicyos. 

* * * * * 

Dated: May 29, 2018. 

James W. Kurth, 

Deputy Director, U.S. Fish and Wildlife 

Service, exercising the authority of the 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2018–17514 Filed 8–20–18; 8:45 am] 

BILLING CODE 4333–15–P 


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