32490 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

rules governing permissible ex parte 

contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under New Mexico, is amended by 

adding DTV channel *8 and removing 

DTV channel *9 at Santa Fe. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E9–16089 Filed 7–7–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–1432; MB Docket No. 09–111; RM– 

11541] 

Television Broadcasting Services; 

Colorado Springs, CO 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission has before it 

a petition for rulemaking filed by Gray 

Television Licensee, LLC (‘‘Gray’’), the 

licensee of station KKTV(TV), DTV 

channel 10, Colorado Springs, Colorado. 

Gray requests the substitution of DTV 

channel 49 for channel 10 at Colorado 

Springs. 

DATES: Comments must be filed on or 

before July 23, 2009, and reply 

comments on or before August 3, 2009. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 

445 12th Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve counsel for petitioner as follows: 

John M. Burgett, Esq., Wiley Rein LLP, 

1776 K Street, NW., Washington, DC 

20006. 

FOR FURTHER INFORMATION CONTACT: 

Joyce L. Bernstein, 

Joyce.Bernstein@fcc.gov, Media Bureau, 

(202) 418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

09–11, adopted June 25, 2009, and 

released June 26, 2009. The full text of 

this document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. Members of the public 

should note that from the time a Notice 

of Proposed Rule Making is issued until 

the matter is no longer subject to 

Commission consideration or court 

review, all ex parte contacts are 

prohibited in Commission proceedings, 

such as this one, which involve channel 

allotments. See 47 CFR 1.1204(b) for 

rules governing permissible ex parte 

contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

Part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622(i) [Amended] 

2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Colorado, is amended by adding 

DTV channel 49 and removing DTV 

channel 10 at Colorado Springs. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E9–16128 Filed 7–7–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS-R1-ES-2009-0036; 92210-1111-0000- 

B2] 

RIN 1018-AV47 

Endangered and Threatened Wildlife 

and Plants; Proposed Endangered 

Status for Flying Earwig Hawaiian 

Damselfly (Megalagrion nesiotes) and 

Pacific Hawaiian Damselfly (M. 

pacificum) Throughout Their Ranges 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list two species of Hawaiian damselflies, 

the flying earwig Hawaiian damselfly 

(Megalagrion nesiotes) and the Pacific 

Hawaiian damselfly (M. pacificum), as 

endangered under the Endangered 

Species Act of 1973, as amended (Act). 

If we finalize this rule as proposed, it 

would extend the Act’s protections to 

these species. We have determined that 

critical habitat for these two Hawaiian 

damselflies is prudent, but not 

determinable at this time. 

DATES: We will accept comments 

received on or before September 8, 

2009. We must receive requests for 

public hearings, in writing, at the 

address shown in the FOR FURTHER

INFORMATION CONTACT section by August 

24, 2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS-R1-ES-2009-0036. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32491 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R1- 

ES-2009-0036; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Gina 

Shultz, Deputy Field Supervisor, Pacific 

Islands Fish and Wildlife Office, 300 

Ala Moana Boulevard, Box 50088, 

Honolulu, HI 96850; telephone 808-792- 

9400; facsimile 808-792-9581. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 800- 

877-8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this rule will be based on 

the best scientific and commercial data 

available and be as accurate and as 

effective as possible. Therefore, we 

request comments or suggestions on this 

proposed rule from the public, other 

concerned governmental agencies, the 

scientific community, industry, or any 

other interested party concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) Biological, commercial trade, or 

other relevant data concerning threats 

(or lack thereof) to these species and 

regulations that may be addressing those 

threats; 

(2) Additional information concerning 

the range, distribution, and population 

sizes of these species, including the 

locations of any additional populations 

of these species; 

(3) Any information on the biological 

or ecological requirements of these 

species; 

(4) Current or planned activities in the 

areas occupied by these species and 

their possible impacts on these species; 

(5) Which physical and biological 

factors are essential to the conservation 

of each species and whether those 

features may require special 

management considerations or 

protections; 

(6) Which specific areas area essential 

to the conservation of each species; and 

(7) The reasons why any areas should 

or should not be designated as critical 

habitat as provided by section 4 of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

including whether the benefits of 

designation would outweigh the threats 

to the species that designation could 

cause, such that the designation of 

critical habitat is prudent. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is a threatened or endangered 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. Please 

include sufficient information with your 

comments to allow us to verify any 

scientific or commercial information 

you include. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection at 

http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Pacific Islands Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

You may obtain copies of the 

proposed rule by mail from the Pacific 

Islands Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT) or by 

visiting the Federal eRulemaking Portal 

at http://www.regulations.gov. 

Background 

Previous Federal Actions 

The candidate status of each of the 

two damselfly species proposed here for 

listing, the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly, was most recently reassessed 

and affirmed in the December 6, 2007, 

Notice of Review of Native Species that 

are Candidates for Listing as 

Endangered or Threatened (CNOR) (72 

FR 69034). Candidate species are those 

taxa for which the Service has sufficient 

information on their biological status 

and threats to propose them for listing 

under the Act, but for which the 

development of a listing regulation has 

been precluded by other higher priority 

listing activities. 

Both the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly were first listed as candidate 

species on May 22, 1984 (49 FR 21664). 

The flying earwig Hawaiian damselfly 

was listed as a Category 3A (C3A) 

species, while the Pacific Hawaiian 

damselfly was listed as a Category 2 (C2) 

species. The flying earwig was removed 

from the candidate list on November 21, 

1991 (56 FR 58804), whereas the Pacific 

Hawaiian damselfly retained its status 

as a C2 species. On November 15, 1994 

(59 FR 58982), the flying earwig 

Hawaiian damselfly was added back to 

the candidate list, this time as a C2 

species, and the Pacific Hawaiian 

damselfly was reclassified as a Category 

1 species. In the Candidate Notice of 

Review (CNOR) published on February 

28, 1996, we announced a revised list of 

plant and animal taxa that were 

regarded as candidates for possible 

addition to the Lists of Threatened and 

Endangered Wildlife and Plants (61 FR 

7595). This revision also included a new 

ranking system, whereby each candidate 

species was assigned a Listing Priority 

Number (LPN) from 1 to 12. Both the 

flying earwig Hawaiian damselfly and 

the Pacific Hawaiian damselfly were 

assigned an LPN of 2 on February 28, 

1996 (61 FR 7595). 

On May 4, 2004, the Center for 

Biological Diversity petitioned the 

Secretary of the Interior to list 225 

species of plants and animals that were 

already candidates, including these two 

Hawaiian damselfly species, as 

endangered or threatened under the 

provisions of the Act. In our annual 

CNOR, dated May 11, 2005 (70 FR 

24870), we retained a listing priority 

number of 2 for both of these species in 

accordance with our priority guidance 

published on September 21, 1983 (48 FR 

43098). A listing priority number of 2 

reflects threats that are both imminent 

and high in magnitude, as well as the 

taxonomic classification of each of these 

two Hawaiian damselflies as distinct 

species. At the time, we determined that 

publication of a proposed rule to list 

these species was precluded by our 

work on higher priority listing actions. 

Since then, we have published our 

annual findings on the May 4, 2004, 

petition (including our findings on these 

two candidate species) in the CNORs 

dated September 12, 2006 (71 FR 

53756), December 6, 2007 (72 FR 

69034), and December 10, 2008 (73 FR 

75176). 

In Fiscal year 2007, we determined 

that funding was available to initiate 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32492 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

work on listing determinations for these 

two species and that work on listing 

determinations was no longer precluded 

by higher priority actions. As such, this 

proposal constitutes our proposed 

listing determination for these two 

species. 

Species Information 

The Hawaiian Islands are well-known 

for several spectacular evolutionary 

radiations resulting in a unique insect 

fauna found nowhere else in the world. 

One such group, which began its 

evolution perhaps as long as 10 million 

years ago (Jordan et al. 2003, p. 89), is 

the narrow-winged Hawaiian damselfly 

genus Megalagrion. This genus appears 

to be most closely related to species of 

Pseudagrion elsewhere in the IndoPacific (Zimmerman 1948a, pp. 341, 

345). The Megalagrion species of the 

Hawaiian Islands have evolved to 

occupy as many larval breeding niches 

as all the rest of the world’s damselfly 

species combined, and in terms of the 

number of insular endemic (native to 

only one island) species, are exceeded 

only by the radiation of damselfly 

species of Fiji in the Pacific (Jordan et 

al. 2003, p. 91). Resembling slender 

dragonflies, damselflies are 

distinguished by folding their wings 

parallel to the body while at rest rather 

than holding them out perpendicular to 

the body. 

Native Hawaiians apparently did not 

differentiate the various species, but 

referred to the native damselflies (and 

dragonflies) collectively as ‘‘pinau,’’ and 

to the red-colored damselflies 

specifically as ‘‘pin ao ula.’’ There has 

been no traditional European use of a 

common name for species in the genus 

Megalagrion. In his 1994 taxonomic 

review of the candidate species of 

insects of the Hawaiian Islands, Nishida 

(1994, pp. 4-7) proposed the name 

‘‘Hawaiian damselflies’’ as the common 

name for species in the genus 

Megalagrion. Because this name reflects 

the restricted distribution of these 

insects and is nontechnical, the 

common name ‘‘Hawaiian damselflies’’ 

is adopted for general use here, and we 

use the accepted common names flying 

earwig Hawaiian damselfly and Pacific 

Hawaiian damselfly to identify the two 

individual species addressed in this 

proposed rule. 

The general biology of Hawaiian 

damselflies is typical of other narrowwinged damselflies (Polhemus and 

Asquith 1996, pp. 2-7). The males of 

most species are territorial, guarding 

areas of habitat where females will lay 

eggs (Moore 1983a, p. 89). During 

copulation, and often while the female 

lays eggs, the male grasps the female 

behind the head with terminal 

abdominal appendages to guard the 

female against rival males; thus males 

and females are frequently seen flying in 

tandem. 

In most species of Hawaiian 

damselflies, the immature larval stages 

(naiads) are aquatic, breathing through 

three flattened abdominal gills, and are 

predaceous, feeding on small aquatic 

invertebrates or fish (Williams 1936, p. 

303). Females lay eggs in submerged 

aquatic vegetation or in mats of moss or 

algae on submerged rocks, and hatching 

occurs in about 10 days (Williams 1936, 

pp. 303, 306, 318; Evenhuis et al. 1995, 

p. 18). Naiads may take up to 4 months 

to mature (Williams 1936, p. 309), after 

which they crawl out of the water onto 

rocks or vegetation to molt into winged 

adults, typically remaining close to the 

aquatic habitat from which they 

emerged. The Pacific Hawaiian 

damselfly exhibits this typical aquatic 

life history. 

The naiads of some species of 

Hawaiian damselflies are terrestrial or 

semi-terrestrial, living on wet rock faces 

or in damp terrestrial conditions, 

inhabiting wet leaf litter or moist leaf 

axils (the angled juncture of the leaf and 

stem) of native plants up to several feet 

above ground (Zimmerman 1970, p. 33; 

Simon et al. 1984, p. 13; Polhemus and 

Asquith 1996, p. 17). The naiads of 

these terrestrial and semi-terrestrial 

species have evolved short, thick, hairy 

gills and in many species are unable to 

swim (Polhemus and Asquith 1996, p. 

75). The flying earwig Hawaiian 

damselfly is believed to exhibit this 

terrestrial or semi-terrestrial naiad life 

history. 

Adult damselflies are predaceous and 

feed on small flying insects such as 

midges. The adults of many of the 

Hawaiian Megalagrion spp. are unusual 

in that they have a highly developed 

behavior of feigning death when caught 

or attacked (Moore 1983b, pp. 161-165). 

The Hawaiian damselflies are 

represented by 23 species and 5 

subspecies, and are found on 6 of the 

Hawaiian Islands (Kauai, Oahu, 

Molokai, Maui, Lanai, and Hawaii). 

There are more species of Megalagrion 

on the geologically older islands (e.g., 

12 species on Kauai) than on the 

geologically youngest island (e.g., 8 

species on Hawaii), and there are more 

single-island endemic species on the 

older islands (e.g., 10 on Kauai) than on 

the youngest island (e.g., none on 

Hawaii) (Jordan et al. 2003, p. 91). 

Historically, Megalagrion damselflies 

were among the most common and 

conspicuous native Hawaiian insects. 

Some species commonly inhabited 

water gardens in residential areas, 

artificial reservoirs, and watercress 

farms, and were even abundant in the 

city of Honolulu, as noted by early 

collectors of this group (Perkins 1899, p. 

76; Perkins 1913, p. clxxviii; Williams 

1936, p. 304). 

Beginning with the early alteration of 

streams and wetland systems by the 

colonizing Hawaiians, followed by 

extensive stream and wetland 

conversion, alteration, and 

modification, and by degradation of 

native forests through the 20th century, 

Hawaii’s native damselflies, including 

the two species that are the subject of 

this proposal, experienced a tremendous 

reduction in available habitat. In 

addition, predation by a number of 

nonnative species that have been both 

intentionally and, in some cases, 

inadvertently introduced onto the 

Hawaiian Islands is a significant and 

ongoing threat to all native Hawaiian 

damselflies. 

Flying Earwig Hawaiian Damselfly 

The flying earwig Hawaiian damselfly 

was first described from specimens 

collected in the 1890s in Puna on 

Hawaii Island by R.C.L. Perkins (1899, 

p. 72). Kennedy (1934, pp. 343-345) 

described what was believed at the time 

to be a new species of damselfly based 

on specimens from Maui; these were 

later determined to be synonymous with 

the specimens collected by Perkins. The 

flying earwig Hawaiian damselfly is a 

comparatively large and elongated 

species. The males are blue and black in 

color and exhibit distinctive, greatly 

enlarged, pincer-like cerci (paired 

appendages on the rear-most segment of 

the abdomen used to clasp the female 

during mating). Females are 

predominantly brownish in color. The 

adults measure from 1.8 to 1.9 inches 

(in) (46 to 50 millimeters (mm)) in 

length and have a wingspan of 1.9 to 2.1 

in (50 to 53 mm). The wings of both 

sexes are clear except for the tips, which 

are narrowly darkened along the front 

margins. Naiads of this species have 

never been collected or found 

(Polhemus and Asquith 1996, p. 69), but 

they are believed to be terrestrial or 

semi-terrestrial in habit (Kennedy 1934, 

p. 345; Preston 2007). 

The biology of the flying earwig 

Hawaiian damselfly is not well 

understood, and it is unknown if this 

species is more likely to be associated 

with standing water or flowing water 

(Kennedy 1934, p. 345; Polhemus 1994, 

p. 40). The only confirmed population 

found in the last 6 years occurs along a 

steep, moist, riparian talus slope (a 

slope formed by an accumulation of 

rock debris), densely covered with 

Dicranopteris linearis (uluhe), a native 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32493 

fern. Adults of the flying earwig 

Hawaiian damselfly have been observed 

to perch on vegetation and boulders, 

and to fly slowly for short distances. 

When disturbed, the adults fly 

downward within nearby vegetation or 

between rocks, rather than up and away 

as is usually observed with aquatic 

Hawaiian damselfly species. Although 

immature individuals have not been 

located, based on the habitat and the 

behavior of the adults, it is believed that 

the naiads are terrestrial or semiterrestrial, occurring among damp 

leaflitter (Kennedy 1934, p. 345) or 

possibly within moist soil or seeps 

between boulders in suitable habitat 

(Preston 2007). The highest elevation at 

which this species has been recorded is 

3,000 feet (ft) (914 meters (m)), but its 

close association with uluhe habitat 

suggests that its range may extend 

upward to close to 4,000 ft (1,212 m) 

(Foote 2007). 

Historically, the flying earwig 

Hawaiian damselfly was known from 

the islands of Hawaii and Maui. On 

Hawaii, it was originally known from 

seven or more general localities. The 

species has not been seen on Hawaii for 

over 80 years, although extensive 

surveys within apparently suitable 

habitat in the Kau and Olaa areas were 

conducted from 1997 to 2008 (Polhemus 

2008). On Maui, the flying earwig 

damselfly was historically reported from 

five general locations on the windward 

side of the island (Kennedy 1934, p. 

345). Since the 1930s, however, the 

flying earwig Hawaiian damselfly has 

only been observed in a single area on 

the windward side of east Maui, despite 

surveys from 1993 through 2008 at 

several of its historically occupied sites. 

The last observation of the species on 

windward east Maui was in 2005 (Foote 

2008); the species was not observed 

during the last survey at this location in 

2008. No quantitative estimate of the 

size of this remaining population is 

available. 

It is hypothesized that the flying 

earwig Hawaiian damselfly may now be 

restricted to what is perhaps suboptimal 

habitat, where periodic absences of the 

species due to drought may be expected 

and might explain the lack of 

observations of the species (Foote 2007). 

Some researchers also believe that 

overcollection of this species by 

enthusiasts may have impacted some 

populations in the past (Polhemus 

2008). It is further possible that the 

individuals observed in this area are 

actually part of a larger population that 

may be located in the extensive belt of 

uluhe habitat located upslope, where 

the habitat is predominantly native 

shrubs and matted fern understory 

(Foote 2007; Hawaii Biodiversity and 

Mapping Program (HBMP) 2006). 

Unsurveyed areas containing potentially 

suitable habitat for this species include 

the Hana coast of east Maui, and the east 

rift zone of Kilauea and the Kona area 

on the island of Hawaii (Foote 2007). 

Pacific Hawaiian Damselfly 

The Pacific Hawaiian damselfly was 

first described by McLachlan (1883, p. 

234) based on specimens collected by 

R.C.L. Perkins from streams on the 

islands of Lanai and Maui. This 

damselfly is a relatively small, darkcolored species, with adults measuring 

from 1.3 to 1.4 in (34 to 37 mm) in 

length and having a wingspan of 1.3 to 

1.6 in (33 to 42 mm). Both adult males 

and females are mostly black in color. 

Males exhibit brick red striping and 

patterns, while females exhibit light 

green striping and patterns. The only 

immature individuals of this species 

that have been collected were earlyinstar (an intermoult stage of 

development) individuals, and they 

exhibit flattened, leaf-like gills 

(Polhemus and Asquith 1996, p. 83). 

This species is most easily 

distinguished from other Hawaiian 

damselflies by the extremely long lower 

abdominal appendages of the male, 

which greatly exceed the length of the 

upper appendages. 

Historically, the Pacific Hawaiian 

damselfly was known from lower 

elevations (below 2,000 ft (600 m)) on 

all of the main Hawaiian Islands except 

Kahoolawe and Niihau (Perkins 1899, p. 

64). This species was known to breed 

primarily in lentic (standing water) 

systems such as marshes, seepage-fed 

pools, large ponds at higher elevations, 

and small, quiet pools in gulches that 

have been cut off from the main stream 

channel (Moore and Gagne 1982, p. 4; 

Polhemus and Asquith 1996, p. 83). The 

Pacific Hawaiian damselfly is no longer 

found in most lentic habitats in Hawaii, 

such as ponds and taro (Colocasia 

esculenta) fields, due to predation by 

nonnative fish that now occur in these 

systems (Moore and Gagne 1982, p. 4; 

Englund et al. 2007, p. 215). 

Observations have confirmed that the 

Pacific Hawaiian damselfly is now 

restricted almost exclusively to seepagefed pools along overflow channels in the 

terminal reaches of perennial streams, 

usually in areas surrounded by thick 

vegetation (Moore and Gagne 1982, pp. 

3-4; Polhemus 1994, p. 54; Englund 

1999, p. 236; Englund et al. 2007, p. 

216; Polhemus 2007, p. 238). Adults 

usually do not stray far from the vicinity 

of the breeding pools, perching on 

bordering vegetation and flying only 

short distances when disturbed 

(Polhemus and Asquith 1996, p. 83). 

This species is rarely seen along main 

stream channels, and its ability to 

disperse long distances over land or 

water is suspected to be poor compared 

to other Hawaiian damselflies (Jordan et 

al. 2007, p. 254). 

The Pacific Hawaiian damselfly is 

now believed to be extirpated from the 

islands of Oahu, Kauai, and Lanai 

(Polhemus and Asquith 1996, p. 83). On 

the island of Oahu, due to its 

occupation of particularly vulnerable 

habitat within sidepools of lowland 

streams, the Pacific Hawaiian damselfly 

was rare by the 1890s and appears to 

have been extirpated from this island 

since 1910 (Liebherr and Polhemus 

1997, p. 494). It is unknown when the 

Kauai and Lanai populations of the 

Pacific Hawaiian damselfly 

disappeared. Until 1998, it was believed 

that the species may also have been 

extirpated from the island of Hawaii. 

That year, one population was 

discovered within a small stream 

located just above, but isolated from, 

Maili Stream, which is known to be 

occupied by nonnative fish (Englund 

1998, pp. 15-16). By the late 1970s, 

fewer than six populations of the Pacific 

Hawaiian damselfly could be located on 

Maui and Molokai (Harwood 1976, pp. 

251-253; Gagne 1980, pp. 119, 125; 

Moore and Gagne 1982, p. 1), and the 

conservation of this species was 

identified as a priority by the 

International Union for the 

Conservation of Nature and Natural 

Resources (Moore 1982, p. 209). 

The Pacific Hawaiian damselfly is 

currently found in at least seven streams 

on Molokai and may possibly be extant 

in other, unsurveyed streams on 

Molokai’s north coast that have not been 

invaded by nonnative fish (Englund 

2008). On the island of Maui, the 

species is currently known from 14 

streams. The Pacific Hawaiian damselfly 

is no longer found along the entire 

reaches of these Maui streams, but only 

in restricted areas along each stream 

where steep terrain prevents access by 

nonnative fish, which inhabit degraded, 

lower stream reaches (Polhemus and 

Asquith 1996, p. 13; Englund et al. 

2007, p. 215). The species is known 

from a single population on the island 

of Hawaii, last observed in 1998. 

No quantitative estimates of the size 

of the extant populations are available. 

Howarth (1991, p. 490) described the 

Pacific Hawaiian damselfly as the most 

common and most widespread of the 

native damselfly species at the end of 

the 19th century, and yet a decline in 

this species was observed as early as 

1905 due to the effects of nonnative fish 

introduced for control of mosquitoes. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32494 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

Summary of Factors Affecting the 

Species 

Section 4 of the Act (16 U.S.C. 1531 

et seq.) and its implementing 

regulations (50 CFR part 424) set forth 

the procedures for adding species to the 

Federal Lists of Endangered and 

Threatened Wildlife and Plants. A 

species may be determined to be an 

endangered or threatened species due to 

one or more of the five factors described 

in section 4(a)(1) of the Act. These five 

listing factors are: (A) The present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; and (E) other natural or 

manmade factors affecting its continued 

existence. Listing a species as a 

threatened or endangered species under 

the Act may be warranted based on any 

of the above threat factors, singly or in 

combination. 

The threats to the flying earwig and 

Pacific Hawaiian damselfly species are 

summarized according to the five listing 

factors in Table 1, and discussed in 

detail below. 

TABLE 1. SUMMARY OF THREATS TO THE FLYING EARWING AND PACIFIC HAWAIIAN DAMSELFLY 

SPECIES. 

Threat Factor Flying Earwig Hawaiian 

Damselfly Pacific Hawaiian Damselfly 

Agriculture/urban development A X X 

Stream alteration A P X 

Habitat modification by pigs A X 

Habitat modification by nonnative plants A X X 

Stochastic events A X X 

Climate change A X X 

Overcollection B P 

Predation C A, BF (P) A, B, F, BF 

Inadequate habitat protection D X X 

Inadequate protection from nonnative aquatic species introduction D X X 

Limited populations E X X 

A = ants B = backswimmers F = fish BF = bullfrogs P = potential threat 

Factor A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of [Their] Habitat or Range 

Freshwater habitats used by the flying 

earwig and Pacific Hawaiian damselflies 

on all of the main Hawaiian Islands 

have been severely altered and degraded 

because of past and present land and 

water management practices, including: 

agriculture and urban development; 

development of ground water, perched 

aquifer (aquifer sitting above main water 

table), and surface water resources; and 

the deliberate and accidental 

introductions of nonnative animals 

(Harris et al. 1993, pp. 12-13; Meier et 

al. 1993, pp. 181-183). 

Habitat Destruction and Modification by 

Agriculture and Urban Development 

Although there has never been a 

comprehensive, site-by-site assessment 

of wetland loss in Hawaii (Erikson and 

Puttock 2006, p. 40), Dahl (1990, p. 7) 

estimated that at least 12 percent of 

lowland to upper-elevation wetlands in 

Hawaii had been converted to nonwetland habitat by the 1980s. If only 

coastal plain (below 1,000 ft (305 m)) 

wetlands are considered, it is estimated 

that 30 percent have been converted for 

agricultural and urban development 

(Kosaka 1990). These marshlands and 

wetlands provided habitat for several 

damselfly species, including the Pacific 

Hawaiian damselfly. 

Although extensive filling of 

freshwater wetlands is rarely permitted 

today, loss of riparian or wetland 

habitats utilized by the Pacific and 

flying earwig Hawaiian damselflies, 

such as smaller areas of moist slopes, 

emergent vegetations and narrow strips 

of freshwater seeps within anchialine 

pool complexes (landlocked bodies of 

water with a subterranean connection to 

the ocean), still occurs. In addition, 

marshes have been, and continue to be, 

slowly filled and converted to meadow 

habitat due to increased sedimentation 

resulting from increased storm water 

runoff from upslope development, the 

accumulation of uncontrolled growth of 

invasive vegetation, and blockage of 

downslope drainage (Wilson Okamoto & 

Associates, Inc. 1993, pp. 3-4 to 3-5). 

The effects of future conversion of 

wetland and other aquatic habitat for 

agriculture and urban development are 

immediate and significant for the 

following reason: as noted above, an 

estimated 30 percent of all coastal plain 

wetlands in Hawaii have already been 

lost to agriculture and urban 

development, while the loss of lowland 

freshwater habitat in Hawaii already 

approaches 80 to 90 percent (Kosaka 

1990). Lacking the aquatic habitat 

features that the damselflies require for 

essential life history needs, such as 

marshes, ponds, and sidepools along 

streams (Pacific Hawaiian damselfly) 

and riparian habitat (flying earwig 

Hawaiian damselfly), these modified 

areas no longer support populations of 

these two Hawaiian damselflies. 

Agriculture and urban development 

have thus contributed to the present 

curtailment of the habitat of these two 

Hawaiian damselflies, and we have no 

indication that this threat is likely to be 

significantly ameliorated in the near 

future. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32495 

Habitat Destruction and Modification by 

Stream Diversion 

Stream modifications began with the 

early Hawaiians who diverted water to 

irrigate taro. However, early diversions 

often took no more than half the stream 

flow, and typically were periodic, to 

occasionally flood taro ponds year 

round, rather than continuously flood 

them (Handy and Handy 1972, pp. 58- 

59). 

The advent of plantation sugarcane 

cultivation led to far more extensive 

stream diversions, with the first 

diversion built in 1856 on Kauai 

(Wilcox 1996, p. 54). These systems 

were designed to tap water at upper 

elevations (above 984 ft (300 m)) by 

means of a concrete weir in the stream 

(Wilcox 1996, p. 54). All or most of the 

low or average flow of the stream was, 

and often still is, diverted into fields or 

reservoirs, leaving many stream 

channels completely dry (Takasaki et al. 

1969, pp. 27-28; Harris et al. 1993, p. 12; 

Wilcox 1996, p. 56). 

By the 1930s, water diversions had 

been developed on all of the main 

Hawaiian Islands, and by 1978 the 

stream flow in over one-half of all of the 

366 perennial streams in Hawaii had 

been altered in some manner (Brasher 

2003, p. 1055). Some stream diversion 

systems are extensive, such as the 

Waiahole Ditch, which diverts water 

from 37 streams within the range of the 

Pacific Hawaiian damselfly on the 

windward side of Oahu to the dry plains 

on the leeward side of the island via a 

tunnel cut through the Koolau mountain 

range (Stearns and Vaksvik 1935, pp. 

399-403). On west Maui, as of 1978, 

over 49 mi (78 km) of stream habitat in 

12 streams had been lost due to 

diversions, and all of the 17 perennial 

streams on west Maui are dewatered to 

some extent (Maciolek 1979, p. 605). 

This loss of stream habitat may have 

contributed to the extirpation of the 

Pacific Hawaiian damselfly population 

on west Maui. Given the affiliation of 

the flying earwig Hawaiian damselfly 

with riparian habitats, this loss of 

stream habitat may also potentially 

account for its absence on west Maui. 

Most lower-elevation stream segments 

on west Maui are now completely dry, 

except during storm-influenced flows 

(Maciolek 1979, p. 605). The extensive 

diversion of streams on Maui islandwide has reduced the amount of stream 

habitat available to the Pacific Hawaiian 

damselfly, and potentially to the flying 

earwig Hawaiian damselfly as well. 

In addition to diverting water for 

agriculture and domestic water supply, 

streams in Hawaii have also been 

diverted for use in hydroelectric power. 

There are a total of 18 active 

hydroelectric plants operating on 

Hawaiian streams on the islands of 

Hawaii, Kauai, and Maui, only one of 

which is located on a stream where a 

historical population of the Pacific 

Hawaiian damselfly was known on 

Kauai (Waimea). Another 38 sites have 

been identified for potential 

hydroelectric development on the 

islands of Hawaii, Kauai, Maui, and 

Molokai (Hawaii Stream Assessment 

1990, pp. xxi, 96-97). Three of the 

proposed sites include current 

populations of the Pacific Hawaiian 

damselfly. Notably, the single current 

remaining population site for the flying 

earwig Hawaiian damselfly on Maui is 

identified as a potential hydroelectric 

site. Any additional diversion of streams 

for use in hydroelectric power could 

contribute to further loss of stream 

habitat for the Pacific Hawaiian 

damselfly and for the flying earwig 

Hawaiian damselfly. 

Habitat Modification and Destruction by 

Dewatering of Aquifers 

In addition to the diversion of stream 

water and the resultant downstream 

dewatering, many streams in Hawaii 

have experienced reduced or zero 

surface flow as a result of the 

dewatering of their source aquifers. 

Often these aquifers, which previously 

fed the streams, were tapped by 

tunneling or through the injudicious 

placement of wells (Stearns and Vaksvik 

1935, pp. 386-434; Stearns 1985, pp. 

291-305). These groundwater sources 

were captured for both domestic and 

agricultural use and in some areas have 

completely depleted nearby stream and 

spring flows. For example, the Waikolu 

Stream on Molokai has reduced flow 

due in part to groundwater withdrawal 

(Brasher 2003, p. 1,056), which may 

have reduced stream habitat available to 

the Pacific Hawaiian damselfly. 

Likewise, on Maui, streams in the west 

Maui Mountains that flow into the 

Lahaina District are fed by groundwater 

leaking from breached, high-elevation 

dikes. Downstream of the dike 

compartments, stream diversions are 

designed to capture all of the low stream 

flow, causing the streams downstream 

to be frequently dry (U.S. Geological 

Survey 2008a, p. 1), likely impacting 

available habitat for the Pacific 

Hawaiian damselfly, and potentially for 

the flying earwig Hawaiian damselfly, in 

the Honolua and Honokohau streams. 

The island of Lanai lies within the 

rain shadow of the west Maui 

Mountains, which reach 5,788 ft (1,764 

m) in elevation. Lower in elevation than 

Maui, annual rainfall on Lanai’s summit 

is 30 to 40 in (760 to 1,015 mm) but 

much less over the rest of the island 

(University of Hawaii Department of 

Geography 1998, p. 13). Flows of almost 

every spring and seep on Lanai have 

been diverted (Stearns 1940, pp. 73-74, 

85, 88, 95). Surface waters in streams 

have also been diverted by tunnels in 

stream beds. Historically, Maunalei 

Stream was the only perennial stream 

on Lanai, and Hawaiians constructed 

taro loi (ponds for cultivation of taro) in 

the lower portions of this stream system. 

In 1911, a tunnel was constructed at 

1,100 ft (330 m) elevation that undercuts 

the stream bed, diverting both the 

surface and subsurface flows and 

dewatering the stream from this point to 

its mouth (Stearns 1940, pp. 86-88). The 

Pacific Hawaiian damselfly, which 

depends on stream habitat, was 

historically known from Lanai but is no 

longer extant on this island, and was 

most likely impacted by the dewatering 

of this stream because it was the only 

permanent stream on Lanai prior to its 

dewatering. This example of the 

negative impact of dewatering leads us 

to conclude that dewatering poses a 

threat to the Pacific Hawaiian damselfly 

and the flying earwig Hawaiian 

damselfly on the remaining islands 

where the species persist. 

Habitat Modification and Destruction by 

Vertical Wells 

Surface flow of streams has also been 

affected by vertical wells drilled in premodern times, because the basal aquifer 

(lowest groundwater layer) and alluvial 

caprock (sediment-deposited harder 

rock layer) through which the lower 

sections of streams flow can be pierced 

and hydraulically connected by wells 

(Stearns 1940, p. 88). This allows water 

in aquifers normally feeding the stream 

to be diverted elsewhere underground. 

Dewatering of the streams by tunneling 

and earlier, less-informed well 

placement near or in streams was a 

significant cause of habitat loss, and 

these effects continue today. 

Historically, for example, there was 

sufficient surface flow in Makaha and 

Nanakuli streams on Oahu to support 

taro loi in their lower reaches, but this 

flow disappeared subsequent to 

construction of vertical wells upstream 

(Devick 1995). The inadvertent 

dewatering of streams through the 

piercing of their aquifers (which are 

normally separated from adjacent waterbearing layers by an impermeable layer), 

by tunneling or through placement of 

vertical wells, caused the loss of Pacific 

Hawaiian damselfly habitat, and 

contributed to the Pacific Hawaiian 

damselfly’s extirpation on the islands of 

Oahu, Kauai, and Lanai. Such activities 

also reduced the extent of stream habitat 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32496 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

for the Pacific Hawaiian damselfly on 

the islands of Maui, Molokai, and 

Hawaii. Most lower-elevation stream 

segments on west Maui and leeward 

east Maui are now completely dry, 

except during storm-influenced flows 

(Maciolek 1979, p. 605). The flow of 

nearly every seep and spring on Lanai 

has been captured or bored with wells 

(Stearns 1940, pp. 73-74, 85, 88, 95). 

The inadvertent drying of streams from 

poor well replacement and other 

activities has contributed to the decline 

of the Pacific Hawaiian damselfly by 

reducing its habitat on all of the islands 

from which it was historically known. It 

should be noted that the Pacific 

Hawaiian damselfly was once among 

the most commonly observed aquatic 

insects in the islands (Howarth 1991, p. 

40). The dewatering of streams on Maui 

and Hawaii may also have impacted 

habitat of the flying earwig Hawaiian 

damselfly. 

Although the State of Hawaii’s 

Commission on Water Resource 

Management is now more cognizant of 

the effects that ground water removal 

has on streams via injudicious 

placement of wells, the Commission 

still routinely reviews new permit 

applications for wells (Hardy 2009). All 

requests for new wells require a drilling 

permit and, in some cases, a use permit 

is additionally required, depending 

upon the intended allocation and 

anticipated amount of water to be 

pumped from the well. Water 

Management Areas have been 

designated over much of Oahu and in 

some areas on other neighboring 

islands. Within these areas, a use permit 

for a new well is also required, which 

automatically triggers a greater review of 

the potential impacts. Any request for a 

permit to drill a well within proximity 

of streams or dike rock located at the 

headwaters of streams automatically 

triggers additional review (Hardy 2009). 

Permits to drill wells near streams or 

within dike complexes are now unlikely 

to be granted because a new well would 

require the amendment of in-stream 

flow standards for the impacted stream. 

However, such amendments are 

sometimes approved. One example is 

the long-contested case involving the 

Waiahole Ditch on the island of Oahu 

(Hawaii Department of Agriculture 

2002). In that case, the Commission 

continues to support the removal of 

several million gallons of water daily 

from windward Oahu streams (Hawaii 

Department of Agriculture 2002). In 

conclusion, although a regulatory 

process is in place that can potentially 

address the effects of new requests for 

ground water removal on streams, this 

process includes provisions for 

amendments that would result in 

adverse effects to ground water that 

supports streamside habitat for the 

Pacific Hawaiian damselfly, and 

potentially for the flying earwig 

Hawaiian damselfly. 

Habitat Modification and Destruction by 

Channelization 

In addition to the destruction of most 

of the stream habitat of the Pacific 

Hawaiian damselfly and the flying 

earwig Hawaiian damselfly, most 

remaining stream habitat has been, and 

continues to be, seriously degraded 

throughout the Hawaiian Islands. 

Stream degradation has been 

particularly severe on the island of 

Oahu where, by 1978, 58 percent of all 

the perennial streams had been 

channelized (lined, partially lined or 

altered) to control flooding (Brasher 

2003, p. 1055; Polhemus and Asquith 

1996, p. 24), and 89 percent of the total 

length of these streams had been 

channelized (Parrish et al. 1984, p. 83). 

The channelization of streams creates 

artificial, wide-bottomed stream beds 

and often results in removal of riparian 

vegetation, increased substrate 

homogeneity, increased temporal water 

velocity (increased water flow speed 

during times of higher precipitation 

including minor and major flooding), 

increased illumination, and higher 

water temperatures (Parrish et al. 1984, 

p. 83; Brasher 2003, p. 1052). Natural 

streams meander and are lined with 

rocks, trees, and natural debris, and 

during times of flooding, jump their 

banks. Channelized streams are 

straightened and often lack natural 

obstructions, and during times of higher 

precipitation or flooding, facilitate a 

higher water flow velocity. Hawaiian 

damselflies are largely absent from 

channelized portions of streams 

(Polhemus and Asquith 1996, p. 24). In 

contrast, undisturbed Hawaiian stream 

systems exhibit a greater amount of 

riffle habitat, canopy closure, higher 

consistent flow velocity, and lower 

water temperatures that are 

characteristic of streams to which the 

Hawaiian damselflies, in general, are 

adapted (Brasher 2003, pp. 1054-1057). 

Channelization of streams has not 

been restricted to lower stream reaches. 

For example, there is extensive 

channelization of the Kalihi Stream, on 

the island of Oahu, above 1,000 ft (300 

m) elevation. Extensive stream 

channelization has contributed to the 

extirpation of the Pacific Hawaiian 

damselfly on Oahu (Englund 1999, p. 

236; Polhemus 2008). 

Stream diversion, channelization, and 

dewatering represent significant and 

immediate threats to the Pacific 

Hawaiian damselfly for the following 

reasons: (1) They reduce the amount 

and distribution of stream habitat 

available to this species; (2) they reduce 

stream flow, leaving lower elevation 

stream segments completely dry except 

during storms, or leaving many streams 

completely dry year round, thus 

reducing or eliminating stream habitat; 

and (3) they indirectly lead to an 

increase in water temperature that leads 

to the loss of Pacific Hawaiian damselfly 

naiads due to direct physiological stress. 

Because the probability of species 

extinction increases when ranges are 

restricted, habitat decreases, and 

population numbers decline, the Pacific 

Hawaiian damselfly is particularly 

vulnerable to extinction due to such 

changes in its stream habitats. In 

addition, stream diversion, dewatering, 

and vertical wells have the potential to 

negatively impact, and in some cases 

may have impacted, the flying earwig 

Hawaiian damselfly. 

Habitat Destruction and Modification by 

Feral Pigs 

One of the primary threats to the 

flying earwig Hawaiian damselfly is the 

ongoing destruction and degradation of 

its riparian habitat by nonnative 

animals, particularly feral pigs (Sus 

scrofa) (Polhemus and Asquith 1996, p. 

22; Erickson and Puttock 2006, p. 42). 

Pigs of Asian descent were first 

introduced to Hawaii by the Polynesian 

ancestors of Hawaiians around 400 A.D. 

(Kirch 1982, pp. 3-4). Western 

immigrants, beginning with Captain 

Cook in 1778, repeatedly introduced 

European strains (Tomich 1986, pp. 

120-121). The pigs escaped 

domestication and successfully invaded 

all areas, including wet and mesic 

forests and grasslands, on all of the 

main Hawaiian Islands. 

High pig densities and expansion of 

their distribution have caused 

indisputable widespread damage to 

native vegetation on the Hawaiian 

Islands (Cuddihy and Stone 1990, p. 

63). Feral pigs create open areas within 

forest habitat by digging up, eating, and 

trampling native plant species (Stone 

1985, p. 263). These open areas become 

fertile ground for nonnative plant seeds 

spread through the excrement of the 

pigs and by transport in their hair 

(Stone 1985, p. 263). In nitrogen-poor 

soils, feral pig excrement increases 

nutrient availability, enhancing 

establishment of nonnative weeds that 

are more adapted to richer soils than are 

native plants (Cuddihy and Stone 1990, 

p. 65). In this manner, largely nonnative 

forests replace native forest habitat 

(Cuddihy and Stone 1990, p. 65). In 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32497 

addition, feral pigs will root and dig for 

plant tubers and worms in wetlands, 

including marshes, on all of the main 

Hawaiian Islands (Erikson and Puttock 

2006, p. 42). 

In a study conducted in the 1980s on 

feral pig populations in the Kipahulu 

Valley on Maui, the deleterious effects 

of feral pig rooting on native forest 

ecosystems was documented (Diong 

1982, pp. 150, 160-167). Rooting by feral 

pigs was observed to be related to the 

search for earthworms, with rooting 

depths averaging 8 in (20 cm), and 

rooting was found to greatly disrupt the 

leaf litter and topsoil layers, and 

contribute to erosion and changes in 

ground topography. The feeding habits 

of pigs were observed to create seed 

beds, enabling the establishment and 

spread of invasive weedy species such 

as Clidemia hirta (Koster’s curse). The 

study concluded that all aspects of the 

feeding habits of pigs are damaging to 

the structure and function of the 

Hawaiian forest ecosystem (Diong 1982, 

pp. 160-167). 

It is likely that pigs similarly impact 

the native vegetation used for perching 

by adult flying earwig Hawaiian 

damselflies. On Maui, feral pigs inhabit 

the uluhe-dominated riparian habitat of 

the flying earwig Hawaiian damselfly. 

Through their rooting and digging 

activities, they have significantly 

degraded and destroyed the habitat of 

the adult flying earwig Hawaiian 

damselfly (Foote 2008). 

In addition to creating conditions that 

enable the spread of nonnative plant 

species, Mountainspring (1986, p. 98) 

surmised that rooting by pigs depresses 

insect populations that depend upon the 

ground layer at some life stage or that 

exhibit diel (day and night) movements. 

As a result, it is likely that the presumed 

habitat (seeps or damp leaf litter) of the 

naiads of the flying earwig Hawaiian 

damselfly is negatively impacted by 

feral pig activity, including the 

uprooting and denuding of native 

vegetation (Foote 2008; Polhemus 2008). 

Notwithstanding the above impacts, 

feral pigs are managed as a game animal 

for public hunting in the more 

accessible regions of the east Maui 

watershed (Jokiel 2008). In contrast to 

an eradication program, this action 

makes it likely that feral pigs will 

continue to exist on Maui, and thus 

likely that pigs will continue to destroy 

and degrade habitat of the flying earwig 

Hawaiian damselfly on the island of 

Maui. 

The effects from introduced feral pigs 

are immediate and ongoing because pigs 

currently occur in the uluhe-dominated 

riparian habitat of the flying earwig 

Hawaiian damselfly. The threat of 

habitat destruction or modification from 

feral pigs is significant for the following 

reasons: (1) Trampling and grazing 

directly impact the vegetation used by 

adult flying earwig Hawaiian 

damselflies for perching and by the 

terrestrial or semi-terrestrial naiads; (2) 

increased soil disturbance leads to 

mechanical damage to plants used by 

adults for perching and by the terrestrial 

or semi-terrestrial naiads; (3) creation of 

open, disturbed areas, conducive to 

weedy plant invasion and establishment 

of alien plants from dispersed fruits and 

seeds, results over time in the 

conversion of a community dominated 

by native vegetation to one dominated 

by nonnative vegetation (leading to all 

of the negative impacts associated with 

nonnative plants, detailed below); and 

(4) increased watershed erosion and 

sedimentation further degrade habitat 

for the flying earwig Hawaiian 

damselfly. These threats are expected to 

continue or increase without control or 

elimination of pig populations in these 

habitats. 

Habitat Destruction and Modification by 

Nonnative Plants 

The invasion of nonnative plants, 

including Clidemia hirta, further 

contributes to the degradation of 

Hawaii’s native forests, including the 

riparian habitat of the flying earwig 

Hawaiian damselfly on Maui (Foote 

2008). Clidemia hirta is the most serious 

nonnative plant invader within the 

uluhe-dominated riparian habitat where 

the flying earwig Hawaiian damselfly 

occurs on Maui and where it formerly 

occurred on the island of Hawaii (Foote 

2008). Clidemia hirta can outcompete 

the native uluhe fern, and so is capable 

of altering the natural environment 

where the flying earwig Hawaiian 

damselfly occurs. A noxious shrub first 

cultivated in Wahiawa on Oahu before 

1941, this plant is now found on all of 

the main Hawaiian Islands (Wagner et 

al. 1985, p. 41). Clidemia hirta forms a 

dense understory, shading out native 

plants and hindering their regeneration; 

it is considered a major nonnative plant 

threat in wet forest areas because it 

inhibits and eventually replaces native 

plants (Wagner et al. 1985, p. 41; Smith 

1989, p. 64). 

Presently, the most significant threat 

to natural ponds and marshes in Hawaii 

is the nonnative species Urochloa 

mutica (California grass). This 

sprawling perennial grass is likely from 

Africa (Erickson and Puttock 2006, p. 

270). It was first noted on Oahu in 1924 

and now occurs on all of the main 

Hawaiian Islands (O’Connor 1999, p. 

1,504), where it is considered an 

aggressive invasive weed of marshes 

and wetlands (Erickson and Puttock 

2006, p. 270). Found from sea level to 

3,610 ft (1,100 m) in elevation (Erickson 

and Puttock 2006, p. 270), this plant 

forms dense, monotypic stands that can 

completely eliminate any open water by 

layering its trailing stems (Smith 1985, 

p. 186). Marshlands eventually convert 

to meadowland when invaded by 

Urochloa mutica (Polhemus and 

Asquith 1996, p. 23). At Kawainui 

Marsh, the most extensive marsh system 

remaining on Oahu, control of Urochloa 

mutica to prevent conversion of the 

marsh to meadowland is an ongoing 

management activity (Wilson, Okamoto 

and Associates, Inc. 1993, pp. 3-4; 

Hawaiian Ecosystems at Risk (HEAR) 

2008, p. 1). The preferred habitat of the 

Pacific Hawaiian damselfly (primarily 

lowland, stagnant water, large ponds, 

and small pools) on all of the Hawaiian 

Islands has likely declined and 

continues to decline due to the spread 

of Urochloa mutica, which is causing 

the conversion of marshlands to 

meadowlands (Polhemus and Asquith 

1996, p. 23). 

Nonnative plants represent a 

significant and immediate and ongoing 

threat to the flying earwig Hawaiian 

damselfly through habitat destruction 

and modification for the following 

reasons: (1) They adversely impact 

microhabitat by modifying the 

availability of light; (2) they alter soilwater regimes; (3) they modify nutrient 

cycling processes; and (4) they 

outcompete, and possibly directly 

inhibit the growth of, native plant 

species; ultimately, native dominated 

plant communities are converted to 

nonnative plant communities (Cuddihy 

and Stone 1990, p. 74; Vitousek 1992, 

pp. 33-35). This conversion negatively 

impacts and threatens the flying earwig 

Hawaiian damselfly, which depends 

upon native plant species, particularly 

uluhe, for essential life history needs. 

Conversion habitat from marshlands to 

meadowlands by the nonnative 

Urochloa mutica also threatens the 

Pacific Hawaiian damselfly. These 

threats are expected to continue or 

increase without control or elimination 

of invasive nonnative plants in these 

habitats. 

Habitat Destruction and Modification by 

Hurricanes, Landslides, and Drought 

Stochastic (random, naturally 

occurring) events, such as hurricanes, 

landslides, and drought, alter or degrade 

the habitat of Hawaiian damselflies 

directly by modifying and destroying 

native riparian, wetland, and stream 

habitats (e.g., rocks and debris falling in 

a stream; mechanical damage to riparian 

and wetland vegetation), and indirectly 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32498 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

by creating disturbed areas conducive to 

invasion by nonnative plants that 

outcompete the native plants used by 

damselflies for perching. We presume 

these events also alter microclimatic 

conditions (e.g., opening the tree canopy 

that leads to an increase in stream water 

temperature; increasing stream 

sedimentation) so that the habitat no 

longer supports damselfly populations. 

Both the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly may also be affected by 

temporary habitat loss (e.g., desiccation 

of streams, die-off of uluhe) associated 

with droughts, which are not 

uncommon on the Hawaiian Islands. 

With populations that have already been 

severely reduced in both abundance and 

geographic distribution, even such a 

temporary loss of habitat can have a 

negative impact on the species. 

Natural disasters such as hurricanes 

and drought, and local, random 

environmental events (such as 

landslides), represent a significant 

threat to native riparian, wetland, and 

stream habitat and the two damselfly 

species addressed in this proposed rule. 

These types of events are known to 

cause significant habitat damage (e.g., 

Polhemus 1993, p. 86). Because the two 

species addressed in this proposed rule 

now persist in low numbers or occur in 

restricted ranges, they are more 

vulnerable to these events and less 

resilient to such habitat disturbances. 

Hurricanes, drought, and landslides are 

known and expected to occur at 

irregular intervals. Therefore, they pose 

an immediate and ongoing threat to the 

two damselfly species and their habitat. 

Habitat Destruction and Modification by 

Climate Change 

The information currently available 

on the effects of global climate change 

does not make sufficiently precise 

estimates of the location and magnitude 

of the effects. Consequently, the exact 

nature of the impacts of climate change 

and increasing temperatures on native 

Hawaiian ecosystems, including the 

aquatic and riparian habitats of the 

flying earwig Hawaiian damselfly and 

the Pacific Hawaiian damselfly, are 

unknown. However, they are likely to 

include the loss of aquatic habitat 

through reduced stream flow and 

evaporation of standing water, increased 

streamwater temperature, and the loss of 

native riparian and wetland plants that 

comprise the habitat in which these two 

species occur (Pounds et al. 1999, pp. 

611-612; Still et al. 1999, p. 610; 

Benning et al. 2002, pp. 14,246 and 

14,248). 

Oki (2004, p. 4) has noted long-term 

evidence of decreased precipitation and 

stream flow in the Hawaiian Islands, 

based upon evidence collected by 

stream gauging stations. This long-term 

drying trend, coupled with existing 

ditch diversions and periodic El Nin ̃ocaused drying events, has created a 

pattern of severe and persistent stream 

dewatering events (Polhemus 2008). 

Future changes in precipitation and the 

forecast of those changes are highly 

uncertain because they depend, in part, 

on how the El Nin ̃ o-La Nin ̃ a weather 

cycle (a disruption of the ocean 

atmospheric system in the tropical 

Pacific having important global 

consequences for weather and climate) 

might change (Hawaii Climate Change 

Action Plan 1998, pp. 2-10). 

The flying earwig Hawaiian damselfly 

and the Pacific Hawaiian damselfly may 

be especially vulnerable to extinction 

due to anticipated environmental 

change that may result from global 

climate change. Environmental changes 

that may affect these species are 

expected to include habitat loss or 

alteration and changes in disturbance 

regimes (e.g., storms and hurricanes), in 

addition to direct physiological stress 

caused by increased stream water 

temperatures to which the native 

Hawaiian damselfly fauna are not 

adapted. The probability of a species 

going extinct as a result of these factors 

increases when its range is restricted, 

habitat decreases, and population 

numbers decline (Intergovernmental 

Panel on Climate Change 2007, p. 8). 

Both of these damselfly species have 

limited environmental tolerances 

ranges, restricted habitat requirements, 

small population size, and a low 

number of individuals. Therefore, we 

would expect these species to be 

particularly vulnerable to projected 

environmental impacts that may result 

from changes in climate, and 

subsequent impacts to their aquatic and 

riparian habitats (e.g., Pounds et al. 

1999, pp. 611-612; Still et al. 1999, p. 

610; Benning et al. 2002, pp. 14,246 and 

14,248). We believe changes in 

environmental conditions that may 

result from climate change will likely 

impact these two species and, according 

to current climate projections, we do not 

anticipate a reduction in this threat any 

time in the near future. 

Summary of Factor A 

The effects of past and present 

destruction, modification, and 

degradation of native riparian, wetland, 

and stream habitats threaten the 

continued existence of the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly, which depend on 

these habitats, throughout their 

respective ranges. These effects have 

been or continue to be caused by: 

agriculture and urban development; 

stream diversion, channelization, and 

dewatering; introduced feral pigs; 

introduced plants; and hurricanes, 

landslides, and drought. The ongoing 

and likely increasing effects of global 

climate change are also likely to 

adversely impact, directly or indirectly, 

the habitat of these two species. 

Agriculture and urban development, 

to date, have caused the loss of 30 

percent of Hawaii’s coastal plain 

wetlands and 80 to 90 percent of 

lowland freshwater habitat in Hawaii. 

Extensive stream diversions and the 

ongoing dewatering of remaining 

wetland habitats continue to degrade 

the quality of Pacific Hawaiian 

damselfly habitat and its capability to 

support viable populations of this 

species and may also negatively affect 

the habitat of the flying earwig 

Hawaiian damselfly. Ongoing habitat 

destruction and degradation caused by 

feral pigs in remaining tracts of uluhedominated riparian habitat promote the 

establishment and spread of nonnative 

plants which, in turn, lower or destroy 

the capability of the habitat to support 

viable populations of the flying earwig 

Hawaiian damselfly. 

The above threats have caused the 

extirpation of many flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly populations; as a 

result, their current ranges are very 

restricted. The combination of restricted 

range, limited habitat quantity and 

quality, and low population size makes 

each of these species especially 

vulnerable to extinction. Thus we 

consider the present or threatened 

destruction, modification, or 

curtailment of the habitat and range of 

the flying earwig Hawaiian damselfly 

and the Pacific Hawaiian damselfly to 

pose an immediate and significant 

threat to these species. 

Factor B. Overutilization for 

Commercial, Recreational, Scientific, or 

Educational Purposes 

Individuals from what may be the 

single remaining population of the 

flying earwig Hawaiian damselfly were 

collected by amateur collectors as 

recently as the mid-1990s (Polhemus 

2008). Although it is not known how 

many individuals were collected at that 

time, Polhemus (2008) believes this 

incident resulted in a noticeable 

decrease in the population size. 

Furthermore, if there is only one 

population of the species left, the 

decreased reproduction that would 

result from the removal of potentially 

breeding adults would have a 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32499 

potentially significant negative impact 

on the species. 

There is a market for damselflies that 

may serve as an incentive to collect 

them. There are internet websites that 

offer damselfly specimens or parts (e.g., 

wings) for sale. In addition, the internet 

abounds with ‘‘how to’’ guides for 

collecting and preserving damselfly 

specimens (e.g., Abbott 2000, pp. 1-3). 

After butterflies and large beetles, 

dragonflies and damselflies are probably 

the most frequently collected insects in 

the world (Polhemus 2009). A rare 

specimen such as the flying earwig 

Hawaiian damselfly may be particularly 

attractive to potential collectors 

(Polhemus 2008). Based on the history 

of collection of the flying earwig 

Hawaiian damselfly, the market for 

damselfly specimens or parts, and the 

vulnerability of this small population to 

the negative impacts of any collection, 

we consider the potential 

overutilization of the flying earwig 

Hawaiian damselfly to pose an 

immediate and significant threat to this 

species. 

Unlike the flying earwig Hawaiian 

damselfly, which is restricted to one 

remaining population site and which is 

known to have previously been of 

interest to odonata enthusiasts 

(Polhemus 2008), we do not believe 

over-collection is currently a threat to 

the Pacific Hawaiian damselfly because 

it is comparatively more widespread 

across several population sites on three 

islands. 

Factor C. Disease or Predation 

The geographic isolation of the 

Hawaiian Islands restricted the number 

of original successful colonizing 

arthropods and resulted in the 

development of Hawaii’s unusual fauna. 

Only 15 percent of the known families 

of insects are represented by native 

Hawaiian species (Howarth 1990, p. 11). 

Some groups of insects that often 

dominate continental arthropod fauna, 

including social Hymenoptera (e.g., ants 

and wasps) were absent during the 

evolution of Hawaii’s unique arthropod 

fauna. Commercial shipping and air 

cargo, as well as biological 

introductions to Hawaii, have resulted 

in the establishment of over 3,372 

species of nonnative insects (Howarth 

1990, p. 18; Staples and Cowie 2001, p. 

52), with an estimated continuing 

establishment rate of 20 to 30 new 

species per year (Beardsley 1962, p. 101; 

Beardsley 1979, p. 36; Staples and 

Cowie 2001, p. 52). 

Nonnative arthropod predators and 

parasites have also been intentionally 

imported and released by individuals 

and governmental agencies for 

biological control of insect pests. 

Between 1890 and 1985, 243 nonnative 

species were introduced, sometimes 

with the specific intent of reducing 

populations of native Hawaiian insects 

(Funasaki et al. 1988, p. 105; Lai 1988, 

pp. 186-187). Nonnative arthropods, 

whether purposefully or accidentally 

introduced, pose a serious threat to 

Hawaii’s native insects, including the 

flying earwig Hawaiian damselfly and 

the Pacific Hawaiian damselfly, through 

direct predation (Howarth and Medeiros 

1989, pp. 82-83; Howarth and Ramsay 

1991, pp. 81-84; Staples and Cowie 

2001, pp. 54-57). 

In addition to the problems posed by 

nonnative arthropods, the establishment 

of various nonnative fish, frogs, and 

toads that act as predators on native 

Hawaiian damselflies has also had a 

serious negative impact on the Pacific 

Hawaiian damselfly and flying earwig 

Hawaiian damselfly, as discussed 

below. 

Predation by Nonnative Ants 

Ants are not a natural component of 

Hawaii’s arthropod fauna, and the 

native species of the islands evolved in 

the absence of predation pressure from 

ants. Ants can be particularly 

destructive predators because of their 

high densities, recruitment behavior, 

aggressiveness, and broad range of diet 

(Reimer 1993, pp. 17-18). The threat of 

ant predation on the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly is amplified by the 

fact that most ant species have winged 

reproductive adults (Borror et al. 1989, 

p. 738) and can quickly establish new 

colonies in suitable habitats (Staples 

and Cowie 2001, p. 55). These attributes 

allow some ants to destroy otherwise 

geographically isolated populations of 

native arthropods (Nafus 1993, pp. 19, 

22-23). 

At least 47 species of ants are known 

to be established in the Hawaiian 

Islands (Hawaii Ants 2008, pp. 1-11), 

and at least 4 particularly aggressive 

species have severely impacted the 

native insect fauna, likely including 

native damselflies (Zimmerman 1948b, 

p. 173; Reimer et al. 1990, pp. 40-43; 

HEAR database 2005, pp. 1-2): the big 

headed ant (Pheidole megacephala), the 

long-legged ant (also known as the 

yellow crazy ant) (Anoplolepis 

gracilipes), Solenopsis papuana (no 

common name), and Solenopsis 

geminata (no common name). 

Numerous other species of ants are 

recognized as threats to Hawaii’s native 

invertebrates, and an unknown number 

of new species of ants are established 

every few years (Staples and Cowie 

2001, pp. 53). Due to their preference for 

drier habitat sites, ants are less likely to 

occur in high densities in the riparian 

and aquatic habitat currently occupied 

by the flying earwig Hawaiian damselfly 

and the Pacific Hawaiian damselfly. 

However, some species of ants (e.g., the 

long-legged ant and Solenopsis 

papuana) have increased their range 

into these areas. 

The presence of ants in nearly all of 

the lower elevation habitat sites 

historically occupied by the flying 

earwig Hawaiian damselfly and the 

Pacific Hawaiian damselfly may 

preclude the future recolonization of 

these areas by these two species. 

Damselfly naiads may be particularly 

susceptible to ant predation when they 

crawl out of the water or seek a 

terrestrial location for their 

metamorphosis into the adult stage. 

Likewise, newly emerged adult 

damselflies are susceptible to predation 

until their wings have sufficiently 

hardened to permit flight, or when the 

adults are simply resting on vegetation 

at night (Polhemus 2008). In 1998, 

during a survey of an Oahu stream, 

researchers observed predation by ants 

upon another damselfly species, the 

orangeblack Hawaiian damselfly 

(Megalagrion xanthomelas) (Englund 

2008). 

The long-legged ant appeared in 

Hawaii in 1952, and now occurs on 

Kauai, Oahu, Maui, and Hawaii (Reimer 

et al. 1990, p. 42). It inhabits low to 

midelevation (less than 2,000 ft (600 m)) 

rocky areas of moderate rainfall (less 

than 100 in (250 cm) annually) (Reimer 

et al. 1990, p. 42). Direct observations 

indicate that Hawaiian arthropods are 

susceptible to predation by this species. 

Gillespie and Reimer (1993, p. 21) and 

Hardy (1979, p. 34) documented the 

impacts to native insects within the 

Kipahulu area on Maui after this area 

was invaded by the long-legged ant. 

Although only cursory observations 

exist, long-legged ants are thought to be 

a threat to populations of the Pacific 

Hawaiian damselfly in mesic areas 

within its elevation range (Foote 2008). 

Solenopsis papuana is the only 

abundant, aggressive ant that has 

invaded intact mesic to wet forest from 

sea level to over 2,000 ft (600 m) on all 

of the main Hawaiian Islands, and is 

still expanding its range (Reimer 1993, 

p. 14). It is likely, based on our 

knowledge of the expanding range of 

this invasive ant, that it threatens 

populations of the Pacific Hawaiian 

damselfly in mesic areas up to 2,000 ft 

(600 m) elevation as well (Foote 2008). 

The rarity or disappearance of native 

damselfly species, including the two 

species in this proposal, from historical 

observation sites over the past 100 years 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32500 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

is likely due to a variety of factors. 

While there is no documentation that 

conclusively ties the decrease in 

damselfly observations to the 

establishment of nonnative ants in low 

to montane, and mesic to wet, habitats 

on the Hawaiian Islands, the presence of 

nonnative ants in these habitats and the 

decline of damselfly observations in 

these habitats suggest that nonnative 

ants may have played a role in the 

decline of some populations of the two 

damselflies that are the subject of this 

proposal. 

In summary, observations and reports 

have documented that ants are 

particularly destructive predators 

because of their high densities, broad 

range of diet, and ability to establish 

new colonies in otherwise 

geographically isolated locations 

because the reproductive adults are able 

to fly. Damselfly naiads are particularly 

vulnerable to ant predation when they 

crawl out of water or seek a terrestrial 

location for metamorphosis into adults, 

and newly emerged adults are 

susceptible to predation until they can 

fly. In particular, the long-legged ant 

and Solenopsis papuana are two 

aggressive species reported from sea 

level to 2,000 ft (610 m) in elevation on 

all of the main Hawaiian Islands. Since 

their range overlaps that of both 

damselfly species, we consider these 

introduced ants to pose an immediate 

and significant threat to both damselfly 

species. Unless these aggressive 

nonnative ant predators are eliminated 

or controlled, we expect this threat to 

continue or increase. 

Predation by Nonnative Backswimmers 

Backswimmers, so-called because 

they swim upside down, are aquatic 

‘‘true bugs’’ (Heteroptera). 

Backswimmers are voracious predators 

and frequently feed on prey much larger 

than themselves, such as tadpoles, small 

fish, and other aquatic insects including 

damselfly naiads (Heads 1985, p. 559; 

Heads 1986, p. 369). Backswimmers are 

not native to Hawaii, but several species 

have been introduced. Notonecta indica 

(no common name) was first collected 

on Oahu in the mid-1980s and is 

presently known from Oahu, Maui, and 

Hawaii. Species of Notonecta are known 

to prey on damselfly naiads and the 

mere presence of this predator in the 

water can cause naiads to reduce 

foraging (which can reduce naiad 

growth, development, and survival) 

(Heads 1985, p. 559; Heads 1986, p. 

369). While there is no documentation 

that conclusively ties the decrease in 

damselfly observations to the 

establishment of nonnative 

backswimmers in Hawaiian streams and 

other aquatic habitat, the presence of 

backswimmers in these habitats and the 

concurrent decline of damselfly 

observation in some areas suggest that 

these nonnative aquatic insects may 

have played a role in the decline of 

some damselfly populations, including 

those of the Pacific Hawaiian damselfly. 

We consider predation by nonnative 

backswimmers to pose a significant and 

immediate threat to the Pacific 

Hawaiian damselfly since this species 

has an aquatic naiad life stage. In 

addition, the presence of these predators 

in damselfly aquatic habitat causes 

naiads to reduce foraging, which in turn 

reduces their growth, development, and 

survival. Backswimmers are reported on 

all of the main Hawaiian Islands except 

Kahoolawe. In the absence of the 

elimination or control of nonnative 

backswimmers, we expect this threat to 

continue or increase over time. 

Predation by Nonnative Fish 

Predation by nonnative fish is a 

significant threat to Hawaiian damselfly 

species with aquatic life stages, such as 

the Pacific Hawaiian damselfly. The 

aquatic naiads tend to rest and feed near 

or on the surface of the water, or on 

rocks where they are exposed and 

vulnerable to predation by nonnative 

fish. Hawaii has only five native 

freshwater fish species, comprised of 

gobies (Gobiidae) and sleepers 

(Eleotridae), that occur on all of the 

major islands. Because these native fish 

are benthic (bottom) feeders (Kido et al. 

1993, pp. 43-44; Ego 1956, p. 24; 

Englund 1999, pp. 236-237), Hawaii’s 

stream-dwelling damselfly species 

probably experienced limited natural 

predation pressure due to their 

avoidance of benthic areas in preference 

for shallow side channels, sidepools, 

and higher velocity riffles and seeps 

(Englund 1999, pp. 236-237). While fish 

predation has been an important factor 

in the evolution of behavior in 

damselfly naiads in continental systems 

(Johnson 1991, pp. 8), it is speculated 

that Hawaii’s stream-dwelling 

damselflies adapted behaviors to avoid 

the benthic feeding habits of native fish 

species. Additionally, some species of 

damselflies, including some of the 

native Hawaiian species, are not 

adapted to cohabitate with some fish 

species, and are found only in bodies of 

water without fish (Henrickson 1988, p. 

179; McPeek 1990a, p. 83). The naiads 

of the aquatic Pacific Hawaiian 

damselfly tend to occupy more exposed 

positions and engage in conspicuous 

foraging behavior, thereby increasing 

their susceptibility to fish predation 

(Englund 1999, p. 232), unlike 

damselflies which co-evolved with 

predaceous fish (Macan 1977, p. 48; 

McPeek 1990b, p. 1,714). In laboratory 

studies, Englund (1999, p. 232) found 

that naiads of the orangeblack Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly invariably were eaten due to 

their behavior of swimming to the water 

surface when exposed to two nonnative 

freshwater fish. In the same study, 

naiads of nonnative damselfly species 

avoided predation by the same fish 

species by remaining still and avoiding 

surface waters (Englund 1999, p. 232). 

Over 70 species of nonnative fish 

have been introduced into Hawaiian 

freshwater habitats (Devick 1991, p. 190; 

Englund 1999, p. 226; Staples and 

Cowie 2001, p. 32; Brasher 2003, p. 

1,054; Englund 2004, p.27; Englund et 

al. 2007, p. 232); at least 51 species are 

now established in the freshwater 

habitats of Hawaii (Freshwater Fishes of 

Hawaii 2008). The initial introduction 

of nonnative fish to Hawaii began with 

the release of food stock species by 

Asian immigrants at the turn of the 20th 

century; however, the impact of these 

first introductions to Hawaiian 

damselflies cannot be assessed because 

they predated the initial collection of 

damselflies in Hawaii (Perkins 1899, pp. 

64-76). 

In 1905, three species of fish within 

the Poeciliidae family, including the 

mosquito fish (Gambusia affinis) and 

the sailfin molly (Poecilia latipinna), 

were introduced for biological control of 

mosquitoes (Van Dine 1907, p. 9; 

Englund 1999, p. 225; Brasher 2003, p. 

1054). In 1922, several additional 

species were introduced for mosquito 

control, including the green swordtail 

(Xiphophorus helleri), the moonfish 

(Xiphophorus maculatus), and the 

guppy (Poecilia reticulata). By 1935, 

some Oahu damselfly species, including 

the orangeblack Hawaiian damselfly, 

were becoming less common, and fish 

introduced for mosquito control were 

the suspected cause of their decline 

(Williams 1936, p. 313; Zimmerman 

1948b, p. 341). Current literature clearly 

indicates that the extirpation of the 

Pacific Hawaiian damselfly from the 

majority of its historical habitat sites on 

the main Hawaiian Islands is the result 

of predation by nonnative fish (Moore 

and Gagne 1982, p. 4; Liebherr and 

Polhemus 1997, p. 502; Englund 1999, 

pp. 235-237; Brasher 2003, p. 1,055; 

Englund et al. 2007, p. 215; Polhemus 

2007, pp. 238-239). From 1946 through 

1961, several additional nonnative fish 

were introduced for the purpose of 

controlling nonnative aquatic plants, 

and for angling (Brasher 2003, p. 1,054). 

In the early 1980s, several additional 

species of nonnative fish began 

appearing in stream systems, likely 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32501 

originating from the aquarium fish trade 

(Devick 1991, p. 189; Brasher 2003, p. 

1,054). By 1990, there were an 

additional 14 species of nonnative fish 

established in waters on Hawaii, Maui, 

and Molokai. By 2008, there were at 

least 17 nonnative freshwater fish 

established on one or more of these 

islands, including several aggressive 

predators and habitat-altering species 

such as the channel catfish (Ictalurus 

punctatus) and cichlids (Tilapia sp.) 

(Devick 1991, pp. 191-192; FishBase 

2008). 

Currently, the Pacific Hawaiian 

damselfly is found only in portions of 

stream systems without nonnative fish 

(Liebherr and Polhemus 1997, pp. 493- 

494; Englund 1999, p. 228; Englund 

2004, p. 27; Englund et al. 2007, p. 215). 

There is a strong correlation between 

the absence of nonnative fish species 

and the presence of Hawaiian 

damselflies in streams on all of the main 

Hawaiian Islands (Englund 1999, p. 225; 

Englund et al. 2007, p. 215), suggesting 

that the damselflies cannot coexist with 

nonnative fish. The distribution of some 

Hawaiian damselfly species are now 

reduced to stream reaches less than 312 

ft (95 m) in length and that lack invasive 

fish species (Englund 1999, p. 229; 

Englund 2004, p. 27). In 2007, a 

statewide survey that included 15 

streams on the islands of Hawaii, Maui, 

and Molokai found that the flying 

earwig Hawaiian damselfly was not 

found in streams where the introduced 

Mexican molly (Poecilia mexicana) was 

present (Englund et al. 2007, pp. 214- 

216, 228). On Oahu, researchers found 

that the Oahu-endemic Hawaiian 

damselflies only occupied habitat sites 

without nonnative fish. For two of these 

species, a geologic or manmade barrier 

(e.g., waterfalls, steep gradient, dry 

stream midreaches, or constructed 

diversions) appears to prevent access by 

the nonnative fish species. For this 

reason, researchers have recommended 

that geologically isolated sites, such as 

isolated anchialine ponds and highgradient streams interrupted by 

manmade diversions and those entering 

the coast as waterfalls, be used as 

restoration sites for damselflies on all of 

the Hawaiian Islands (Englund 2004, p. 

27). 

Of the two damselfly species 

considered in this proposal, the aquatic 

Pacific Hawaiian damselfly appears to 

have had the greatest range contraction 

due to predation by nonnative fish 

(Englund 1999, p. 235; Polhemus 2007, 

p. 234, 238-240). Once found on all of 

the main Hawaiian Islands, it is now 

found only on Molokai, Maui, and one 

stream on the island of Hawaii below 

2,000 ft (600 m) in elevation; all are in 

stream habitat sites free of nonnative 

fish. The Pacific Hawaiian damselfly 

was extirpated from Oahu by 1910 

(Liebherr and Polhemus 1997, p. 502), 

although Englund (1999, p. 235) found 

that Oahu still has abundant and 

otherwise suitable lowland and coastal 

water habitat to support this species. 

However, this aquatic habitat is infested 

with nonnative fish, with some 

nonnative species occurring up to 1,300 

ft (400 m) elevation. Englund (1999, p. 

236) found that even at sea level, 

artificial wetlands (resulting from taro 

cultivation) on the island of Molokai 

can support populations of the Pacific 

Hawaiian damselfly because nonnative 

fish are absent. 

Even the geographically isolated 

stream headwaters and other aquatic 

habitats where the Pacific Hawaiian 

damselfly remains extant are not secure 

from the threat of predation by 

introduced fish species. There are many 

documented cases of people moving 

nonnative fish from one area to another 

(Brock 1995, pp. 3-4; Englund 1999, p. 

237). Once nonnative fish species are 

introduced to aquatic habitats 

previously free of nonnative fish, they 

often become permanently established 

(Englund and Filbert 1999, p. 151; 

Englund 1999, pp. 232-233; Englund et 

al. 2007). An example of facilitated fish 

movement occurred in 2000, when an 

uninformed maintenance worker 

introduced Tilapia sp. into pools 

located on the grounds of Tripler 

Hospital that were maintained for the 

benefit of the remaining Oahu 

population of the orangeblack Hawaiian 

damselfly (Englund 2000). 

The continued introduction and 

establishment of new species of 

predatory nonnative fish in Hawaiian 

waters, and the possible movement of 

these nonnative species to new streams 

and other aquatic habitat, is an 

immediate and significant threat to the 

survival of the aquatic Pacific Hawaiian 

damselfly. Unless nonnative predatory 

fish are eradicated or effectively 

controlled in the habitats utilized by the 

Pacific Hawaiian damselfly, we have no 

reason to believe that there will be any 

significant reduction in this threat at 

any time in the near future. The flying 

earwig Hawaiian damselfly is not 

known to be threatened by predation 

from nonnative fish species, due to its 

presumed more terrestrial habitats. 

Predation by Introduced Frogs and 

Toads 

Currently, there are three species of 

introduced aquatic amphibians known 

on the Hawaiian Islands: the North 

American bullfrog (Rana catesbeiana), 

the cane toad (Bufo marinus), and the 

Japanese wrinkled frog (Rana rugosa). 

The bullfrog is native to the eastern 

United States and the Great Plains 

region (Moyle 1973, p. 18; Bury and 

Whelan 1985 in Earlham College 2002, 

p. 10), and was first introduced into 

Hawaii in 1899 (Bryan 1931, p. 63) to 

help control insects, specifically the 

nonnative Japanese beetle (Popillia 

japonica), a significant pest of 

ornamental plants (Bryan 1931, p. 62). 

Bullfrogs were first released and quickly 

became established in the Hilo region 

on the island of Hawaii (Bryan 1931, p. 

63). Bullfrogs have demonstrated great 

success in establishing new populations 

wherever they have been introduced 

(Moyle 1973, p. 19), and now occur on 

the islands of Hawaii, Kauai, Lanai, 

Maui, Molokai, and Oahu (U.S. 

Geological Survey 2008b, p. 8). This 

species is flexible in both habitat and 

food requirements (Bury and Whelan 

1985 in Earlham College 2002, p. 11), 

and can utilize any water source within 

its temperature range (60 to 75 

oFarenheit (oF) (16 to 24 oCelsius (oC)) 

(DesertUSA 2008). Introduced to areas 

outside its native range, the bullfrog’s 

primary impact is typically the 

elimination of native frog species 

(Moyle 1973, p. 21). In Hawaii, where 

there are no native frogs, the bullfrog 

has not been definitively implicated in 

the extirpation of any particular native 

aquatic species, but Englund et al. 

(2007, pp. 215, 219) found a strong 

correlation between the presence of 

bullfrogs and the absence of Hawaiian 

damselflies in their 2006 study of 

streams on all of the main Hawaiian 

Islands. As the bullfrog prefers habitats 

with dense vegetation and relatively 

calm water (Moyle 1973, p. 19; Bury and 

Whelan 1985 in Earlham College 2002, 

p. 9), it is likely of particular threat to 

the Pacific Hawaiian damselfly because 

this species also prefers calm water 

habitat that is surrounded by dense 

vegetation. Capable of breeding within 

small pools of water, bullfrogs are also 

a potential threat to the flying earwig 

Hawaiian damselfly within its uluhecovered, steep, riparian, moist talus 

slope habitat on Maui. 

Because the effects of possible 

predation by the cane toad and the 

Japanese wrinkled frog on the flying 

earwig Hawaiian damselfly and the 

Pacific Hawaiian damselfly are 

unknown at this time, the magnitude or 

significance of this potential threat 

cannot be determined. 

We consider predation by bullfrogs to 

pose a significant and immediate threat 

to the Pacific Hawaiian damselfly, since 

Englund et al. (2007, pp. 215, 219) 

found a strong correlation between the 

presence of predatory nonnative 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32502 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

bullfrogs and the absence of Hawaiian 

damselflies, and the preferred habitat of 

the bullfrog overlaps with that of the 

Pacific Hawaiian damselfly. Within its 

riparian habitat, the flying earwig 

Hawaiian damselfly may also be 

threatened by the bullfrog, which is 

capable of breeding within small pools 

of water. In the absence of the 

elimination or control of nonnative 

bullfrogs, we expect that this threat will 

continue or increase in the future. 

Summary of Factor C 

Predation by nonnative animal 

species (ants, backswimmers, fish, and 

bullfrogs) poses an immediate and 

significant threat to the Pacific and 

flying earwig Hawaiian damselflies 

throughout their ranges, for the 

following reasons: 

• Damselfly naiads are vulnerable to 

predation by ants, and the ranges of 

both the Pacific and flying earwig 

Hawaiian damselflies overlap that of 

particularly aggressive, nonnative, 

predatory ant species that currently 

occur from sea level to 2,000 ft (610 m) 

in elevation on all of the main Hawaiian 

Islands. We consider both of the 

Hawaiian damselflies that are the 

subject of this proposed rule to be 

threatened by predation by these 

nonnative ants. 

• Nonnative backswimmers prey on 

damselfly naiads in streams and other 

aquatic habitat, and are considered a 

threat to the Pacific Hawaiian damselfly 

since this species has an aquatic naiad 

life stage. In addition, the presence of 

backswimmers inhibits the foraging 

behavior of damselfly naiads, with 

negative consequences for development 

and survival. Backswimmers are 

reported on all of the main Hawaiian 

Islands except Kahoolawe. 

•The absence of Hawaiian 

damselflies, including the aquatic 

Pacific Hawaiian damselfly, in streams 

and other aquatic habitat on the main 

Hawaiian Islands is strongly correlated 

with the presence of predatory 

nonnative fish as documented in 

numerous observations and reports 

(Englund 1999, p. 237; Englund 2004, p. 

27; Englund et al. 2007, p. 215), thereby 

suggesting that nonnative predatory 

fishes eliminate native Hawaiian 

damselflies from these aquatic habitats. 

There are over 51 species of nonnative 

fishes established in freshwater habitats 

on the Hawaiian Islands from sea level 

to over 3,800 ft (1,152 m) in elevation 

(Devick 1991, p. 190; Staples and Cowie 

2001, p. 32; Brasher 2003, p. 1054; 

Englund 1999, p. 226; Englund and 

Polhemus 2001; Englund 2004, p. 27; 

Englund et al. 2007, p. 232). Predation 

by nonnative fishes is considered to 

pose a significant and immediate threat 

to the Pacific Hawaiian damselfly due to 

its aquatic habit. 

• Englund et al. (2007, pp. 215, 219) 

found a strong correlation between the 

presence of nonnative bullfrogs and the 

absence of Hawaiian damselflies. 

Bullfrogs are reported on all of the main 

Hawaiian Islands, except Kahoolawe 

and Niihau. The Pacific Hawaiian 

damselfly is likely threatened by 

bullfrogs, due to their shared preference 

for similar habitat, and the flying earwig 

Hawaiian damselfly may also be 

threatened within its riparian habitat by 

the bullfrog, which is capable of 

breeding within small pools of water. 

Factor D. The Inadequacy of Existing 

Regulatory Mechanisms 

Inadequate Habitat Protection 

Currently, there are no Federal, State, 

or local laws, treaties, or regulations that 

specifically conserve or protect the 

flying earwig Hawaiian damselfly or the 

Pacific Hawaiian damselfly from the 

threats described in this proposed rule. 

The State of Hawaii considers all 

natural flowing surface water (streams, 

springs, and seeps) as State property 

(Hawaii Revised Statutes 174c 1987), 

and the Hawaii Department of Land and 

Natural Resources (DLNR) has 

management responsibility for the 

aquatic organisms in these waters 

(Hawaii Revised Statutes Annotated, 

1988, Title 12; 1992 Cumulative 

Supplement). Thus, damselfly 

populations associated with streams, 

seeps, and springs are under the 

jurisdiction of the State of Hawaii, 

regardless of the ownership of the 

property across which the stream flows. 

This includes all populations of the 

Pacific Hawaiian damselfly. 

The State of Hawaii manages the use 

of surface and ground water resources 

through the Commission on Water 

Resource Management (Water 

Commission), as mandated by the 1987 

State Water Code (State Water Code, 

Hawaii Revised Statutes Chapter 174C71, 174C-81-87, and 174C-9195 and 

Administrative Rules of the State Water 

Code, Title 13, Chapters 168 and 169). 

In the State Water Code, there are no 

formal requirements that project 

proponents or the Water Commission 

protect the habitats of fish and wildlife 

prior to issuance of a permit to modify 

surface or ground water resources. 

The maintenance of instream flow, 

which is needed to protect the habitat 

of damselflies and other aquatic 

wildlife, is regulated by the 

establishment of standards on a streamby-stream basis (State Water Code, 

Hawaii Revised Statutes Chapter 174C71 and Administrative Rules of the State 

Water Code, Title 13, Chapter 169). 

Currently, the interim instream flow 

standards represent the existing flow 

conditions in streams in the State (as of 

June 15, 1988, for Molokai, Hawaii, 

Kauai and east Maui; and October 19, 

1988, for west Maui and leeward Oahu) 

(Administrative Rules of the State Water 

Code, Title 13, Chapter 169-44-49). 

However, the State Water Code does not 

provide for permanent or minimal 

instream flow standards for the 

protection of aquatic wildlife. Instead, 

modification of instream flow standards 

and stream channels can be undertaken 

at any time by the Water Commission or 

via public petitions to revise flow 

standards or modify stream channels in 

a specified stream (Administrative Rules 

of the State Water Code, Title 13, 

Chapter 169-36). Additionally, the 

Water Commission must consider 

economic benefits gained from out-ofstream water uses, and is not required 

to balance these benefits against 

instream benefits to aquatic fish and 

wildlife. Consequently, any stabilization 

of stream flow for the protection of 

Pacific Hawaiian damselfly habitat is 

subject to modification at a future date. 

The natural value of Hawaii’s stream 

systems has been recognized under the 

State of Hawaii Instream Use Protection 

Program (Administrative Rules of the 

State Water Code, Title 13, Chapter 169- 

20(2)). In the Hawaii Stream Assessment 

Report (1990), prepared in coordination 

with the National Park Service, the State 

Water Commission identified high 

quality rivers or streams, or portions of 

rivers or streams that may be placed 

within a wild and scenic river system. 

This report recommended that streams 

meeting certain criteria be protected 

from further development. However, 

there is no formal or institutional 

mechanism within the State’s Water 

Code to designate and set aside these 

streams, or to identify and protect 

stream habitat for Hawaiian damselflies. 

Existing Federal regulatory 

mechanisms that may protect Hawaiian 

damselflies and their habitat are also 

inadequate. The Federal Energy 

Regulatory Commission (FERC) has very 

limited jurisdiction in Hawaii. Hawaii’s 

streams are isolated on individual 

islands and run quickly down steep 

volcanic slopes. There are no interstate 

rivers in Hawaii, few if any streams 

crossing Federal land, and no Federal 

dams. Hawaii’s streams are generally 

not navigable. Thus, licensing of 

hydroelectric projects in Hawaii 

generally does not come under the 

purview of FERC, although hydropower 

developers in Hawaii may voluntarily 

seek licensing under FERC. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32503 

The U.S. Army Corps of Engineers 

(COE) also has some regulatory control 

over modifications of freshwater streams 

in the United States. For modifications 

(e.g., discharge of fill) of streams with an 

average annual flow greater than 5 cubic 

ft per second (cfs), the COE can issue 

individual permits under section 404 of 

the Clean Water Act. These permits are 

subject to public review, and must 

comply with the Environmental 

Protection Agency’s 404(b)(1) guidelines 

and public comment requirements. 

However, in issuing these permits, the 

COE does not establish instream flow 

standards as a matter of policy. The COE 

normally considers that the public 

interest for instream flow is represented 

by the state water allocation rights or 

preferences (Regulatory Guidance Letter 

No 85-6), and project alternatives that 

supersede, abrogate, or otherwise impair 

the state water quantity allocations are 

not normally addressed as alternatives 

during permit review. 

In cases where the COE district 

engineer does propose to impose 

instream flow standard on an individual 

permit, this flow standard must reflect 

a substantial national interest. 

Additionally, if this instream flow 

standard is in conflict with a State water 

quantity allocation, then it must be 

reviewed and approved by the Office of 

the Chief Engineer in Washington, D.C. 

(Regulatory Guidance Letter No 85-6). 

Currently, the setting of instream flow 

standards sufficient to conserve 

Hawaiian damselflies is not a condition 

that would be considered or included in 

a Hawaii Department of Agriculture 

individual permit (DLNR, Commission 

on Water Resource Management 2006, 

p. 2). 

The COE may also authorize the 

discharge of fill into streams with an 

average annual flow of less than 5 cfs. 

These discharges are covered under a 

nationwide permit (33 CFR 330). This 

permit is designed to expedite smallscale activities that the COE considers to 

have only minimal environmental 

impacts (33 CFR 330.1(b)). The Service 

and the Hawaii DLNR have only 15 days 

to provide substantive site-specific 

comments prior to the issuance of a 

nationwide permit. Given the 

complexity of the impacts on Hawaiian 

damselflies from stream modifications 

and surface water diversions, the 

remoteness of project sites, and the 

types of studies necessary to determine 

project impacts and mitigation, this 

limited comment period does not allow 

time for an adequate assessment of 

impacts. 

One population of the Pacific 

Hawaiian damselfly occurs in Palikea 

Stream on Maui, which flows through 

Haleakala National Park. On Molokai, 

populations of this damselfly species 

occur at the mouth of Pelekunu Stream, 

which flows through a preserve 

managed by The Nature Conservancy, 

and in lower Waikolu Stream, which 

flows through Kalaupapa National 

Historic Park. However, the landowners 

do not own the water rights to any of the 

streams, and thus cannot fully manage 

the conservation of any of these 

damselfly populations. 

Because there are currently no 

Federal, State, or local laws, treaties, or 

regulations that specifically conserve or 

protect habitat of the flying earwig 

Hawaiian damselfly or the Pacific 

Hawaiian damselfly from the threats 

described in this proposed rule, all of 

these threats remain immediate and 

significant. The habitat of both species 

continues to be reduced, degraded, and 

altered by past and present manmade 

alterations to streams and riparian zones 

and by the indirect impacts of nonnative 

plant and animal species to remaining 

habitat areas. 

Inadequate Protection from Introduction 

of Nonnative Species 

As discussed above (see Factor C. 

Disease or Predation), predation by 

nonnative species (fish, insects, and 

bullfrogs) is one of the most significant 

threats to the survival of the flying 

earwig Hawaiian damselfly and the 

Pacific Hawaiian damselfly. 

Based on historical and current rates 

of aquatic species introductions (both 

purposeful and accidental), existing 

State and Federal regulatory 

mechanisms are not adequately 

preventing the spread of nonnative 

species between islands and watersheds 

in Hawaii. The Hawaii Department of 

Agriculture has administrative rules in 

place that address importation of 

nonnative species and establish a permit 

process for such activities (Hawaii 

Administrative Rules §4-71). The 

Division of Aquatic Resources within 

the Hawaii Department of Land and 

Natural Resources (HDLNR) has 

authority to seize, confiscate, or destroy 

as a public nuisance, any fish or other 

aquatic life found in any waters of the 

State and whose importation is 

prohibited or restricted pursuant to 

rules of the Department of Agriculture 

(Section 187A-2(4 H.R.S.§187A-6.5)). 

Although State and Federal regulations 

are now firmly in place to prevent the 

unauthorized entry of nonnative aquatic 

species into the State of Hawaii, 

movement of species between islands 

and from one watershed to the next 

remains problematic even while 

prohibited (HDOA 2003, pp. 2/12 – 2/ 

14). For example, while unauthorized 

movement of an aquatic species from 

one watershed to the next may be 

prohibited, there simply is not enough 

government funding to adequately 

enforce such regulation or to provide for 

sufficient inspection services and 

monitoring, although this priority need 

is recognized (Cravalho 2009). 

Furthermore, due to the complexity of 

the pathways of invasion by aquatic 

species (i.e., intentional, inadvertent, 

and by forces of nature), many 

components contributing to the problem 

may be better addressed through greater 

public outreach and education 

(Montgomery 2009). 

On the basis of the above information, 

existing regulatory mechanisms do not 

adequately protect the flying earwig 

Hawaiian damselfly or the Pacific 

Hawaiian damselfly from the threat of 

established nonnative species 

(particularly fish and insect species) 

spreading between islands and 

watersheds, where they may prey upon 

or directly compete with the two 

damselfly species for food and space. 

Because current Federal, State, and local 

laws, treaties, and regulations are 

inadequate to prevent the spread of 

nonnative aquatic animals between 

islands and watersheds, the impacts 

from these introduced threats remain 

immediate and significant. From 

habitat-altering nonnative plant species 

to predation or competition caused by 

frogs, nonnative fish, and insect species, 

the Pacific Hawaiian damselfly and the 

flying earwig Hawaiian damselfly are 

immediately and significantly 

threatened by former and new plant and 

animal introductions within the 

damselflies’ remaining habitat. 

Summary of Factor D 

The aquatic habitat of the flying 

earwig and the Pacific Hawaiian 

damselflies is under the jurisdiction of 

the State of Hawaii, which also has 

management responsibility for aquatic 

organisms. However, the State Water 

Code has no regulatory mechanism in 

place to protect these species or their 

habitat. The State Water Code does not 

provide for permanent or minimum 

instream flow standards for the 

protection of aquatic ecosystems upon 

which these damselfly species depend, 

and does not contain a regulatory 

mechanism for identifying and 

protecting damselfly habitat under a 

wild and scenic river designation. 

To date, administration of the Clean 

Water Act permitting program by the 

U.S. Army Corps of Engineers has not 

provided substantive protection of 

damselfly habitat, including any 

requirements for retention of adequate 

instream flows. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32504 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

Existing State and Federal regulatory 

mechanisms are not preventing the 

spread of nonnative animal species 

between islands and watersheds. 

Predation by nonnative animal species 

poses a major ongoing threat to the 

flying earwig and the Pacific Hawaiian 

damselflies. Because existing regulatory 

mechanisms are inadequate to maintain 

aquatic habitat for the damselflies and 

to prevent the spread of nonnative 

species, the inadequacy of existing 

regulatory mechanisms is considered to 

be a significant and immediate threat. 

Factor E. Other Natural or Manmade 

Factors Affecting [Their] Continued 

Existence 

Small Numbers of Populations and 

Individuals 

Species that are endemic to single 

islands or known from few, widely 

dispersed locations are inherently more 

vulnerable to extinction than 

widespread species because of the 

higher risks from genetic bottlenecks, 

random demographic fluctuations, 

climate change, and localized 

catastrophes such as hurricanes, 

landslides, and drought (Lande 1988, p. 

1,455; Mangel and Tier 1994, p. 607; 

Pimm et al. 1988, p. 757). These 

problems are further magnified when 

populations are few and restricted to a 

limited geographic area, and the number 

of individuals is very small. Populations 

with these characteristics face an 

increased likelihood of stochastic 

extinction due to changes in 

demography, the environment, genetics, 

or other factors, in a process described 

as an ‘‘extinction vortex’’ by Gilpin and 

Soule ́ (1986, pp. 24-25). Small, isolated 

populations often exhibit a reduced 

level of genetic variability or genetic 

depression due to inbreeding, which 

diminishes the species’ capacity to 

adapt and respond to environmental 

changes, thereby lessening the 

probability of long-term persistence 

(e.g., Frankham 2003, pp. S22-S29; 

Soule 1980, pp. 151-169). The problems 

associated with small population size 

and vulnerability to random 

demographic fluctuations or natural 

catastrophes are further magnified by 

synergistic interactions with other 

threats, such as those discussed above 

(Factors A–C). 

Jordan et al. (2007, p. 247) showed in 

their genetic and comparative 

phylogeography analysis (study of 

historical processes responsible for 

genetic divergence within a species) of 

four Megalagrion species that the Pacific 

Hawaiian damselfly may be more 

susceptible to problems linked to low 

genetic diversity compared to other 

Hawaiian damselfly species. Both Maui 

and Molokai populations of this species 

were analyzed, and results suggested 

that the Pacific Hawaiian damselfly may 

not disperse well across both land and 

water, which may have led to the low 

genetic diversity observed in the two 

populations sampled. The authors 

proposed that populations of the Pacific 

Hawaiian damselfly be monitored and 

managed to understand the conservation 

needs of this species and the threat of 

population bottlenecks (Jordan et al. 

2007, p. 258). Unfortunately, this study 

did not include an analysis of the flying 

earwig Hawaiian damselfly. However, 

given that this species may now be 

reduced to a single population, the 

potential loss of genetic diversity is a 

concern for the flying earwig Hawaiian 

damselfly as well. 

The small number of remaining 

populations of the flying earwig 

Hawaiian damselfly (now possibly 

reduced to a single remaining 

population) puts this species at 

significant risk of extinction from 

stochastic events, such as hurricanes, 

landslides, or prolonged drought (Jones 

et al. 1984, p. 209). For example, 

Polhemus (1993, p. 87) documented the 

extirpation of a related damselfly 

species, Megalagrion vagabundum, from 

the entire Hanakapiai Stream system on 

Kauai as a result of the impacts from 

Hurricane Iniki in 1992. Such stochastic 

events thus pose the threat of immediate 

extinction of a species with a very small 

and geographically restricted 

distribution, as in the case of the flying 

earwig Hawaiian damselfly. 

Summary of Factor E 

The threat to the flying earwig and 

Pacific Hawaiian damselflies from 

limited numbers of populations and 

individuals is significant and immediate 

for the following reasons: 

• Each of these species is subject to 

potentially reduced reproductive vigor 

due to inbreeding depression, 

particularly the flying earwig Hawaiian 

damselfly which is now apparently 

restricted to one population; 

• Each of these species is subject to 

reduced levels of genetic variability that 

may diminish their capacity to adapt 

and respond to environmental changes, 

thereby lessening the probability of their 

long-term persistence; 

• Since there may be only one 

remaining population of the flying 

earwig Hawaiian damselfly that occurs 

in a relatively restricted geographic 

location, a single catastrophic event, 

such as a hurricane or landslide, could 

result in the extinction of the species. 

Likewise, the Pacific Hawaiian 

damselfly, with several small, widely 

dispersed populations, would be 

vulnerable to the extirpation of 

remaining populations; and 

• Species with few populations and a 

small number of individuals, such as 

the Pacific Hawaiian damselfly and 

flying earwig Hawaiian damselfly, are 

less resilient to threats that might 

otherwise have a relatively minor 

impact on a larger population. For 

example, the reduced availability of 

breeding habitat or an increase in 

predation of naiads that might be 

absorbed in a relatively large population 

could result in a significant decrease in 

survivorship or reproduction of a 

relatively small, isolated population. 

The small population size of these two 

species thus magnifies the severity of 

the impact of the other threats discussed 

in this proposed rule. 

Conclusion and Proposed Listing 

Determination 

We have carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future threats to the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly. We find that both 

of these species face immediate and 

significant threats throughout their 

ranges: 

•Both the Pacific Hawaiian damselfly 

and the flying earwig Hawaiian 

damselfly face threats from past and 

present destruction, modification, and 

curtailment of their habitats, primarily 

from: agriculture and urban 

development; stream diversion, 

channelization, and dewatering; feral 

pigs and nonnative plants; and from 

stochastic events like hurricanes, 

landslides, and drought. The changing 

environmental conditions that may 

result from climate change (particularly 

rising temperatures) are also likely to 

threaten these two damselfly species 

(compounded because of the two 

species’ small population sizes and 

limited distributions), although 

currently there is limited information on 

the exact nature of these impacts (see 

discussion under Factor A). 

•The only known population of the 

flying earwig Hawaiian damselfly is 

immediately and significantly 

threatened by potential recreational 

collection (Factor B). 

•Both the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly are subject to an immediate 

and significant threat of predation by 

nonnative insects (ants) and bullfrogs. 

The Pacific Hawaiian damselfly is also 

similarly threatened by backswimmers 

and nonnative fish (Factor C). 

•The inadequacy of existing 

regulatory mechanisms (e.g., inadequate 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32505 

protection of stream habitat and 

inadequate protection from the 

introduction of nonnative species) poses 

a threat to both species of Hawaiian 

damselfly, as discussed under Factor D 

above. 

•Both of these species face an 

immediate and significant threat from 

extinction due to factors associated with 

small numbers of populations and 

individuals as discussed under Factor E 

above. 

All of the above threats are 

exacerbated by the inherent 

vulnerability of the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly to extinction from 

stochastic events at any time because of 

their endemism (indigenousness), small 

numbers of individuals and 

populations, and restricted habitats. 

The Act defines an endangered 

species as any species that is ‘‘in danger 

of extinction throughout all or a 

significant portion of its range’’ and a 

threatened species as any species ‘‘that 

is likely to become endangered 

throughout all or a significant portion of 

its range within the foreseeable future.’’ 

We find that each of these two species 

endemic to Hawaii is presently in 

danger of extinction throughout its 

entire range, based on the immediacy, 

severity, and scope of the threats 

described above. Therefore, on the basis 

of the best available scientific and 

commercial information, we propose 

listing the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly as endangered in accordance 

with sections 3(6) and 4(a)(1) of the Act. 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is threatened or endangered 

throughout all or a significant portion of 

its range. Each of the two endemic 

damselfly species proposed for listing in 

this rule is highly restricted in its range 

and the threats occur throughout its 

range. Therefore, we assessed the status 

of each species throughout its entire 

range. In each case, the threats to the 

survival of these species occur 

throughout the species’ range and are 

not restricted to any particular 

significant portion of that range. 

Accordingly, our assessment and 

proposed determination applies to each 

species throughout its entire range. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened under the Act include 

recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain activities. 

Recognition through listing results in 

public awareness and conservation 

actions by Federal, State, Tribal, and 

local agencies, private organizations, 

and individuals. The Act encourages 

cooperation with the States and requires 

that recovery actions be carried out for 

all listed species. The protection 

required by Federal agencies, and the 

prohibitions against certain activities 

are discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Subsection 4(f) of 

the Act requires the Service to develop 

and implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning includes the 

development of a recovery outline 

shortly after a species is listed, 

preparation of a draft and final recovery 

plan, and revisions to the plan as 

significant new information becomes 

available. The recovery outline guides 

the immediate implementation of urgent 

recovery actions and describes the 

process to be used to develop a recovery 

plan. The recovery plan identifies sitespecific management actions that will 

achieve recovery of the species, 

measurable criteria that determine when 

a species may be downlisted or delisted, 

and methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Recovery teams 

(comprised of species experts, Federal 

and State agencies, non-government 

organizations, and stakeholders) are 

often established to develop recovery 

plans. When completed, the recovery 

outline, draft recovery plan, and the 

final recovery plan will be available 

from our website (http://www.fws.gov/ 

endangered), or from our Pacific Islands 

Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, nongovernmental organizations, businesses, 

and private landowners. Examples of 

recovery actions include habitat 

restoration (e.g., restoration of native 

vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private and State lands. 

If these species are listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost share 

grants for non-Federal landowners, the 

academic community, and nongovernmental organizations. In addition, 

pursuant to section 6 of the Act, the 

State of Hawaii would be eligible for 

Federal funds to implement 

management actions that promote the 

protection and recovery of the flying 

earwig Hawaiian damselfly and the 

Pacific Hawaiian damselfly. Information 

on our grant programs that are available 

to aid species recovery can be found at: 

http://www.fws.gov/grants. 

Although the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly are only proposed for listing 

under the Act at this time, please let us 

know if you are interested in 

participating in recovery efforts for 

these species. Additionally, we invite 

you to submit any new information on 

these species whenever it becomes 

available and any information you may 

have for recovery planning purposes 

(see FOR FURTHER INFORMATION CONTACT). 

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

requires Federal agencies to evaluate 

their actions with respect to any species 

that is proposed or listed as endangered 

or threatened and with respect to its 

critical habitat, if any is designated. 

Regulations implementing this 

interagency cooperation provision of the 

Act are codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

listed subsequently, section 7(a)(2) of 

the Act requires Federal agencies to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into formal 

consultation with the Service. 

Federal agency actions within the 

species’ habitat that may require 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32506 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

conference or consultation or both as 

described in the preceding paragraph 

include, but are not limited to: Army 

Corps of Engineers involvement in 

projects, such as the construction of 

roads, bridges, and dredging projects, 

subject to section 404 of the Clean Water 

Act (33 U.S.C. 1251 et seq.) and section 

10 of the Rivers and Harbors Act of 1899 

(33 U.S.C. 401 et seq.); U.S. 

Environmental Protection Agency 

authorized discharges under the 

National Pollutant Discharge 

Elimination System (NPDES); U.S. 

Department of Agriculture involvement 

in the release or permitting of the 

release of biological control agents 

under the Federal Plant Pest Act (7 

U.S.C. 150aa-150jj); military training 

and related activity carried out by the 

U.S. Department of Defense; and 

projects by the Natural Resources 

Conservation Service, National Park 

Service, U.S. Fish and Wildlife Service, 

Federal Highways Administration, and 

the U.S. Department of Housing and 

Urban Development. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to all endangered and threatened 

wildlife. The prohibitions of section 

9(a)(2) of the Act, codified at 50 CFR 

17.21 for endangered wildlife, in part, 

make it illegal for any person subject to 

the jurisdiction of the United States to 

take (includes harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect, or attempt any of these), 

import, export, ship in interstate 

commerce in the course of a commercial 

activity, or sell or offer for sale in 

interstate or foreign commerce any 

listed species. It is also illegal to 

possess, sell, deliver, carry, transport, or 

ship any such wildlife that has been 

taken illegally. Certain exceptions apply 

to our agents and State conservation 

agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered and threatened 

wildlife species under certain 

circumstances. Regulations governing 

permits are codified at 50 CFR 17.22 for 

endangered species, and at 17.32 for 

threatened species. With regard to 

endangered wildlife, a permit must be 

issued for the following purposes: for 

scientific purposes, to enhance the 

propagation or survival of the species, 

and for incidental take in connection 

with otherwise lawful activities. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of species proposed for listing. 

The following activities could 

potentially result in a violation of 

section 9 of the Act; this list is not 

comprehensive: 

(1) Unauthorized collecting, handling, 

possessing, selling, delivering, carrying, 

or transporting of the species, including 

import or export across State lines and 

international boundaries, except for 

properly documented antique 

specimens of these taxa at least 100 

years old, as defined by section 10(h)(1) 

of the Act; 

(2) Introduction of nonnative species 

that compete with or prey upon the two 

damselflies, such as the introduction of 

competing, nonnative insects or 

predatory fish to the State of Hawaii; 

(3) The unauthorized release of 

biological control agents that attack any 

life stage of these species; 

(4) Unauthorized modification of the 

channel or water flow of any stream or 

removal or destruction of emergent 

aquatic vegetation in any body of water 

in which the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly are known to occur; and 

(5) Unauthorized discharge of 

chemicals or fill material into any 

waters in which the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly are known to occur. 

Questions regarding whether specific 

activities would constitute a violation of 

section 9 of the Act should be directed 

to the Pacific Islands Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). Requests for copies of the 

regulations concerning listed animals 

and general inquiries regarding 

prohibitions and permits may be 

addressed to the U.S. Fish and Wildlife 

Service, Endangered Species Permits, 

911 N.E. 11th Avenue, Portland, OR 

97232-4181 (telephone 503-231-2063; 

facsimile 503-231-6243). 

If these two Hawaiian damselflies are 

listed under the Act, the State of 

Hawaii’s Endangered Species Act (HRS, 

Sect. 195D–4(a)) is automatically 

invoked, which would also prohibit take 

of these species and encourage 

conservation by State government 

agencies. Further, the State may enter 

into agreements with Federal agencies 

to administer and manage any area 

required for the conservation, 

management, enhancement, or 

protection of endangered species (HRS, 

Sect. 195D–5(c)). Funds for these 

activities could be made available under 

section 6 of the Act (Cooperation with 

the States). Thus, the Federal protection 

afforded to these species by listing them 

as endangered species will be reinforced 

and supplemented by protection under 

State law. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(i) The specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features 

(I) essential to the conservation of the 

species and 

(II) which may require special 

management considerations or 

protection; and 

(ii) 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 

under 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 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect 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 access to private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

the landowner. Where a landowner 

seeks or requests Federal agency 

funding or authorization 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 Federal action 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32507 

agency’s and landowner’s obligation is 

not to restore or recover the species, but 

to implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of the critical 

habitat. 

For inclusion in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical and biological 

features essential to the conservation of 

the species, and be included only if 

those features may require special 

management considerations or 

protection. Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas containing the 

physical and biological features, which 

are the Primary Constituent Elements 

(PCEs) laid out in the appropriate 

quantity and spatial arrangement that 

are essential to the conservation of the 

species. Under the Act and regulations 

at 50 CFR 424.12, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed only when 

we determine that those areas are 

essential for the conservation of the 

species and that designation limited to 

those areas occupied at the time of 

listing would be inadequate to ensure 

the conservation of the species. 

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. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, 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 required for recovery of the 

species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions we implement 

under section 7(a)(1) of the Act. Areas 

that support populations are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

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, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts 

warrants otherwise. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary designate 

critical habitat at the time a species is 

determined to be endangered or 

threatened. Our regulations (50 CFR 

424.12(a)(1)) state that designation of 

critical habitat is not prudent when one 

or both of the following situations exist: 

(1) The species is threatened by taking 

or other human activity, and 

identification of critical habitat can be 

expected to increase the degree of threat 

to the species, or (2) such designation of 

critical habitat would not be beneficial 

to the species. 

In the absence of finding that the 

designation of critical habitat would 

increase threats to a species, if there are 

any benefits to a critical habitat 

designation, then a prudent finding is 

warranted. We find that the designation 

of critical habitat for the two damselfly 

species addressed in this rule will 

benefit them by: (1) Triggering 

consultation under section 7 of the Act 

for Federal actions where consultation 

would not otherwise occur because, for 

example, the affected area has become 

unoccupied by the species or the 

occupancy is in question; (2) focusing 

conservation efforts on the most 

essential habitat features and areas; (3) 

providing educational benefits about the 

species to State or county governments 

or private entities; and (4) preventing 

people from causing inadvertent harm 

to the species. 

The primary regulatory effect of 

critical habitat is the section 7(a)(2) 

requirement that Federal agencies 

refrain from taking any action that 

destroys or adversely modifies critical 

habitat. On the island of Maui, one 

population of the Pacific Hawaiian 

damselfly occurs in a stream that flows 

through Haleakala National Park, and on 

the island of Molokai, one population of 

this species occurs in the lower section 

of a stream that flows through 

Kalaupapa National Historical Park. The 

National Park Service regulations and 

Federal laws protect all animals in 

national parks from harassment or 

destruction. Nevertheless, lands that 

may be designated as critical habitat in 

the future for this species may be 

subject to Federal actions that trigger the 

section 7 consultation requirement, 

such as the granting of Federal monies 

for conservation projects or the need for 

Federal permits for projects, such as the 

construction and maintenance of 

aqueducts and bridges subject to section 

404 of the Clean Water Act (33 U.S.C. 

1251 et seq.). There may also be some 

educational or informational benefits to 

the designation of critical habitat. 

Educational benefits include the 

notification of landowners, land 

managers, and the general public of the 

importance of protecting the habitat of 

these species. Critical habitat may play 

a role in protecting habitat for future 

reintroductions of a species as well. For 

example, although the flying earwig 

Hawaiian damselfly formerly inhabited 

areas that are not currently occupied by 

the species, if those currently 

unoccupied areas are determined to be 

essential to the survival and recovery of 

the species, they may be proposed for 

designation of critical habitat. This 

would alert the public that these areas 

are important for the future recovery of 

the species, as well as invoke the 

protection of these areas under section 

7 of the Act with regard to any possible 

Federal actions in that area. These 

aspects of critical habitat designation 

would potentially benefit the 

conservation of both the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly. Although 

collection has been identified as a threat 

to the flying earwig Hawaiian damselfly, 

we believe that collection poses a 

potential threat to this rare species 

regardless of the designation of critical 

habitat. Therefore, since we have 

determined that the identification of 

critical habitat will not increase the 

degree of threats to these species and 

because the designation may provide 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32508 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

some measure of benefit, we find that 

designation of critical habitat is prudent 

for both the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly. 

Critical Habitat Determinability 

As stated above, section 4(a)(3) of the 

Act requires the designation of critical 

habitat concurrently with the species’ 

listing ‘‘to the maximum extent prudent 

and determinable.’’ Our regulations at 

50 CFR 424.12(a)(2) state that critical 

habitat is not determinable when one or 

both of the following situations exist: 

(A) Information sufficient to perform 

required analyses of the impacts of the 

designation is lacking, or 

(B) The biological needs of the species 

are not sufficiently well known to 

permit identification of an area as 

critical habitat. 

When critical habitat is not 

determinable, the Act provides for an 

additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

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

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

regulations at 50 CFR 424.12, in 

determining which areas occupied by 

the species at the time of listing to 

designate as critical habitat, we consider 

the physical and biological features 

essential to the conservation of the 

species which may require special 

management considerations or 

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, 

rearing (or development) of offspring; 

and generally 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical geographical and ecological 

distributions of a species. 

As required by 50 CFR 424.12(b), we 

are to list the known primary 

constituent elements (PCEs) with our 

description of critical habitat. The the 

physical and biological features are the 

PCEs laid out in the appropriate 

quantity and spatial arrangement, which 

are essential to the conservation of the 

species. These may be based upon, but 

are not limited to: roost sites, nesting 

grounds, spawning sites, feeding sites, 

seasonal wetlands or drylands, water 

quality or quantity, vegetation type, 

plant host species and associated 

pollinators, geological formations, tides, 

and specific soil types. 

We are currently unable to identify 

the physical and biological features that 

are considered essential to the 

conservation of either damselfly species, 

because information on these is not 

available at this time. Key features of the 

life histories of these damselfly species, 

such as longevity, larval stage 

requirements, and fecundity, remain 

unknown. The aquatic and associated 

upland habitats where the populations 

of the Pacific Hawaiian damselfly are 

found have been modified and altered 

by development and agriculture; stream 

diversions, channelization, dewatering; 

and nonnative plants. In addition, 

introduced ants, backswimmers, 

bullfrogs, and predatory nonnative fish 

have altered and degraded the habitat 

for the Pacific Hawaiian damselfly. 

Likewise, the uluhe moist talus slope 

habitats where populations of the flying 

earwig Hawaiian damselfly once 

occurred have been modified and 

altered by agriculture; stream 

diversions, channelization, dewatering; 

and the presence of feral pigs, nonnative 

plants, and introduced ants and 

bullfrogs. Historically, both of these 

damselfly species were much more 

widespread and occurred in habitats 

found on several different islands. 

Because over a century has elapsed 

since these species were observed in an 

unaltered environment, the optimal 

conditions that provide the biological or 

ecological requisites of these species are 

not known. As described above, we can 

surmise that habitat degradation from a 

variety of factors and predation by a 

number of nonnative species has 

contributed to the decline of these 

species; however, we do not know the 

physical or biological features that are 

essential for either of the two 

damselflies addressed in this proposed 

rule. As we are unable to identify the 

physical and biological features 

essential to the conservation of these 

species, we are unable to identify areas 

that contain these features. 

Although we have determined that 

the designation of critical habitat is 

prudent for the flying earwig Hawaiian 

damselfly and the Pacific Hawaiian 

damselfly, the biological needs of these 

species are not sufficiently well known 

to permit identification of the physical 

and biological features that may be 

essential for the conservation of the 

species, or those areas essential to the 

conservation of the species. Therefore, 

we find that critical habitat for the 

flying earwig Hawaiian damselfly and 

the Pacific Hawaiian damselfly is not 

determinable at this time. We intend to 

continue gathering information 

regarding the essential life history 

requirements of the flying earwig 

Hawaiian damselfly and the Pacific 

Hawaiian damselfly to facilitate 

identification of essential features and 

areas. We will evaluate the needs of the 

flying earwig Hawaiian damselfly and 

the Pacific Hawaiian damselfly within 

the ecological context of the broader 

ecosystems in which they occur, similar 

to the approach that we recently used in 

our proposal to designate critical habitat 

for 47 species endemic to the island of 

Kauai (October 21, 2008; 73 FR 62592), 

and will consider the utility of using 

this approach for these species as well. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate independent specialists 

regarding this proposed rule. The 

purpose of peer review is to ensure that 

our proposed rule is based on 

scientifically sound data, assumptions, 

and analyses. We have posted our 

proposed peer review plan on our 

website at http://www.fws.gov/pacific/ 

informationquality/index.htm. We will 

send these peer reviewers copies of this 

proposed rule, immediately following 

publication in the Federal Register. We 

have invited these peer reviewers to 

comment during this public comment 

period on our specific assumptions and 

conclusions in this proposal to list two 

Hawaiian damselfly species as 

endangered and our decision regarding 

critical habitat for these species. 

We will consider all comments and 

information we receive during the 

comment period on this proposed rule 

during preparation of a final 

determination. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests must be received 

within 45 days after the date of of 

publication of this proposal in the 

Federal Register. Such requests must be 

sent to the address shown in the FOR

FURTHER INFORMATION CONTACT section. 

We will schedule public hearings on 

this proposal, if any are requested, and 

announce the dates, times, and places of 

the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. 

Persons needing reasonable 

accommodations to attend and 

participate in a public hearing should 

contact the Pacific Islands Fish and 

Wildlife Office at 808-792-9400, as soon 

as possible. To allow sufficient time to 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32509 

process requests, please call no later 

than one week before the hearing date. 

Information regarding this proposed 

rule is available in alternative formats 

upon request. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the 

‘‘ADDRESSES’’ section. To better help us 

revise the rule, your comments should 

be as specific as possible. For example, 

you should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

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 Office of Management and 

Budget (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 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969, need not be prepared in 

connection with regulations adopted 

pursuant to section 4(a) of the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). 

References Cited 

A complete list of all references cited 

in this rule is available on the Internet 

at http://www.regulations.gov or upon 

request from the Field Supervisor, 

Pacific Islands Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT). 

Author(s) 

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, and 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361-1407; 16 

U.S.C. 1531-1544; 16 U.S.C. 4201-4245; 

Pub. L. 99-625, 100 Stat. 3500; unless 

otherwise noted. 

2. Amend § 17.11(h) by adding entries 

for ‘‘Damselfly, flying earwig Hawaiian’’ 

and ‘‘Damselfly, Pacific Hawaiian’’ to 

the List of Endangered and Threatened 

Wildlife in alphabetical order under 

Insects to read as follows: 

§17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species Historic 

range 

Vertebrate population 

where endangered or 

threatened 

Status When listed Critical habitat Special rules 

Common name Scientific name 

*******

INSECTS 

*******

Damselfly, flying 

earwig 

Hawaiian 

Megalagrion 

nesiotes 

U.S.A. 

(HI) 

NA E TBD NA NA 

Damselfly, 

Pacific 

Hawaiian 

Megalagrion 

pacificum 

U.S.A. 

(HI) 

NA E TBD NA NA 

******

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32510 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

Dated: June 25, 2009. 

Marvin E. Moriarty, 

Acting Director, U.S. Fish and Wildlife Service 

[FR Doc. E9–16087 Filed 7–7– 09; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R4–ES–2009–0022; 92210–1117–000– 

B4] 

Endangered and Threatened Wildlife 

and Plants; 90–Day Finding on a 

Petition To List the Coqui Llanero 

(Eleutherodactylus juanariveroi) as 

Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of petition finding and 

initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (the Service), announce 

a 90-day finding on a petition to list 

coqui llanero (Eleutherodactylus 

juanariveroi), a tree frog, as threatened 

or endangered under the Endangered 

Species Act of 1973, as amended (Act). 

Following our review of the petition, we 

find that it provides substantial 

scientific or commercial information 

indicating that listing this species may 

be warranted. Therefore, with the 

publication of this notice, we initiate a 

status review to determine if listing the 

coqui llanero is warranted. To ensure 

that the status review is comprehensive, 

we request scientific and commercial 

data and other information regarding 

this species. We will initiate a 

determination on critical habitat for this 

species if and when we initiate a listing 

action. 

DATES: We made the finding announced 

in this document on July 8, 2009. To 

allow us adequate time to conduct this 

review, we request that information be 

submitted on or before September 8, 

2009. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R4– 

ES–2009–0022; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222, Arlington, VA 22203. 

We will post all information we 

receive on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us (see the Information Solicited section 

below for more details). 

FOR FURTHER INFORMATION CONTACT: 

Edwin E. Mun ̃iz, Field Supervisor, 

Caribbean Ecological Services Field 

Office, P.O. Box 491, Boquero ́n, PR 

00622; by telephone, (787) 851–7297; or 

by facsimile, (787) 851–7440. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, the Act (16 

U.S.C. 1531 et seq.) requires us to 

promptly commence a review of the 

status of the species. To ensure that the 

status review is complete and based on 

the best available scientific and 

commercial information, we seek 

information on the coqui llanero. We 

request information from the public, 

other concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties concerning the status 

of the coqui llanero. We seek 

information regarding: 

(1) The species’ historical and current 

status and distribution, its biology and 

ecology, and ongoing conservation 

measures for the species and its habitat; 

(2) Information relevant to the factors 

that are the basis for our making any 

listing determination for a species under 

section 4(a) of the Act, which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of the species’ habitat or 

range; 

(b) overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) disease or predation; 

(d) the inadequacy of existing 

regulatory mechanisms; or 

(e) other natural or manmade factors 

affecting its continued existence and 

threats to the species or its habitat; and 

(3) Information on the effects of 

climate change, sea-level change, and 

water temperature change on the 

distribution and abundance of the 

species. 

If we determine that listing the 

species is warranted, we intend to 

propose critical habitat to the maximum 

extent prudent and determinable at the 

time we propose the listing. Therefore, 

with regard to areas within the 

geographical range currently occupied 

by the coqui llanero, we also request 

data and information on what may 

constitute physical or biological features 

essential to the conservation of the 

species, where these features are 

currently found, and whether any of 

these features may require special 

management considerations or 

protection. In addition, we request data 

and information regarding whether 

there are areas outside the geographical 

area occupied by the species that are 

essential to the conservation of the 

species. Please provide specific 

comments and information as to what, 

if any, critical habitat you think we 

should propose for designation if the 

species is proposed for listing, and why 

such habitat meets the requirements of 

the Act. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act (16 U.S.C. 1531 et 

seq.) directs that determinations as to 

whether any species is a threatened or 

endangered species must be made 

‘‘solely on the basis of the best scientific 

and commercial data available.’’ Based 

on the status review, we will issue a 12- 

month finding on the petition, as 

provided in section 4(b)(3)(B) of the Act. 

You may submit your information 

concerning this status review by one of 

the methods listed in the ADDRESSES

section. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the Web site. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold your personal 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. We will post all 

hardcopy comments on http:// 

www.regulations.gov. 

Information and materials we receive, 

as well as supporting documentation we 

used in preparing this finding, will be 

available for public inspection on http:// 

www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Caribbean Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Background 

Section 4(b)(3)(A) of the Act requires 

that we make a finding on whether a 

petition to list, delist, or reclassify a 

species presents substantial scientific or 

commercial information indicating that 

mstockstill on DSKH9S0YB1PROD with PROPOSALS