[Federal Register Volume 62, Number 213 (Tuesday, November 4, 1997)]
[Rules and Regulations]
[Pages 59605-59623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29088]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD05
Endangered and Threatened Wildlife and Plants; Final Rule to List
the Northern Population of the Bog Turtle as Threatened and the
Southern Population as Threatened Due to Similarity of Appearance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
threatened status pursuant to the Endangered Species Act of 1973, as
amended (Act) for the northern population of the bog turtle (Clemmys
muhlenbergii), which ranges from New York and Massachusetts south to
Maryland. The Service also determines the southern population of the
bog turtle, which occurs in the Appalachian Mountains from southern
Virginia to northern Georgia, to be threatened due to similarity of
appearance to the northern population, with a special rule.
The bog turtle is threatened by a variety of factors including
habitat degradation and fragmentation from agriculture and development,
habitat succession due to invasive exotic and native plants, and
illegal trade and collecting. This rule implements Federal protection
and recovery provisions afforded by the Act.
DATES: Effective November 4, 1997.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Pennsylvania Field
Office, U.S. Fish and Wildlife Service, 315 South Allen Street, Suite
322, State College, Pennsylvania 16801.
FOR FURTHER INFORMATION CONTACT: Carole Copeyon, Endangered Species
Biologist, at the above address (telephone 814/234-4090; facsimile 814/
234-0748).
SUPPLEMENTARY INFORMATION:
Background
The bog turtle was first described and named as Muhlenberg's
tortoise (Testudo muhlenbergii) by Johann David Schoepff in 1801 based
on specimens received in 1778 from Reverend Heinreich Muhlenberg of
Lancaster County, Pennsylvania. In 1835, L.J. Fitzinger transferred the
species to the genus Clemmys, where it remains today (Barton and Price
1955). In 1917, Dunn considered bog turtles within the southern range
to be distinct, and classified the southern population as Clemmys
nuchalis (Amato, Behler, Tryon, and Herman 1993). This taxon was
subsequently synonymized with Clemmys muhlenbergii; however,
researchers still question the taxonomic status of the northern and
southern populations (Amato et al. 1993, Klemens in press). Initial
data from recent preliminary genetic studies, based on examination of
variability at the 16S ribosomal gene, suggest that there may not be
significant genetic differences between the northern and southern
populations. However, due to the conservative nature of this gene in
other species, any definitive conclusions concerning genetic
differences between the northern and southern populations is premature
(Amato et al. 1993).
The bog turtle is sparsely distributed over a discontinuous
geographic range extending from New England south to northern Georgia.
A 250-mile gap within the range separates the species into distinct
northern and southern populations (Klemens in press, Tryon 1990, Tryon
and Herman 1990). The
[[Page 59606]]
northern population extends from southern New York and western
Massachusetts southward through western Connecticut, New Jersey and
eastern Pennsylvania, to northern Delaware and Maryland. Disjunct
populations previously occurred in western Pennsylvania and in the Lake
George and Finger Lakes regions of New York. The western Pennsylvania
and Lake George populations have been extirpated, and only a remnant
population exists at one remaining site in the Finger Lakes region. The
southern population occurs in the Appalachian Mountains from
southwestern Virginia southward through western North Carolina, eastern
Tennessee, northwestern South Carolina, and northern Georgia. The
southern population also occurs in the upper piedmont physiographic
province of North Carolina. The species' disjunct distribution is
thought to be the result of Pleistocene and post-Pleistocene climatic
changes (Lee and Norden 1996).
The Act defines a species to include any subspecies of fish or
wildlife or plants, or any distinct population segment (DPS) of any
species of vertebrate fish or wildlife which interbreeds when mature.
Based on the disjunct distribution of this species, the northern
population of the bog turtle is considered a DPS and, therefore, a
separate species under the Act.
The bog turtle is the smallest member of the genus Clemmys, with
the carapace (upper shell) of adults measuring 7.5 to 11.4 centimeters
(3.0 to 4.5 inches) in length (Bury 1979). The domed carapace is weakly
keeled and ranges in color from light brown to ebony. The scutes of the
shell often have lighter-colored centers resembling a starburst pattern
(Herman and George 1986). The plastron (lower shell) is brownish-black
with contrasting yellow or cream areas, often along the midline. This
species is readily distinguished from other turtles by the large,
conspicuous bright orange, yellow, or red blotch found on each side of
the head. The species is sexually dimorphic. Males have concave
plastrons and long, thick tails, and the vent of the male is located
beyond the posterior carapace margin. Females have proportionately
higher carapaces, flat plastrons, and relatively short tails, and the
vent of the female is located beneath the carapace edge (Bury 1979,
Klemens in press).
Bog turtles are semi-aquatic and are only active during part of the
year (Barton and Price 1955). In the northern part of their range, they
are active from April to mid-October (Arndt 1977, Nemuras 1967).
Reported periods of inactivity in July and August may be an artifact of
collecting bias and the difficulty of locating turtles at that time of
year (Lovich, Herman, and Fahey 1992). Bog turtles hibernate from
October to April, often just below the upper surface of frozen mud or
ice (Chase, Dixon, Gates, Jacobs, and Taylor 1989). Their varied diet
consists of beetles, lepidopteran larvae, caddisfly larvae, snails,
nematodes, millipedes, fleshy pondweed seeds, sedge seeds, and carrion
(Barton and Price 1955, Nemuras 1967). Where population estimates are
available, bog turtles have been found at densities ranging from 7 to
213 turtles per hectare (Chase et al. 1989). Chase et al. (1989) found
an average of 44 turtles per site at 9 study sites in Maryland.
Female bog turtles reach sexual maturity between 5 and 8 years of
age (Barton and Price 1955, Ernst 1977). Mating occurs in May and June,
and females deposit from two to six white eggs in sphagnum moss or
sedge tussocks in May, June, or July (Arndt 1977, Herman 1990, Herman
and George 1986, Klemens in press). Unlike most other semi-aquatic
turtles, bog turtles do not leave their wetland habitat and travel to
dry, upland areas to lay eggs. ``Instead, they select slightly elevated
sites, generally on Carex stricta tussocks, for nesting within their
marshy habitat. Nesting areas typically have limited canopy closure,
support an array of moisture tolerant, low vegetation, and provide
ample solar exposure'' (Robert Zappalorti, Herpetological Associates,
in litt. 1997). The eggs hatch after an incubation period of 42 to 56
days (Arndt 1977, Herman 1990), and the young emerge in August or early
September (Arndt 1977, Barton and Price 1955). Infertile eggs are
common (Arndt 1977, Herman 1990, Tryon 1990), and not all females
produce clutches annually (Tryon 1990). Also, there is no evidence to
suggest that multiple clutches are deposited in a single season.
Bog turtles inhabit shallow, spring-fed fens, sphagnum bogs,
swamps, marshy meadows, and pastures which have soft, muddy bottoms;
clear, cool, slow-flowing water, often forming a network of rivulets;
and open canopies (Arndt 1977, Barton and Price 1955, Herman and George
1986, Klemens in press). In Maryland, Chase et al. (1989) reported that
bog turtles were found in circular basins with spring-fed pockets of
shallow water, a substrate of soft mud and rock, dominant vegetation of
low grasses and sedges, and interspersed wet and dry pockets. In these
types of habitats, bog turtles often utilize the runways of muskrats
and meadow voles (Barton and Price 1955, Nemuras 1967, Taylor et al.
1984). Bog turtles have been found at elevations ranging from near sea
level in the north to 1500 meters (4500 feet) in the south (Herman and
George 1986).
Bog turtles usually occur in small, discrete populations occupying
suitable wetland habitat dispersed along a watershed (Collins 1990).
These wetlands are a mosaic of micro-habitats which include dry
pockets, saturated areas, and areas that are periodically flooded. They
depend upon this diverse hydrological mosaic, utilizing shallow water
in spring, and returning to deeper water in winter (Chase et al. 1989).
Unless disrupted by fire, beaver activity, grazing, or periodic wet
years, open-canopy wetlands are slowly invaded by woody vegetation.
They undergo a transition into closed-canopy, wooded swamplands that
are unsuitable for habitation by bog turtles (Klemens in press, Tryon
1990). Historically, bog turtles probably moved from one open-canopy
wetland patch to another, as succession closed wetland canopies in some
areas, and natural processes (e.g., beaver activity or fire) opened
canopies in other areas (Klemens 1989).
Several plant species commonly associated with bog turtle habitats
include alders (Alnus sp.), willows (Salix sp.), sedges (Carex sp.),
sphagnum moss (Sphagnum sp.), jewelweed (Impatiens capensis), rice cut-
grass (Leersia oryzoides), tearthumb (Polygonum sagittatum), arrow arum
(Peltandra virginica), red maple (Acer rubrum), skunk cabbage
(Symplocarpus foetidus) and bulrushes (Juncus sp. and Scirpus sp.)
(Arndt 1977; Barton and Price 1955; Herman and George 1986; Taylor,
Dawson, Beall, and Schaeffer 1984). Pedestal vegetation, such as
tussock sedge (C. stricta) and sphagnum moss, are utilized for nesting
and basking (Gelvin-Innvaer and Stetzar 1992, Klemens in press).
Currently, many wetlands occupied by bog turtles in agricultural
areas are subject to livestock grazing. Light to moderate grazing may
function to impede succession by preventing or minimizing the
encroachment of invasive native and exotic plant species, thereby
maintaining an intermediate stage of succession (Smith 1994, Tryon
1990). It has been suggested that in precolonial times the grazing
activities of large herbivores, such as bison (Bison bison) and elk
(Cervus canadensis), may have been important in maintaining bog turtle
habitat (Lee and Norden 1996). The occurrence of bog turtles in
wetlands grazed by livestock is probably an instance where grazing by
livestock
[[Page 59607]]
has either replaced grazing by native herbivores or replaced one of the
other historical factors that would have acted to maintain the wetlands
in an early successional stage.
Due to the bog turtle's rarity, small size, predator-evasive
behavior (i.e., tendency to burrow rapidly into the mud), and habitat
preferences (e.g., dense herbaceous vegetation), it is difficult to
obtain reliable bog turtle population demographics. This lack of data
has led to a misconception as to the number of healthy populations
found throughout the species' range. For example, some documented bog
turtle sites support populations consisting primarily of old
individuals. These populations are slowly disappearing due to
negligible recruitment of juveniles over a sustained period of time
(Klemens 1989).
A protocol was developed to assess the capacity of sites to
maintain viable populations of bog turtles. Known as the ``Standardized
Bog Turtle Site-quality Analysis'' (Michael Klemens, Wildlife
Conservation Society, in litt. 1993), it groups bog turtle occurrences
into sites based on the likelihood of turtles moving between documented
occurrence locations and interbreeding. A site is ranked according to
four factors--(1) habitat size and degree of fragmentation; (2) the
presence of invasive plants and later successional species; (3)
immediate threats such as wetland ditching, draining, filling or
excavation; and (4) the type and extent of land use in the area. Where
adequate data are available, sites are also ranked according to
population size and evidence of recruitment.
Using this site-quality analysis in 1993 and 1994, the individuals
most familiar with each site (the primary bog turtle researcher(s) in
each State) assessed and ranked the suitability of almost every known
northern population site. The ranking process resulted in each site
receiving a numerical score, and based on these scores, each site was
then ranked as good, fair, or poor. By incorporating factors related to
habitat quality and threats, these rankings reflect the suitability of
the sites to maintain viable bog turtle populations. The classification
system was based on researchers' best professional judgments regarding
site suitability. The classifications based upon these scores are
conservative for several reasons. Threats from illegal collecting were
not considered in the rankings. Rankings were often based on
interpretation of old maps (more than 10 years old); therefore, recent
land use changes such as development were not considered. Also, at some
sites the presence of turtles had not been confirmed for over 10 years.
Occurrence refers to a documented specific bog turtle location (a
single wetland or a road-crossing sighting), one or more of which are
included in a site. Due to widespread wetland habitat fragmentation
throughout the turtle's range, most sites are comprised of only one
small extant occurrence, often isolated from other such occurrences.
Of 191 known extant bog turtle sites within the northern population
in 1996, 33 were classified as good, 67 as fair, 76 as poor, and 15 as
unknown status. The State-by-State summaries given below present
information primarily about the status and distribution of extant
northern bog turtle populations/sites within each State.
In Connecticut, bog turtles are found in the northwestern corner of
the State in Fairfield and Litchfield Counties. All five remaining
populations are found on private lands; four of these populations are
classified as fair and one as poor (Julie Victoria, Connecticut
Division of Wildlife, in litt. 1994).
In Delaware, bog turtles were historically reported from 11
localities in the piedmont and coastal plain of New Castle County
(Arndt 1977). Currently, only four sites are known to support bog
turtles, and all of these are classified as fair. Two of these sites
occur on State lands and two on private property (Lisa Gelvin-Innvaer,
Jay Greenwood and Bill Zawaki, Delaware Division of Fish and Wildlife,
in litt. 1994).
All three known bog turtle populations in Massachusetts occur on
private property in southern Berkshire County. Two of these sites
receive some degree of protection through landowner conservation
agreements. One population is considered good, one fair, and one poor.
Maryland's 65 remaining extant bog turtle sites occur in the
piedmont region of Baltimore, Carroll, Cecil and Harford Counties, with
approximately 97 percent of the habitat privately owned and the other 3
percent in State ownership (Scott Smith, Maryland Department of Natural
Resources, in litt. 1994). Seventeen of these sites are classified as
good, 23 as fair, and 25 as poor. In 1995 and 1996, five additional bog
turtle sightings were documented from Harford, Baltimore, and Carroll
Counties. However, most of these occurrences are components of
previously identified and ranked sites (Smith, in litt. 1996).
In New Jersey, there are 53 known extant bog turtle sites in
Burlington, Hunterdon, Monmouth, Morris, Ocean, Somerset, Sussex,
Union, and Warren counties (James Sciascia, New Jersey Department of
Fish, Game and Wildlife, and Robert Zappalorti, Herpetological
Associates, Inc., in litt. 1994; Sciascia, in litt. 1997). Eight of
these sites are classified as good, 21 as fair, 18 as poor, and 6 are
of unknown status. Approximately 90 percent of the turtle habitat in
New Jersey is privately owned, while the State and Federal governments
own 5 percent each (Sciascia and Zappalorti, in litt. 1994).
The New Jersey Endangered and Nongame Species Program recently
conducted extensive surveys to locate and document bog turtle habitat.
From 1993 to 1995, the habitat suitability of 473 wetlands in
Hunterdon, Somerset, Sussex, and Warren counties was assessed. Only 77
sites (16 percent) contained potentially suitable bog turtle habitat,
and bog turtles were found at only 8 of these wetlands (Sciascia 1996).
In 1996, additional surveys conducted in Sussex County documented 16
new bog turtle occurrences, primarily in calcareous fen habitats. These
fens are restricted to a 40-square-mile area in central Sussex and
northern Warren counties. The discovery of bog turtles in calcareous
fen habitats is important to the species' conservation within this area
of New Jersey and neighboring Pennsylvania. Fens are primarily shrub
and herb communities formed in low-lying areas where groundwater
percolates over limestone bedrock. This alkaline seepage water most
likely retards the growth of canopy-closing trees such as red maple.
The persistence of this type of shrub/herb community could account for
the presence of bog turtles (James Sciascia, New Jersey Department of
Fish, Game and Wildlife, in litt. 1996).
The bog turtle's range in New York is concentrated primarily in the
extreme southeastern corner of the State. Disjunct populations
historically occurred in the Lake George area in eastern New York, in
the Finger Lakes region in western New York, and in south central New
York. The Lake George and south central populations have been
extirpated, and only one extant Seneca County site remains in the
Finger Lakes region (Alvin Breisch and Michael Kallaji, New York
Department of Environmental Conservation, and Paul Novak, New York
Natural Heritage Program, in litt. 1994; Novak, in litt. 1997).
Potentially, 22 sites remain in southeastern New York; however, only 17
are considered extant. Of the 18 total remaining extant sites in New
York (Seneca, Columbia, Dutchess, Putnam, and Orange counties), 5 are
considered good, 6 fair
[[Page 59608]]
and 7 poor. Nearly all bog turtle habitat (99 percent) occurs on
private lands; the remaining 1 percent is found on State lands (Breisch
et al., in litt. 1994).
In Pennsylvania, bog turtles are still found in 13 of the 17
counties from which the species was previously reported (Adams, Berks,
Bucks, Chester, Cumberland, Franklin, Lancaster, Lebanon, Lehigh,
Monroe, Montgomery, Northampton, and York). Of the 34 remaining sites
evaluated, 2 sites are considered good, 8 fair, and 24 poor.
Approximately 85 percent of the bog turtle habitat is found on private
lands, with the remainder occurring on State and Federal lands (10
percent and 5 percent, respectively) (Barton, in litt. 1994). In
addition, between 1994 and 1996, nine new sightings were reported from
Berks, Chester, and Northampton counties. These sites have yet to be
evaluated; however, some appear to be small and marginal in quality.
The extent of the captive bog turtle population is poorly
documented at this time, with the exception of bog turtles held by
zoological institutions. According to data from the International
Species Information System (ISIS), 102 bog turtles are currently held
by 16 zoos in the United States; 64 percent of these turtles are
captive born and 24 percent wild born (Judy Hendrickson, ISIS, in litt.
1997). Only a few people within the range of the northern and southern
populations have valid State permits to possess bog turtles or conduct
studies of wild turtles. Although the full extent of the illegally-held
bog turtle population is unknown, based on evidence of collection and
trade (see the ``Summary of Factors'' section), it is likely to greatly
exceed that of the legally-held population.
Based on documented losses of bog turtles and their habitat, the
northern population has declined by at least 50 percent, with most of
the decline occurring over the last 20 years. Habitat destruction and
illegal collecting for the pet trade are the primary threats to the
species. Widespread alteration of bog turtle habitat has resulted from
the draining, ditching, dredging, filling, and flooding of wetlands for
residential, urban, and commercial development; road construction;
agricultural activities; and pond and reservoir construction. The
proximity of many remaining bog turtle populations to rapidly
developing areas also poses a significant threat to the species.
Previous Federal Action
The bog turtle was first recognized as a Category 2 candidate
species by the Service in the December 30, 1982, Federal Register
notice of review (47 FR 58454). It was later retained as a Category 2
species in subsequent notices of review (60 FR 37958, September 18,
1995; 54 FR 554, January 6, 1989; and 56 FR 58804, November 21, 1991).
Reclassification of the bog turtle to Category 1 was reflected in the
November 15, 1994, animal notice of review (59 FR 58982). On February
28, 1996 (61 FR 7457), the Service published a notice of review that no
longer included species formerly referred to as Category 2 candidate
species. The notice revised the definition of the term ``candidate'' as
taxa for which the Service has on file sufficient information on
biological vulnerability and threats to list them as endangered or
threatened species. The northern population of the bog turtle was
included as a candidate in this February 28 notice of review. On
January 29, 1997, the Service published a proposed rule in the Federal
Register (62 FR 4229) to list the northern population of the bog turtle
as threatened and the southern population as threatened due to
similarity of appearance.
The processing of this final rule conforms with the Service's
listing priority guidance published in the Federal Register on December
5, 1996 (61 FR 64475). The guidance clarifies the order in which the
Service will process rulemakings following two related events: (1) the
lifting, on April 26, 1996, of the moratorium on final listings imposed
on April 10, 1995 (Public Law 104-6), and (2) the restoration of
significant funding for listing through enactment of the omnibus budget
reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for giving highest
priority to handling emergency situations (Tier 1) and second highest
priority to resolving the listing status of outstanding proposed
listings (Tier 2). A lower priority is assigned to resolving the
conservation status of candidate species and processing administrative
findings on petitions to add species to the lists or reclassify species
from threatened to endangered (Tier 3). The lowest priority is given to
processing critical habitat determinations, delistings, and other
reclassifications (Tier 4). Processing of this final rule is a Tier 2
action since it resolves the conservation status of a proposed species.
In 1975, the bog turtle was added to Appendix II of the Convention
on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) in order to monitor trade in the species. In 1991, the New York
Zoological Society submitted a proposal to the Service requesting the
transfer of the bog turtle from Appendix II to Appendix I of CITES
(Anon. 1991). In response to a notice (56 FR 33895; July 24, 1991)
calling for changes to the CITES Appendices, a total of 13 comments
were received concerning the bog turtle proposal. All commenters
recommended transferring the bog turtle from Appendix II to Appendix I
due to the increased number of bog turtles being advertised for sale,
the increased price being paid for individuals and pairs, and illegal
trade not being reported under CITES. In the March 4, 1992, Federal
Register notice (57 FR 7722), the Service announced that the party
members to CITES agreed to transfer the bog turtle from Appendix II to
Appendix I; and on June 11, 1992, the species was officially added to
Appendix I.
Summary of Comments and Recommendations
In the January 29, 1997, proposed rule and associated
notifications, all interested parties were requested to submit factual
reports or information that might contribute to the development of a
final rule. Appropriate Federal and State agencies, county governments,
scientific organizations, and other interested parties were contacted
and requested to comment. Notices were published in newspapers across
the range of the species inviting public comment.
On March 14, 1997, the Service received a written request for a
public hearing from Mr. Gary Hoffman, Chief Engineer for the
Pennsylvania Department of Transportation (PennDOT). As a result, on
April 3, 1997, the Service published a notice in the Federal Register
(62 FR 15873) announcing the public hearing. The Service conducted a
public hearing on April 21, 1997, at the Oley High School in Oley,
Pennsylvania. Testimony was taken from 7:00 to 9:00 p.m. (Eastern
Standard Time). Thirty-two of the approximately 200 people attending
the hearing presented testimony. During the comment period, the Service
received 237 comments (letters and oral testimony) from 15 State
agencies; 6 local governments; and 216 individuals, groups, and
organizations. Eight opposed, 218 supported, and 11 were neutral on the
proposed action.
The Service has reviewed all of the written and oral comments
received during the comment period. Some comments dealt with matters of
opinion or issues unrelated to the question of
[[Page 59609]]
listing, and are, therefore, not addressed as part of this rulemaking.
Comments updating the data presented in the ``Background'' or ``Summary
of Factors Affecting the Species'' sections are incorporated into those
sections of this final rule. Opposing comments and other substantive
comments concerning the rule have been organized into specific issues,
which may be paraphrased. Comments of a similar nature are grouped
together by issue. These issues and the Service's response to each are
summarized as follows.
Issue 1
Two commenters thought the Service should consider economic impacts
when listing species. One commenter further contended that ``all state
and federal actions designed to protect alleged threatened and/or
assumed endangered species pursuant to the ESA should demonstrate that
the benefits to humans exceed the costs to humans.''
Service Response: Under section 4(b)(1)(A) of the Act, a listing
determination must be based solely on the best scientific and
commercial data available. The legislative history of this provision
clearly states the intent of Congress to ``ensure'' that listing
decisions are ``based solely on biological criteria and to prevent non-
biological criteria from affecting such decisions'' (H.R. Rep. No. 97-
835, 97th Cong., 2d Sess. 19 (1982)). As further stated in the
congressional report, ``economic considerations have no relevance to
determinations regarding the status of species.'' Because the Service
is specifically precluded from considering economic impacts in a final
decision on a proposed listing, the Service did not consider the
possible economic consequences of listing the bog turtle.
Issue 2
Two commenters contended that the Service did not provide adequate
opportunity for public comment, and should therefore consider extending
the comment period and holding additional public hearings.
Service Response: The Service went through an extensive
notification process to make the public aware of the proposal,
including Federal Register notification, letters to specific concerned
parties, and notifications to local newspapers. In order to increase
the opportunity for public comment, the Service had a 90-day comment
period on the proposed rule, although only a 60-day comment period is
required. In response to a request by the PennDOT, the Service also
held a public hearing within the core of the bog turtle's range in
Pennsylvania. These processes were described at the beginning of this
section.
Issue 3
One commenter requested additional information regarding the
scientific basis for identifying a species as federally threatened when
the species is not considered threatened throughout its entire
biological range.
Service Response: The Endangered Species Act requires the Secretary
of the Interior (or Commerce, depending on jurisdiction) to determine
whether species are endangered or threatened. A ``species'' as defined
under the Act includes species, subspecies and ``any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.'' From a biological perspective, the Act
supports the goals of conserving genetic resources, and maintaining
natural systems and biodiversity over a representative portion of a
species' historical occurrence. In that respect, the listing of DPS's
may allow the Service to protect and conserve species and the
ecosystems upon which they depend before a large-scale decline occurs
that would necessitate listing a species throughout its entire range.
This may allow protection and recovery of declining organisms in a more
timely and less costly manner, and on a smaller scale than the more
costly and extensive efforts that might be needed to recover an entire
species.
Issue 4
One commenter alleged that the northern population of the bog
turtle is not a DPS as defined by Service policy, partially due to the
lack of documented genetic differences between the northern and
southern populations.
Service Response: According to the Service's policy on Distinct
Population Segments (61 FR 4725), three elements are considered
regarding the potential recognition of a DPS as endangered or
threatened--(1) discreteness of the population segment in relation to
the remainder of the species to which it belongs; (2) the significance
of the population segment to the species to which it belongs; and (3)
the population segment's conservation status in relation to the Act's
standards for listing.
With respect to the bog turtle, the northern population meets the
``discreteness'' criterion in that it is markedly separated from the
southern population by a distance of approximately 250 miles. Evidence
of such discreteness may include genetic or morphological differences,
but this is not a requirement. The northern population of the bog
turtle meets the ``significance'' criterion because loss of this DPS,
which occurs in seven States and represents over 50 percent of the
species' range, would result in a significant void in the range and
distribution of the species. The ``status'' criterion is met in that
the northern population of the bog turtle, when evaluated with respect
to the Act's listing factors (see the ``Summary of Factors Affecting
the Species'' section), qualifies for listing as threatened.
Issue 5
With regard to habitat loss, one commenter questioned whether the
Service had historical data on habitat, populations, and the species'
range, or only considered information from the past 20 years, which may
represent an artificial baseline and an ``unusual period in the
species' natural history.'' In considering the species historical
baseline, this commenter questioned whether bog turtles may have
occurred over a smaller range in the distant past, but later followed
deforestation into open areas and livestock pastures along floodplains.
Service Response: In assessing the status of the bog turtle, the
Service reviewed the best available information regarding populations,
past and present distribution, and habitat loss. Information provided
by State wildlife agencies, natural heritage programs, researchers, and
others dated back to the late 1800's, and indicated a reduction in
range, and loss of habitat and populations over this period of time,
with the documented loss dramatically accelerating over the past 20
years. In this respect, the past 20 years may represent an unusual
period in the species' natural history--a period of unprecedented
decline.
Bog turtles inhabit open canopy wetlands, a habitat type which was
more common historically than today because (1) historically, the
ecological factors of fire and beaver activity were unimpeded in
creating and maintaining these areas, and (2) since the 1800's, wetland
draining, dredging, and filling have become a prevalent practice of
land conversion for development, agriculture, and resource extraction.
Bog turtles are occasionally found in grazed wet pastures, and it has
been suggested that in precolonial times the grazing activities of
large herbivores, such as bison and elk, may have been important in
maintaining bog turtle habitat (Lee and Norden 1996). Thus, the
occurrence of bog turtles in wetlands lightly grazed by livestock is
probably an instance where grazing by livestock has replaced grazing by
native herbivores, or replaced one of the other historical factors that
[[Page 59610]]
would have acted to maintain the wetlands in an early successional
stage.
Issue 6
One commenter suggested that the decline in bog turtle habitat may
be due to farm pastures evolving into habitat areas unsuitable for bog
turtles.
Service Response: Bog turtles are occasionally found in grazed wet
pastures, and vegetative succession in these habitats is a contributing
factor, though not the only factor, to the species' decline. Light to
moderate grazing may impede vegetative succession by preventing or
minimizing the encroachment of invasive native and exotic plant
species, and it appears that this level of grazing helps to maintain
the intermediate stage of succession required by the bog turtle (Smith
1994, Tryon 1990). When grazing is discontinued the habitat becomes
less suitable (or unsuitable) due to succession.
Issue 7
Three commenters requested that the Service delay or not list the
bog turtle due to an insufficient amount of data to justify listing.
One commenter alleged that a single modeling study (i.e., the
assessment of sites using the ``Standardized Bog Turtle Site-quality
Analysis'') rather than a sufficient number of diverse studies were
used to support the listing. This commenter also contended that the
information used to justify the listing was not adequate because the
Service did not cite any studies that might question the validity of
the proposal, and that where there are data gaps, the Service must
complete studies to close those gaps. No data or studies were provided
or cited by these commenters supporting their assertion that the
information utilized by the Service was incomplete or incorrect.
Expressing a contrary view, peer reviewers and several other
biologists familiar with the species stated that the Service had
clearly documented the species status and threats to its existence, and
concurred that listing was warranted.
Service Response: The Service concludes, as detailed in the
``Background'' and ``Summary of Factors Affecting the Species''
sections, that there are sufficient biological data to warrant listing
of the bog turtle under the Act. Information, studies, field data, and
site analyses provided by biologists, law enforcement personnel, and
others familiar with the bog turtle and its habitat provided adequate
information on the distribution, habitat requirements, and, most
importantly, threats to the bog turtle to warrant the present action.
The listing process includes an opportunity for the public to comment
and provide information that is evaluated and considered by the Service
before making a final decision. The additional data provided by
respondents during the comment period, and other appropriate
information available to the Service have been incorporated into this
final rule; none of these data indicated that this taxon is not
threatened.
Issue 8
Two commenters contended that the Service has insufficient
population data to justify listing the bog turtle.
Service Response: The Service agrees that estimates of total
population are lacking for this species; however, the Service
considered several additional factors that are also important in
developing a biologically accurate species status assessment. The
biological security of many declining species is more a function of the
number of healthy local populations than the total number of
individuals in the wild. In addition to considering the number of sites
and subpopulations comprising the northern population, the Service also
considered factors such as the size of existing subpopulations,
historical and current rates of decline, the species' low recruitment
potential, distribution and proximity of subpopulations, quantity and
quality of available habitat, genetic diversity, and imminent and
potential threats to the species and its habitat. Therefore, although
quantitative sampling has not been completed throughout the range of
the bog turtle, pertinent and significant information regarding the
other aspects of the species' status is available. The decreasing
number of bog turtle sites and the quality of these remaining sites
throughout the species' historical and current distributions are a more
accurate reflection of the turtle's status than are rough estimates of
the total number of bog turtles. When all of these factors are
considered for the bog turtle, it is clear that listing is warranted.
Issue 9
Seven commenters questioned or criticized the use of a model (i.e.,
the ``Standardized Bog Turtle Site-quality Analysis'') to assess bog
turtle sites, claiming that such evaluations are qualitative and
subjective, and that such assessments should be based on field data.
One commenter requested additional information regarding the methods
and data used to characterize sites.
Service Response: Extensive surveys of potential wetland habitats
have been conducted for bog turtles within the range of the northern
population. Most of these surveys were designed to primarily document
bog turtle presence, not to evaluate habitat quality, threats, or
population demography. Merely knowing the total number of occupied bog
turtle sites did not allow the Service to adequately assess the status
of this species, however. Therefore, a ``Standardized Bog Turtle Site-
quality Analysis'' was developed by Dr. Michael Klemens in conjunction
with other bog turtle researchers to qualitatively assess the capacity
of sites to maintain viable populations of bog turtles. The Service
requested that State wildlife agencies, natural heritage programs, and
researchers evaluate known bog turtle sites using this site analysis
protocol. The evaluators used site-specific information on habitat
conditions and threats obtained from field investigations and maps.
Using these data, each site received a numerical score ranging from one
to five for each of four factors, including--(1) habitat size and
degree of fragmentation; (2) percent coverage of invasive plants and
later successional species; (3) proximity of major threats (e.g.,
wetland alteration via ditching, draining, filling, or excavation); and
(4) the type and extent of land use within a one-mile radius of the
site. When available, data on population size and recruitment were also
used. Although qualitative in nature, the Service believes that this
method presented a more objective approach to assessing the status of
the bog turtle than simply looking at the total number of sites,
without regard to habitat quality and threats. The methods and site
data are contained within the administrative file (see ADDRESSES
section).
Issue 10
Two commenters questioned whether certain factors (i.e., predation,
flooding of habitat by beaver, mortality due to vehicles and livestock,
and pollution) pose a sufficient threat to justify listing.
Service Response: Although these factors pose a significant threat
to several known bog turtle sites, none of them, when considered alone,
poses a sufficient threat to the northern population to justify
listing. When making a listing determination, however, the Service
assesses the potential impact of all threats to the species. Although
listing of a species might not be justified based upon a single factor,
when all factors are considered collectively, the threat may be
substantial enough to warrant listing. Such is the case for the bog
turtle (see
[[Page 59611]]
the ``Summary of Factors Affecting the Species'' section).
Issue 11
One commenter felt that the Service relied almost exclusively on
previous habitat loss to justify the listing, rather than focusing on
the present or threatened destruction, modification, or curtailment of
the species' habitat.
Service Response: The Service considers a variety of factors in
making a listing determination. Although historical habitat loss and
rates of decline are considered during the species' status assessment,
many other factors, including current rates of decline, potential and
imminent threats, number and status of populations, and amount and
quality of remaining habitat, are evaluated as well. Historical habitat
loss and rates of decline are utilized by the Service to ascertain if a
species is undergoing a precipitous or gradual decline. The Service
considered the historical trend information in combination with all
other information to determine whether listing was warranted.
Issue 12
One commenter questioned whether it was warranted to list the bog
turtle in the north if most of the trade occurs in the south, where the
species is not threatened.
Service Response: Trade occurs in the range of the northern
population and poses a threat to the northern population, as documented
under factor ``B'' in the ``Summary of Factors Affecting the Species''
section. When considered in conjunction with the other factors
affecting the species, listing of the northern population is warranted.
Issue 13
Two commenters questioned the degree of threat posed by illegal
collecting. Specifically, one commenter did not believe that over 2000
bog turtles had been shipped overseas for trade, thinking the number
more likely to be 20. Another commenter contended that the Service's
``inference that demand for turtles is increasing simply because the
price is increasing is questionable.'' Neither commenter supplied the
Service with any data or further information to substantiate these
assertions.
Service Response: Considering the number of bog turtles that have
been found in the possession of individual collectors, the Service has
no reason to discount the overseas trade information. The Service's
inference about price and demand for turtles is based on the Service's
experience with other species vulnerable to trade. This inference is
also based upon principles of economics (when supply does not meet
demand, price increases); increasing prices for bog turtles likely mean
that demand is increasing while the supply of wild bog turtles is
decreasing.
Threats from illegal collection are real. Because bog turtles are
not uniformly distributed over their range, collecting is often focused
on a known source or site, thereby threatening the entire population at
the site with extirpation. Listing pursuant to the Act will close the
loopholes in the various existing protective laws and make it easier to
prove illegal collecting activities.
Issue 14
Six commenters questioned the Service's assertion that existing
regulations are inadequate to protect the bog turtle. They argued that
Federal listing is unnecessary and redundant because the bog turtle is
already protected as a State-listed species. Two of these commenters
argued that existing wetland regulations are adequate to protect the
bog turtle.
Expressing a contrary position, 38 commenters (including all peer
reviewers) noted that Federal, State, and local laws have been
ineffective in providing protection for the bog turtle and its habitat.
Several commenters noted that bog turtle habitat is particularly
vulnerable due to various provisions of Federal and State wetland
regulations, including agricultural exemptions, general permits, and
nationwide permits. Referring to Pennsylvania's wetland permitting
program, the Monroe County Conservation District noted that ``tracking
of the state's program demonstrates that permits are generally being
issued as requested which will further fragment habitat locally over
time.'' Another commenter noted that between 1988 and 1996, 1181
actions were authorized through general permits, and none were denied
in 3 Pennsylvania counties inhabited by bog turtles. Several commenters
noted that State endangered species laws are ineffective in deterring
collection and trade.
Service Response: Based on an examination of the available
information, the Service has determined that proposed and on-going
damage or destruction of wetlands due to development and agriculture
throughout the range of the northern population is prevalent despite
existing Federal, State, and local regulations, and that existing
levels of protection are not adequate to assure the survival of the bog
turtle. In addition, although the bog turtle is State-listed throughout
its range, State laws are not sufficient or able to address the threats
of collection and trade. For example, some State law penalties are not
as stringent as others, and law enforcement priorities vary between
States. A more detailed discussion of the inadequacy of existing
regulations can be found under the ``Summary of Factors Affecting the
Species'' section. Listing pursuant to the Act will provide consistency
by providing a uniform regulation that applies across all States.
Issue 15
Two commenters questioned the reliability of surveys in concluding
that previously occupied sites were no longer occupied by bog turtles.
Specifically, one commenter did not believe that the number of
extirpated populations was as high as reported. He noted that surveyors
are not always successful in locating bog turtles, even in wetlands
where turtles are known to occur. Another commenter contended that some
sites may no longer exist, but this ``may only be due to the bog turtle
populations moving to another site.''
Service Response: The Service, State wildlife agencies, and bog
turtle researchers recognize the difficulties associated with
conducting bog turtle surveys; even under the best conditions, bog
turtles can be difficult to locate. For those previously documented bog
turtle sites that still bore evidence of potentially suitable habitat,
repeated surveys were conducted by qualified surveyors before
concluding that bog turtles were indeed extirpated from the site.
Although historically bog turtles probably moved from less suitable
wetlands (e.g., those undergoing succession) to more suitable wetlands
(e.g., those recently formed, or where succession was set back by
natural processes), it is much less likely that such movements would be
successful today. Bog turtle habitats are now highly fragmented, making
successful immigration and emigration difficult due to loss of wetland
travel corridors, and the prevalence of roads, subdivisions, and
agricultural land near, and often encircling, many sites. In addition,
more habitat is becoming unsuitable, and fewer potentially suitable
wetland sites are becoming available because those natural processes
that served to maintain and create bog turtle habitat have been
suppressed or are no longer operative (see the ``Summary of Factors
Affecting the Species'' section).
[[Page 59612]]
Issue 16
One commenter questioned the thoroughness and geographic extent of
the surveys that had been conducted for the species range-wide,
including the area between the currently known northern and southern
populations.
Service Response: Prior to preparation of the proposed rule, the
Service assessed the status of the northern and southern populations.
At that time, the Service queried State wildlife agencies, natural
heritage programs, and bog turtle researchers about the adequacy of
surveys conducted to date. Based on their responses, approximately 10
to 20 percent of the potentially suitable bog turtle habitat within the
northern range remains to be surveyed. Surveys of potential bog turtle
habitat continue in most of the northern range States. Survey coverage
is much less complete in the southern range States, particularly in
North Carolina and Virginia, where less than 50 percent of the
potentially suitable habitat has been surveyed. A comprehensive survey
of the southern population is currently underway, as discussed under
Issue 20. Numerous herpetological surveys have failed to locate bog
turtles between the northern and southern populations.
Issue 17
The PennDOT proposed that a task force be established to develop a
candidate conservation agreement for the bog turtle, rather than list
the species. The PennDOT felt such an agreement would provide a greater
benefit to the species than listing, while at the same time minimizing
Federal intervention, and provide regulatory relief should the species
be listed in the future. The PennDOT also indicated that they would be
precluded from pursuing proactive efforts to conserve the bog turtle
after listing occurs.
Service Response: Candidate conservation agreements are formal
agreements between the Service and one or more parties (i.e., land
owners, land managers, or State fish and wildlife agencies) to address
the conservation needs of proposed or candidate species. The
participants take on the responsibility of developing the agreement,
and voluntarily commit to implementing specific actions that will
remove or reduce the threats to the subject species, thereby
contributing to stabilizing or restoring the species. Conservation
benefits to the species may include an increase in habitat
connectivity, restoration or enhancement of habitats, maintenance or
increase of population numbers or distribution, and establishment of
buffers for protected areas. The ultimate goal of any candidate
conservation agreement is to remove threats to the species thereby
eliminating the need for listing under the Act.
In order to preclude the need for listing the bog turtle, a
sufficient number of candidate conservation agreements would have to be
developed and implemented throughout the seven-State range of the
northern population to remove enough threats for the Service to
conclude that the bog turtle is no longer in need of protection under
the Act. The Service has not been approached by any property owners,
land managers, or State wildlife agencies regarding development of
candidate conservation agreements. Also, although the PennDOT suggested
the development of such an agreement, they have not proposed a specific
plan, nor would they have control over implementation of such a plan
since they do not own or manage land containing any known bog turtle
sites.
Most State wildlife agencies within the range of the northern
population have expressed support for Federal listing of the bog
turtle, often citing the vulnerability of the species to illegal
collection and the need for Federal listing to address this threat.
Because candidate conservation agreements would be unable to address
the significant threats of trade and illegal collection, their
implementation would not preclude the need to list the bog turtle under
the Act.
Regarding implementation of proactive efforts to conserve bog
turtles, these efforts would be encouraged, not precluded, by the
Service after listing. Because the bog turtle occurs primarily on
private property, the Service fully realizes that recovery of this
species will depend upon the voluntary cooperation of private
landowners, and welcomes them as partners in the recovery effort. The
Service will work to provide technical assistance to those property
owners and land managers who wish to implement conservation measures
for this species.
Issue 18
Forty-one commenters (including two peer reviewers) recommended
that the Service list the northern population as endangered rather than
threatened. Although little additional information was offered by these
commenters to support the change in status, some argued that the
threats (particularly the inadequacy of existing regulations) were
substantial enough to support such a listing. Others contended that the
information in the proposed rule supported an endangered listing, or
felt that the species would receive better protection if designated as
endangered.
The Tortoise and Freshwater Turtle Specialist Group of the
International Union for the Conservation of Nature (IUCN) commented
that they recently evaluated the status of the bog turtle and added it
as ``endangered'' to their 1996 IUCN Red List. Based on the information
in the proposed rule, as well as their extensive knowledge of the
species and threats to its survival, they concluded that the northern
population should be federally listed as endangered.
Service Response: Based on the available information on the bog
turtle's status, and a careful assessment of threats, the Service
proposed the bog turtle for listing as threatened. Although the
northern population of the bog turtle faces serious ongoing and
potential threats, it is not currently in imminent danger of
extinction. Although some additional data on threats and the species'
status were received during the public comment period, these data did
not justify a change in the proposed classification of threatened. The
Service, therefore, still believes that a listing of threatened is
appropriate for the northern population.
Issue 19
One commenter stated that listing of the southern population must
be based on more than its similar physical appearance to the northern
population.
Service Response: Listing of the southern population as threatened
due to similarity of appearance is based upon more than its similar
physical appearance to the northern population, as detailed in the
proposed rule and this final rule (see ``Similarity of Appearance''
section).
Issue 20
The Service received 10 comments disagreeing with the proposed
listing of the southern population as threatened due to similarity of
appearance. Four commenters recommended listing the bog turtle as
threatened or endangered in Georgia, Tennessee, and/or South Carolina,
specifically excluding North Carolina and Virginia. Six commenters
recommended listing the entire southern population as threatened or
endangered. In addition, one commenter stated that the Service has
insufficient data on the southern population to say that it is not
biologically threatened or endangered at this time.
Service Response: The northern and southern populations of the bog
turtle can each be considered a DPS under the Service's DPS Policy (see
discussion under Issue 4). However, while both
[[Page 59613]]
populations meet the ``discreteness'' and ``significance'' criteria
under this policy, the Service only has sufficient status and threat
data on the northern population to justify its listing.
Prior to proposing the northern population of the bog turtle for
listing, the Service conducted a status review of both the northern and
southern populations. Several factors weighed into the Service's
decision not to propose the southern population for listing,
including--(1) the recent discovery of bog turtle sites in the Piedmont
physiographic province of North Carolina, well outside the species'
previously known Appalachian Mountains range; (2) limited information
regarding threats; and (3) inadequate survey coverage within the
southern range. A comprehensive status survey of the southern
population is currently underway and is anticipated to be completed by
December 1999. The Service agrees that it is premature to draw any
conclusions regarding the status of the southern population until
additional survey and threat information becomes available.
Although the Service could have delayed action on the northern
population until such time that additional data became available on the
southern population, such an action would have been irresponsible
considering the northern population faces documented and substantial
threats, and forthcoming data on the southern population may or may not
demonstrate that it qualifies for Federal listing.
Federal listing of only a portion of the southern population (e.g.,
bog turtles occurring in Georgia, South Carolina, and Tennessee) is not
appropriate because subpopulations do not qualify as legitimate listing
entities (i.e., DPS's) under the Service's DPS Policy. Also, boundaries
between States are not considered when determining whether a population
is ``discrete'' under the DPS Policy.
Issue 21
Five commenters expressed concerns that listing of the southern
population as threatened due to similarity of appearance will result in
intentional destruction of bog turtle habitat by landowners who fear
the potential for future listing, who don't understand what the
similarity of appearance listing means, or who don't believe that the
southern population will be regulated differently from the northern
population. Some of these commenters were also concerned that the
special rule exempting incidental take would further contribute to loss
of bog turtle habitat in the southern range.
Service Response: The Service recognizes that it has a
responsibility to conduct outreach activities to ensure that the public
understands the implications of the similarity of appearance listing
for the southern bog turtle population. Because bog turtle collection
and trade are already prohibited acts under State law throughout the
southern range, Federal listing will have no effect on landowners
within the southern range unless they are engaged in these already
illegal activities. Wanton destruction of bog turtle habitat within the
southern range, however, could precipitate the action that these
landowners would most like to avoid (i.e., Federal listing of the
southern population).
While the special rule for the southern population does exempt
incidental take, this does not mean that the Service condones the
destruction of bog turtle habitat in the southern range. The Service
recognizes that the bog turtle is State-listed in all five southern
range States, and hopes that land owners, land managers, and Federal,
State and local agencies will take this into account and give the
species the full consideration it deserves when planning and
implementing projects.
Issue 22
The Connecticut Farm Bureau Association presented information which
they felt contradicted the Service's assertion that deleterious
agricultural practices are affecting the bog turtle. They stated that
``according to USDA/NARCS data, between 1982 and 1992, the amount of
cropland still requiring conservation treatment declined by nearly a
quarter. Pasture and forest acres needing conservation treatment also
declined between 1982 and 1992.''
Service Response: While the information presented may reflect
positive national trends in soil conservation, it also implies that
progress is slow and incomplete (i.e., in 10 years, less than 25
percent of the land needing conservation treatment received such
treatment). It also does not contradict available information on known
and potential threats to bog turtles posed by agricultural activities,
including conversion of wetlands to farm ponds; heavy grazing;
hydrological alteration of wetlands (e.g., draining, ditching); and
chemical and sediment input to wetlands.
Issue 23
Seven commenters criticized the Service's decision not to designate
critical habitat for the bog turtle. Three of these commenters felt
that the additional protection and recovery benefits afforded by such
designation would outweigh the potential risk from increased
collecting. Four commenters who opposed the listing stated that the
Service's failure to identify critical habitat would mean that
landowners could be found in violation of the Act without knowledge of
where the species' habitat is located. They also contended that
landowners have a right to know how the listing will affect use of
their property.
Expressing a contrary view, several commenters concurred with the
Service's decision not to designate critical habitat, citing the threat
posed by illegal collection and the pet trade.
Service Response: The Service maintains that the risks associated
with designation of critical habitat for the bog turtle outweigh any
benefits of such designation. Once sites become publicly known, they
can be quickly exploited by collectors; exploitation of sites by
collectors soon after the sites had become publicly known has been
documented. Due to the small size of existing populations and the low
reproductive and recruitment potential of this species, the removal of
even a few breeding adults can do irrevocable damage to a population.
Therefore, due primarily to the threat of illegal collection, the
Service concludes that designation of critical habitat is not prudent,
as discussed in detail in the ``Critical Habitat'' section of this
rule.
The Service appreciates the concern that landowners have about the
potential implications of having a federally listed species on their
property. Therefore, in order to increase awareness of the effect of
listing on proposed and ongoing activities, and minimize the likelihood
of landowners unknowingly affecting listed species and their habitat,
the Service has identified those activities that would or would not
constitute a violation of section 9 of the Act, as detailed in the
``Available Conservation Measures'' section. Questions regarding
whether specific activities may constitute a violation of section 9
should be directed to the appropriate Service Field Office. In
addition, based on information provided by State wildlife agencies and
natural heritage programs, the Service notified persons (within the
northern range States) having known bog turtle habitat on their
property about the proposed rulemaking, and will notify these
landowners about the final listing as well.
[[Page 59614]]
Issue 24
One commenter noted that some bog turtles are legally possessed by
Maryland citizens as grandfathered animals (i.e., they were in
possession prior to State listing), and questioned whether it would be
a violation of section 9 to possess these turtles.
Service Response: The Service would not consider it a violation of
section 9 for a person to possess bog turtles, if at the time of
Federal listing, those bog turtles were legally in their possession
under a permit or other provisions (e.g., ``grandfathering''
provisions) of State law. Documentation (e.g., valid State permit) is
recommended to serve as proof of legal possession. However, as with
other listed species, a ``grandfathered'' bog turtle or its progeny
cannot be sold in interstate commerce.
Issue 25
One commenter noted that the market value of the bog turtle will
increase once the species is listed, which will likely lead to
increased take from the wild. They recommended that the Service address
this concern by either enhancing law enforcement activities, or
allowing for the legal trade of captively-produced bog turtles to meet
market demand.
Service Response: Although Federal listing of the bog turtle may
increase its market value, it is unclear whether this will result in
increased collection pressure. The Service recognizes that Federal
listing of the bog turtle may serve as a deterrent to some collectors.
The subsequent smaller market source for bog turtles would increase the
vulnerability of large-scale illegal operations to exposure.
Fortunately, public awareness about the plight of this species has
increased dramatically since the proposed rulemaking. This has prompted
some citizen groups to establish surveillance at bog turtle sites to
protect the turtles from collection. The Service applauds the efforts
of these groups, and recognizes that concerned citizens, landowners,
and State law enforcement personnel have a vital role to play in
protecting this vulnerable species from collection. The Service
anticipates that its law enforcement efforts will increase as well in
response to the Federal listing of the bog turtle.
The Service believes that if trade in captive-produced bog turtles
were allowed, it would pose a significant threat to wild bog turtles.
We have noted that despite State-listing throughout its range, and the
existence of some captive breeding stock, bog turtles are still being
collected from the wild. Also, considering the low reproductive
potential of the species and the small number of bog turtles known to
be legally in captivity, it is unlikely that there are enough bog
turtles in captivity to legally supply the market demand. If trade were
legalized and the demand could not be met by captive-produced turtles,
it is very likely that turtles would be taken from the wild for direct
sale and for use as breeders. In addition, it would be difficult, if
not impossible, to devise a process that would preclude the possibility
of substituting wild-caught turtles or eggs for those claimed to be
captive-produced. Finally, it would be extremely difficult to prosecute
a case of illegal take unless the actual taking from the wild was
observed or extensive circumstantial evidence was available. Based on
these factors, the Service believes that legalizing trade in bog
turtles would be inconsistent with the Service's responsibilities to
conserve, protect, and recover this species under the Act.
Issue 26
One commenter recommended that the Service define ``heavy grazing''
if violations of section 9 due to heavy grazing are foreseen. Several
other commenters stressed the importance of light to moderate grazing
in maintaining bog turtle habitat in an early successional stage,
thereby preventing canopy closure and minimizing encroachment of
invasive native and exotic plant species.
Service Response: The Service recognizes both the risks and the
benefits associated with livestock grazing of bog turtle habitat. Where
light to moderate grazing serves to maintain the suitability of bog
turtle habitat, the benefits of grazing are likely to outweigh the
risks (e.g., trampling of bog turtles or their nests, and nutrient
input from animal excrement). Heavy grazing, however, is detrimental to
bog turtles and their habitat. At the extreme, it is recognized by
closely cropped vegetation and exposed soil (e.g., denuded, compacted
or muddy) due to trampling and overgrazing. Due to the damage inflicted
upon pasture land, heavy grazing is probably not a desirable or
sustainable land use practice.
The Service recognizes that the terms light, moderate, and heavy
grazing are subjective; however, at this time the Service is unable to
quantify these terms with respect to potential positive and negative
effects to bog turtles and their habitat. The Service looks forward to
working cooperatively with the agricultural community, researchers, and
others to determine what levels of grazing (e.g., animal densities,
seasons, rotations, etc.) are most beneficial to bog turtles.
Issue 27
One commenter requested that if the Service proceeds with listing,
information should be included with the listing to identify which
population and/or habitat criteria must be met for the species to be
considered no longer threatened.
Service Response: This type of information is not included in the
listing; however, it will be included in the species' recovery plan.
Recovery plans, which are developed after a species is listed, identify
delisting criteria and the tasks which must be implemented to achieve
recovery.
Peer Review
In conformance with Service policy on information standards under
the Act (59 FR 34270; July 1, 1994), the Service solicited the expert
opinions of three appropriate and independent specialists (Dr. Michael
Klemens; Dr. Joseph Mitchell; and Dr. C. Kenneth Dodd, Jr.) regarding
issues and assumptions relating to the biological and ecological
information in the rule, and scientific data relating to the factors
for listing. Comments received from these reviewers were supportive of
Federal listing of the northern population.
Dr. Klemens indicated that the Service had conducted a ``thorough
analysis of the biological, ecological, and commercial issues that
threaten this turtle,'' and had accurately depicted the conservation
status and viability of the northern population. He also thought that
the species had surpassed the threshold of threatened and should be
listed as endangered (see Issue 18 for the Service's response), based
on the Service's data, his professional opinion, and ``given the
alarming drop in both suitable habitat and viable populations.'' He
stated that the prognosis for the northern population ``is very poor if
this species is reliant upon the varied habitat and take protection
offered by the range States and the total absence of protection from
commercial exploitation afforded by the non-range States.'' He
concurred that designation of critical habitat is not prudent. With
regard to the southern population, he (1) concurred with its listing as
threatened due to similarity of appearance; (2) felt that with large
areas of potential habitat unsurveyed, it was impossible for the
Service to draw any conclusions about the status of the southern
population (see Issue 20 for the Service's response); and (3) was
[[Page 59615]]
concerned that incidental take under the special rule would reduce bog
turtle habitat and populations (see Issue 21 for the Service's
response).
Dr. Dodd also supported Federal listing of the bog turtle,
concurring that illegal collection and trade posed a significant threat
which States have been unable to address. He also agreed that loss of
wetland habitat had reduced bog turtle populations, particularly within
the northern range.
Dr. Mitchell recommended that the northern population of the bog
turtle be listed as endangered, and the southern population be listed
as threatened. Despite the lack of geographic survey coverage in North
Carolina, he felt that the trends in land use in the south were similar
to those in the north, and that in the next 20 to 30 years the southern
population would be in the same shape the northern population is in now
(see Issue 20 for the Service's response). He referred to the status of
the northern population as ``dire'' and stated that with most of the
known bog turtle populations occurring on private lands, ``remaining
habitat will certainly be reduced in the very near future to a point
where most of them will be unable to support viable populations.'' He
questioned whether the Service may have been politically motivated in
proposing the northern population as threatened instead of endangered,
and stated that such a decision ``should be based solely on biological
criteria.''
Dr. Mitchell agreed that the species is vulnerable to illegal
collection and trade, and noted that bog turtles had even been stolen
from the Atlanta Zoo, a locked facility. He also noted that a few days
after a newspaper article appeared in the Richmond Times-Dispatch
mentioning the proposed listing, he received ``information that several
people in that area who collected turtles in the genus Clemmys for the
pet trade were hard at work scouring topographic maps looking for
potential sites to poach.''
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that the northern population of
the bog turtle should be classified as a threatened species. Procedures
found at section 4(a)(1) of the Act and regulations implementing the
listing provisions of the Act (50 CFR part 424) were followed. 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). These
factors and their application to the bog turtle (Clemmys muhlenbergii)
are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Habitat loss is a major factor for the past and present decline of
bog turtles throughout much of their range. Wetland habitats have been
drained and filled for development, agriculture, road construction, and
impoundments. These activities have also severely fragmented the
remaining habitat and have created physical barriers to movement, thus
isolating existing bog turtle populations from other such sites.
Even when located in upland areas, development and agriculture can
also cause indirect hydrological alterations of adjacent wetland
habitats. If these alterations present a barrier to surface water or
groundwater flow, the wetland can become wetter or drier, either of
which may render the habitat less suitable or unsuitable for bog
turtles. If surface water flow is intercepted, groundwater recharge may
be reduced, potentially reducing water levels in adjacent wetlands.
The concentration of storm water runoff, such as discharges from
storm water detention basins associated with developments, poses a
threat to adjacent bog turtle habitat, as illustrated by a documented
case of habitat destruction. A New Jersey bog turtle site was destroyed
over the course of 4 years as water from an upland storm water
detention basin was released into an adjacent wetland. The storm water
discharge carved a channel through the wetland; modified the site
hydrology by removing the surface inundation and many of the spring-fed
seeps; and increased the invasion of woody and annual plant species
which replaced the sedges and rushes typical of bog turtle habitat. Bog
turtles no longer occur at this site (Torok 1994).
Development in the vicinity of wetlands also poses a threat when
the water table is lowered due to the sinking of wells, or when roads
act as barriers to the normal flow of surface water (Klemens 1988,
1989). Urban, commercial, and residential development contribute to
increased traffic (leading to increased bog turtle road-kills), surface
water pollution, and accelerated succession by invasive native and
exotic plant species (due to changes in wetland hydrology, and
suppression of natural factors that impede succession).
Untimely mowing or burning and the use of herbicides and pesticides
on adjacent agricultural fields also degrade bog turtle habitat
(Klemens 1988). Many wetlands occupied by bog turtles are located in
agricultural areas that are subject to frequent livestock grazing.
Light to moderate grazing impedes plant succession by minimizing the
encroachment of invasive native and exotic plant species. However,
heavy grazing destroys bog turtle habitat by cropping and trampling
vegetation that is necessary for turtle nesting, basking, foraging, and
cover.
Three of Connecticut's eight known bog turtle sites have already
been extirpated. A Fairfield County population was obliterated by
industrial development, and two Litchfield County populations were
destroyed by pond construction. The five remaining sites are small,
isolated pockets ringed by development, with ``no opportunity for
turtle movement between locations for interbreeding or to escape
successional changes'' (Julie Victoria, Connecticut Department of
Environmental Protection, in litt. 1997). Residential development and
natural plant succession have already contributed to the partial loss
of two of these extant populations in Litchfield and Fairfield counties
(Victoria, in litt. 1994). Also, in the vicinity of the current
populations are ``remnants of what were at one time suitable habitats
which have been altered by agricultural practices, housing development,
ponding, etc.'' (Hank Gruner, Science Center of Connecticut, in litt.
1997).
Only a small fraction of Delaware's freshwater wetlands are
potential bog turtle habitat, and between approximately 40 and 50
percent of the State's freshwater wetlands have already been lost
(Tiner 1985). The four remaining bog turtle populations are threatened
by invasive exotic plant species, collecting, and development (Gelvin-
Innvaer and Stetzar 1992); one of these sites is also threatened by a
proposed reservoir project.
Maryland's 178 historical bog turtle occurrence locations (Taylor
et al. 1984) are represented by 90 (population analysis) sites, 25 of
which have been lost in the last 15 years (Smith, in litt. 1994). Plant
succession and exotic plant invasions have caused the extirpation of
turtles at some of these sites, while other sites were lost due to
wetland destruction and alteration and stream channelization. In
addition, heavy grazing has been implicated in the loss of at least six
sites (Smith, in litt. 1994).
Of the remaining 65 sites, 17 are considered good, 23 fair and 25
poor. Habitat at 31 of these sites has been partially destroyed or
degraded by pond construction (6 sites), filling of wetlands (1 site),
heavy grazing (4 sites), and wetland ditching, draining, tiling and
[[Page 59616]]
stream channelization (13 sites) (Smith, in litt. 1994). Succession,
exotic plants, pollution, and beaver activity also pose a threat to
many of the remaining populations. In addition, at least five wetlands
known or suspected to support bog turtle populations are threatened by
proposed highway bypass projects and residential developments (Jeffrey
Trulick, in litt. 1997).
In Massachusetts, the bog turtle has a limited range, limited
available habitat, and small populations (Thomas French, Massachusetts
Division of Fisheries and Wildlife, in litt. 1997). There are four
recorded bog turtle sites for the State; three extant and one
historical. The historical population was lost when the fen was
inundated after dam construction. One extant site supports a healthy
bog turtle population but faces encroachment by giant reed, succession
by alders, and the drying of several large channels feeding the fen
(possibly due to diversion of water for agricultural purposes). Another
site is threatened by residential development and by invasion of giant
reed and alder (Klemens 1988). Although there are conservation
agreements in place to protect the above two sites, they do not address
the threats to habitat quality. In 1986, the fen at the third site was
ditched and most of the water was diverted for cattle use. The water
supply has subsequently been restored to the fen and the habitat
partially restored. However, much of the suitable bog turtle habitat
continues to be threatened by annual burning, severe overgrazing, and
nutrient enrichment (Klemens 1986, 1988).
Bog turtles have been extirpated from 8 of the 17 New Jersey
counties in which they occurred (Bergen, Camden, Cape May, Gloucester,
Mercer, Middlesex, Passaic, and Salem). Surveys conducted in 1988 and
1989, revealed that 44 of the 75 known sites (recent and historical)
had been lost due to natural succession (17 sites), wetland alteration
(9 sites), and development (18 sites). In addition, bog turtles were
located at only 12 of the 31 remaining sites (Zappalorti, in litt.
1997). By 1994, a total of at least 53 sites had been lost--33 to
urban, commercial, and residential development and wetland alteration
and the remainder to plant community succession and the invasion of
exotic plants (Sciascia and Zappalorti 1989; Sciascia and Zappalorti,
in litt. 1994). Many of the remaining populations are small, isolated,
and threatened by development, collection, agricultural pollution, and
vegetative succession (Michael Torocco, in litt. 1997; Zappalorti, in
litt. 1997); these threats are exacerbated by the proximity of the
sites to urban and suburban areas (e.g., Philadelphia, Camden, Trenton,
and New York City). As of 1996, there were 53 known extant bog turtle
sites in New Jersey (Sciascia and Zappalorti, in litt. 1994; Sciascia,
in litt. 1997). Eight are considered good, 21 fair, and 18 poor, and 6
are of unknown status. Based on recent surveys, the suitability of
three of these sites declined since they were originally ranked in 1993
and 1994 (Sciascia, in litt. 1997).
Bog turtles were reported from 17 counties in New York, but have
been eliminated from 12 counties (Albany, Genessee, Onondaga, Oswego,
Otsego, Rockland, Sullivan, Tompkins, Ulster, Warren, Wayne, and
Westchester) (Breisch et al., in litt. 1994). Of New York's 24
remaining sites, only 18 populations are extant; of the 18 occupied
sites, 5 are considered good, 6 fair, and 7 poor. This represents a
significant reduction in range and reflects the loss of at least 33 of
57 bog turtle sites.
The bog turtle's range in New York is now limited to the Lower
Hudson River and Housatonic River drainages in the southeastern corner
of the State, and to one site in western New York. In western New York,
six of the seven historical bog turtle sites have been lost. Two sites
were eliminated due to plant community succession; one was destroyed by
a sand and gravel mining operation and dumping of concrete rubble; and
two were eliminated due to plant succession and hydrological alteration
(due to agricultural activities at one site and construction of the
Erie Canal at another) (Breisch et al., in litt, 1994; Collins 1990).
Loss of the disjunct population in the Lake George watershed is
attributed to plant succession, while the loss of the Susquehanna River
drainage population was caused by the construction of an interstate
highway (Breisch et al., in litt. 1994).
At least 26 known bog turtle sites have been lost in southeastern
New York due primarily to road construction, impoundments, plant
succession, and development. In addition, the historical bog turtle
sites on Staten Island were eliminated by development (Nemuras 1967).
In western New York, the viability of the Seneca County site is
questionable, since it is threatened by collecting, plant succession
and construction of an interstate highway through the wetland within
200 feet of bog turtle habitat (Breisch et al., in litt. 1994).
Of the remaining 24 bog turtle sites in New York, most are of poor
quality. The presence of bog turtles at six sites is highly
questionable since turtles have not been reported from these sites for
15 to 25 years, and habitat conditions at most of these sites have
deteriorated. Most of the known extant sites are threatened by habitat
loss and degradation due to residential and commercial development,
road construction, and vegetative succession. The New York Natural
Heritage Program recently reported that, based on additional surveys
conducted since 1994, ``there are no sites in New York whose status has
improved since the 1994 assessment, whereas several sites have
declined'' (Novak, in litt. 1997). At least 99 percent of bog turtle
habitat in New York occurs on private lands and all but two of the
remaining populations are found in areas of high human population
density. One researcher noted that even State acquisition does not
necessarily ensure the protection of bog turtle habitat, as one site
acquired by New York has been negatively affected by subdivisions,
exotic plant species, and collection (Behler, in litt. 1997).
In Pennsylvania, 28 of the 71 known bog turtle occurrences are
considered extirpated. Bog turtles have been extirpated from Mercer,
Crawford, Delaware, and Philadelphia counties. The reasons for the loss
of a disjunct population, represented by three historical locations, in
the northwestern counties are unknown. However, much of the historical
bog turtle habitat at Pymatuning Swamp was destroyed after a dam was
constructed to create Pymatuning Lake.
In Pennsylvania, most bog turtle habitat is concentrated in the
southeastern corner of the State, within portions of the Delaware and
Susquehanna River drainages. Land use in southeastern Pennsylvania is
primarily urban (several large cities, including Philadelphia,
Harrisburg, Reading, Lancaster, and York are located there),
residential, and agricultural. Agricultural areas are intensively
farmed and are facing increasing threats from residential development.
Development, urbanization, road construction, and agriculture are
largely responsible for the loss of bog turtle habitat in southeastern
Pennsylvania, and continue to pose threats to the species. Extirpation
of bog turtle populations was noted by Robotham (in Nemuras 1967), who
documented the destruction of two bog turtle sites in the West Chester-
Downington area of Chester County in the early 1960s. One site was
destroyed after a housing development company constructed a road
through the center of the marsh and drained the marsh for development.
The other site
[[Page 59617]]
was destroyed by a bypass road, commercial development, and excavation
for a lake.
Due to prevalent habitat fragmentation, many remaining extant sites
in Pennsylvania are small, isolated, and support few bog turtles; these
sites are at great risk from collection, agricultural pollution, and
vegetative succession (Torocco, in litt. 1997). Some sites are in the
process of being encircled by residential developments; these
developments often encroach to the very edge of delineated wetlands,
and it is not unusual for lot boundaries to extend well into wetlands.
Ground water withdrawal also poses a threat to some sites; a site in
Berks County is threatened by a proposal to withdraw over 250,000
gallons of groundwater per day to market as spring water.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The bog turtle is a target for pet collectors due to its rarity in
the wild, distinctive coloration, and small size. Take (primarily
illegal) both for the national and international commercial pet trade
industry has occurred for many years. Collecting is a significant
factor in the species decline and is an ongoing threat to its continued
existence in the wild (Anon. 1991; Earley 1993; David Flemming, U.S.
Fish and Wildlife Service, in litt. 1991; Herman 1990; Klemens in
press; Stearns et al. 1990; Tryon 1990; Tryon and Herman 1990). During
the last 5 to 10 years, an increasing number of bog turtles have been
advertised for sale, and prices have increased substantially. The
increase in price most likely reflects the increase in demand for the
turtles; the increase in demand increases the threats to the wild
populations (Tryon and Herman 1990).
Atlanta Zoo personnel reported that from 1989 to early 1991, over
1000 bog turtles were exported to Japan. These figures differ
significantly from CITES data and represent a significant amount of
unreported illegal trade (Anon. 1991). The World Wildlife Fund recently
listed bog turtles as among the world's top 10 ``most wanted''
endangered species (Earley 1993). According to Alan Salzburg, President
of the American Turtle and Tortoise Society, the bog turtle is
considered the most prized turtle in the United States, and when bog
turtle locations become publicly known, they are exploited by
collectors within 1 year (Laura Hood, Defenders of Wildlife, in litt.
1997).
Due to the threats facing bog turtle populations, the Society for
the Study of Amphibians and Reptiles adopted a resolution calling for
the prohibition of collection from wild populations (Stearns et al.
1990). Due to the small size of existing populations, and the low
reproductive and recruitment potential of this species, the removal of
even a few breeding adults can do irrevocable damage to a population
(Tryon 1990). Collecting has been a factor in the reduction or
extirpation of several bog turtle populations in Delaware (Anon. 1991),
Maryland (Anon. 1991; Smith, in litt. 1994), Massachusetts (Anon.
1991), New Jersey (Farrell and Zappalorti 1989; Zappalorti, pers. comm.
1994; Zappalorti, in litt. 1997), New York (Breisch, in litt. 1993;
Breisch et al., in litt. 1994; Collins 1990; Behler, in litt. 1997),
and Pennsylvania (Ralph Pisapia, U.S. Fish and Wildlife Service, in
litt. 1992; Zappalorti, in litt. 1997). Many sites in these States have
suitable habitat, but have much-reduced bog turtle populations,
probably due to collecting.
Throughout the bog turtle's entire range, States regulate take
through classification of the species as endangered (in Connecticut,
Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and
Virginia) or threatened (in Georgia, Maryland, North Carolina, South
Carolina and Tennessee), yet trade continues.
Illegal trade is difficult to detect due to the questionable origin
of turtles being offered for sale. Bog turtles are often ``laundered''
through States which either do not have native populations (e.g., West
Virginia, Florida, California), or through States which have inadequate
protection of their own bog turtle populations (Charles Bepler, U.S.
Fish and Wildlife Service, in litt. 1993; Breisch, in litt. 1993;
Michael Klemens, in litt. 1990). For example, in recent years dealers
have claimed West Virginia as the State of origin for bog turtles;
however, there is no evidence to support the contention that the bog
turtle occurs in that State (Dennis Herman, Project Bog Turtle
Coordinator, in litt. 1997; Tom Thorp, North Carolina Herpetological
Society, in litt. 1997). Hatchling and juvenile turtles marketed as
``captive-born'' are usually offspring from gravid adult females
illegally brought into captivity and held until they deposit eggs. The
eggs are then hatched in captivity, and the captive-born (but not
captive-bred) offspring are then marketed or retained (Bepler, in litt.
1993).
A few specific instances of illegal bog turtle collecting and trade
are reported below:
(1) An undercover officer purchased eight bog turtles from a person
who had collected them near Lancaster, Pennsylvania. Also, two
additional bog turtles were recovered from persons who had gotten them
from friends allegedly in the New York area (Bepler, in litt. 1993);
(2) An individual from New Jersey was arrested for bringing bog
turtles from New Jersey to Florida and selling them as captive-born. It
is suspected that he collected about six turtles per year over a period
of several years (Bepler, in litt. 1993);
(3) A reliable source in New York reported that over 2000 wild-
caught bog turtles were shipped to Japan in a 2-year period (Murdock,
in litt. 1990);
(4) Researchers found several turtle traps and a much-diminished
bog turtle population at an important bog turtle site in Pennsylvania
(Pisapia, in litt. 1992);
(5) In 1993, a New Jersey resident purchased 47 bog turtles in
Florida, and since 1984 had also bought 20 additional bog turtles. This
individual supposedly has an active breeding program for bog turtles
(Terry Tarr, U.S. Fish and Wildlife Service, in litt. 1993);
(6) When confronted in a New York wetland, an individual claiming
to be a birdwatcher revealed the contents of the cloth bag he was
carrying--a bog turtle and spotted turtle (Paul Novak, New York Natural
Heritage Program, in litt. 1990);
(7) A reliable source reported seeing approximately 60 bog turtles
at the Ohio residence of a person who frequents reptile shows. Based on
the physical appearance of the bog turtles, they were not captive-bred
(Scott Smith, Maryland Department of Natural Resources, in litt. 1996);
(8) Bog turtles have been available at the major Herpetological
Expo in Orlando, Florida for the last 2 years (Herman, in litt. 1997;
Thorp, in litt. 1997); and
(9) Bog turtles were observed in several Florida dealerships in
1996, although they have not been openly advertised for sale (Herman,
in litt. 1997).
The general consensus among bog turtle researchers, nongame
biologists, and law enforcement officials is that illegal collecting is
occurring at a much greater rate than detected or reported (Anon. 1991;
Breisch, in litt. 1993; Flemming, in litt. 1991). Bog turtles are
already extremely low in numbers throughout much of their range, and
any additional take could eliminate marginal populations and hamper
survival and recovery efforts.
Protecting existing sites for bog turtles can pose a threat when
these specific sites are revealed and publicized. In addition to the
threat of collection for the pet trade industry, collection of bog
[[Page 59618]]
turtles for exhibition at nature centers is also a threat (Anon. 1991).
C. Disease or Predation
Bog turtles (particularly the eggs and young) are preyed upon by
raccoons, opossums, skunks, foxes, snapping turtles, water snakes, and
large birds (Herman and George 1986). Predation by raccoons appears to
increase in areas with high human density, since raccoons favor
fragmented areas consisting of farmland, forests, and residential
development (Klemens 1989).
In some cases, predation contributes to population declines by
impairing reproductive recruitment so that the population age structure
is skewed toward older individuals (Zappalorti and Rocco 1993).
Zappalorti (in litt. 1997) reported that one of his Pennsylvania study
sites has undergone a dramatic population decline in the past 25 years.
Although 14 different nests containing 52 eggs were located at this
site, the only non-adults found during the 3-year study were an empty
shell of a dead juvenile and 3 hatchlings. Also, 93 percent of the
population structure was strongly skewed towards old adults, in favor
of females. In monitoring the fate of 21 eggs, he documented that 6
hatched, 10 were taken by predators, 2 were broken by nesting females,
and 3 failed to hatch. Predation of eggs and/or hatchlings, therefore,
may play a significant role in reducing the size of the population and
skewing its age structure.
Of additional concern is the recent discovery of Mycoplasma (the
bacterium that adversely affects the desert tortoise (Gopherus
agassizii)) at a bog turtle site in New York (Behler, in litt. 1997;
Paul Novak, New York Natural Heritage Program, in litt. 1997). This
disease has the potential to cause significant declines in bog turtle
populations. The site where Mycoplasma has been discovered ``has been
identified as one of the best remaining New York sites and lies in a
valley with additional, extant sites leading to the possibility of
spread of the disease through a significant portion of the remaining
bog turtle range in New York State'' (Novak, in litt. 1997).
D. The Inadequacy of Existing Regulatory Mechanisms
Bog turtles receive some degree of protection through State
listings as endangered or threatened species, and take from the wild
within all range States requires a valid permit.
In Connecticut, the bog turtle is listed as endangered and the take
of endangered species is prohibited. Regulations require that any
person owning or possessing a bog turtle must register with the
Wildlife Bureau of the Department of Environmental Protection. There
are no special provisions for the protection of species of special
concern under Connecticut's wetland laws and regulations and only about
10 percent of the wetland permits issued by townships are checked for
species of special concern (Doug Cooper, Connecticut Department of
Environmental Protection, pers. comm. 1994).
In Delaware, the bog turtle is listed as endangered and, except
under permit, it is unlawful to import, transport, possess, or sell
this species. Currently, there is no regulatory mechanism to protect
wetland habitat, since Delaware's wetland laws only address tidal
wetlands.
In Maryland, the bog turtle was listed as endangered in 1972 when
bog turtle populations were extant at only 5 of the 23 then known
historical occurrence locations. However, it was removed from the State
endangered species list in 1982 after 173 new occurrence locations were
discovered during surveys conducted between 1976 and 1978 (Smith 1994,
Taylor et al. 1984). In 1992 and 1993, the Maryland Department of
Natural Resources conducted follow-up surveys of the 178 occurrence
locations documented by Taylor et al. (1984) to support bog turtles. Of
the 159 occurrence locations surveyed, bog turtles were found at 91
occurrence locations; this represents a 43 percent reduction of bog
turtle occurrence locations over a 15-year period (Smith 1994). Based
on the results of these surveys, bog turtles are now classified as
threatened in Maryland. Bog turtles also receive additional protection
under the State's Reptile and Amphibian Possession and Permit
Regulations which regulate the possession, breeding, sale, and trade of
certain native reptiles and amphibians. Under these regulations, it is
illegal to take bog turtles from the wild or to breed them in
captivity. In addition, the regulations prohibit the possession, sale,
offering for sale, trade, or barter of any turtle with a carapace
length less than 4 inches (which applies to most bog turtles due to
their small size).
A portion of bog turtle habitat in Maryland receives some degree of
protection under the Nontidal Wetlands Protection Act. Habitat in
agricultural areas receives little or no protection due to the Act's
exemption of agricultural activities from permit requirements.
In Massachusetts, the species is classified as endangered, and it
is unlawful to take or possess bog turtles without a permit. Currently
no person in the State has a valid permit to possess bog turtles (Tom
French, Massachusetts Department of Fisheries and Wildlife, pers. comm.
1994). Its habitat receives some degree of protection under the
Massachusetts Wetlands Protection Act which prohibits permitted
projects from having an adverse effect on wetland habitat that supports
endangered and threatened species or species of special concern. This
law also allows for a 100-foot buffer zone around such wetlands when
activities in the buffer zone could result in the alteration of
adjacent wetlands (Melvin and Roble 1990).
In New Jersey, the bog turtle is listed as endangered. It is
unlawful to take, possess, transport, export, process, sell, offer for
sale, or ship bog turtles without a permit. Bog turtle habitat receives
some protection under the Exceptional Resource Value Wetland provision
of New Jersey's Freshwater Wetland Protection Act. This law allows for
a 150-foot buffer zone around wetlands, includes a stringent permit
review process, and prohibits activities that would likely jeopardize
or destroy bog turtles habitat (Torok, pers. comm., 1994). Many
agricultural activities are exempt from these regulations.
In New York, the bog turtle has been listed as endangered since
1971, and the animal and its parts (including eggs) are protected from
unauthorized take, import, transport, possession, or sale. Wetlands
occupied by an endangered or threatened species are considered Class 1
Wetlands, which receive some added protection from filling and
excavation. Certain activities, such as draining of wetlands for
agriculture, are exempted from permitting requirements as long as no
excavations are required to accomplish the draining.
In Pennsylvania, the bog turtle is listed as endangered. It is
illegal to catch, take, kill, possess, import, export, sell, offer for
sale, or purchase any individual of this species, alive or dead, or any
part thereof, without a special permit. Bog turtle habitat receives
some degree of protection under State wetland regulations which
categorize wetlands that serve as habitat for endangered or threatened
flora or fauna as ``exceptional value wetlands.'' Issuance of permits
to alter such wetlands is contingent upon meeting specific
requirements.
Section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.) (CWA)
regulates the discharge of dredged or fill material into the waters of
the United States. The phrase ``waters of the United States'' reaches
to the farthest extent permissible under the Commerce Clause
[[Page 59619]]
and includes rivers, lakes, streams, ponds and wetlands. It does not
include prior converted cropland. The U.S. Army Corps of Engineers
(Corps) and the U.S. Environmental Protection Agency (EPA) are
responsible for administering section 404. The Corps is responsible for
program administration; the EPA has an important oversight role.
Section 404 requires that project proponents obtain a CWA section 404
permit from the Corps before undertaking activities in waters of the
United States involving a discharge of dredged or fill material. These
regulatory agencies are also required to consult with the Service and
State resource agencies regarding potential impacts of these projects
on fish and wildlife.
The Corps authorizes projects involving the discharge of dredged or
fill material into waters of the United States using either individual
permits or general permits. Individual permits are carefully evaluated
through the Corps' public interest review and its analysis of
compliance with the EPA's 404(b)(1) guidelines. The EPA's 404(b)(1)
guidelines require a rigorous examination of the availability of
practicable alternatives, and prohibit the authorization of any project
that would result in significant adverse impacts, among other
requirements. General permits are issued for activities which are
similar in nature and which result in no more than minimal
environmental effects on a single project and cumulative adverse impact
basis. General permits also take several forms, including nationwide
permits, which are available for the entire country, and State
Programmatic General Permits, which are linked to State wetland
regulatory programs, and which attempt to integrate State and Federal
programs for authorizing minor impact activities. The purposes of all
general permits are to provide workload relief for the Corps for
projects which should not require a lot of analysis and to provide some
measure of relief for the public for activities which are similar in
nature and result in only minor impacts.
The regulatory relief and expedited permit review associated with
general permit authorization is based on a one-time only determination
that the general permit itself will meet the 404(b)(1) guidelines and
thus would not allow authorization of projects with more than minimal
impacts. Following adoption of a general permit, projects which fit the
terms and conditions of the general permit are authorized with little
scrutiny. Some require that the applicant notify the Corps before using
the permit; others do not require any notification as long as they meet
the permit conditions.
The Corps currently utilizes 39 nationwide permits, including
Nationwide Permit 26, which addresses the discharge of dredged or fill
material for any purpose in isolated waters or headwaters. Nationwide
Permit 26, until 1996, was available for use for projects up to 10
acres. It has now been modified for use for fills of up to no more than
3 acres. When the fill activity is larger than \1/3\ acre, the permit
applicant must notify the Corps prior to permit use. For projects less
than \1/3\ acre, the permittee must submit a report within 30 days to
the Corps providing basic information about the permit's use. The Corps
plans to phase out Nationwide Permit 26 as there is a high likelihood
that the permit has resulted in more than minimal single project and
cumulative adverse impacts. In its place, however, will be an
additional unknown number of nationwide permits which will be designed
for activities which are similar in nature. The potential adverse
impacts of these additional nationwide permits are unknown at this
time.
The Corps can take discretionary authority and require an applicant
to undergo a full individual permit process, if the Corps believes that
the resource issues are significant, and if the Corps believes that the
project requires additional consideration. For workload management
reasons, this authority is not invoked frequently.
Many of the States in the Northeast have eliminated many or most of
the nationwide permits and replaced them with a single programmatic
general permit which combines the State and Federal programs and sets
thresholds and conditions for its use tailored to the aquatic resources
and threats to those resources in their areas of jurisdiction.
The bog turtle could potentially be affected by projects requiring
404 permits, especially projects which would appear to meet the terms
and conditions of nationwide permits such as Nationwide Permit 26. The
Corps is planning to initiate a programmatic consultation on the
impacts of nationwide permits on endangered species, and it is our
expectation that listed species will receive adequate consideration
following completion of the consultation process. However, under the
CWA section 404 program, destruction of bog turtle habitat continues to
be authorized.
Furthermore, the bog turtle is affected by agricultural practices
which are entirely exempt from regulation under section 404. Such
activities take place without Corps or EPA oversight or review. In
addition to an agricultural exemption for maintenance of existing
agricultural drainage systems, other exempted activities include
plowing, planting and harvesting in existing cropped wetlands, and
construction or maintenance of farm roads and stock ponds as long as
the activity is part of an ongoing farming operation.
On July 1, 1975, the bog turtle was added to Appendix II of the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES), and on June 11, 1992 (57 FR 20443), it was
transferred from Appendix II to Appendix I. Both import and export
permits are required from the importing and exporting countries before
an Appendix I species can be transported, and an Appendix I species can
not be exported for primarily commercial purposes. These CITES permits
are not issued if the export will be detrimental to the survival of the
species or if the specimens were not legally acquired.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Plant community succession and the invasion of wetland systems by
exotic plant species have also contributed to the decline of the bog
turtle (Behler, in litt. 1997; Zappalorti, in litt. 1997). Unless set
back by fire, beaver activity, light to moderate grazing, or periodic
wet years, some bog turtle habitats succeed into wooded swampland and
become unsuitable for the species. Various human activities, such as
fire suppression, beaver control, fertilizer and sediment runoff, and
wetland draining, ditching and filling accelerate both natural
succession and the invasion of exotic plants (Gelvin-Innvaer and
Stetzar 1992, Klemens 1984).
Development and agriculture adjacent to bog turtle habitat can
result in soil disturbance and increases in the nutrient and sediment
load, thus allowing for the invasion of exotic species such as
multiflora rose (Rosa multiflora), purple loosestrife (Lithrum
salicaria), giant reed (Phragmites australis), and reed canary grass
(Phalaris arundinacea), as well as native species such as red maple and
alder (Klemens 1984, 1989, and in press).
Beavers pose a threat to those bog turtle populations that are
isolated and/or occur within the only remaining suitable habitat within
a watershed. Smith (in litt. 1994) reported that flooding caused by
beavers now poses a threat to three bog turtle populations in Maryland.
Thick deposits of iron bacteria, suggesting possible contamination
from pollutants, have been found at three bog
[[Page 59620]]
turtle sites in Maryland. Reptile and amphibian populations at these
sites are much smaller in size than one would expect based on the
habitat characteristics (Smith, in litt. 1994). Wetland habitats are
also vulnerable to pollutants (oil and grease) carried by storm water
runoff. Farrell and Zappalorti (1989) reported that one New Jersey
wetland occupied by bog turtles was degraded by trash and motor oil
that was carried through a storm drain.
The bog turtle is also vulnerable to local extirpation and range-
wide reduction due to--(1) the small size of many populations; (2) the
isolation of existing populations; (3) the delay in reaching sexual
maturity; (4) low juvenile recruitment rates; and (5) relatively low
mobility and small home ranges (Arndt 1977, Chase et al. 1989).
Isolation of populations prevents gene flow which can result in an
inbred population with low fecundity. Further, isolation and habitat
fragmentation prevent recolonization of existing habitat or expansion
and colonization into newly created habitats.
Vehicles and livestock pose a direct threat to bog turtles because
they can kill and injure individuals. Roads near occupied bog turtle
sites contribute significantly to mortality as is evidenced by the
number of dead turtles found along roadsides. Roads that are adjacent
to or within wetlands pose the greatest threat to bog turtles (Arndt
1977). Because livestock can trample bog turtles, a large number of
livestock within a wetland can pose a threat to the turtle population
(M. Klemens, pers. comm. 1994; S. Smith, pers. comm. 1994).
The Tortoise and Freshwater Turtle Specialist Group of the IUCN
recently evaluated the status of the bog turtle. Based on the species'
precipitous decline and threats to its continued existence, the bog
turtle was included as an endangered species on their 1996 IUCN Red
List (Behler, in litt. 1997).
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present and future
threats faced by the species in determining to make this rule final.
Based on this evaluation, the preferred action is to list the northern
population of the bog turtle as threatened, and the southern population
as threatened due to similarity of appearance. In spite of existing
State protective regulations, the northern population has declined by
approximately 50 percent (primarily over the past 20 years) and has
experienced a significant decrease in its known range. Currently, less
than 200 extant sites remain in the north, and only 33 of these sites
are likely to be able to support viable bog turtle populations over the
long term. Most of the extant sites consist of small wetlands isolated
from one another and often in close proximity to human habitation.
Although the northern population of the bog turtle faces serious
ongoing and potential threats, it is not currently in imminent danger
of extinction. The northern population is, however, likely to become
endangered throughout all or a significant portion of its range in the
foreseeable future; therefore, classification of the northern
population of the bog turtle as threatened is appropriate. Critical
habitat is not being designated for the reasons described below.
Although final listing determinations are usually not effective
until 30 days after their publication in the Federal Register, such a
delay would pose an additional, unacceptable risk to the bog turtle.
Several persons and State agencies have expressed a concern about the
heightened risk of illegal collection due to the proposed listing, and
requested that the final listing be implemented as soon as possible to
reduce this risk. One of the peer reviewers of the proposed rule noted
that he had ``received reliable reports of increased interest in the
location of bog turtle sites by well-known collectors. There is a
heightened threat of take right now as collectors are stockpiling bog
turtles in anticipation of a federal listing.'' Therefore, due to the
significant ongoing threats of illegal collection and trade, the
Service has determined that the bog turtle will receive full protection
under the Act effective upon publication of this rule in the Federal
Register.
Critical Habitat
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) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation means the use of all methods and procedures
needed to bring the species to the point at which listing under the Act
is no longer required.
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
the species is determined to be endangered or threatened. The Service
finds that designation of critical habitat for the bog turtle is not
prudent. Service 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.
Listing of the bog turtle as threatened elevates the awareness of
the rarity of the species, thereby increasing the likelihood of take by
private and commercial collectors. The listing could lead to increased
illegal take and the risk of eggs being accidentally destroyed by
collectors searching for adult turtles. The publication of precise maps
and descriptions of critical habitat in the Federal Register would
increase the vulnerability of the bog turtle to the threats of
collection and accidental destruction of its eggs.
Designation of critical habitat could also increase the
vulnerability of bog turtle habitat to intentional destruction by
landowners who do not want a protected species on their property. Tryon
and Herman (1990) report that on more than one occasion, landowners,
fearing involvement from State or Federal authorities, have drained
(ditched) bog turtle habitat after researchers visited the site.
Furthermore, designation of critical habitat for the bog turtle
would provide little or no benefit to the species or its habitat.
Critical habitat receives consideration under section 7 of the Act with
regard to actions carried out, authorized, or funded by a Federal
agency. Critical habitat designation serves as notification to Federal
agencies of the habitats which are essential for the conservation of
the species; the Act requires Federal agencies to ensure that their
actions do not result in destruction or adverse modification of
critical habitat. The Service believes that notification to Federal
agencies of the habitats which are essential for the conservation of
the species can be accomplished informally through periodic
coordination meetings, project-specific meetings, and other contacts;
the Service believes that notification through these means ensures that
other Federal agencies receive the most recent and reliable information
concerning habitats
[[Page 59621]]
important for the conservation of the species. In addition, the Service
believes that, because the ``jeopardy'' and ``adverse modification''
standards are similar, any project which would cause destruction or
adverse modification of critical habitat would also jeopardize the
continued existence of the species. In fact, biological opinions that
conclude that a Federal agency action is likely to adversely modify
critical habitat but not jeopardize the species are extremely rare.
Because any benefit potentially provided by designation of critical
habitat for the bog turtle would be outweighed by the increase in
threats to the species and its habitat from illegal collecting and
vandalism caused by such designation, the Service has determined that
designation of critical habitat is not prudent. Protection of bog
turtle habitat will be addressed through the section 7 consultation
process and through recovery actions.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery action,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States, and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is listed as
endangered or threatened. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of any species listed as endangered or threatened,
or destroy or adversely modify its critical habitat. If a Federal
action could affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions that may require consultation as described
in the preceding paragraph include--Corps involvement in projects such
as the construction of roads and bridges; Corps permitting of wetland
filling and dredging projects subject to section 404 of the CWA and
section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et
seq.); Natural Resources Conservation Service projects; EPA
authorization of discharges under the National Pollutant Discharge
Elimination System; and U.S. Housing and Urban Development projects. In
addition, Federal involvement under section 7 would be expected for
management and other land use activities on Federal lands with bog
turtle populations.
The Act and implementing regulations set forth a series of general
prohibitions and exceptions that apply to all threatened wildlife. The
prohibitions, codified at 50 CFR 17.21, 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 to attempt any of these), import or export,
ship in interstate commerce in the course of 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 agents of the Service and State
conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits
are available for scientific purposes, to enhance the propagation or
survival of the species, and/or for incidental take in the course of
otherwise lawful activities. For threatened species, permits also are
available for zoological exhibition, educational purposes, or special
purposes consistent with the purposes of the Act.
It is the policy of the Service (59 FR 34272; July 1, 1994) 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 the listing on proposed and ongoing
activities within a species' range. The Service believes, based on the
best available information, that the following actions will not result
in a violation of section 9:
(1) Transferring individual turtles from roads to immediately
adjacent habitat;
(2) Light to moderate livestock grazing that prevents or minimizes
the encroachment of invasive native and exotic plant species;
(3) Possession of bog turtles legally acquired prior to the
effective date of this rule and consistent with 50 CFR 17.4; and
(4) Actions that may affect bog turtles and are authorized, funded
or carried out by a Federal agency when the action is conducted in
accordance with section 7 of the Act.
With respect to both the northern and southern populations of the
bog turtle, the following actions would be considered a violation of
section 9:
(1) Take of bog turtles without a permit (this includes harassing,
harming, pursuing, hunting, shooting, wounding, killing, trapping,
capturing, or collecting, or attempting any of these actions). However,
with respect solely to the southern population, incidental take (see
special rule below) would not be considered a violation of section 9;
(2) Possess, sell, deliver, carry, transport, or ship illegally
taken bog turtles:
(3) Interstate and foreign commerce (commerce across State and
international boundaries) and import/export (as discussed earlier in
this section) without prior obtaining a threatened species, similarity
of appearance, or CITES permit.
With respect solely to the northern population, activities that the
Service believes could result in the take of bog turtles include, but
are not limited to:
(1) Destruction or alteration of the species' habitat by activities
that include, but are not limited to, draining, ditching, discharging
fill material, excavation, impoundment, or water diversion, except as
outlined in (4) above;
(2) Destruction or degradation of wetland vegetation used by the
turtles for nesting, basking, foraging, or cover; and
(3) Discharging or dumping of toxic chemicals or other pollutants
into wetlands occupied by the species.
Questions regarding whether specific activities may constitute a
violation of section 9 should be directed to the Field Supervisor of
the appropriate Service Field Office as follows: in Pennsylvania, the
Pennsylvania Field Office, 315 S. Allen Street, Suite 322, State
College, PA 16801 (814/234-4090); in Maryland and Delaware, the
Chesapeake Bay Field Office, 177 Admiral Cochrane Drive, Annapolis, MD
21401 (410/224-2732); in New York, the New York Field Office, 3817
Luker Road, Cortland, NY 13045 (607/758-9334); in Massachusetts and
Connecticut, the New England Field Office, 22 Bridge Street, Concord,
NH 03301-4986 (603/225-1411); and, in New Jersey, the New Jersey Field
Office, 927 North Main Street, Building D1, Pleasantville, NJ 08232
(609/747-0620). Requests for copies of the regulations
[[Page 59622]]
regarding listed wildlife and inquiries about prohibitions and permits
may be addressed to the U.S. Fish and Wildlife Service, 300 Westgate
Center Drive, Hadley, Massachusetts 01035 (telephone 413/253-8200;
facsimile 413/253-8482).
Similarity of Appearance
Section 4(e) of the Act authorizes the treatment of a species
(subspecies or population segment) as endangered or threatened even
though it is not otherwise listed as endangered or threatened if--(a)
the species so closely resembles in appearance an endangered or
threatened species that enforcement personnel would have substantial
difficulty in differentiating between the listed and unlisted species;
(b) the effect of this substantial difficulty is an additional threat
to an endangered or threatened species; and (3) such treatment of an
unlisted species will substantially facilitate the enforcement and
further the policy of the Act.
There are only slight morphological differences in this species
throughout its range (Amato et al. 1993; Nemuras 1967), making it
extremely difficult to differentiate the location from where bog
turtles are taken. Presently, the origin and legality of a specimen
(specific wetland, locality, or State) cannot be determined. This poses
a problem for Federal and State law enforcement agents trying to stem
illegal trade in the threatened northern population. The listing of the
southern population as threatened due to similarity of appearance
eliminates the ability of commercial collectors to commingle northern
bog turtles with southern ones or to misrepresent them as southern bog
turtles for commercial purposes. For these reasons, the Service is
listing the southern population (occurring in the States of Georgia,
North Carolina, South Carolina, Tennessee and Virginia) as threatened
due to similarity of appearance to the northern population.
The special rule exempts incidental take of the southern population
of bog turtles. Incidental take is take that results from, but is not
the purpose of, carrying out an otherwise lawful activity. For example,
legal application of pesticides and fertilizers, livestock grazing and
other farming activities, mowing, burning, water diversion, and any
other legally undertaken actions that result in the accidental take of
a bog turtle will not be considered a violation of section 9 of the Act
in the States of Georgia, North Carolina, South Carolina, Tennessee,
and Virginia. The Service believes that listing the southern population
under the similarity of appearance provision of the Act, coupled with
the special rule, minimizes enforcement problems and helps to conserve
the northern population. It is the intent of the special rule to treat
bog turtles from the southern population in the same way as the
threatened northern population with regard to permit requirements for
pre-Act wildlife (50 CFR 17.4).
The Service believes that the provision to allow incidental take
for the southern population (i.e., for land alteration activities in
Georgia, North Carolina, South Carolina, Tennessee, and Virginia) will
not pose a threat to the northern population because--(1) the two
populations are sufficiently separate that incidental take of southern
specimens will not inadvertently be applicable to members of the
northern population, and (2) the primary threat to the northern
population from activities involving the southern population stem from
commingling of specimens in commercial trade.
National Environmental Policy Act
The Service has determined that Environmental Assessments and
Environmental Impact Statements, as defined by the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited herein is available upon
request from the U.S. Fish and Wildlife Service, Pennsylvania Field
Office (see ADDRESSES section).
Author
The primary author of this document is Carole K. Copeyon (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, the Service amends 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 section 17.11(h) by adding the following, in alphabetical
order under ``Reptiles,'' to the List of Endangered and Threatened
Wildlife:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reptiles
* * * * * * *
Turtle, bog (=Muhlenberg)....... Clemmys U.S.A. (CT, DE, Entire, except GA, T 626 NA NA
muhlenbergii. GA, MD, MA, NC, NC, SC, TN, VA.
NJ, NY, PA, SC,
TN, VA).
Do.......................... ......do........... ......do.......... U.S.A. (GA, NC, T(S/A) ........... NA 17.42(f)
SC, TN, VA).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend section 17.42 by adding paragraph (f) as follows:
Sec. 17.42 Special rules--reptiles.
* * * * *
(f) Bog turtle (Clemmys muhlenbergii), southern population--(1)
Definitions of
[[Page 59623]]
terms. For the purposes of this paragraph (f): Bog turtle of the
southern population means any member of the species Clemmys
muhlenbergii, within Georgia, North Carolina, South Carolina, Tennessee
and Virginia, regardless of whether in the wild or captivity, and also
applies to the progeny of any such turtle.
(2) Prohibitions. Except as provided in paragraph (f)(3) of this
section, the provisions of Sec. 17.31 (a) and (b) of this part applies
to bog turtles of the southern population (see also 50 CFR part 23).
(3) Take. Incidental take, that is, take that results from, but is
not the purpose of, carrying out an otherwise lawful activity, does not
apply to bog turtles of the southern population.
Dated: October 23, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-29088 Filed 11-3-97; 8:45 am]
BILLING CODE 4310-55-P
