[Federal Register Volume 62, Number 19 (Wednesday, January 29, 1997)]
[Rules and Regulations]
[Pages 4183-4192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2056]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
RIN 1018-AB75
Endangered and Threatened Wildlife and Plants; Determination of
Threatened Status for the Northern Population of the Copperbelly Water
Snake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
threatened species status pursuant to the Endangered Species Act of
1973, as amended (Act), for the copperbelly water snake (Nerodia
erythrogaster neglecta) in the northern portion of its range. The
Service also determines that the copperbelly water snake does not
warrant listing as a threatened species in the southern portion of its
range and is not finalizing that portion of the proposal. This snake
was referred to as the northern copperbelly water snake in several
previous Federal Register publications. Historical records and recent
studies indicate that this animal has declined substantially,
especially in the northern portion of its range, and now persists
largely in isolated pockets of suitable habitat. Rangewide, the snake
has been impacted by a variety of human-induced causes, including
urban/suburban encroachment, coal mining, and wetland drainage. These
impacts continue to threaten the snake in the northern portion of its
range but are being substantially reduced in the southern portion of
its range due to modifications in surface coal mining and reclamation
practices.
EFFECTIVE DATE: February 28, 1997.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Service's
Bloomington Field Office, 620 South Walker Street, Bloomington, Indiana
47403; telephone 812/334-4261.
FOR FURTHER INFORMATION CONTACT: David Hudak, Field Supervisor (see
ADDRESSES section), 812/334-4261, extension 200.
SUPPLEMENTARY INFORMATION:
Background
The plain-belly water snake (Nerodia erythrogaster) was formally
described as a species in 1938 as Natrix erythrogaster (Clay 1938). The
copperbelly water snake, Nerodia erythrogaster neglecta, was recognized
as a distinct subspecies in 1949 (Conant 1949). It is one of six
recognized subspecies of the plain-belly water snake (McCranie 1990).
The Act defines ``species'' to include ``any subspecies of fish or
wildlife or plants, and any distinct population segment of any species
of vertebrate fish or wildlife . . .'' (section 3(15)). Thus, although
taxonomically recognized as a subspecies, N. e. neglecta will be
referred to as a ``species'' through the remainder of this rule. This
legal, as opposed to biological, use of the term ``species'' should not
be understood to mean that this rule covers the entire species Nerodia
erythrogaster. The two decisions announced in this rule apply only to
the subspecies N. e. neglecta.
Because N. e. neglecta was not recognized until 1949, museum
specimens of the copperbelly water snake archived before that time were
identified only as the plain-belly water snake. Correction of these
mislabelled specimens is difficult due to the rapid fading of colors
from preserved specimens. Thus, the original range and distribution of
the copperbelly water snake is not precisely known due to this
taxonomic history and the loss of suitable habitat before recognition
of the copperbelly water snake as a distinct subspecies (Conant 1949,
1951, 1955; Minton 1972).
The key field identification feature of the copperbelly water snake
is its coloration. The snake has a solid dark, usually black, back with
a bright orange-red underside that is visible from a side view. The
head and eyes of the copperbelly water snake are proportionally larger
than similar species (Clay 1938; Conant 1938, 1951; Minton 1972). The
copperbelly water snake is most often confused with the yellowbelly
water snake (Nerodia erythrogaster flavigaster), an adjacent subspecies
to the south and west in Illinois and Kentucky. The most obvious single
distinguishing characteristic is the belly color. The copperbelly water
snake has a bright orange-red underside, whereas the yellowbelly water
snake has a pale yellow belly. In addition, it has blotches of dark
pigment extending onto the ventral scales that meet or nearly meet at
the belly, whereas the yellowbelly water snake has dark pigment
encroaching onto only the edge of the ventral scales (Brandon and
Blanford 1995; Minton 1972; Conant 1938, 1949).
After its recognition as a subspecies, the known historical range
of the copperbelly water snake was described by Schmidt (1953) as
``south central Michigan and northwestern Ohio, southwestward through
Indiana to extreme southeastern Illinois and adjacent Kentucky.'' A
notable feature of the documented historical range is the
[[Page 4184]]
large gap in location records between the southern and the northern
population segments. The most widely accepted theory suggests that the
northern segment is a relict of the more extensive southern population
(Conant 1938, 1951; Adler 1963). Today, the distribution of the
copperbelly water snake is clearly divided into a southern segment in
southeastern Illinois, western Kentucky, and southern Indiana; and an
isolated northern segment in northern Indiana, southern Michigan, and
northwestern Ohio.
Currently, within the southern population segment there are five
local clusters known in Illinois, 18 in Kentucky, and 13 in southern
Indiana. The northern population segment consists of eight local
clusters that are known to have had the species present in the last ten
years; copperbelly water snakes were found at five of these northern
sites during 1996 surveys. Local clusters consist of snakes within
connected, or nearly connected, habitat units and which are able to
interbreed because of this proximity. Thus, local clusters may include
several ``sites'' or ``occurrences'' as these terms are commonly used
in databases maintained by states or private conservation
organizations.
It is believed, based on drainage patterns and post-1949 records of
copperbelly water snakes, that its former range was nearly continuous
over the three southern states. Only remnants of that original
distribution are still evident, however; coal mining, drainage and
damming of wetlands, channelization, damming and diversion of streams
and rivers, and residential and commercial development of its habitat
have disrupted and fragmented the distribution of the copperbelly water
snake. Many once-connected local clusters are now isolated.
In Illinois, the copperbelly water snake distribution is believed
to once have been continuous through southern Illinois; however, due to
continued habitat loss and fragmentation, only five small, isolated
local clusters remain today (Brandon pers. comm. 1994).
Kentucky, historically and presently, is considered to have the
largest number of copperbelly water snakes rangewide. It is believed
the species was once abundant and continuous throughout the western
Kentucky coal field. The once-continuous range of the copperbelly water
snake is now restricted to 18 isolated local clusters.
Similarly, in southern Indiana, the distribution of the species has
been fragmented into 13 discrete populations.
The northern population segment has experienced extensive habitat
loss; and the impacts from habitat fragmentation and degradation on
this smaller population are very pronounced. Consequently, the northern
population segment has been relegated to a few small, scattered and
isolated local clusters in southern Michigan, northeastern Indiana, and
northwestern Ohio. Under current conditions and trends, extirpation of
the northern population is expected to occur within the next few
decades (Kingsbury pers. comm. 1994 and 1996).
Copperbelly water snakes migrate seasonally throughout their
habitat, which consists of bottomland forests and shrub swamps.
Although the species is a ``water'' snake, much of its time is spent
away from water in the terrestrial, forested part of its habitat
(Kingsbury pers. comm. 1994). Copperbelly water snakes emerge from
their hibernation sites in early spring and migrate through wooded or
vegetated corridors to wetland areas. They can often be seen basking,
breeding, and foraging near shallow wetland edges in woodlands. When
the woodland swamps begin to dry in late spring or in early June, the
snakes again disperse and move through wooded or vegetated corridors to
their summer habitat areas. Summer activities usually center around
forest and forest edges (Conant 1951, Kingsbury pers. comm. 1994). For
this reason, upland habitat is essential for the snake's summer
foraging activities.
By late fall, copperbelly water snakes seek out hibernation sites.
It is believed that copperbelly water snakes use hibernation sites that
are at elevations higher than the floodstage line and ponding areas
(Sellers 1991). Kingsbury (pers. comm. 1996), based on results of
radio-telemetry studies, reported that copperbelly water snakes do
utilize bottomland hibernation sites. Bottomland hibernation sites have
been identified as felled tree-root networks (Lodato 1985), crayfish
burrows (Kingsbury pers. comm. 1994), dense brush piles, fieldstone
piles, and perhaps beaver and muskrat lodges (Sellers 1991). These
studies indicate that upland hibernation sites are essential to the
long-term survival of viable populations of the snake. A mid-winter
flood, coupled with freezing temperatures, could be lethal to snakes
and could decimate the local copperbelly water snake population if
floodplain and riverbank areas are the only hibernation sites
available.
This species is known to form small groups in the spring and fall.
Groups of snakes have been observed swimming, feeding, courting, and
resting together (Conant 1938; Martin 1982, in Sellers 1991). Courtship
and mating occurs in April, May, and June. Copperbelly water snakes
have a longer gestation period than other water snakes sharing their
range, and their average litter size (18) is also smaller (Schmidt and
Davis 1941). Young snakes are born in the fall near, or in, the
hibernaculum and may not become active until the following spring.
Distinct Population Segments
The range of the copperbelly water snake contains a geographical
barrier between the local clusters in Michigan, Ohio, and northeastern
Indiana, and the rest of the local clusters in southern Indiana,
Kentucky, and Illinois. This gap is apparent from historical and recent
known locations for the snake (Adler 1963, Conant and Collins 1991,
Sellers 1991). This hiatus between the northern and southern
populations currently is approximately 180 miles wide. Within the gap
those areas of habitat that are potentially suitable for copperbelly
water snakes are small and isolated, making copperbelly water snake
movement though this gap extremely unlikely.
These populations qualify as distinct under the Service's Policy
Regarding the Recognition of Distinct Vertebrate Population Segments
Under the Act, published in the Federal Register on February 7, 1996
(61 FR 4722-4725). The Policy identifies three criteria that must be
satisfied in order to list a distinct population segment of a species
or subspecies as threatened or endangered--discreteness, significance,
and conservation status.
The wide geographic gap in suitable and inter-connected habitat
between the northern and southern Indiana local clusters clearly
identifies these as discrete and isolated population segments. The loss
of the peripheral, isolated, northern population is considered
significant as characterized under the policy, as it would result in a
significant reduction in the range of the taxon.
The existence of two distinct population segments for the
copperbelly water snake enables the Service to treat each as a species
and to make separate determinations for each of them. Therefore, the
Service is adopting the following designations of the two population
segments, and these terms will be used in the remainder of this rule.
Northern Population Segment--Michigan, Ohio, and Indiana north of
40 degrees north latitude (approximately Indianapolis, IN).
[[Page 4185]]
Southern Population Segment--Illinois, Kentucky, and Indiana south
of 40 degrees north latitude.
Final Determination on Northern Population Segment
As discussed below in the Summary of Factors Affecting the Species
section, the threats affecting the northern population segment arise
from several sources that are not addressed in the Conservation
Agreements. Because these threats continue to affect the northern
population segment the Service has determined that the northern
population segment of the copperbelly water snake warrants listing as a
threatened species.
Final Determination on Southern Population Segment
Since the 1993 proposal for the threatened listing of the
copperbelly water snake there have been several parallel efforts to
develop formal methods to reduce threats to the species and its
habitat. In recent months these efforts have coalesced into two
Conservation Agreements, with the Service being a signatory to both.
One Agreement deals specifically with the effects of coal mining in
Indiana. The second Agreement covers the impacts of coal mining in
Kentucky and Illinois and also institutes other conservation measures
in all three states.
The Conservation Agreements will promote the conservation of the
copperbelly water snake and its habitat during surface coal mining in
Indiana by delineating approximately 10,400 acres of high quality
copperbelly water snake habitat as core habitat areas that will not be
affected by surface coal mining. Furthermore, the Agreements require
the maintenance of habitat corridors connecting all other copperbelly
water snake habitats, restrict the mining of large habitat fragments
that are outside of the core areas to practices that will ensure the
survival of existing copperbelly water snake local clusters, and ensure
that all snake habitat that is mined will be reclaimed in such a way as
to increase both the quantity and quality of snake habitat.
In Kentucky the Conservation Agreements provide that a maximum of
four percent of the approximately 112,400 acres of known copperbelly
water snake habitat can be disturbed by surface coal mining activities.
All copperbelly water snake habitat has been divided into management
units of which no one unit may have more than ten percent of its area
disturbed by mining activities, and all copperbelly water snake habitat
that is mined will be reclaimed in such a way as to increase both the
quantity and quality of snake habitat.
Similarly, in Illinois, the Agreements require that all copperbelly
water snake habitat that is mined will be reclaimed in such a way as to
increase both the quantity and quality of snake habitat.
The Conservation Agreements also ensure that in all three states
within the southern population segment the state natural resource
departments will emphasize land acquisition, management, and law
enforcement to manage and conserve the copperbelly water snake as if it
were a federally listed species. In Illinois and Kentucky, where the
snake is not listed as threatened or endangered by the states, there
will be special regulations written to provide the species with
protection from take. In addition, the Office of Surface Mining
Reclamation and Enforcement will prioritize their Clean Stream
initiative program to aid protection and enhancement of copperbelly
water snake habitats. The Farm Bureau's role will be to publicize the
conservation needs of the snake to its members.
These provisions of the Conservation Agreements significantly
reduce the threats from surface coal mining at all known copperbelly
water snake local clusters in the southern population segment. Because
habitat destruction and degradation resulting from surface coal mining
was the predominant recent threat to the southern population segment,
the Service has determined that the southern population segment does
not warrant listing as a threatened species at this time.
Previous Federal Action
The copperbelly water snake was recognized as a category 2 species
in the Service's December 30, 1982, (47 FR 58454); January 6, 1989, (54
FR 554); and November 21, 1991, (56 FR 58804) Animal Notices of Review.
On November 12, 1991, the Service reassigned this species to category
1. On August 18, 1993, the Service published the proposed rule to list
the copperbelly water snake as threatened (58 FR 43860). The Service
extended the public comment period on October 12, 1993, (58 FR 52740)
for 30 days. The public comment period was re-opened on March 22, 1994,
for an additional 30 days (59 FR 13472) to hold a public hearing on
April 5, 1994. On July 11, 1994, the Service published a Notice in the
Federal Register (59 FR 35307) indicating that the deadline for the
final listing determination had been extended six months (until
February 18, 1995) while re-opening the public comment period until
November 1, 1994. As a result of significant new data received during,
and immediately following, the public comment period, on December 15,
1994, (59 FR 64647) the Service re-opened the public comment for 30
days, and announced the availability of the new data.
The Service was prohibited from making final determinations on
listing proposals during a congressionally-imposed moratorium that
began on April 10, 1995 (Public Law 104-06). To ensure that the Service
could continue to receive and review relevant data and continue
discussions with interested parties, the comment period was reopened on
August 15, 1995, (60 FR 42140) and closed at the end of the fiscal year
on September 30, 1995. During the first half of fiscal year 1996 the
moratorium and a lack of appropriated funds prevented the Service from
taking any actions related to listing species. Subsequent to the ending
of the moratorium and restoration of funding for listing activities,
the comment period was re-opened on July 16, 1996, (61 FR 37034) to
receive data that might have become available during the moratorium and
listing program shut-down. That comment period was extended another 60
days on September 17, 1996, (61 FR 48876) in order to receive a report
on the northern population segment. The comment period ended on
November 15, 1996.
The processing of this final rule conforms with the Service's final
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 during fiscal year 1997. The guidance
calls for giving highest priority to handling emergency situations
(Tier 1) and second highest priority (Tier 2) to resolving the listing
status of the outstanding proposed listings. This final rule falls
under Tier 2. At this time, there are no pending Tier 1 actions.
Summary of Comments and Recommendations
In the August 18, 1993, proposed rule and subsequent notices
reopening the comment period, 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. Newspaper notices were
published in newspapers across the range of the species inviting public
[[Page 4186]]
comment. A public hearing was requested by Mr. James Baker, of the
Western Kentucky Coal Association, and Ms. Bertha Daubendiek, of the
Michigan Nature Association. The public hearing was held in
Indianapolis, IN, on April 5, 1994. Twenty-six people attended the
hearing. One-hundred forty-two comments were received during the
comment periods and at the public hearing and are discussed below; some
parties provided more than one comment.
On July 11, 1994, the Service published a notice (59 FR 35307)
extending the one-year listing decision deadline until February 18,
1995. Comments had been submitted on the proposed rule indicating that
there were scientific disagreements concerning the location of, and
significance of, intergradation in Illinois and Kentucky. When such a
scientific disagreement exists, the one-year period within which the
Service must ordinarily take final action on a proposal to list a
species may be extended for not more than six months in accordance with
section 4(b)(5)(B)(I) of the Act. During the six-month extension the
Service funded additional studies in Illinois and Kentucky. The reports
of these studies, as well as information from a third study funded by
the Indiana Department of Natural Resources, were publicized and made
available for review by the public.
The Service received comments from one-hundred forty-two
individuals and organizations. Forty-eight commentors supported the
proposal. Thirty-three parties provided suggestions and/or information
but did not indicate either support of, or opposition to, the proposal.
Sixty-one commentors expressed opposition to the proposal. Many
provided data further substantiating or clarifying the threats to the
species. During the most recent public comment period two draft
Conservation Agreements were submitted which are intended to
significantly reduce the threats from surface coal mining. This new
information on the reduction in threats has been incorporated into the
final rule where appropriate (see Summary of Factors Affecting the
Species, below).
Written comments and oral statements presented at the public
hearings and/or received during the comment periods are addressed in
the following section. Comments of a similar nature are grouped
together. Comments received on the southern population segment that is
not being listed are also addressed below.
Issue 1: The morphological and genetic research conducted in
Illinois is insufficient to distinguish between N. e. neglecta, N. e.
flavigaster, and their intergrades.
Service Response: Although the results of the genetic analysis did
not prove to be a reliable method for distinguishing neglecta from the
intergrades, the morphological analysis was able to successfully
identify the subspecies for 95 percent of the snakes examined. The
Service believes that, for the purposes of delineating the boundary of
an intergrade zone in southern Illinois, the high degree of reliability
of morphological distinctiveness is sufficient to distinguish between
the two subspecies. However, because there is no intergrade zone
within, or near, the northern population segment, identifying
intergrades from copperbelly water snakes is not a concern with this
final determination.
Issue 2: Critical habitat should be designated.
Service Response: Section 4 of the Act requires designation of
critical habitat concurrent with listing, to the maximum extent prudent
and determinable (also see 50 CFR 424.12). The Service finds that
designation of critical habitat is not prudent for this species. This
finding is based on the conclusion that such a designation would not be
beneficial to the species. As discussed under Factor B in the Summary
of Factors Affecting the species, and in the Critical Habitat section,
the copperbelly water snake would become vulnerable to collectors and
vandals who would be readily able to locate the known populations by
the publication of critical habitat maps and other specific location
information. Furthermore, the Service does not believe critical habitat
will provide any additional benefit beyond that already provided under
section 7 of the Act.
Issue 3: Economic, recreational, and other impacts should be
considered when listing a species.
Service Response: Section 4 of the Act requires the Service to
consider only biological and commercial trade information in
determining whether to list a species. The Service recognizes the
potential for adverse economic impacts stemming from this listing, and
will work closely with mining, development, agricultural, and other
interests throughout the range of the copperbelly water snake to
accommodate economic and recreational activities to the extent possible
while ensuring the continued survival and recovery of the snake.
Issue 4: Exemptions from the taking prohibitions for normal or
routine farming activities should be provided.
Service Response: As of October 1, 1994, the Service must identify,
to the extent possible, specific activities that will and will not
likely result in violation of section 9 of the Act. The Service
believes that agricultural activities on lands considered to be
unsuitable habitat for the copperbelly water snake, but which are
adjacent to copperbelly water snake habitat, are unlikely to result in
a take pursuant to section 9 of the Act. Refer to additional discussion
on actions that may or may not constitute take under Available
Conservation Measures.
Issue 5: Several commentors stated that the status information for
Kentucky is incomplete and inaccurate, therefore, the proposal should
be delayed until further studies can be completed in Kentucky.
Service Response: The Service agrees that total population
estimates are lacking for this species; however, the Service considered
several additional factors that are also important in developing a
biologically accurate species status assessment. Gross population
estimates are particularly important for species for which distinct
local populations are not readily identified. However, 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. Therefore, although quantitative surveying has not been completed
throughout the range of the snake, pertinent and significant
information regarding the other aspects of the snake's status is known.
The Service believes precise population estimates are not necessary to
recognize overall declining trends of the snake. The trends and the
overall health of copperbelly water snake local clusters throughout its
historical and current distribution are a more accurate reflection of
the snake's status than are rough estimates of the number of snakes at
a given time. In addition to the gross population estimates and the
number of populations, the Service also considers factors such as the
size of existing populations, historical and current rates of decline,
current recruitment rates, distribution and proximity of populations,
quantity and quality of available habitat, genetic diversity, and
imminent and potential threats to the species and its habitat.
Issue 6: One commentor stated that the Service is basing their
decision on erroneous data. In particular, the accuracy of the habitat
acreage estimates was questioned within the Bryan et al. (1994)
Kentucky status report.
Service Response: The Service recognizes that earlier habitat
estimates were based on older topographic
[[Page 4187]]
quadrangle maps and limited aerial photography and personal knowledge,
and therefore, the habitat estimates were not necessarily indicative of
what precisely exists today. However, those sources of information
represented the best available information at the time, as the
surveyors were not able to obtain permission to survey current habitat
on most of the land under mining lease. Since the Bryan et al. (1994)
study the Service has updated its habitat estimates for Kentucky and
vastly refined its knowledge of where suitable habitat still exists
within the states. This work involved field verification of topographic
maps, recent aerial photography and geographic information system
mapping of the photos, meeting with copperbelly water snake experts and
state field biologists, and field work by Kentucky State Nature
Preserves Commission biologists. The Conservation Agreement for
Kentucky is based upon this updated information.
Issue 7: Coal mining in Kentucky is creating, rather than
eliminating, copperbelly water snake habitat wherever previously mined
areas are reclaimed to wildlife habitat.
Response: Based on the available information, the Service believes
coal mining reclamation procedures generally are not providing snake
habitat (Bryan et al. 1994; Kingsbury pers. comm. 1996; MacGregor pers.
comm. 1994; Sellers 1991). Mined land generally has been reclaimed to
cropland, hay fields, and wildlife land unsuitable for the snake, such
as upland forest, upland game habitat, and deep water impoundments.
Ponds and wetlands reclaimed or restored on mined lands are often too
widely scattered and lack suitable fish and/or amphibian populations,
hibernation sites, and cover to be suitable copperbelly water snake
habitat. However, the Service believes that coal mining activities can
be compatible with the conservation of the copperbelly water snake if
the extent, timing, and reclamation design are modified to incorporate
snake conservation measures. As described in the Final Determination on
Southern Population Segment section, the Conservation Agreements are
instituting such changes to mining and reclamation activities
throughout the southern population segment. The Service believes that
these reclamation methods will increase and enhance copperbelly water
snake habitat.
Issue 8: The factors threatening the species are no longer
significant because there are Federal and state laws protecting the
species.
Response: The Service recognizes the efforts of private groups and
governmental programs, and agrees that some of the past threats to the
species have been reduced and/or eliminated. However, interpretation
and enforcement of the Food Security Act, the Clean Water Act, and the
Surface Mining Reclamation Control Act have not provided sufficient
protection to the copperbelly water snake or its habitat. Furthermore,
state protection of the copperbelly water snake is not currently
uniform across its range and the lack of any state authority to protect
the habitat of state-listed species significantly weakens the
protection of the species. However, the Service agrees that, for the
Southern Population Segment, where mining and the lack of consistent
state protection against take previously were the major threats to the
species, the recently signed Conservation Agreements will provide
adequate protection.
Issue 9: The population data cited in the proposed rule are
incorrect.
Response: The Service agrees that population numbers for much of
the copperbelly's occupied range are not very useful due to the
difficulty with censusing elusive animals such as water snakes.
However, the Act requires the Service to make its determinations on the
basis of the best available scientific and commercial data, which need
not be population estimates or counts that can be statistically
analyzed. Also, as noted under Issue 5, the Service has not relied
heavily on population data for its determinations. The Service also
points out that additional monitoring of snake habitat and populations
will be carried out as a result of the two Conservation Agreements, so
our knowledge of copperbelly water snake numbers will continue to
improve.
Issue 10: The Service failed to recognize the tracts of habitat
already in protective ownership, such as the Patoka River National
Wildlife Refuge, Land Between the Lakes, and properties under Indiana
Department of Natural Resource ownership.
Service Response: Although the proposed rule did not emphasize the
areas already protected for the species, the Service is aware of these
areas and has concluded that habitat under public and private
conservation ownership is not sufficient to protect the copperbelly
water snake throughout its range. This determination was based on the
following information. First, in the southern population segment, while
suitable habitat does exists within the Patoka River corridor in
southern Indiana, currently the National Wildlife Refuge ownership
consists of only two hundred twenty-five acres which provide benefit to
the snake. Furthermore, significant tracts of copperbelly water snake
habitat within the Patoka River corridor are privately owned and are
currently being adversely impacted by coal mining. Second, snakes found
within the publicly-owned Land Between the Lakes are considered to be
intergrades and would not be included in a listing of the southern
population segment. Third, few populations of copperbelly water snakes
are found on state-owned land. In the northern population segment, only
two of the eight known sites are under partial state ownership and a
third is partly owned by a private conservation organization.
Issue 11: The listing analysis concentrated on historical habitat
degradation and destruction trends rather than current habitat loss
trends.
Service Response: As previously mentioned, the Service considers a
variety of factors in making a listing determination. Although
historical rates of decline are considered during the species' status
assessment, many other factors, including current rates of decline,
potential and imminent threats, gross population estimates, number of
populations, distribution of populations, genetic diversity, and
current recruitment rates are evaluated as well. Historical rates of
decline are utilized by the Service to ascertain if a species is
undergoing a precipitous or gradual decline. Also, the historical trend
information is also useful in identifying the likelihood of natural
cyclical fluctuations in numbers. The Service utilized the historical
trend information in aggregate with all other information in
determining if listing is warranted.
Issue 12: Conservation agreements which significantly reduce the
threats to the species should be considered in the listing decision.
Service Response: The states of Kentucky, Illinois, and Indiana;
the Kentucky Farm Bureau; the Office of Surface Mining, Reclamation,
and Enforcement; the Western Kentucky Coal Association; and others
submitted a Conservation Agreement which primarily addresses coal
mining threats in Kentucky and Illinois. Similarly, the State of
Indiana and the Indiana Coal Council submitted a Conservation Agreement
which addresses coal mining threats in Indiana. The Service has
reviewed those Agreements and concurs that, when fully implemented, the
Agreements will reduce the threats to the southern population segment
of the copperbelly water snake sufficiently to
[[Page 4188]]
preclude the need to list that population segment.
Issue 13: The Service also received comments from conservation
organizations opposed to the use of Conservation Agreements to preclude
the need to list the species. Their opposition is based on the non-
binding nature of Conservation Agreements and the risk of mitigation
efforts failing.
Service Response: Both Conservation Agreements include monitoring
and compliance measures along with the flexibility to respond to
changes needed to allow the Agreements to be successful. The Service is
a signatory on both Agreements and will be an active partner in their
implementation and monitoring. Further, the Service will constantly
evaluate the status of the species, and if the Agreements fail to meet
expectations, will reevaluate the need to list the southern population
segment.
Peer Review
The Service routinely has solicited comments from parties
interested in, and knowledgeable of, taxa which have been proposed for
listing as threatened or endangered species. A July 1, 1994, policy
statement (59 FR 34270) established the formal requirement that a
minimum of three peer reviewers be asked to provide input into the
Service's listing decisions. Although the proposed rule to list the
copperbelly water snake as a threatened species predated that policy,
the Service nonetheless elected to apply the formalized peer review
process to the proposal. During the July 16, 1996, to November 15,
1996, comment period, the Service solicited the expert opinions of five
biologists having recognized expertise in herpetology and/or
conservation biology and requested their review of the published and
unpublished data concerning the copperbelly water snake. In order to
ensure an unbiased examination of the data, the Service contacted
biologists who previously had only minor or no involvement in
discussions on the possible listing of the snake.
Comments were received within the comment period from all five
reviewers. All five reviewers concurred with the Service on factors
relating to the taxonomy, and biological and ecological information.
One reviewer believed current Kentucky data were insufficient.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that the northern population
segment of the copperbelly water snake should be classified as a
threatened species, and that listing is not warranted for the southern
population segment of the copperbelly water snake. 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 copperbelly water snake (Nerodia erythrogaster
neglecta) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Habitat loss and fragmentation were the primary causes of the
decline of the copperbelly water snake and continue to be the major
factors threatening the continued existence of the species. From 1790
to the mid-1980's, much of the copperbelly water snake's wetland
habitat was modified or destroyed. According to Dahl and Johnson
(1990), Indiana has lost 87 percent of its original wetlands, Illinois
85 percent, Michigan 50 percent, Ohio 90 percent, and Kentucky 81
percent. The principal cause of these losses was land conversion to
agricultural use. This was especially true from 1950 through the
1970's, when agriculture was cited as the cause for 87 percent of the
wetland loss nationwide (Dahl and Johnson 1990). However, since that
time, other land uses and modifications such as dredging, coal mining,
stream channelization, road construction, and commercial and
residential development have played a more significant role in the loss
of wetland habitat.
The loss of snake habitat is especially evident in areas occupied
by the northern population segment of the snake, where the species has
been relegated to only a few small, isolated habitat areas. The
northern population segment has, since 1986, occupied only eight very
limited sites in four southern Michigan counties, one northwestern Ohio
county, and one northeastern Indiana county. Six of these local
clusters, including the Indiana and Ohio local clusters, are
encompassed within an area of about 100 square miles. The other two
local clusters are 35 to 60 miles to the northwest.
Two of the eight sites have a portion of their area protected by
state ownership, and one is partially owned by a private conservation
organization. The remaining sites are all private property with
uncertain fates. A key characteristic of these sites is separation by
unsuitable habitat from each other and from important habitat
components. The unsuitable habitat is primarily agricultural land,
rural residential sites, and roads.
Landscape fragmentation and isolation of local clusters from each
other increases the likelihood of extinction by causing each local
cluster to function as an independent, but much smaller population.
Very small populations are far more susceptible to local extirpation
from factors such as drought and from genetic irregularities caused by
inbreeding.
Other factors that may be adversely affecting northern population
habitat include increased residential development, sedimentation, and
contamination caused by fertilizer runoff (Sellers 1996a, 1996b.). A
large residential complex has been developed around a deep water lake
that is utilized by the snake during droughts. New residences have been
built near the Cass/St. Joseph counties local cluster. Residences add
to roadway traffic, increase habitat fragmentation, and increase the
likelihood of direct harm to snakes by people, pets, and vehicles.
Sedimentation, usually resulting from agricultural activities, but also
caused by construction, may change hydrological characteristics and
plant succession, as well as reduce the numbers of amphibian and fish
used by the snake as food.
The presence of copperbellies at two of the eight northern local
clusters has not been confirmed since 1987, and since 1989 at a third
site. Two of these three sites were surveyed in 1996, one of them for
46 hours, and no copperbellies were found. The third site has not been
surveyed since 1987. Suitable habitat at these three sites still seems
to be available. While it may be reasonable to conclude that snake
numbers at the two recently surveyed sites have declined, surveys have
not been frequent enough to conclude with certainty that these two
local clusters no longer support copperbellies. Northern population
survey data since 1986 are not complete for all local clusters, and do
not support any conclusion as to an overall trend of increase or
decrease. However, total numbers of snakes seen have remained very low
since 1986. The low numbers and possible disappearance of snakes from
various sites in the last 10 years indicates that progress toward
extirpation which became apparent in the 1950's and 1960's probably is
continuing, and underscores the perilous state of the northern
population segment. The northern population probably will be
[[Page 4189]]
extirpated within the next few decades without immediate additional
protection (Kingsbury pers. comm. 1994 and 1996).
Specific habitat-related threats that have cumulatively led to the
extirpation of northern population segment copperbelly water snake
local clusters include woodlot, brush, and other land clearing; habitat
constriction and fragmentation from surrounding development; road
construction; and coal mining.
Although coal mining has been a major recent factor in the decline
of the species in the southern portion of its range, the Service
believes mining practices can be compatible with the existence of the
snake. Coal mining can be compatible with the copperbelly water snake
if the extent, the timing of the mining, and the reclamation design are
modified to incorporate snake conservation measures. The Conservation
Agreements for the southern population segment make such changes to
coal mining and reclamation practices, thus greatly reducing mining
threats to the species, and providing compatibility between mining and
snake conservation. Because habitat loss and degradation from surface
coal mining constituted the main threats facing the southern
population, the Service believes that the reduction of the coal mining
impacts by the Conservation Agreements precludes the need to list the
southern population segment.
While the northern population segment is not impacted by coal
mining, it is significantly affected by all of the other threats of
destruction, modification, or curtailment of its habitat listed above.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Scientific overutilization, without careful regulation, can pose a
threat. During the first 30 years after its discovery and formal
publication of its description, many copperbelly water snakes were
collected as specimens for museums. Although museums have abandoned
this practice, amateur collectors continue to take wild snakes (Sellers
1991). The species is believed to be collected fairly regularly because
of its rarity, large size, unique coloration, and value in the pet
trade. For example, an international commercial dealer reportedly
offered $260 to an amateur collector for a breeding pair of copperbelly
water snakes.
C. Disease or Predation
The snakes are vulnerable to predation during migration, especially
when their migration routes are interrupted by cleared areas such as
roads, mowed areas, and farmlands. Dispersing through such areas
increases the likelihood of the snakes being preyed upon by natural
predators such as skunks, raccoons, and raptors. Due to habitat
fragmentation, the ability to use suitable cover to migrate safely
throughout its home range is a limiting factor in the life cycle of the
copperbelly water snake. In addition to predation, vehicle-caused
mortality and injury also has increased as suitable habitat becomes
more fragmented by transportation corridors. Such habitat fragmentation
is especially significant to the northern population segment where
seasonal movements among its smaller habitat patches force snakes to
cross roadways or other open habitat (Sellers 1991).
D. The Inadequacy of Existing Regulatory Mechanisms
The copperbelly water snake receives varying degrees of protection
through state listings as an endangered, threatened, or nongame species
throughout its range. Michigan, Indiana, and Ohio confer full legal
protection to the copperbelly water snake; it is illegal to collect,
kill, or injure the snake in these three states. Illinois and Kentucky
offer no legal protection to the snake at this time.
Whereas three states have laws and regulations which protect the
species from take, the lack of uniform protection throughout the United
States hampers enforcement and imperils the species by creating
loopholes for illegal take and trade. More importantly, legal
provisions for protection and management of copperbelly water snake
habitat at the state level are non-existent. Because destruction and
alteration of habitat are the major reasons for the species' decline,
the inability to protect non-federally listed species' habitat will
exacerbate the continued decline of the copperbelly water snake without
additional Federal protection.
As discussed under Factor A above, to alleviate any potential
threats to the snake from surface mining, the recently-signed
Conservation Agreements will require consideration of the southern
population segment of the copperbelly water snake and its habitat in
the surface mining and reclamation permitting process as if the species
was federally-listed as threatened or endangered in Kentucky and
Illinois. In Indiana core areas of snake habitat have been designated
and will remain undisturbed by surface mining; snake habitat outside of
the core areas can be mined to some extent but new reclamation
standards will produce habitat suitable for copperbelly watersnakes.
The Service believes that this modification to past permitting
practices will remedy the threats presented by surface mining.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Weather extremes such as drought, flooding, and unusually mild, as
well as severe, winters may influence the population of the copperbelly
water snake. These factors affect the snake's ability to estivate for
prolonged periods, as well as impeding access to, and use of, essential
upland hibernation and foraging sites and wetland breeding areas. While
these factors are not as likely to affect larger and healthier
populations, small, isolated copperbelly water snake local clusters,
like those that make up the northern population segment, are especially
vulnerable to these naturally occurring events.
The widely held general dislike for snakes by humans further
threatens copperbelly water snakes. For example, Kingsbury (pers. comm.
1994) reported two incidents in which the species was intentionally
killed, with a gravid (pregnant) female being one of the victims. Such
intentional killing likely has been more common in the southern
population segment, due to geographic proximity to poisonous wetland-
inhabiting snakes. However, one of the Conservation Agreements will
lead to regulations in all three states which will prohibit the killing
of this species.
In the northern population segment, due to the small number and
isolation of the surviving local clusters, the snake remains vulnerable
to habitat modification and destruction and collection and persecution.
The southern population segment is more widespread and consists of
larger and more numerous local clusters. Several of the larger local
clusters are partially or entirely on Federal or state lands. Most of
the remaining local clusters are on private land, and most of these are
covered by approved permits for surface coal mining. The threats from
surface coal mining have been greatly removed by the recently-signed
Conservation Agreements with the coal mining industry and state and
Federal regulatory authorities for surface mining. These Agreements
will preserve existing core habitat needed by the species, and will
modify past post-mining land reclamation practices so
[[Page 4190]]
that suitable copperbelly water snake habitat will be developed
following mining. The Service believes these changes in mining and
reclamation practices reduce the existing and potential threats from
mining to a level at which the species in the southern portion of its
range is no longer likely to become endangered in the foreseeable
future, and therefore does not warrant listing as a threatened species
at this time.
The Service will continue to work closely with the surface coal
mining industry and state and Federal surface mining regulatory
agencies to monitor and evaluate the effects of the modified surface
mining practices on the snake.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by the copperbelly water snake in finalizing this
rule. Based on this evaluation, the preferred action is to list the
northern population segment of the copperbelly water snake, Nerodia
erythrogaster neglecta, as a threatened species; the Service will not
finalize the proposal to list as threatened the southern population
segment of the copperbelly water snake.
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 necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) requires 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 is not prudent for
the northern and southern population segment of the copperbelly water
snake at this time. 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.
As discussed under Factor B in the Summary of Factors Affecting the
Species, the copperbelly water snake is known to be subject to
collection, and those snakes would become increasingly vulnerable to
reptile collectors who would be able to locate the known populations by
the publication of critical habitat maps and other specific location
information. Publication of critical habitat locations would also aid
the intentional killing of individual snakes by individuals opposed to
Federal and state conservation efforts for the species. The Service is
concerned that threats made against the snakes during the listing
process will be more likely to be carried out if snake locations are
published.
Furthermore, critical habitat designation would not provide
significant additional protection over that afforded through the normal
recovery process, through section 7 consultation, and the prohibitions
of section 9 of the Act. The precarious status of the northern
population segment necessitates identical section 7 biological opinion
thresholds for determining adverse modification of critical habitat and
jeopardizing the continued existence of the species. Furthermore,
sufficient habitat protection is provided by the Service's current
interpretation of the meaning of ``harm'' in the Act's definition of
``take''; this interpretation holds that habitat degradation which
significantly impairs essential behaviors constitutes ``harm'' and is
prohibited by the Act.
In addition, Conservation Agreements for the snake and its habitat
in the southern portion of its range, have removed significant threats
to this species. Critical habitat for the snake will not be designated
on any lands where the habitat is included in a Conservation Agreement,
for the life of the agreement, so long as the agreement remains in
effect consistent with its terms.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing results in
public awareness and encourages conservation actions by Federal,
Tribal, state, and local agencies, private organizations, 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 proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
Part 402. Section 7(a)(4) requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continuous
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of the species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Federal agency actions that may require consultation include the
U.S. Army Corps of Engineers regulatory involvement in projects such as
the construction of roads, bridges, and dredging projects subject to
section 404 of the Clean Water Act (33 U.S.C. 401 et seq.); Office of
Surface Mining Reclamation and Enforcement coal mining permitting
process; Federal Highway Administration funded projects; Bureau of Land
Management lease activities; and Natural Resources Conservation Service
projects.
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 and 17.31, 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 also is illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that has been taken illegally.
Certain exceptions apply
[[Page 4191]]
to agents of the Service and state conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving threatened wildlife species under certain circumstances.
Regulations governing permits are codified at 50 CFR 17.32. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities. For threatened species,
there are also permits for zoological exhibition, educational purposes,
or special purposes consistent with the purposes of the Act.
It is the policy of the Service, published in the Federal Register
on July 1, 1994, (59 FR 34272) to identify, to the maximum extent
practicable at the time a species is listed, those activities that
would or would not constitute a violation of section 9 of the Act. The
intent of this policy is to increase public awareness of the effects of
the listing on proposed and ongoing activities within a species' range.
The Service believes that, based on the best available information, the
following actions will not result in a violation of section 9 for
listed copperbelly water snakes, provided these activities are carried
out in accordance with existing regulations and permit requirements:
(1) Routine agricultural activities on property adjacent to
occupied copperbelly habitat, excluding activities which convert
wooded, shrubby, or brushy areas to cropland or pasture;
(2) Possession of legally acquired copperbelly water snakes; and
(3) Actions that may affect copperbelly water snakes that are
funded, authorized, or carried out by a Federal agency if the action is
conducted in accordance with section 7 of the Act.
Activities that the Service believes could potentially harm the
copperbelly water snake and result in ``take'' to the northern
population segment of the snake include, but are not limited to;
(1) Collecting or handling of the snake in any manner;
(2) Possess, sell, transport, or ship illegally taken copperbelly
water snakes;
(3) Substantial destruction or degradation of the species' wetland
habitat such as discharge of fill material, drainage, damming of
wetlands, channelization, damming, diversion of streams or rivers,
diversion or alteration of surface or ground water flow into or out of
wetlands (due to roads, impoundments, discharge pipes, storm water
detention basins, etc.);
(4) Discharges or dumping of toxic chemicals, silt, or other
pollutants (e.g., sewage, oil, and gasoline) into waters supporting the
species; and
(5) Interstate and foreign commerce and export without obtaining
the appropriate permit. Permits to conduct these activities are
available for purposes of scientific research and enhancement of
propagation or survival of 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 Indiana, the
Bloomington Field Office, 620 South Walker Street, Bloomington, Indiana
47403 (812/334-4261); in Michigan, the East Lansing Field Office, 2651
Coolidge Road, East Lansing, Michigan 48823 (517/351-2555); and in
Ohio, the Reynoldsburg Field Office, 6950-H Americana Parkway,
Reynoldsburg, Ohio 43068 (614/469-6923) (see ADDRESSES section).
Requests for copies of the regulations regarding listed species and
inquiries about prohibitions and permits may be addressed to U.S. Fish
and Wildlife Service, Division of Endangered Species, Whipple Federal
Building, 1 Federal Drive, Ft. Snelling, Minnesota 55111-4056
(telephone 612/725-3536; facsimile 612/725-3526).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the 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).
Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements. This rulemaking was not subject to review by the Office
of Management and Budget under Executive Order 12866.
References Cited
A complete list of all references cited herein is available upon
request from the Service's Bloomington, Indiana, Ecological Service
Field Office. (See ADDRESSES section.)
Author
The primary authors of this document are Scott Pruitt of the
Service's Bloomington Field Office (see ADDRESSES section) and Jennifer
Szymanski (U.S. Fish and Wildlife Service, Whipple Federal Building, 1
Federal Drive, Ft. Snelling, Minnesota 55111-4056).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended 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, 10080 Stat. 3500, unless otherwise noted.
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under REPTILES, to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
[[Page 4192]]
* * * * * * *
Snake, copperbelly water......... Nerodia U.S.A. (IL, IN, KY, Indiana north of 40 T 607 NA NA
erythrogaster MI, OH). degrees north
neglecta. latitude,
Michigan, Ohio.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: January 16, 1997.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 97-2056 Filed 1-27-97; 8:45 am]
BILLING CODE 4310-55-P
