[Federal Register Volume 62, Number 19 (Wednesday, January 29, 1997)]
[Proposed Rules]
[Pages 4229-4239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2101]
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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; Proposed 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: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list
the northern population of the bog turtle (Clemmys muhlenbergii) as
threatened from New York and Massachusetts south to Maryland; and the
southern population of bog turtle, which occurs in the Appalachian
Mountains from southern Virginia to northern Georgia, as threatened due
to similarity of appearance to the northern population, with a special
rule, pursuant to the Endangered Species Act of 1973 Act), as amended.
The bog turtle is threatened by a variety of factors which include:
habitat degradation and fragmentation from agriculture and urban
development; habitat succession due to invasive exotic and native
plants; and illegal trade and collecting.
DATES: Comments from all interested parties must be received by April
29, 1997. Public hearing requests must be received by March 17, 1997.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Pennsylvania Field Office, U.S. Fish and Wildlife Service,
315 South Allen Street, Suite 322, State College, Pennsylvania 16801.
The complete file for this rule is available for inspection, by
appointment, during normal business hours at the above address.
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
[[Page 4230]]
(Barton and Price 1955). In 1917, Dunn considered the southern morph to
be distinct and classified the southern population as Clemmys nuchalis
(Amato et al. 1993). This taxon was subsequently synonymized with
Clemmys muhlenbergii and researchers still question the taxonomic
validity of the northern and southern morphs (Amato et al. 1993, Klemns
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 any significant genetic differences between the
northern and southern populations. However, due to the conservative
nature of this gene in other turtle 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 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 an only a
remnant population exists at two remaining sites 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.
Based on the disjunct distribution of this species, and the
recognition by herpetologists of the existence of distinct allopatric
northern and southern populations, the northern population of the bog
turtle for the purposes of listing will be treated as a species (a
distinct vertebrate population). The Act defines a species to include
any subspecies of fish or wildlife or plants, or any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.
The bog turtle is the smallest member of the genus Clemmys, with
the carapace (upper shell) of adults measuring 7.5-11.4 cm (3.0-4.5
in.) 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 is located beyond the
posterior carapace margin. Females have proportionately higher
carapaces, flat plastrons, relatively short tails, and the vent 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 1976). The
difficulty of locating turtles in July and August may be a result of
inactivity during that period (Lovich et al. 1992). Bog turtles
hibernate from October to April, often just below the upper surface of
frozen mud or ice (Chase el al. 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, Nemura 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 his 9 Maryland study sites.
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 in June or July, females deposit from two to six white eggs in
sphagnum moss or sedge tussocks (Arndt 1977, Herman 1990, Herman and
George 1986, Klemens in press). 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;
slow-flowing water; 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 or muskrats and meadow voles (Barton and Price 1955, Nemuras
1967, Taylor et al. 1984). Bog turtles range in elevation from near sea
level in the north to 1500 m (4500 feet) in the south (Herman and
George 1986).
Bog turtles are usually found in small, discrete populations in
wetland habitats that are a mosaic of micro-habitats which include dry
pockets, saturated areas, and areas that are periodically flooded
(Collins 1990). 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 and become 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
(beaver activity or fire) opened canopies in other areas (Klemens
1989).
Several plant species commonly associated with bog turtles habitats
are: 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 et
al. 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).
Presently, many wetlands occupied by bog turtles in agricultural
areas are subject to livestock grazing. Light to moderate grazing many
function to impede succession by preventing or minimizing the
encroachment of invasive native and exotic plant species and it appears
that moderate grazing helps to maintain an intermediate stage of
succession (Smith 1994, Tryon 1990).
Due to the rarity in nature, its small size, and unique habitats,
it is difficult
[[Page 4231]]
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 of the sites
documented to support healthy populations consist primarily of old
individuals. These populations are slowly disappearing due to
negligible recruitment of juveniles over a sustained period of time
(Klemens 1989).
A model, based on habitat characteristics, was developed to assess
the capacity of sites to maintain viable populations of bog turtles.
Known as the ``Standardized Bog Turtle Site-quality Analysis''
(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: habitat size and degree of
fragmentation; the presence of invasive plants and later successional
species; immediate threats such as ditching, draining, filling or
excavating the wetland; and the type and extent of land use practice in
the area. Where adequate data are available, sites are also ranked
according to population size and evidence of recruitment.
By using this site-quality analysis in 1993 and 1994, the
suitability of almost every known northern population site was assessed
and ranked by individuals (the primary bog turtle researcher(s) in each
state) most familiar with each 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. These rankings represent
the suitability of the available habitat needed to maintain a viable
bog turtle population. 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). Recent land use changes such as development
were not considered, and at some sites the presence of turtles was not
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 often comprised of only
one small extant occurrence, often isolated from other such
occurrences.
In 1994, there were 165 known extant bog turtle sites within the
northern population, 35 were classified as good, 57 as fair and 73 as
poor. Since 1994, an additional 38 sightings were reported, 24 of which
occurred in the State of New Jersey. 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). Presently, only four sites are known to support bog
turtles; two 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 1995-1996, five additional bog
turtle sightings were documented from Harford, Baltimore, and Carol
counties. However, most of these documented occurrences are components
of previously identified and ranked sites (Smith, in litt. 1996).
In New Jersey, there are 35 known remaining bog turtle sites in
Burlington, Hunterdon, Monmouth, Morris, Ocean, Sussex and Warren
counties (James Sciascia, New Jersey Department of Fish, Game and
Wildlife, and Robert Zappalorti, Herpetological Associates, Inc., in
litt. 1994). Ten of these sites are classified as good, 10 as fair and
15 as poor. Approximately 90 percent of the turtle habitat in New
Jersey is privately owned, with the state and Federal governments
owning 5 percent each (Siascia and Zappalorti, in litt. 1994).
Recent surveys conducted by the New Jersey Endangered and Nongame
Species Program located an additional 24 bog turtle sites. From 1993-
1995, the habitat suitability of 473 wetlands in Hunterdon, Somerset,
Sussex, and Warren counties was assessed. Only 77 (16 percent) sites
contained suitable habitat and bog turtles were found at only 8 of
these wetlands (Sciascia 1996). In 1996, additional surveys conducted
in Sussex County turned up 16 new bog turtle occurrences in calcareous
fen habitats. These fens are restricted to a 40 square mile area in
central Sussex and northern Warren counties. The 24 occurrences that
were located between 1993 and 1996 were not evaluated using the
Standardized Bog Turtle Site-quality Analysis. However, many of these
new sightings are located near previously reported sites and are
possibly parts of these sites (James Sciascia, New Jersey Department of
Fish, Game and Wildlife, in litt. 1996).
The discovery of bog turtles in calcareous fen habitats is
important to their 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. This type of shrub/herb
community can persist virtually unaltered, which 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 southcentral New
York. The Lake George and southcentral populations have been
extirpated, and only two extant bog turtle sites in Oswego and Seneca
counties remain 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). Twenty-two
potential sites remain in southeastern New York and only 17 are extant.
Of the 19 remaining sites in New York (Oswego, Seneca, Columbia,
Dutchess, Putnam, and Orange counties), 5 are considered good, 7 fair
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).
[[Page 4232]]
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, 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). Between 1994 and 1996, 9 new
sightings were reported from Berks, Chester, and North Hampton
counties. These sites have yet to be evaluated and appear to be small
and marginal in quality.
Based in documented losses of bog turtles and their habitat, the
northern population has declined by at least 50 percent 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 in 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 (50 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 and endangered or
threatened species. The northern population of bog turtle was included
as a candidate on this February 28 Notice of Review.
In the September 17, 1996, Notice (61 FR 48962) on priority
guidance for 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. At this time, there is only one pending higher
priority action in the Northeast Region and it will be handled by
March, 1997. Thus, processing of this proposed rule to list the
northern population of bog turtle as threatened is designated as a Tier
3 activity under the guidance and has been processed accordingly.
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 submitting 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 commentors
recommended transferring the bog turtle from Appendix II to Appendix I
because: the increase number of bog turtles being advertised for sale,
the increased being paid for individuals and pairs, and illegal trade
was 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 Factors Affecting the Species
Section 4 of the Endangered Species Act and regulations (50 CFR
part 424) promulgated to implement the listing provisions of the Act
set forth the procedures for adding species to the Federal lists. 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 muhlebergii)
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.
Development and agriculture continue to cause indirect hydrological
alterations of adjacent wetland habitats by changing the surface water
flow into or out of occupied wetlands habitats. Stormwater retention
basins in upland areas, if not maintained, lose their ability to store
adequate stormwater for release into adjacent bog turtle habitat (Larry
Torok, New Jersey Department of Environmental Protection and Energy,
pers. comm. 1994). Development in the vicinity of wetlands also pose a
threat when the water table is lowered due to the sinking of wells or
if roads act as barriers to the normal flow of surface water (Klemens
1988, 1989). Urban and commercial development contribute to increased
traffic (leading to increased bog turtle road kills), surface water
pollution, and the accelerated succession of existing vegetation.
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 functions to impede 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. In addition, residential development
and natural plant succession are responsible for the partial loss of
two extant populations in Litchfield and Fairfield counties (Victoria,
in litt. 1994).
Only a small fraction of Delaware's freshwater wetlands are
potential bog turtle habitat, and between 40 and 60 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).
Of the 178 bog turtle occurrences (Taylor et al. 1984) representing
90 sites in Maryland, 25 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 several sites, but most sites were lost
due to wetland destruction and alteration, and stream channelization.
In
[[Page 4233]]
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. Causes of habitat loss include pond construction (6 sites),
filling of wetlands (1 site), heavy grazing (4 sites), and the
ditching, draining, tiling and stream channelization (13 sites) (Smith,
in litt. 1994). In addition, flooding of turtle habitat from beaver
activity poses a threat to many of the remaining populations.
In Massachusetts, there are four recorded sites for the state;
three extant and one historic. The historical population was lost when
the fen was inundated after dam construction. Of the three remaining
extant populations, one site is threatened by the encroachment of giant
reed and another site is threatened both by residential development and
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
poor site was ditched and 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 in
the state continues to be threatened by annual burning, severe
overgrazing and chemical pollution from agricultural runoff (Klemens
1986, 1988).
Bog turtles have been extirpated from 10 of the 17 New Jersey
counties in which they occurred (Bergen, Camden, Cape May, Gloucester,
Mercer, Middlesex, Passaic, Salem, Somerset and Union counties).
Surveys conducted in 1988 and 1989 revealed that 44 of the 68 known
historic sites no longer appear to support bog turtles (Anon. 1991). By
1994, at least 53 sites had been lost; 33 to urban and commercial
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). One bog
turtle site was recently destroyed when stormwater runoff from a
development cut a channel through the wetland; thus draining the
wetland and changing its vegetative composition (Torok, pers. comm.
1994). Many of the remaining populations are close to urban and
suburban areas (the Philadelphia, Camden, and Trenton areas, and the
New York City area) and are imminently threatened by development and
collecting. Of the 35 remaining bog turtle sites in New Jersey
(Sciascia and Zappalorti, in litt. 1994), 10 are considered good, 10
fair and 15 poor.
Bog turtles were reported from 17 counties in New York, but have
been eliminated from 11 counties (Albany, Genessee, Onondaga, Otsego,
Rockland, Sullivan, Tompkins, Ulster, Warren, Wayne and Westchester)
(Breisch et al., in litt. 1994). Of New York's 24 remaining sites, only
19 populations are extant; five are considered good, 7 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 two sites in western New York. In western New
York, five of the seven historic bog turtle sites have been lost. Two
sites were eliminated due to plant community succession; one was
destroyed by a sand and gravel operation; and two were eliminated due
to plant succession and hydrological alteration associated with
agricultural practices and construction of the Erie Canal (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 Susquehanna River drainage population was caused by the
construction of an interstate highway (Breisch et al., in litt. 1994).
At least twenty-six known bog turtle sites have been lost in
southeastern New York due primarily to road construction, impoundments,
plant succession and development. In addition, the historic bog turtle
sites on Staten Island were eliminated by development (Nemuras 1967).
In western New York, the viability of the only two remaining sites is
questionable. In 1989, no turtles were located during surveys conducted
at the Oswego County site. The Seneca County site is threatened by
over-collecting, plant succession and construction of an interstate
highway through a wetland within 200 feet of existing bog turtle
habitat (Breisch et al., in litt. 1994).
Of the remaining 24 bog turtle sites in New York, most are of poor
habitat quality. The presence of bog turtles at 5 sites is highly
questionable since turtles have not been reported from these sites for
15 to 25 years. Most of the existing sites suffer from habitat
degradation due to residential and commercial development, road
construction and vegetational succession. 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.
In Pennsylvania, 28 of the 62 known bog turtle sites have been
extirpated, especially in Mercer, Crawford, Delaware and Philadelphia
counties. The reasons for the loss of a disjunct population represented
by 3 historic locations in the northwestern counties, are unknown.
However, much of the historic bog turtle habitat at Pymatuning Swamp
was destroyed by construction of a dam.
Most bog turtle habitat is concentrated in the southeastern corner
of the state, within portions of the Delaware and Susquehanna river
drainages. Development and urbanization, road construction, and
agriculture are largely responsible for the loss of bog turtle habitat
in southeastern Pennsylvania and also several large cites are located
in this area (Philadelphia, Harrisburg, Reading, Lancaster, and York).
In the early 1960s, Robotham (in Nemuras 1967) documented the
destruction of two bog turtle sites in Chester County (in the West
Chester-Downingtown area). One site was destroyed after a road was
constructed through the center of the marsh and the marsh was drained
for development. The other site was destroyed by a road bypass,
commercial development, and excavation of a lake.
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 for 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. This increase in price most likely reflects the increase
in demand for the turtles; therefore, increasing the threats to the
wild populations (Tryon and Herman 1990).
Atlanta Zoo personnel reported that from 1989 to early 1991, over
100 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
[[Page 4234]]
``most wanted'' endangered species (Earley 1993).
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). Over-collecting has caused 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), New
York (Breisch, in litt. 1993; Breisch et al., in litt. 1994; Collins
1990), and Pennsylvania (Ralph Pisapia, U.S. Fish and Wildlife Service,
in litt. 1992). Many sites in these states have suitable habitat; but
have a much-reduced bog turtle population, probably due to
overcollecting.
Throughout its 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 in specimens 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). 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 office 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); and,
(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).
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 previously reported (Anon. 1991;
Breisch, in litt. 1993; Flemming, in litt. 1991). Bog turtles are
already extremely low in numbers throughout 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
threats from the pet trade industry, bog turtles have been collected
for exhibition at nature centers (Anon. 1991). 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.
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).
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 an 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 permits issued by townships are checked for species
of special concern (Doug Cooper, Connecticut Department of
Environmental Protection, pers. comm. 1994).
The bog turtle is listed as endangered in Delaware 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 1972, the bog turtle was listed as endangered in Maryland when
only 5 of the 23 then known historic locations were extant. However, it
was removed from the state endangered species list in 1982, after 173
new occurrences were discovered during surveys conducted between 1976
and 1978 (Smith 1994, Taylor et al. 1984). In 1992-1993, the Maryland
Department of Natural Resources conducted follow-up surveys of the 178
locations documented to support bog turtle (Taylor et al. 1984). Of the
159 locations surveyed, bog turtle were found at 91 locations; this
represents a 43 percent reduction of bog turtle occurrences over a 15-
year period (Smith 1994). Based on the results of these recent surveys,
bog turtles are now classified as threatened in Maryland. They 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
[[Page 4235]]
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.
The species is classified as endangered in Massachusetts 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 support
endangered and threatened species, or species of special concern. The
Act 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 Act allows for
a 150-foot buffer zone around wetlands, a stringent permit review
process, and prohibits activities that would likely jeopardize or
destroy bog turtles habitat (Torok, pers. comm., 1994). Most
agricultural activities are exempt from these regulations.
In New York, the bog turtle is listed as endangered 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 classified as Class 1 Wetlands and
they receive some 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.
The U.S. Army Corps of Engineers (Corps) under section 404 of the
Clean Water Act regulates the discharge of all fill into waters of the
United States, including navigable waters and wetlands. The Clean Water
Act requires that project proponents obtain a permit from the Corps
before undertaking any activity that would result in the fill of waters
under the Corps' jurisdiction.
The Corps has promulgated nationwide permits in order to provide
some measure of regulatory relief. Nationwide permits pre-authorize
certain activities which meet special regulatory conditions. A pre-
determination is made that certain activities will have minimal
cumulative and environmental effects. Massachusetts has revoked
nationwide permits and has adopted a State Programmatic General Permit.
This general permit further refines the criteria for which projects
require individual review.
The Corps promulgated nationwide permit Number 26 (see 33 CFR
330.5(1)(26)) to address fill in isolated or headwater wetlands
totalling less than 10 acres in size. Under this permit, proposals that
involve the fill of wetlands less than one acre in size are
automatically authorized. When fills adversely modify anywhere between
1 to 10 acres of wetland, the Corps circulates a predischarge
notification to the Service and other interested parties for comment in
order to determine whether a permit is required for a proposed fill and
its associated impacts.
The review process for the issuance of individual permits is more
rigorous than for nationwide permits. Individual permit applicants are
require to undergo a mitigation sequencing process that includes
avoidance, minimization and compensation for any adverse environmental
impacts. Unlike nationwide permits, an analysis of cumulative wetland
impacts is required. However, standards have not been set for
cumulative effect thresholds beyond those for which permitting
activities are already restricted.
For nationwide permits, the Corps has discretionary authority to
require an applicant to seek an individual permit if the Corps deems
that the resources are important, regardless of the wetland's size. The
Corps rarely requires an individual permit when a project qualifies
under a nationwide permit, unless a threatened or endangered species or
other significant resources are adversely affected by a proposed
activity.
The bog turtle could potentially be affected by a project requiring
a permit from the Corps under section 404 of the Clean Water Act. The
bog turtle is effected by agricultural practices which are exempt from
regulation under section 404 of the statute. In addition to a Federal
exemption for maintenance of existing agricultural drainage systems,
other exempted activities include plowing, planting and harvesting in
existing cropped wetlands as long as the activity is part of an on-
going farming operation.
Finally, under section 401 of the Clean Water Act, all Federal
permit actions, including section 404 activities, must also meet
individual State Water Quality Standards. If a state views an activity
as inconsistent with their Federally-approved standards, the state can
deny certification.
While all range states have legislation protecting bog turtles from
take, lack of uniform protection throughout the United States imperils
the species by creating loopholes for illegal take and trade (Klemens,
in litt. 1990). In addition, destruction and alteration of habitat are
major factors for its decline, yet state and Federal provisions for
protection of its habitat are non-existent. Wetlands inhibited by bog
turtles are generally small, wet-vegetated, spring-fed bogs. These
wetlands are often considered of low value and are drained, filled or
converted into ponds, despite Federal and state wetland regulations.
Due to provisions (agricultural exemptions, Nationwide Permits) in
Federal and state wetland regulations, these wetlands are often given
minimal regulatory protection.
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. 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. Wetland habitats are in a state of transition; unless set back
by fire, beaver activity, light to moderate grazing, or periodic wet
years. The habitat continues to succeed into wooded swampland and
[[Page 4236]]
becomes unsuitable for bog turtles. Various human activities, such as
fire suppression, beaver control, fertilizer runoff, draining and
ditching, and filling of wetlands 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, purple loosestrife, giant reed and reed canary grass,
as well as native species such as red maple and alder (Klemens 1984,
1989, and in press).
Beavers pose a threat to isolated bog turtle populations by
flooding the 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 turtle sites in Maryland.
Reptile and amphibian populations at these sites are much lower in
numbers 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 stormwater 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
rangewide reduction due to: (1) the small numbers of individuals within
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/habitat fragmentation prevents recolonization of existing
habitat or colonization/expansion into newly created habitats (Collins
1990).
Vehicles and livestock pose a direct threat to bog turtles by
killing and injuring individuals. Roads near 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). Large
numbers of livestock within a wetland can also pose a threat by
actually stepping on bog turtles (M. Klemens, pers. comm., S. Smith,
pers. comm.).
In developing this proposed rule, the Service has assessed the best
available scientific and commercial information regarding the past,
present and future threats faced by the species. 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 over the past 20 years, and has experienced a significant
decrease in its known range. Presently, less than 200 active sites
remain in the north. Most of these consist of small wetlands isolated
from one another and often in close proximity to human habitation.
Critical habitat will not be proposed at this time for the northern
population of bog turtles for the following reasons.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (1) 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
need 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 is not prudent for the bog
turtle 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.
The publication of precise maps and descriptions of critical
habitat in the Federal Register would increase the vulnerability of the
bog turtle to collection. Listing of the bog turtle as threatened also
elevates the awareness to 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.
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. Based
on past and continuing threats to the bog turtle and its habitat from
illegal collecting and vandalism, the designation of critical habitat
at this time would significantly increase these threats. Therefore, the
Service has determined that designation of critical habitat at this
time is not prudent. Protection of bog turtle habitat will be addressed
through the recovery and section 7 consultation process.
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 proposed for
listing or is listed as endangered or threatened and with respect to
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 continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
subsequently listed, 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 destroy
or adversely modify its critical habitat. If a Federal action could
affect
[[Page 4237]]
a listed species or its critical habitat, the responsible Federal
agency must enter into consultation with the Service.
Federal agency actions that may require conference and/or
consultation as described in the preceding paragraph include Army Corps
of Engineers (Corps) involvement in projects such as the construction
of roads and bridges, and the permitting of wetland filling and
dredging projects subject to section 404 of the Clean Water Act (33
U.S.C. 1344 et seq.) and section 10 of the Rivers and Harbors Act of
1899 (33 U.S.C. 401 et seq.); National Resources Conservation Service
projects; U.S. Environmental Protection Agency authorized 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 there), 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 legally acquired bog turtles; 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 threatening 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 draining,
ditching, discharging fill material, impoundment, water diversion, or
activities that result in the destruction or severe degradation of
wetland vegetation used by the turtles for nesting, basking, foraging
or cover, except as outlined in (4) above; and
(2) 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 regarding listed
wildlife and inquiries about prohibitions and permits may be addressed
to 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 (c) 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 where bog turtles are taken from.
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 proposes to list
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
[[Page 4238]]
that result in the accidental take of a bog turtle will not be
considered a violation of section 9 of the Endangered Species Act in
the Southern states of Georgia, North Carolina, South Carolina,
Tennessee, and Virginia. The Service does not consider the southern
population of bog turtles to be biologically threatened or endangered
and 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) or captive bred wildlife (50 CFR 17.21(g)).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade (legal and illegal), or other
relevant data concerning any threat (or lack thereof) to this species;
(2) The location of any additional populations or occurrences of
this species;
(3) Additional information concerning the range, distribution, and
population size of this species;
(4) Current or planned activities in the subject area and their
possible impacts on this species; and
(5) The number, origin, location and legal disposition of bog
turtles in captivity and/or trade.
Final promulgation of the regulations on this species will take
into consideration the comments and any additional information received
by the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Endangered Species Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days of the date of publication of the proposal in the Federal
Register. Such requests must be made in writing and addressed to Field
Supervisor (see ADDRESSES section).
Required Determinations
The Service has examined this proposed regulation under the
Paperwork Reduction Act of 1995 and found it to contain no information
collection requirements. This rulemaking is not subject to review by
the Office of Management and Budget under Executive Order 12866.
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).
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, and Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat 3500, unless otherwise noted.
2. 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
* * * * * * *
Turtle, bog (=Muhlenberg)....... Clemmys U.S.A. (CT, DE, GA, Entire, except GA, T ........... NA NA
muhlenbergii. MD, MA, NC, NJ, NC, SC, TN, VA.
NY, PA, SC, TN,
VA).
Do.......................... ......do........... ......do........... U.S.A. (GA, NC, SC, T(S/A) ........... NA 17.42(f)
TN, VA).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.42 by adding paragraph (f) to read as follows:
Sec. 17.42 Special rules--reptiles.
* * * * *
(f) Bog turtle (Clemmys muhlenbergii), southern population--(1)
Definitions. For the purpose of this paragraph (f): bog turtle of the
southern population shall mean 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
[[Page 4239]]
shall also apply to the progeny of any such turtle.
(2) Except as provided in paragraph (f)(3) of this section, the
provisions of Sec. 17.31 (a) and (b) of this part shall apply 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, shall
not apply to bog turtles of the southern population.
Dated: January 17, 1997.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-2101 Filed 1-28-97; 8:45 am]
BILLING CODE 4310-55-M
