[Federal Register Volume 64, Number 167 (Monday, August 30, 1999)]
[Rules and Regulations]
[Pages 47126-47134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22459]
[[Page 47126]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC09
Endangered and Threatened Wildlife and Plants; Threatened Status
for Lake Erie Water Snakes (Nerodia sipedon insularum) on the Offshore
Islands of Western Lake Erie
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: Under the authority of the Endangered Species Act of 1973, as
amended (Act), we (the U.S. Fish and Wildlife Service) determine
threatened status for the Lake Erie water snake (Nerodia sipedon
insularum) found among the western Lake Erie offshore islands and
adjacent waters in the U.S. and Canada. This listing does not extend
the Act's protection to water snakes (Nerodia sipedon) found on the
U.S. mainland, Canadian mainland, or the adjacent near-shore U.S.
islands (e.g., Mouse Island and Johnson Island in Ohio). Small
population size, persecution by humans, and habitat destruction are the
primary threats. This action implements the Act's protections for the
Lake Erie water snake. In addition, it identifies specific handling
conditions that do not violate the Act's prohibitions.
EFFECTIVE DATE: The effective date of this rule is August 30, 1999 (see
``Effective Date'' section under SUPPLEMENTARY INFORMATION below).
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours, at offices of the U. S.
Fish and Wildlife Service in Fort Snelling, Minnesota, and in
Reynoldsburg, Ohio. The Minnesota office is located at the Federal
Building, 1 Federal Drive, Fort Snelling, Minnesota 55111-4056. The
Ohio office is located at 6950-H Americana Parkway, Reynoldsburg, Ohio
43068.
FOR FURTHER INFORMATION CONTACT: Buddy B. Fazio, endangered species
biologist, Ohio (614-469-6923 ext. 13) or Jennifer Szymanski,
biologist, Division of Endangered Species, Minnesota (612-713-5342) at
the above addresses.
SUPPLEMENTARY INFORMATION:
Background
This listing provides threatened status and Endangered Species Act
protection to the Lake Erie water snake (Nerodia sipedon insularum)
located on the western Lake Erie offshore islands and adjacent waters.
This listing does not include water snakes (N. sipedon) found on the
Canadian mainland, U.S. mainland, or adjacent near-shore islands due to
those areas having high occurrence of northern water snakes (N. s.
sipedon), intergrades between the two subspecies, and the low
occurrence of Lake Erie water snakes (N. s. insularum). This means
water snakes located on Ohio's Catawba/Marblehead Peninsula, Mouse
Island and Johnson Island (also referred to as Johnson's Island), and
Canada's Point Pelee are not protected under the Act by this listing.
We define near-shore islands as those islands or rock outcrops located
immediately adjacent to, or within 1.6 kilometers (km) (1 mile (mi)) of
either mainland.
We define offshore islands as those 22 or more named and unnamed
western Lake Erie islands and rock outcrops located greater than 1.6
(km)(1 mi) from the Ohio mainland and Ontario mainland. We define the
offshore island's adjacent waters as the western Lake Erie waters
surrounding the offshore islands and located greater than 1.6 (km)(1
mi) from the Ohio mainland and Ontario mainland. These islands and rock
outcrops and their adjacent waters are located within boundaries
roughly defined as 82 deg.22'30'' North Longitude, 83 deg.07'30'' North
Longitude, 41 deg.33'00'' West Latitude, and 42 deg.00'00'' West
Latitude. The U.S. Lake Erie offshore islands and rock outcrops
include, but are not limited to, the islands called Kelleys, South
Bass, Middle Bass, North Bass, Sugar, Rattlesnake, Green, Gibraltar,
Starve, Gull, Ballast, Lost Ballast, and West Sister. Canadian Lake
Erie offshore islands and rock outcrops of Lake Erie include, but are
not limited to, the islands called Pelee, Middle, East Sister, Middle
Sister, North Harbour, Hen, Chick, Big Chicken, and Little Chicken.
Lake Erie water snakes (N. s. insularum) were briefly described by
Morse (1904) as Natrix fasciata erythrogaster. Conant and Clay (1937,
1963) described the Lake Erie water snake subspecies more fully. Lake
Erie water snakes are uniformly gray or brown and have either no color
pattern or have blotches or banding that are faded or reduced (Conant
and Clay 1937, 1963; Camin and Ehrlich 1958; Conant 1982; Kraus and
Schuett 1982; King 1987b, 1991). Color pattern variations among Lake
Erie water snakes are thought to result from the combined effects of
both natural selection and gene flow (King 1993b, 1993c; King and
Lawson 1995). On the rocky shorelines of the western Lake Erie islands,
water snakes with unbanded or reduced patterns appear to have a
survival advantage compared to fully patterned water snakes (Camin et
al. 1954; Camin and Ehrlich 1958; Ehrlich and Camin 1960; King 1992a).
Female Lake Erie water snakes grow up to 1.1 meters (m) (3.5 feet (ft))
long and are larger than males. Newborn Lake Erie water snakes are the
size of a pencil when born during late summer, or early fall.
Lake Erie water snakes use habitat composed of shorelines that are
rocky or contain limestone/dolomite shelves and ledges for sunning and
shelter (Conant and Clay 1937; Conant 1951; Thomas 1949; Camin and
Ehrlich 1958; King 1986, 1987b). Shelter (refugia) occurs in the form
of loose rocks, piled rocks, or shelves and ledges with cracks,
crevices, and nearby sparse shrubbery (Thomas 1949; King 1986, 1992a).
Lake Erie water snakes are found less often on shorelines composed of
small stones, gravel or sand (Conant and Clay 1937; Conant 1938; King
1986). Certain types of rip-rap, armor stone, or docks made with rock
cribs can serve as shelter for Lake Erie water snakes (Conant and Clay
1937; Conant 1938, 1982; King 1990; Service 1994), provided adequate
space exists in these structures that is above Lake Erie's water and
ice levels.
The Lake Erie water snake (N. s. insularum) and the northern water
snake (N. s. sipedon) are separate subspecies. Northern water snakes
(N. s. sipedon) are common and widely distributed in eastern North
America, including the Ohio and Ontario mainland, whereas Lake Erie
water snakes (N. s. insularum) have declined and occur primarily on the
offshore islands of western Lake Erie (Schmidt and Davis 1941; Conant
1982; Kraus and Schuett 1982; King 1986, 1987b, 1989a, 1989b, 1991,
1993b, 1996; King and Lawson 1995; King 1997; King et al. 1997). Lake
Erie water snakes have reduced or no color patterns, while northern
water snakes have sharply defined band patterns (Conant and Clay 1937,
1963; Camin and Ehrlich 1958; Conant 1982; Kraus and Schuett 1982; King
1987b, 1991). Lake Erie water snakes occur on rocky limestone and
dolomite shorelines; northern water snakes use more heavily vegetated
locations with soil, mud or clay (Conant 1951; King 1986, 1987b; King
and Lawson 1995). Lake Erie water snakes also have a different diet, a
larger adult body size, lower growth rates, and shorter tails compared
to northern water snakes (Conant 1951; Hamilton 1951; Langlois 1964;
Drummond 1983; King 1986, 1989a, 1993a).
[[Page 47127]]
The geographic interface where both subspecies of water snake
(Nerodia sipedon) occur is the Ohio mainland (the Catawba/Marblehead
Peninsula) and its near-shore islands (Mouse Island and Johnson
Island). Water snake populations in these areas have northern water
snakes (N. s. sipedon), Lake Erie water snakes (N. s. insularum), and
intergrades between the two subspecies (Conant and Clay 1937, 1963;
Conant 1938; Camin and Ehrlich 1958; Kraus and Schuett 1982; King 1986,
1987a, 1987b; Pfingston 1991; Reichenbach 1992a, 1992b, 1997, 1998).
Intergrades naturally occur on the Peninsula and near-shore islands
because there is no barrier to prevent the two subspecies from
interbreeding. Lake Erie water snakes (N. s. insularum) occur in this
interface zone in low frequencies (Conant and Clay 1937; Camin and
Ehrlich 1958; Kraus and Schuett 1982; King 1987b; Reichenbach 1997,
1998).
Approximately 95 percent of the Lake Erie water snake (N. s.
insularum) population's gene pool occurs on the offshore islands of
western Lake Erie (King 1998a, 1998b). The offshore islands are
isolated from the Ohio and Ontario mainland by approximately 5 to 14 km
(3 to 9 mi) of water. Although not a complete barrier, the distance
from offshore islands to the mainland (and the near-shore islands)
creates a natural barrier. This barrier maintains the integrity of the
Lake Erie water snake gene pool by limiting interbreeding between
offshore island Lake Erie water snakes and mainland and near-shore
northern water snakes. Thus, species experts believe that the genetic
pool on the western Lake Erie offshore islands is primarily Lake Erie
water snake (Conant and Clay 1963 using data from Cliburn 1961; King
1986, 1987b, 1992a, 1992b, 1998a) and the genetic pool on the mainlands
and near-shore islands is predominately northern water snake (N. s.
sipedon).
Lake Erie water snake movements and related gene flow are lower
among mainland and island sites compared to movements among islands
(King 1987b; King and Lawson 1995). King (1987b) reports that all 202
water snakes, recaptured up to 1,146 days after initial capture, were
found within 50 m to 300 m (164 ft to 984 ft) of the original capture
site. No water snakes were observed to move among island study sites
separated by as little as 1.3 km (.8 mi), confirming the observations
of Fraker (1970) that water snakes practice high site fidelity. King
(1987b) estimates that less than 3 percent of adult water snakes move
among islands or among sites on a given island, each year, and thus, by
inference, movement between near-shore islands/mainland and off-shore
islands is likely very limited. King and Lawson (1995) estimated that,
for each generation, an average 9.2 water snakes migrate between Pelee
Island and the Ontario mainland, and 3.6 water snakes migrate between
the islands and the Ohio mainland. Enserink (1997) notes that
populations with 10 or more migrants per generation tend to not
experience natural forces, such as natural selection, that promote
speciation (i.e., a subspecies eventually evolving into a full species
over geologic time). Thus, the Lake Erie water snake remains a unique
insular population that is affected by the opposing forces of natural
selection and gene flow (King and Lawson 1995).
The historic abundance of water snakes on the Lake Erie islands was
first noted in descriptions by early travelers (McDermott 1947; Parker
1976). During the 1700s, the islands of western Lake Erie were called
``Les Iles aux Serpentes,'' the islands of snakes (McDermott 1947;
Langlois 1964). Other accounts by early travelers describe islands with
``myriads (or `wreaths') of water snakes basking in the sun'' or with
water snakes ``sunning themselves in heaps, knots and snarls'' (Ballou
1878; Hatcher 1945; McDermott 1947; Parker 1976; Wright and Wright
1957:534). Morse (1904) noted that many of the water snakes on the
islands of western Lake Erie were uniquely grey, unbanded individuals
(at that time, Natrix fasciata erythrogaster).
The Lake Erie water snake population has declined over 150 years
due to persecution and habitat alteration (Hatcher 1945, Langlois 1964,
Conant 1982, Kraus and Schuett 1982; King 1986, 1987a, 1987b, 1990,
1998a, 1998b; King and Lawson 1995; King et al. 1997). One example is
Middle Island, Ontario, where Thomas (1949) observed up to seven snakes
per ``clump'' of shrubbery at ``close intervals'' over a distance of
several hundred yards of limestone shoreline. King (1986) estimated a
population size for Middle Island that is three to five times lower
than the number of water snakes collected in a single day by Camin et
al. (1954) or in two days by Ehrlich and Camin (1960). In another
example, it took King (1986) a month or more on several islands to
achieve sample sizes similar to that achieved by Conant and Clay (1937)
or Camin and Ehrlich (1958) in a single day. Finally, in terms of
numbers of water snakes per investigator hour, King (Service 1994)
noted that Lake Erie water snake capture rates declined from 10 snakes
per hour (during the 1930s through 1950s) to less than one snake per
hour (during the early 1980s), a ten-fold decline over 30 to 50 years.
Recent data also show declines in population density (i.e., number
of Lake Erie water snakes per km of shoreline) on three of the four
U.S. islands most important to the water snake's long-term survival
(King 1998a, 1998b). When compared to the 1986 population estimate
(King 1986), the 1998 estimate indicates the overall Lake Erie water
snake population continues to remain at a small size. Small population
size makes the Lake Erie water snake population vulnerable to
extinction or extirpation. (See discussions under the ``Issue 2'' and
``Factor E'' sections later in this document.)
The current distribution of Lake Erie water snakes is small
compared to their historic distribution. The historic range of the Lake
Erie water snake (N. s. insularum) included 22 or more offshore islands
and rock outcrops of western Lake Erie, a portion of the Ontario
mainland that includes Point Pelee, and shorelines of the Catawba/
Marblehead Peninsula, Mouse Island, and Johnson Island in Ohio (Conant
and Clay 1937, 1963; Conant 1938; Kraus and Schuett 1982; King 1986,
1987a, 1987b, 1998a). Water snakes were found on Green Island in 1930
(Conant 1982) and early museum records (Ohio State University F.T.
Stone Laboratory collection) initially confirmed water snakes on West
Sister Island. Today, Lake Erie water snakes no longer occur on the
Ontario mainland and four islands: West Sister Island, Green Island,
Middle Sister Island, and North Harbour Island (King 1986, 1998a,
1998b).
In summary, the Lake Erie water snake has declined in population
abundance and in distribution. The current estimate for the U.S.
population ranges from 1,530 to 2,030 adults and is restricted to only
8 islands (King 1998a, 1998b). Stated another way, 95 percent of the
Lake Erie water snake population is currently restricted to an area
with a diameter of less than 40 km (25 mi) comprising 12 western Lake
Erie offshore islands in the U.S. and Canada combined (King 1986,
1987a, 1998a, 1998b).
Previous Federal Record
We identified the Lake Erie water snake as a category 2 candidate
species in notices of review published in the Federal Register on
September 18, 1985 (50 FR 37958) and on January 6, 1989 (54 FR 554).
Our November 21, 1991, Notice of Review (56 FR 225), changed the
snake's status to category 1 candidate. Prior to 1996, a category 2
species was one that we were
[[Page 47128]]
considering for possible addition to the Federal List of Endangered and
Threatened Wildlife, but for which conclusive data on biological
vulnerability and threat were not available to support a proposed rule.
We stopped designating category 2 species in the February 28, 1996,
Notice of Review (61 FR 7596). We now define a candidate species as a
species for which we have on file sufficient information to propose it
for protection under the Act (former category 1 classification).
On August 18, 1993, we published a rule proposing to list the Lake
Erie water snake (N. s. insularum) as threatened (58 FR 43857). The
original comment period ended on November 16, 1993, and the deadline
for receipt of public hearing requests was October 4, 1993. An October
12, 1993, notice (58 FR 52740) extended the public comment and the
hearing request deadline for 30 days. On May 13, 1994, we published in
the Federal Register a notice of public hearing and reopening of the
comment period (59 FR 25024). We held public hearings on South Bass
Island, Ohio, on May 31, 1994, and in Port Clinton, Ohio, on June 1,
1994. The comment period closed on June 16, 1994.
On April 10, 1995, Congress enacted a moratorium on the processing
of all final listing actions (Public Law 104-6) and rescinded $1.5
million from our listing budget, which further delayed action on the
proposed rule. The Congressional moratorium continued until April 26,
1996, when President Clinton exercised authority given to him in the
Omnibus Budget Reconciliation Act of 1996, waiving the moratorium.
During 1995, due to uncertainty as to the extent of the
Congressional moratorium, we determined that the available data for the
listing decision could have become outdated. To ensure responsible
evaluation of current data, we and the Ohio Division of Wildlife funded
a two-year study of the Lake Erie water snake population in 1996 and
1997, with some additional data collection and a final report due in
1998. We received the report from Dr. Richard King during June of 1998,
and received an addendum to the final report in September of 1998.
On May 8, 1998, we published Listing Priority Guidance for Fiscal
Years 1998 and 1999 (63 FR 25502). The guidance clarifies the order in
which we will process rule-makings, giving highest priority (Tier 1) to
processing emergency rules to add species to the Lists of Endangered
and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to
processing final determinations on proposals to add species to the
Lists, processing new proposals to add species to the Lists, processing
administrative findings on petitions (to add species to the Lists,
delist species, or reclassify listed species), and processing a limited
number of proposed or final rules to delist or reclassify species; and
third priority (Tier 3) to processing proposed or final rules
designating critical habitat. The processing of this final rule falls
under Tier 2.
Summary of Comments and Recommendations
In the August 18, 1993, proposed rule and two subsequent
notifications, we requested all interested parties (hereafter called
participants) to submit factual reports or information that might
contribute to development of a final rule. We contacted appropriate
Federal and State agencies, county governments, scientific
organizations, and other interested parties in the United States and
asked them to comment. We also notified Canadian officials at the
Ontario Ministry of Natural Resources offices (located in Toronto,
London, and Chatham) and at the Canadian Wildlife Service in Ottawa,
Ontario. We published newspaper notices inviting public comment and
notifying the public of pertinent hearings in the following
newspapers--``The Port Clinton News Herald'' (Port Clinton, Ohio),
``The Sandusky Register'' (Sandusky, Ohio), ``The Cleveland Plain
Dealer'' (Cleveland, Ohio), ``The Toledo Blade'' (Toledo, Ohio), and
``The Call and Post'' (Cleveland, Columbus, and Cincinnati, Ohio). We
notified island residents of public hearings and the reopened June
comment period by placing notices in their local U.S. Post Office
boxes.
Public hearings were requested by Donald J. McTigue (of McTigue &
Brooks, Attorneys at Law, Columbus, Ohio), representing Baycliff's
Corporation, and by H. R. Clagg (President, Johnson's Island Property
Owners Association, Marblehead, Ohio). In response, we held public
hearings on May 31, 1994, at Put-in Bay, South Bass Island, Ohio, and
on June 1, 1994, in Port Clinton, Ohio. Approximately 20 people
attended the hearing at Put-in Bay, and approximately 50 people
attended the hearing at Port Clinton.
We received comments and information from participants in the form
of letters, reports, and oral testimony. Out of 96 total comments
received, 89 supported listing the Lake Erie water snake as threatened,
while seven did not support listing. We received comments from 2 State
agencies, 4 universities, 2 zoos, 5 herpetologists, 2 environmental
groups, 1 corporation, 2 private groups, 12 private citizens and 57
school children.
We address comments and oral statements received during the public
hearings and comment periods in the following summary of issues.
Comments of a similar nature are grouped into a single issue.
Issue 1--Some participants asked if other factors besides habitat
loss and persecution, such as predation, pollution, or collecting,
contributed to Lake Erie water snake declines.
Response--The effects of predation, pollution, and collecting on
Lake Erie water snake population are not clear. We believe it is
unlikely that natural predators contribute significantly to Lake Erie
water snake declines. Although Lake Erie water snakes are undoubtedly
taken as prey by gulls, herons, other birds, and other snakes (Camin
and Ehrlich 1958; Goldman 1971; Hoffman and Curnow 1979; King 1986,
1987b, 1993c), the mortality is believed negligible and not likely to
adversely affect Lake Erie water snake populations.
Although some water snakes were documented to contain or be
adversely affected by certain pollutants (Herald 1949, DeWitt et al.
1960, Peterle 1966, Meeks 1968, Novakowski et al. 1974), the role of
pollution in the decline of Lake Erie water snakes is not clear. To
date, comprehensive pollution toxicity studies have not been conducted.
The impact of scientific collecting on the Lake Erie water snake
population is also unknown. The number of museum collections and the
numerous reports of collections within scientific literature suggest
the Lake Erie water snake population can withstand some level of
scientific collection. We cannot discount, however, the possible
negative impacts of over-collection on the population, particularly if
the population declines further. Federal listing will curtail
superfluous scientific collecting, as well as any other collecting
activity.
Issue 2--Some participants believe the Lake Erie water snake
population has seriously declined, while others believe the population
has not declined.
Response--The decline of Lake Erie water snakes from historical
levels is well documented (Hatcher 1945; McDermott 1947; Ehrlich and
Camin 1960; Conant and Clay 1963; Langlois 1964; Conant 1982; Kraus and
Schuett 1982; Reichenback 1992; Service 1994; King 1986, 1998a; King et
al. 1997). In addition to obvious decline in abundance from earlier
this century, the Lake Erie water snake's geographic distribution has
been restricted. The Lake Erie water snake historically
[[Page 47129]]
occurred on the Ohio mainland, the Ontario mainland, 2 or more near-
shore Ohio islands, and 22 or more offshore islands and rock outcrops.
Today, the Lake Erie water snake does not occur on the Ontario
mainland, has disappeared from four islands, and has declined
significantly on the remaining islands (King 1986, 1987a, 1998a, 1998b;
King et al. 1997).
We recognize the population estimates provided by King (1986,
1987a, 1998a, 1998b) and Reichenbach (1997, 1998) as the best available
scientific information with respect to current estimates of Lake Erie
water snake population size in the United States. The Lake Erie water
snake population size is currently estimated to be 1,530 to 2,030
adults (King 1998a, 1998b). When compared to the 1986 population
estimate (King 1986), the 1998 estimate verifies that the Lake Erie
water snake population has remained at a small size for over a 12-year
period (King 1998).
The Lake Erie water snake population suffers from three problems.
First, the Lake Erie water snake continues to decline in terms of
population density (i.e., water snakes per km of shoreline) on three
out of four U.S. islands most important to the water snake's long-term
survival (King 1998a, 1998b). Second, current reproduction and survival
rates appear insufficient to allow the population to increase to levels
higher than existing vulnerable thresholds. Third, low population
densities and insular distribution of the Lake Erie water snake render
it vulnerable to extinction or extirpation.
Issue 3--Participants asked for an explanation of characteristics
that distinguish the Lake Erie water snake subspecies (Nerodia sipedon
insularum) from the northern water snake subspecies (Nerodia sipedon
sipedon).
Response--The two water snake subspecies are distinguished from
each other by habitat, behavioral, and morphological differences. Lake
Erie water snakes occur on rocky limestone and dolomite shorelines with
some plants, whereas northern water snakes use more heavily vegetated
locations with soil, mud or clay (Conant 1951; King 1986, 1987b; King
and Lawson 1995). Lake Erie water snakes also have a different diet, a
larger adult body size, lower growth rates, and shorter tails compared
to northern water snakes (Conant 1951; Hamilton 1951; Langlois 1964;
King 1986, 1989a, 1993a). Furthermore, Lake Erie water snakes are
uniformly gray or brown and either have no color pattern or have
blotches or banding that are faded or reduced, whereas northern water
snakes have sharply defined, complete banding patterns (Conant and Clay
1937, 1963; Camin and Ehrlich 1958; Conant 1982; Kraus and Schuett
1982; King 1987b, 1991). It is important to note, however, that at
locations where the two subspecies co-occur, subspecies intergrades
exist which are difficult to identify as either a Lake Erie water snake
or northern water snake.
Issue 4--Some participants inquired about the status of the Lake
Erie water snake on Johnson Island and the Catawba/Marblehead
Peninsula. The participants also asked if these locations are within
the documented range of the Lake Erie water snake.
Response--The Peninsula and two near-shore islands (i.e., Johnson
Island and Mouse Island) are within the current and historic range of
the Lake Erie water snake (Kraus and Schuett 1982; King 1986; King et
al. 1997; Reichenbach 1998). However, the core gene pool comprising 95
percent of the Lake Erie water snake population occurs on the off-shore
islands (i.e., islands located more than one mile from the Ohio or
Ontario mainland) of western Lake Erie (King 1986, 1998). The near-
shore islands and mainland locations contain a gene pool dominated by
northern water snakes (N. s. sipedon) with a much lower frequency of
Lake Erie water snakes (N. s. insularum) and intergrades between the
two subspecies (Conant and Clay 1937, 1963; Conant 1938; Conant 1982;
Camin and Ehrlich 1958; Kraus and Schuett 1982; King 1986; Pfingston
1991; Reichenbach 1997, 1998).
Issue 5--Some participants believe that water snakes on Ohio's
Catawba/Marblehead Peninsula, Mouse Island and Johnson Island should be
included in the Lake Erie water snake listing as threatened.
Response--In responding to Issues 3 and 4, above, we explain that
the Peninsula, Johnson Island, and Mouse Island comprise a zone
dominated by the northern water snake (N. s. sipedon). This is because
these areas lack the natural barrier, distance from the mainland, that
buffers the Lake Erie water snake populations on the offshore islands.
Johnson Island located in Sandusky Bay is 480 m (1600 ft) from the
Catwaba/Marblehead peninsula that separates it from the other offshore
islands. A rip-rap lined causeway connects Johnson Island to the
Catwaba/Marblehead peninsula, facilitating the movement of northern
water snakes to Johnson Island. Mouse Island is located less than 300 m
(1000 ft) from the Ohio shore. We believe that the protection of the
offshore populations ensures the long-term survival of the Lake Erie
water snake (N. s. insularum).
Issue 6--Some participants asked that ``Critical habitat'' be
declared for Lake Erie water snakes.
Response--As explained later in this rule under the ``Critical
Habitat'' section, we believe designation of critical habitat is not
prudent.
Issue 7--Some participants believe water snakes are a nuisance,
poisonous, and dangerous to small children, adults, and pets.
Response--The Lake Erie water snake may appear dangerous because of
its large body size and defensive temperament. However, when approached
by humans it will choose escape over confrontation, if possible. If
escape is not possible, like any wild animal, it will try to protect
itself. The Lake Erie water snake is not poisonous and does not have
fangs; instead, the snake has small teeth that give a pinching bite. In
1994, we and the Ohio Division of Wildlife began a public awareness
campaign on the Lake Erie islands. This campaign encourages adults and
children to respect and not handle the Lake Erie water snake just as
they would respect other wild animals.
Issue 8--Some participants asked if artificial structures or
artificial habitat can benefit Lake Erie water snakes. Participants
also asked if the presence of artificial structures would cause the
Lake Erie water snake subspecies to expand its range into locations
where it did not previously occur.
Response--Certain types of artificial habitat (rip-rap, certain
armor stone, rock piles, or docks made with rock-filled cribs) may
provide shelter for Lake Erie water snakes (Conant and Clay 1937;
Conant 1938, 1982; King 1990; Service 1994). However, the extent to
which such artificial refugia benefit Lake Erie water snakes is
currently unknown. The conservation of Lake Erie water snakes can also
be aided by incorporating rock-oriented designs into shoreline
developments and associated erosion control structures. Such measures
have already been adopted by one developer on Johnson Island (Pfingston
1991; Reichenbach 1992a, 1992b, 1997, 1998). These structures, however,
are unlikely to precipitate the expansion of the Lake Erie water snake
(N. s. insularum) population because of outside pressures such as
habitat degradation, natural selection, and natural gene flow from the
northern water snake (N. s. sipedon).
Issue 9--Some participants asked if listing Lake Erie water snakes
as threatened will cause additional permits to be required for
shoreline development. Others asked if listing
[[Page 47130]]
will prevent landowners from developing their land.
Response--The purpose of the Act is to conserve species such as the
Lake Erie water snake (N. s. insularum) and the ecosystems upon which
they depend. To achieve this goal, it is necessary to minimize the loss
of Lake Erie water snakes and their habitat. Thus, the Act affords
protection against take (i.e., killing, injuring, capturing, etc.) of
Lake Erie water snakes. Projects that will harm individual Lake Erie
water snakes or destroy their habitat will require an incidental take
permit from us. Under the ``Available Conservation Measures'' section
of this notice, we identify activities likely to result in take of Lake
Erie water snakes. However, many of these actions, such as construction
of shoreline docks, placement of stone or armor plates to prevent
erosion, and other shoreline developments, already require a permit
from the U.S. Army Corps of Engineers (Corps) under section 404 of the
Clean Water Act or section 10 of the Rivers and Harbors Act. Pursuant
to the Endangered Species Act, it is the Corps' responsibility to
ensure that issuance of a Corps permit will not jeopardize Lake Erie
water snakes on the offshore islands. If permit issuance by the Corps
may affect the water snake or other federally listed species, the Corps
must enter into section 7 consultation with us. Under section 7
consultation, we work with the Corps and project proponent to find
solutions that allow the project to proceed while avoiding jeopardy to
listed species. This often means adopting project modifications. If a
shoreline project does not require a Corps permit and does not involve
Federal funding or other Federal authorization or other action, but
will take water snakes, the landowner may be required to obtain an
incidental take permit under section 10 of the Act. However, we believe
most minor shoreline projects as they are currently undertaken will
require few modifications.
Issue 10--A few participants asked if listing Lake Erie water
snakes as threatened will cause shoreline property owners to lose their
homes or their land.
Response--Listing Lake Erie water snakes as threatened will not
cause any landowner or homeowner to lose his/her home or land.
Issue 11--Some participants are concerned that listing Lake Erie
water snakes might cause restrictions to be placed against land access
or fishing activities.
Response--We do not foresee such restrictions to be enacted. We do
not consider unintentional capture or entanglement as a result of
recreational fishing to be a violation of the Act's prohibition on take
provided the snake is immediately freed and released (see the
``Available Conservation Measures'' section). It is our policy (June 3,
1996; 61 FR 27978) to pursue cooperative partnerships to minimize and
resolve conflicts between the implementation of the Act and
recreational fishing activities.
Issue 12--Some participants asked which types of shoreline habitat
will be affected by listing Lake Erie water snakes as threatened.
Response--Lake Erie water snakes can be found along any shoreline
of the islands of western Lake Erie. However, they occur more often on
or near rocky shorelines or shorelines composed of limestone/dolomite
shelves and ledges (Conant and Clay 1937; Thomas 1949; Conant 1951;
Camin and Ehrlich 1958; King 1986, 1987b). The Lake Erie water snake is
protected by the Act on the shorelines of all islands and rock outcrops
of western Lake Erie, except Mouse Island, Johnson Island, or any other
islands and rock outcrops within 1.6 km (1 mi) of the Ohio or Ontario
mainland.
Issue 13--Some participants expressed concern about being
prosecuted for removing a Lake Erie water snake from their basement or
yard, or from a fishing hook.
Response--Provided that private individuals follow the specific
handling conditions identified in this rule, the Service will not
prosecute them for removing Lake Erie water snakes from their property
or from accidental capture while fishing (see the ``Available
Conservation Measures'' section).
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, we have determined that the Lake Erie water snake (Nerodia
sipedon insularum) on western Lake Erie offshore islands and adjacent
waters (i.e., offshore islands and their surrounding waters that are
more than 1.6 km (1 mi) from the Ohio and Ontario mainland) should be
classified as a threatened species. We followed procedures found in
section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et seq.)
and regulations (50 CFR part 424) promulgated to implement the listing
provisions of the Act. 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 Lake
Erie water snake (Nerodia sipedon insularum) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Habitat destruction is a major cause of the decline of Lake Erie
water snakes (Ashton 1976; Kraus and Schuett 1982; King 1986; King et
al. 1997). During the past 60 years, shoreline habitat important to the
water snakes has been significantly altered, degraded, and developed
through the construction of shoreline cottages, marinas, docks, and sea
walls, the filling of lagoons, and the mining of quarries (Hatcher
1945; Core 1948; Kraus and Schuett 1982; King 1985, 1986; R. Conant,
University of New Mexico, in litt. 1993; King et al. 1997). Current
development on many western Lake Erie islands (e.g., Kelleys, North
Bass, Middle Bass, South Bass, Pelee) is resulting in increased loss of
Lake Erie water snake habitat. Some examples of currently proposed
developments affecting Lake Erie water snake habitat include a large
resort proposed for Middle Bass Island, a 1,220 m (4,000 ft) long sea
wall proposed for North Bass Island, and airport expansions proposed
for Kelleys Island and Middle Bass Island (Service, in litt. 1999).
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
We know of no recreational or commercial overutilization of the
Lake Erie water snake. The impact of scientific collecting on the Lake
Erie water snake population is not known, but negative impacts from
possible over-collecting cannot be discounted. The historical
collection of Lake Erie water snakes is well documented, with reports
of from 40 water snakes (Hamilton 1951; Langlois 1964; Conant 1982;
Ohio Division of Natural Areas and Preserves, unpublished data, 1993)
to hundreds of water snakes (Conant and Clay 1937, 1963; Conant 1938,
1951, 1982; Camin and Ehrlich 1958) collected per island during
repeated visits. If the Lake Erie water snake population continues to
decline, all sources of mortality, including collecting, will be
problematic for the species (see ``Factor E'').
C. Disease or Predation
We are not aware of any evidence showing that natural predation has
contributed significantly to the decline of Lake Erie water snakes.
Although predation by herring gulls (Larus argentatus), great blue
herons (Ardea herodias), robins (Turdus migratorius),
[[Page 47131]]
and blue racers (Coluber constrictor) have occurred (Camin and Ehrlich
1958; Goldman 1971; Hoffman and Curnow 1979; King 1986, 1987b, 1993c),
this very low level of mortality is not likely to have a significant
affect on the Lake Erie water snake population. However, as stated
above, populations like the Lake Erie water snake that occur at low
densities can be adversely impacted by any mortality factor, whether
natural or human-caused.
Little is known about the impacts of disease on water snakes
(Nerodia sipedon). We believe disease is currently only a minor problem
for Lake Erie water snakes. However, we recognize that the synergistic
effects of pollutants, other environmental stress (such as habitat
loss), and the locally dense nature of some localized sub-populations
could expose water snakes to significant disease problems.
D. The Inadequacy of Existing Regulatory Mechanisms
Until now, Lake Erie water snakes have had no legal protection from
take, harm, or habitat loss within the United States. The Ohio Division
of Wildlife (ODOW) granted State threatened status (chapter 119 of the
Ohio Revised Code) to the Lake Erie water snake (N. s. insularum) in
1990 but this is an administrative designation that does not confer
legal protection. The Lake Erie water snake is listed as endangered by
the Society for the Study of Amphibians and Reptiles but this also
confers no legal protection. A small fraction of the land area on the
western Lake Erie islands comprises public land. The Ohio State
University and the Ohio Department of Parks and Recreation (R.B. King,
Northern Illinois University, in litt. 1993) own property that is
inhabited by Lake Erie water snakes, and thus is minimally protected
from habitat destruction.
The Lake Erie water snake (N. s. insularum) subspecies is currently
protected in Ontario, Canada, under the provincial Endangered Species
Act, R.S.O. 1980, c. 138, in 1977 (Regulation 328; Regulation 195/88
which amends Regulation 287 of Revised Regulations of Ontario). The
Lake Erie water snake (N. s. insularum) subspecies is also listed as
federally endangered by the Committee on the Status of Endangered
Wildlife in Canada (COSEWIC). In addition, the species Nerodia sipedon
is protected under the Ontario Game and Fish Act (Regulation 520;
Regulation 113/88 which amends Regulation 397/84 of Revised Regulations
of Ontario). Although these regulations provide some protection for
Lake Erie water snakes at a few sites in Canada, the majority of the
subspecies' island habitat remains unprotected, including 13 islands
within the United States. Of the 5 core islands most important to the
lake Erie water snake, 4 occur in the United States with little or no
protection for the species and its habitat.
Three preserves exist in Ontario, Canada, which are inhabited by
Lake Erie water snakes and protected from habitat loss. On Pelee
Island, Ontario, the Lake Erie water snake is protected by Provincial
preserves at Fish Point and Lighthouse Point (I. Bowman and P. Prevett,
Ontario Ministry of Natural Resources, pers. comm. 1994). The Essex
Region Conservation Authority also set aside preserve land on Pelee
Island which benefits water snakes and local plant species (D. Krouse,
ERCA, pers. comm. 1994). East Sister Island is a Lake Erie water snake
Provincial preserve, but the population of water snakes on the island
is small and declining (King 1986; I. Bowman and P. Prevett, Ontario
Ministry of Natural Resources, pers. comm. 1994; R. King, Northern
Illinois University, pers. comm. 1998). We believe the regulatory
mechanisms are inadequate because of the small number of water snakes
in preserves and the vulnerability from lack of regulatory protection
outside of preserves.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Persecution by humans is the most significant and well documented
factor in the decline of Lake Erie water snakes (Conant 1982, Kraus and
Schuett 1982, King 1986, King et al. 1997; Service in litt. 1998).
During the 1800s, pigs were released on some islands to exterminate
snakes (Hatcher 1945, McDermott 1947). All snake species were
eradicated from Rattlesnake Island by 1930 (Conant 1982), but a few
water snakes recently moved to the island (King 1987b; King et al.
1997). Ehrlich and Camin (1960) told of a campaign of extermination
waged against water snakes on Middle Island. Conant and Clay (1963)
noted that persecution of island water snakes was severe. Persecution
by humans is still a serious problem on several islands (Service in
litt. 1998). The effects of past and current persecution are evident
today and are a threat to the continued existence of the water snake.
The influences of factors A through E, above, on the Lake Erie
water snake are exacerbated by the small size of the population. The
current low population densities and insular distribution of Lake Erie
water snakes make them vulnerable to extinction or extirpation from
catastrophic events, demographic variation, negative genetic effects,
and environmental stresses such as habitat destruction and
extermination (Shaffer 1981; King 1987b, 1998b; Dodd 1993; Nunney and
Campbell 1993; King et al. 1997). Though populations naturally
fluctuate, small populations are more likely to fluctuate below the
minimum viable population threshold needed for long-term survival.
Likewise, chance variation in age and sex ratios can cause death rates
to exceed birth rates, causing a higher risk of extinction in small
populations. Finally, decreasing genetic variability in small
populations increases the vulnerability of a species to extinction due
to inbreeding depression (decreased growth, survival, or productivity
caused by inbreeding) and genetic drift (loss of genetic variability
that takes place as a result of chance). A recent study of snakes
(adders) in Sweden found that inbreeding depression in isolated
populations resulted in smaller litter size, higher proportion of
deformed and stillborn offspring, and lower degree of genetic
heterozygosity (Madsen et al. 1996), which in turn cause reduced
fertility and survivorship. Thus, in small populations, environmental,
demographic, and genetic changes can result in an accelerating slide
toward extinction.
Mace and Lande (1991) describe a system used to categorize the
status of a species as Vulnerable, Endangered, or Critical according to
risk of extinction criteria. Applying these criteria to the Lake Erie
water snake population, King (1998b) suggests the population in the
United States qualifies as Endangered or Vulnerable. Mace and Lande
(1991) define Vulnerable as having a 10 percent probability of
extinction within 100 years, and define Endangered as having a 20
percent probability of extinction within 20 years or 10 generations
(whichever is longer). King (1998b) indicates that the Lake Erie water
snake population meets these criteria because of (1) the decline of
island sub-populations of the snakes, (2) accelerated habitat
alteration (e.g., development) during the 1990s, and (3) potential
ecological interactions with introduced species. Zebra mussels
(Dreissena polymorpha) and round gobies (Neogobius melanostmus) can
reduce water snake prey (i.e., fish) availability (Dermott and Munawar
1993; Fitzsimons et al. 1995; Jude et al. 1995).
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by the Lake Erie water snake in making this final listing
determination. Based on this evaluation, we believe the Lake Erie water
snake
[[Page 47132]]
(Nerodia sipedon insularum) meets the criteria for protection under the
Act on the basis of persecution, destruction and modification of
habitat, curtailment of its range, significant population decline from
historical levels, flat and vulnerable population status in the 1990s,
and the inadequacy of regulatory mechanisms. The present distribution
and abundance of the Lake Erie water snake is at risk given the
potential for these impacts to continue. Therefore, based on this
evaluation, the preferred action is to list the Lake Erie water snake
as a threatened species. The Act defines a threatened species as one
that is likely to become an endangered species in the foreseeable
future throughout all or a significant portion of its range. Federal
threatened status for the Lake Erie water snake is effective
immediately upon publication of this final rule (see ``Effective Date''
section below).
Effective Date
In accordance with 5 U.S.C. 553(d)(3), we have found good cause to
make the effective date of this rule immediate. Because of low Lake
Erie water snake population densities, continuing eradication by
people, and accelerating habitat destruction, protection provided by
the Act is granted to Lake Erie water snakes (Nerodia sipedon
insularum) located on the western Lake Erie offshore islands and
adjacent waters immediately upon publication of this final rule. We
believe eradication efforts and habitat destruction, in particular,
would temporarily intensify if the effective date of the Act's
protection is delayed by the normal 30 days after rule publication. We
also believe that this sudden increase in water snake persecution and
habitat destruction would seriously jeopardize the already small,
vulnerable Lake Erie water snake population to the extent that the
long-term recovery process would be irreversibly impaired.
Critical Habitat
Section 3 of the Act defines critical habitat 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 geographic 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) require that, to the maximum extent prudent
and determinable, we designate critical habitat at the time the species
is determined to be endangered or threatened. Our regulations (50 CFR
424.12(a)(1)) state that the 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. We find that
designation of critical habitat is not prudent for the Lake Erie water
snake for both reasons stated above.
Potential benefits of critical habitat designation derive from
section 7(a)(2) of the Act, which requires Federal agencies, in
consultation with us, to ensure that their actions are not likely to
jeopardize the continued existence of listed species or to result in
the destruction or adverse modification of critical habitat of such
species. Critical habitat designation, by definition, directly affects
only Federal agency actions. Since the Lake Erie water snake is semi-
aquatic, Federal actions that might affect this species and its habitat
include those with impacts on island shoreline habitat and water
quality. Most activities that occur would be subject to review under
section 7(a)(2) of the Act, regardless of whether critical habitat was
designated. The Lake Erie water snake has become so restricted in
distribution that any significant adverse modification or destruction
of occupied habitats would likely jeopardize the continued existence of
this species. This would also hold true as the species recovers and its
numbers increase. As part of the development of this rule, Federal and
State agencies were notified of this species' general distribution, and
we requested that they provide data on proposed Federal actions that
might adversely affect the species. Should any future projects be
proposed in areas inhabited by this snake, the involved Federal agency
will already have the distributional data needed to determine if its
action may impact the species, and if needed, we will provide more
specific distribution information. Therefore, habitat protection for
the Lake Erie water snake can be accomplished through the section 7
jeopardy standard, and there is no benefit in designating currently
occupied habitat of this species as critical habitat.
Though critical habitat designation directly affects only Federal
agency actions, controversy resulting from critical habitat designation
has been known to reduce private landowner cooperation in the
management of species listed under the Act. Critical habitat
designation could affect landowner cooperation within habitat currently
occupied by the snake and in areas unoccupied that might be needed for
recovery. The publication of critical habitat maps in the Federal
Register and local newspapers, and other publicity or controversy
accompanying critical habitat designation may increase the potential
for persecution as well as other collection threats. This applies to
currently occupied habitat and any unoccupied habitat that were to be
designated and subsequently recolonized by the species. Factor ``E'' of
the ``Summary of Factors Affecting the Species'' section details the
significant human persecution threats that have affected and continue
to affect Lake Erie water snakes.
Based on the above analysis, we have concluded that critical
habitat designation would provide little additional benefit for this
species beyond those that would accrue from listing under the Act. We
also conclude that any potential benefit from such a designation would
be offset by an increased level of vulnerability to collecting,
persecution, and by a possible reduction in landowner cooperation to
manage and recover this species. Therefore, the designation of critical
habitat for Lake Erie water snake is not prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
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. The Act also requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against take of species and
harm to species are discussed, in part, below.
Following listing, a number of recovery actions may be initiated by
us, in cooperation with the State of Ohio and numerous other parties.
Some possible recovery actions are as
[[Page 47133]]
follows--(1) continuation of a public outreach program directed toward
island residents and visitors; (2) habitat protection measures, as
needed; (3) voluntary conservation agreements with landowners; (4)
design and testing of artificial refugia; (5) increased law enforcement
efforts; (6) voluntary land acquisition or conservation easements from
willing sellers; (7) monitoring studies; (8) winter hibernation
studies; (9) reintroduction of Lake Erie water snakes to appropriate
locations; and (10) captive rearing.
A public outreach program by us and the Ohio Division of Wildlife
has been active on the Lake Erie islands since 1994. The program
encourages a ``live and let live'' attitude for snakes living among
island residents and visitors. A poster contest, outdoor sign campaign,
and personal contacts are helping island residents and visitors realize
that Lake Erie water snakes are not poisonous and pose little threat to
people. We look forward to the continuing success of this public
outreach program as part of the overall effort to achieve recovery of
the Lake Erie water snake.
Listing Lake Erie water snakes as threatened provides much needed
coordination and legal protection. Federal threatened status for Lake
Erie water snakes will automatically result in State of Ohio endangered
status, triggering effective State legal protection against take.
Threatened status in the United States will facilitate Federal
coordination for Lake Erie water snakes in the form of partnerships
with landowners, planning and management with Canadian wildlife
officials, consultations on Federal projects (section 7 of the Act),
enforcement (section 9 of the Act), conservation planning (section 10
of the Act), and permits (section 10 of the Act).
Section 7(a) of the Act, requires Federal agencies to evaluate
their actions with respect to any species, and its critical habitat (if
declared), that is proposed or listed as endangered or threatened.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR Part 402. Section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of a listed
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 us.
Possible Federal actions may include projects, activities, and permit
issuance by the Corps, the Natural Resources Conservation Service, the
U.S. Environmental Protection Agency, the U.S. military services, the
National Park Service, our Ottawa National Wildlife Refuge, and Federal
agency participation in the Great Lakes Initiative, or other
cooperative U.S. efforts involving Canadian governments.
The section 7 consultation process will play an important role in
recovery of the Lake Erie water snake. The resulting habitat
protection, habitat restoration, education of agency personnel,
practical seasonal recommendations for construction activity, and
beneficial project designs are vital for the Lake Erie water snake
recovery. Beneficial shoreline projects contain designs that utilize
rock and vegetation to provide shelter or forage areas for Lake Erie
water snakes. Examples of potentially beneficial project designs are
docks with rock-filled cribs, shoreline erosion barriers that utilize
medium to large size stone, and reefs beneficial to small fish and
amphibians that allow Lake Erie water snakes to safely feed.
The Act and implementing regulations found at 50 CFR 17.21 and
17.31 set forth a series of general prohibitions and exceptions that
apply to all threatened wildlife. These prohibitions, 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,
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 to our agents and State conservation agencies.
Under the Act, permits may be issued to carry out otherwise
prohibited activities involving threatened wildlife species under
certain circumstances. Regulations governing permits are described in
50 CFR 17.22, 17.23, and 17.32. Such permits are available for
scientific purposes, for the enhancement or propagation or survival of
the species, 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 our policy (July 1, 1994; 59 FR 34272) to identify to the
maximum extent practicable, at the time a species is listed, those
activities that do or do not constitute a violation of section 9 of the
Act. The intent of this policy is to increase public awareness of the
effect of this listing on proposed and ongoing activities on the
offshore islands and adjacent waters of western Lake Erie. We believe
that, based on the best available information, the following actions
will not result in a violation of section 9 with respect to Lake Erie
water snakes--(1) brief handling necessary to transfer individual water
snakes from roads, sidewalks, structures, yards, and watercraft to
adjacent habitat upon immediate release; (2) brief handling necessary
to free and immediately release to adjacent habitat a water snake
unintentionally hooked or entangled in fishing equipment; (3) non-
harmful actions that encourage water snakes to leave, stay off, or keep
out of a residence (including swimming pools and yards), a business
building, the top decks of docks, foot paths, and water equipment
(including boats, rafts, swimming decks, water intakes, and
recreational gear); for example, a homeowner using a pool net pole to
gently nudge a water snake away from his property; (4) actions that may
affect offshore island water snakes and are authorized, funded or
carried out by a Federal agency, when conducted in accordance with any
reasonable and prudent measures given by the Service in accordance with
section 7 of the Act; (5) actions authorized by a section 10 permit
under the Act.
We believe violations of section 9 of the Act include, but are not
limited to, the following actions on the Lake Erie offshore islands
conducted without a section 10 permit under the Act--(1) intentional
killing or injuring of water snakes by any means; (2) harassing water
snakes in any offshore island or adjacent water habitat; (3)
unauthorized collecting or handling of the water snake; (4) altering or
destroying shoreline water snake habitat, including adjacent
vegetation; (5) illegal discharge or dumping of toxic chemicals or
other pollutants into areas occupied by the water snake.
Requests for copies of the regulations regarding listed wildlife
and inquiries about prohibitions and permits may be addressed to the
Division of Endangered Species, Bishop Henry Whipple Federal Building,
1 Federal Drive, Ft. Snelling, Minnesota 55111-4056 (612-713-5350; fax
612-713-5292).
National Environmental Policy Act
We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Act. We
[[Page 47134]]
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).
Paperwork Reduction Act
This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
clearance number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information,
unless it displays a currently valid control number. For additional
information concerning permit and associated requirements for
threatened species, see 50 CFR 17.32.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request (see ADDRESSES section).
Authors
The primary authors of this proposed rule are Buddy B. Fazio (614-
469-6923) of our Reynoldsburg, Ohio office, and Jennifer Szymanski
(612-713-5342) of our Minnesota Regional Office (see ADDRESSES
section.)
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.11(h) by adding the following to the List of
Endangered and Threatened Wildlife, in alphabetical order under
REPTILES:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reptiles
* * * * * * *
Snake, Lake Erie water........... Nerodia sipedon U.S.A. (OH), Canada Lake Erie offshore T 665 N/A N/A
insularum. (Ont.). Islands and their
adjacent waters
(located more than
1 mile from
mainland)--U.S.A.
(OH), Canada (Ont.).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: August 16, 1999
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 99-22459 Filed 8-27-99; 8:45 am]
BILLING CODE 4310-55-P
