Federal Register/Vol. 64, No. 167/Monday, August 30, 1999

Home , Mouse Island (Ohio), North Bass Island, South Bass Island

47126 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations

DEPARTMENT OF THE INTERIOR sipedon insularum) located on the of the western Lake Erie islands, water western Lake Erie offshore islands and snakes with unbanded or reduced Fish and Wildlife Service adjacent waters. This listing does not patterns appear to have a survival include water snakes (N. sipedon) found advantage compared to fully patterned 50 CFR Part 17 on the Canadian mainland, U.S. water snakes (Camin et al. 1954; Camin RIN 1018±AC09 mainland, or adjacent near-shore islands and Ehrlich 1958; Ehrlich and Camin due to those areas having high 1960; King 1992a). Female Lake Erie Endangered and Threatened Wildlife occurrence of northern water snakes (N. water snakes grow up to 1.1 meters (m) and Plants; Threatened Status for Lake s. sipedon), intergrades between the two (3.5 feet (ft)) long and are larger than Erie Water Snakes (Nerodia sipedon subspecies, and the low occurrence of males. Newborn Lake Erie water snakes insularum) on the Offshore Islands of Lake Erie water snakes (N. s. are the size of a pencil when born Western Lake Erie insularum). This means water snakes during late summer, or early fall. located on Ohio’s Catawba/Marblehead Lake Erie water snakes use habitat AGENCY: Fish and Wildlife Service, Peninsula, Mouse Island and Johnson composed of shorelines that are rocky or Interior. Island (also referred to as Johnson’s contain limestone/dolomite shelves and ACTION: Final rule. Island), and Canada’s Point Pelee are ledges for sunning and shelter (Conant not protected under the Act by this and Clay 1937; Conant 1951; Thomas SUMMARY: Under the authority of the listing. We define near-shore islands as Endangered Species Act of 1973, as 1949; Camin and Ehrlich 1958; King those islands or rock outcrops located 1986, 1987b). Shelter (refugia) occurs in amended (Act), we (the U.S. Fish and immediately adjacent to, or within 1.6 Wildlife Service) determine threatened the form of loose rocks, piled rocks, or kilometers (km) (1 mile (mi)) of either shelves and ledges with cracks, crevices, status for the Lake Erie water snake mainland. (Nerodia sipedon insularum) found and nearby sparse shrubbery (Thomas We define offshore islands as those 22 1949; King 1986, 1992a). Lake Erie among the western Lake Erie offshore or more named and unnamed western islands and adjacent waters in the U.S. water snakes are found less often on Lake Erie islands and rock outcrops shorelines composed of small stones, and Canada. This listing does not located greater than 1.6 (km)(1 mi) from extend the Act’s protection to water gravel or sand (Conant and Clay 1937; the Ohio mainland and Ontario Conant 1938; King 1986). Certain types snakes (Nerodia sipedon) found on the mainland. We define the offshore U.S. mainland, Canadian mainland, or of rip-rap, armor stone, or docks made island’s adjacent waters as the western with rock cribs can serve as shelter for the adjacent near-shore U.S. islands Lake Erie waters surrounding the Lake Erie water snakes (Conant and Clay (e.g., Mouse Island and Johnson Island offshore islands and located greater than 1937; Conant 1938, 1982; King 1990; in Ohio). Small population size, 1.6 (km)(1 mi) from the Ohio mainland Service 1994), provided adequate space persecution by humans, and habitat and Ontario mainland. These islands exists in these structures that is above destruction are the primary threats. This and rock outcrops and their adjacent Lake Erie’s water and ice levels. action implements the Act’s protections waters are located within boundaries for the Lake Erie water snake. In roughly defined as 82°22′30′′ North The Lake Erie water snake (N. s. addition, it identifies specific handling Longitude, 83°07′30′′ North Longitude, insularum) and the northern water conditions that do not violate the Act’s 41°33′00′′ West Latitude, and 42°00′00′′ snake (N. s. sipedon) are separate prohibitions. West Latitude. The U.S. Lake Erie subspecies. Northern water snakes (N. s. sipedon) are common and widely EFFECTIVE DATE: The effective date of offshore islands and rock outcrops distributed in eastern North America, this rule is August 30, 1999 (see include, but are not limited to, the including the Ohio and Ontario ‘‘Effective Date’’ section under islands called Kelleys, South Bass, mainland, whereas Lake Erie water SUPPLEMENTARY INFORMATION below). Middle Bass, North Bass, Sugar, Rattlesnake, Green, Gibraltar, Starve, snakes (N. s. insularum) have declined ADDRESSES: The complete file for this and occur primarily on the offshore rule is available for inspection, by Gull, Ballast, Lost Ballast, and West Sister. Canadian Lake Erie offshore islands of western Lake Erie (Schmidt appointment, during normal business and Davis 1941; Conant 1982; Kraus and hours, at offices of the U. S. Fish and islands and rock outcrops of Lake Erie include, but are not limited to, the Schuett 1982; King 1986, 1987b, 1989a, Wildlife Service in Fort Snelling, 1989b, 1991, 1993b, 1996; King and Minnesota, and in Reynoldsburg, Ohio. islands called Pelee, Middle, East Sister, Middle Sister, North Harbour, Hen, Lawson 1995; King 1997; King et al. The Minnesota office is located at the Chick, Big Chicken, and Little Chicken. 1997). Lake Erie water snakes have Federal Building, 1 Federal Drive, Fort Lake Erie water snakes (N. s. reduced or no color patterns, while Snelling, Minnesota 55111–4056. The insularum) were briefly described by northern water snakes have sharply Ohio office is located at 6950–H Morse (1904) as Natrix fasciata defined band patterns (Conant and Clay Americana Parkway, Reynoldsburg, erythrogaster. Conant and Clay (1937, 1937, 1963; Camin and Ehrlich 1958; Ohio 43068. 1963) described the Lake Erie water Conant 1982; Kraus and Schuett 1982; FOR FURTHER INFORMATION CONTACT: snake subspecies more fully. Lake Erie King 1987b, 1991). Lake Erie water Buddy B. Fazio, endangered species water snakes are uniformly gray or snakes occur on rocky limestone and biologist, Ohio (614–469–6923 ext. 13) brown and have either no color pattern dolomite shorelines; northern water or Jennifer Szymanski, biologist, or have blotches or banding that are snakes use more heavily vegetated Division of Endangered Species, faded or reduced (Conant and Clay locations with soil, mud or clay (Conant Minnesota (612–713–5342) at the above 1937, 1963; Camin and Ehrlich 1958; 1951; King 1986, 1987b; King and addresses. Conant 1982; Kraus and Schuett 1982; Lawson 1995). Lake Erie water snakes SUPPLEMENTARY INFORMATION: King 1987b, 1991). Color pattern also have a different diet, a larger adult variations among Lake Erie water snakes body size, lower growth rates, and Background are thought to result from the combined shorter tails compared to northern water This listing provides threatened status effects of both natural selection and snakes (Conant 1951; Hamilton 1951; and Endangered Species Act protection gene flow (King 1993b, 1993c; King and Langlois 1964; Drummond 1983; King to the Lake Erie water snake (Nerodia Lawson 1995). On the rocky shorelines 1986, 1989a, 1993a).

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The geographic interface where both thus, by inference, movement between than one snake per hour (during the subspecies of water snake (Nerodia near-shore islands/mainland and off- early 1980s), a ten-fold decline over 30 sipedon) occur is the Ohio mainland shore islands is likely very limited. King to 50 years. (the Catawba/Marblehead Peninsula) and Lawson (1995) estimated that, for Recent data also show declines in and its near-shore islands (Mouse Island each generation, an average 9.2 water population density (i.e., number of Lake and Johnson Island). Water snake snakes migrate between Pelee Island Erie water snakes per km of shoreline) populations in these areas have and the Ontario mainland, and 3.6 water on three of the four U.S. islands most northern water snakes (N. s. sipedon), snakes migrate between the islands and important to the water snake’s long-term Lake Erie water snakes (N. s. the Ohio mainland. Enserink (1997) survival (King 1998a, 1998b). When insularum), and intergrades between the notes that populations with 10 or more compared to the 1986 population two subspecies (Conant and Clay 1937, migrants per generation tend to not estimate (King 1986), the 1998 estimate 1963; Conant 1938; Camin and Ehrlich experience natural forces, such as indicates the overall Lake Erie water 1958; Kraus and Schuett 1982; King natural selection, that promote snake population continues to remain at 1986, 1987a, 1987b; Pfingston 1991; speciation (i.e., a subspecies eventually a small size. Small population size Reichenbach 1992a, 1992b, 1997, 1998). evolving into a full species over geologic makes the Lake Erie water snake Intergrades naturally occur on the time). Thus, the Lake Erie water snake population vulnerable to extinction or Peninsula and near-shore islands remains a unique insular population extirpation. (See discussions under the because there is no barrier to prevent that is affected by the opposing forces of ‘‘Issue 2’’ and ‘‘Factor E’’ sections later the two subspecies from interbreeding. natural selection and gene flow (King in this document.) Lake Erie water snakes (N. s. insularum) and Lawson 1995). The current distribution of Lake Erie occur in this interface zone in low The historic abundance of water water snakes is small compared to their frequencies (Conant and Clay 1937; snakes on the Lake Erie islands was first historic distribution. The historic range Camin and Ehrlich 1958; Kraus and noted in descriptions by early travelers of the Lake Erie water snake (N. s. Schuett 1982; King 1987b; Reichenbach (McDermott 1947; Parker 1976). During insularum) included 22 or more offshore 1997, 1998). the 1700s, the islands of western Lake islands and rock outcrops of western Approximately 95 percent of the Lake Erie were called ‘‘Les Iles aux Lake Erie, a portion of the Ontario Erie water snake (N. s. insularum) Serpentes,’’ the islands of snakes mainland that includes Point Pelee, and population’s gene pool occurs on the (McDermott 1947; Langlois 1964). Other shorelines of the Catawba/Marblehead offshore islands of western Lake Erie accounts by early travelers describe Peninsula, Mouse Island, and Johnson (King 1998a, 1998b). The offshore islands with ‘‘myriads (or ‘wreaths’) of Island in Ohio (Conant and Clay 1937, islands are isolated from the Ohio and water snakes basking in the sun’’ or 1963; Conant 1938; Kraus and Schuett Ontario mainland by approximately 5 to with water snakes ‘‘sunning themselves 1982; King 1986, 1987a, 1987b, 1998a). 14 km (3 to 9 mi) of water. Although not in heaps, knots and snarls’’ (Ballou Water snakes were found on Green a complete barrier, the distance from 1878; Hatcher 1945; McDermott 1947; Island in 1930 (Conant 1982) and early offshore islands to the mainland (and Parker 1976; Wright and Wright museum records (Ohio State University the near-shore islands) creates a natural 1957:534). Morse (1904) noted that F.T. Stone Laboratory collection) barrier. This barrier maintains the many of the water snakes on the islands initially confirmed water snakes on integrity of the Lake Erie water snake of western Lake Erie were uniquely West Sister Island. Today, Lake Erie gene pool by limiting interbreeding grey, unbanded individuals (at that water snakes no longer occur on the between offshore island Lake Erie water time, Natrix fasciata erythrogaster). Ontario mainland and four islands: snakes and mainland and near-shore The Lake Erie water snake population West Sister Island, Green Island, Middle northern water snakes. Thus, species has declined over 150 years due to Sister Island, and North Harbour Island experts believe that the genetic pool on persecution and habitat alteration (King 1986, 1998a, 1998b). the western Lake Erie offshore islands is (Hatcher 1945, Langlois 1964, Conant In summary, the Lake Erie water primarily Lake Erie water snake (Conant 1982, Kraus and Schuett 1982; King snake has declined in population and Clay 1963 using data from Cliburn 1986, 1987a, 1987b, 1990, 1998a, 1998b; abundance and in distribution. The 1961; King 1986, 1987b, 1992a, 1992b, King and Lawson 1995; King et al. current estimate for the U.S. population 1998a) and the genetic pool on the 1997). One example is Middle Island, ranges from 1,530 to 2,030 adults and is mainlands and near-shore islands is Ontario, where Thomas (1949) observed restricted to only 8 islands (King 1998a, predominately northern water snake (N. up to seven snakes per ‘‘clump’’ of 1998b). Stated another way, 95 percent s. sipedon). shrubbery at ‘‘close intervals’’ over a of the Lake Erie water snake population Lake Erie water snake movements and distance of several hundred yards of is currently restricted to an area with a related gene flow are lower among limestone shoreline. King (1986) diameter of less than 40 km (25 mi) mainland and island sites compared to estimated a population size for Middle comprising 12 western Lake Erie movements among islands (King 1987b; Island that is three to five times lower offshore islands in the U.S. and Canada King and Lawson 1995). King (1987b) than the number of water snakes combined (King 1986, 1987a, 1998a, reports that all 202 water snakes, collected in a single day by Camin et al. 1998b). recaptured up to 1,146 days after initial (1954) or in two days by Ehrlich and capture, were found within 50 m to 300 Camin (1960). In another example, it Previous Federal Record m (164 ft to 984 ft) of the original took King (1986) a month or more on We identified the Lake Erie water capture site. No water snakes were several islands to achieve sample sizes snake as a category 2 candidate species observed to move among island study similar to that achieved by Conant and in notices of review published in the sites separated by as little as 1.3 km (.8 Clay (1937) or Camin and Ehrlich (1958) Federal Register on September 18, 1985 mi), confirming the observations of in a single day. Finally, in terms of (50 FR 37958) and on January 6, 1989 Fraker (1970) that water snakes practice numbers of water snakes per (54 FR 554). Our November 21, 1991, high site fidelity. King (1987b) estimates investigator hour, King (Service 1994) Notice of Review (56 FR 225), changed that less than 3 percent of adult water noted that Lake Erie water snake capture the snake’s status to category 1 snakes move among islands or among rates declined from 10 snakes per hour candidate. Prior to 1996, a category 2 sites on a given island, each year, and (during the 1930s through 1950s) to less species was one that we were

VerDate 18-JUN-99 18:56 Aug 27, 1999 Jkt 183247 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.XXX pfrm08 PsN: 30AUR1 47128 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations considering for possible addition to the proposals to add species to the Lists, 1 corporation, 2 private groups, 12 Federal List of Endangered and processing administrative findings on private citizens and 57 school children. Threatened Wildlife, but for which petitions (to add species to the Lists, We address comments and oral conclusive data on biological delist species, or reclassify listed statements received during the public vulnerability and threat were not species), and processing a limited hearings and comment periods in the available to support a proposed rule. We number of proposed or final rules to following summary of issues. Comments stopped designating category 2 species delist or reclassify species; and third of a similar nature are grouped into a in the February 28, 1996, Notice of priority (Tier 3) to processing proposed single issue. Review (61 FR 7596). We now define a or final rules designating critical habitat. Issue 1—Some participants asked if candidate species as a species for which The processing of this final rule falls other factors besides habitat loss and we have on file sufficient information to under Tier 2. persecution, such as predation, propose it for protection under the Act pollution, or collecting, contributed to Summary of Comments and (former category 1 classification). Lake Erie water snake declines. On August 18, 1993, we published a Recommendations Response—The effects of predation, rule proposing to list the Lake Erie In the August 18, 1993, proposed rule pollution, and collecting on Lake Erie water snake (N. s. insularum) as and two subsequent notifications, we water snake population are not clear. threatened (58 FR 43857). The original requested all interested parties We believe it is unlikely that natural comment period ended on November (hereafter called participants) to submit predators contribute significantly to 16, 1993, and the deadline for receipt of factual reports or information that might Lake Erie water snake declines. public hearing requests was October 4, contribute to development of a final Although Lake Erie water snakes are 1993. An October 12, 1993, notice (58 rule. We contacted appropriate Federal undoubtedly taken as prey by gulls, FR 52740) extended the public comment and State agencies, county governments, herons, other birds, and other snakes and the hearing request deadline for 30 scientific organizations, and other (Camin and Ehrlich 1958; Goldman days. On May 13, 1994, we published in interested parties in the United States 1971; Hoffman and Curnow 1979; King the Federal Register a notice of public and asked them to comment. We also 1986, 1987b, 1993c), the mortality is hearing and reopening of the comment notified Canadian officials at the believed negligible and not likely to period (59 FR 25024). We held public Ontario Ministry of Natural Resources adversely affect Lake Erie water snake hearings on South Bass Island, Ohio, on offices (located in Toronto, London, and populations. May 31, 1994, and in Port Clinton, Ohio, Chatham) and at the Canadian Wildlife Although some water snakes were on June 1, 1994. The comment period Service in Ottawa, Ontario. We documented to contain or be adversely closed on June 16, 1994. published newspaper notices inviting affected by certain pollutants (Herald On April 10, 1995, Congress enacted public comment and notifying the 1949, DeWitt et al. 1960, Peterle 1966, a moratorium on the processing of all public of pertinent hearings in the Meeks 1968, Novakowski et al. 1974), final listing actions (Public Law 104–6) following newspapers—‘‘The Port the role of pollution in the decline of and rescinded $1.5 million from our Clinton News Herald’’ (Port Clinton, Lake Erie water snakes is not clear. To listing budget, which further delayed Ohio), ‘‘The Sandusky Register’’ date, comprehensive pollution toxicity action on the proposed rule. The (Sandusky, Ohio), ‘‘The Cleveland Plain studies have not been conducted. Congressional moratorium continued Dealer’’ (Cleveland, Ohio), ‘‘The Toledo The impact of scientific collecting on until April 26, 1996, when President Blade’’ (Toledo, Ohio), and ‘‘The Call the Lake Erie water snake population is Clinton exercised authority given to him and Post’’ (Cleveland, Columbus, and also unknown. The number of museum in the Omnibus Budget Reconciliation Cincinnati, Ohio). We notified island collections and the numerous reports of Act of 1996, waiving the moratorium. residents of public hearings and the collections within scientific literature During 1995, due to uncertainty as to reopened June comment period by suggest the Lake Erie water snake the extent of the Congressional placing notices in their local U.S. Post population can withstand some level of moratorium, we determined that the Office boxes. scientific collection. We cannot available data for the listing decision Public hearings were requested by discount, however, the possible negative could have become outdated. To ensure Donald J. McTigue (of McTigue & impacts of over-collection on the responsible evaluation of current data, Brooks, Attorneys at Law, Columbus, population, particularly if the we and the Ohio Division of Wildlife Ohio), representing Baycliff’s population declines further. Federal funded a two-year study of the Lake Erie Corporation, and by H. R. Clagg listing will curtail superfluous scientific water snake population in 1996 and (President, Johnson’s Island Property collecting, as well as any other 1997, with some additional data Owners Association, Marblehead, Ohio). collecting activity. collection and a final report due in In response, we held public hearings on Issue 2—Some participants believe 1998. We received the report from Dr. May 31, 1994, at Put-in Bay, South Bass the Lake Erie water snake population Richard King during June of 1998, and Island, Ohio, and on June 1, 1994, in has seriously declined, while others received an addendum to the final Port Clinton, Ohio. Approximately 20 believe the population has not declined. report in September of 1998. people attended the hearing at Put-in Response—The decline of Lake Erie On May 8, 1998, we published Listing Bay, and approximately 50 people water snakes from historical levels is Priority Guidance for Fiscal Years 1998 attended the hearing at Port Clinton. well documented (Hatcher 1945; and 1999 (63 FR 25502). The guidance We received comments and McDermott 1947; Ehrlich and Camin clarifies the order in which we will information from participants in the 1960; Conant and Clay 1963; Langlois process rule-makings, giving highest form of letters, reports, and oral 1964; Conant 1982; Kraus and Schuett priority (Tier 1) to processing testimony. Out of 96 total comments 1982; Reichenback 1992; Service 1994; emergency rules to add species to the received, 89 supported listing the Lake King 1986, 1998a; King et al. 1997). In Lists of Endangered and Threatened Erie water snake as threatened, while addition to obvious decline in Wildlife and Plants (Lists); second seven did not support listing. We abundance from earlier this century, the priority (Tier 2) to processing final received comments from 2 State Lake Erie water snake’s geographic determinations on proposals to add agencies, 4 universities, 2 zoos, 5 distribution has been restricted. The species to the Lists, processing new herpetologists, 2 environmental groups, Lake Erie water snake historically

VerDate 18-JUN-99 18:56 Aug 27, 1999 Jkt 183247 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.XXX pfrm08 PsN: 30AUR1 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations 47129 occurred on the Ohio mainland, the sharply defined, complete banding long-term survival of the Lake Erie Ontario mainland, 2 or more near-shore patterns (Conant and Clay 1937, 1963; water snake (N. s. insularum). Ohio islands, and 22 or more offshore Camin and Ehrlich 1958; Conant 1982; Issue 6—Some participants asked that islands and rock outcrops. Today, the Kraus and Schuett 1982; King 1987b, ‘‘Critical habitat’’ be declared for Lake Lake Erie water snake does not occur on 1991). It is important to note, however, Erie water snakes. the Ontario mainland, has disappeared that at locations where the two Response—As explained later in this from four islands, and has declined subspecies co-occur, subspecies rule under the ‘‘Critical Habitat’’ significantly on the remaining islands intergrades exist which are difficult to section, we believe designation of (King 1986, 1987a, 1998a, 1998b; King identify as either a Lake Erie water critical habitat is not prudent. et al. 1997). snake or northern water snake. Issue 7—Some participants believe We recognize the population Issue 4—Some participants inquired water snakes are a nuisance, poisonous, estimates provided by King (1986, about the status of the Lake Erie water and dangerous to small children, adults, 1987a, 1998a, 1998b) and Reichenbach snake on Johnson Island and the and pets. Response—The Lake Erie water snake (1997, 1998) as the best available Catawba/Marblehead Peninsula. The may appear dangerous because of its scientific information with respect to participants also asked if these locations large body size and defensive current estimates of Lake Erie water are within the documented range of the temperament. However, when snake population size in the United Lake Erie water snake. approached by humans it will choose States. The Lake Erie water snake Response—The Peninsula and two population size is currently estimated to escape over confrontation, if possible. If near-shore islands (i.e., Johnson Island escape is not possible, like any wild be 1,530 to 2,030 adults (King 1998a, and Mouse Island) are within the 1998b). When compared to the 1986 animal, it will try to protect itself. The current and historic range of the Lake Lake Erie water snake is not poisonous population estimate (King 1986), the Erie water snake (Kraus and Schuett 1998 estimate verifies that the Lake Erie and does not have fangs; instead, the 1982; King 1986; King et al. 1997; snake has small teeth that give a water snake population has remained at Reichenbach 1998). However, the core a small size for over a 12-year period pinching bite. In 1994, we and the Ohio gene pool comprising 95 percent of the Division of Wildlife began a public (King 1998). Lake Erie water snake population occurs The Lake Erie water snake population awareness campaign on the Lake Erie on the off-shore islands (i.e., islands suffers from three problems. First, the islands. This campaign encourages located more than one mile from the Lake Erie water snake continues to adults and children to respect and not Ohio or Ontario mainland) of western decline in terms of population density handle the Lake Erie water snake just as Lake Erie (King 1986, 1998). The near- (i.e., water snakes per km of shoreline) they would respect other wild animals. shore islands and mainland locations on three out of four U.S. islands most Issue 8—Some participants asked if important to the water snake’s long-term contain a gene pool dominated by artificial structures or artificial habitat survival (King 1998a, 1998b). Second, northern water snakes (N. s. sipedon) can benefit Lake Erie water snakes. current reproduction and survival rates with a much lower frequency of Lake Participants also asked if the presence of appear insufficient to allow the Erie water snakes (N. s. insularum) and artificial structures would cause the population to increase to levels higher intergrades between the two subspecies Lake Erie water snake subspecies to than existing vulnerable thresholds. (Conant and Clay 1937, 1963; Conant expand its range into locations where it Third, low population densities and 1938; Conant 1982; Camin and Ehrlich did not previously occur. insular distribution of the Lake Erie 1958; Kraus and Schuett 1982; King Response—Certain types of artificial water snake render it vulnerable to 1986; Pfingston 1991; Reichenbach habitat (rip-rap, certain armor stone, extinction or extirpation. 1997, 1998). rock piles, or docks made with rock- Issue 3—Participants asked for an Issue 5—Some participants believe filled cribs) may provide shelter for explanation of characteristics that that water snakes on Ohio’s Catawba/ Lake Erie water snakes (Conant and Clay distinguish the Lake Erie water snake Marblehead Peninsula, Mouse Island 1937; Conant 1938, 1982; King 1990; subspecies (Nerodia sipedon insularum) and Johnson Island should be included Service 1994). However, the extent to from the northern water snake in the Lake Erie water snake listing as which such artificial refugia benefit subspecies (Nerodia sipedon sipedon). threatened. Lake Erie water snakes is currently Response—The two water snake Response—In responding to Issues 3 unknown. The conservation of Lake Erie subspecies are distinguished from each and 4, above, we explain that the water snakes can also be aided by other by habitat, behavioral, and Peninsula, Johnson Island, and Mouse incorporating rock-oriented designs into morphological differences. Lake Erie Island comprise a zone dominated by shoreline developments and associated water snakes occur on rocky limestone the northern water snake (N. s. sipedon). erosion control structures. Such and dolomite shorelines with some This is because these areas lack the measures have already been adopted by plants, whereas northern water snakes natural barrier, distance from the one developer on Johnson Island use more heavily vegetated locations mainland, that buffers the Lake Erie (Pfingston 1991; Reichenbach 1992a, with soil, mud or clay (Conant 1951; water snake populations on the offshore 1992b, 1997, 1998). These structures, King 1986, 1987b; King and Lawson islands. Johnson Island located in however, are unlikely to precipitate the 1995). Lake Erie water snakes also have Sandusky Bay is 480 m (1600 ft) from expansion of the Lake Erie water snake a different diet, a larger adult body size, the Catwaba/Marblehead peninsula that (N. s. insularum) population because of lower growth rates, and shorter tails separates it from the other offshore outside pressures such as habitat compared to northern water snakes islands. A rip-rap lined causeway degradation, natural selection, and (Conant 1951; Hamilton 1951; Langlois connects Johnson Island to the Catwaba/ natural gene flow from the northern 1964; King 1986, 1989a, 1993a). Marblehead peninsula, facilitating the water snake (N. s. sipedon). Furthermore, Lake Erie water snakes are movement of northern water snakes to Issue 9—Some participants asked if uniformly gray or brown and either have Johnson Island. Mouse Island is located listing Lake Erie water snakes as no color pattern or have blotches or less than 300 m (1000 ft) from the Ohio threatened will cause additional permits banding that are faded or reduced, shore. We believe that the protection of to be required for shoreline whereas northern water snakes have the offshore populations ensures the development. Others asked if listing

VerDate 18-JUN-99 18:56 Aug 27, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.XXX pfrm08 PsN: 30AUR1 47130 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations will prevent landowners from entanglement as a result of recreational (Nerodia sipedon insularum) are as developing their land. fishing to be a violation of the Act’s follows: Response—The purpose of the Act is prohibition on take provided the snake A. The Present or Threatened to conserve species such as the Lake is immediately freed and released (see Destruction, Modification, or Erie water snake (N. s. insularum) and the ‘‘Available Conservation Measures’’ Curtailment of its Habitat or Range the ecosystems upon which they section). It is our policy (June 3, 1996; depend. To achieve this goal, it is 61 FR 27978) to pursue cooperative Habitat destruction is a major cause of necessary to minimize the loss of Lake partnerships to minimize and resolve the decline of Lake Erie water snakes Erie water snakes and their habitat. conflicts between the implementation of (Ashton 1976; Kraus and Schuett 1982; Thus, the Act affords protection against the Act and recreational fishing King 1986; King et al. 1997). During the take (i.e., killing, injuring, capturing, activities. past 60 years, shoreline habitat etc.) of Lake Erie water snakes. Projects Issue 12—Some participants asked important to the water snakes has been that will harm individual Lake Erie which types of shoreline habitat will be significantly altered, degraded, and water snakes or destroy their habitat affected by listing Lake Erie water developed through the construction of will require an incidental take permit snakes as threatened. shoreline cottages, marinas, docks, and from us. Under the ‘‘Available Response—Lake Erie water snakes can sea walls, the filling of lagoons, and the Conservation Measures’’ section of this be found along any shoreline of the mining of quarries (Hatcher 1945; Core notice, we identify activities likely to islands of western Lake Erie. However, 1948; Kraus and Schuett 1982; King result in take of Lake Erie water snakes. they occur more often on or near rocky 1985, 1986; R. Conant, University of However, many of these actions, such as shorelines or shorelines composed of New Mexico, in litt. 1993; King et al. construction of shoreline docks, limestone/dolomite shelves and ledges 1997). Current development on many placement of stone or armor plates to (Conant and Clay 1937; Thomas 1949; western Lake Erie islands (e.g., Kelleys, prevent erosion, and other shoreline Conant 1951; Camin and Ehrlich 1958; North Bass, Middle Bass, South Bass, developments, already require a permit King 1986, 1987b). The Lake Erie water Pelee) is resulting in increased loss of from the U.S. Army Corps of Engineers snake is protected by the Act on the Lake Erie water snake habitat. Some (Corps) under section 404 of the Clean shorelines of all islands and rock examples of currently proposed Water Act or section 10 of the Rivers outcrops of western Lake Erie, except developments affecting Lake Erie water and Harbors Act. Pursuant to the Mouse Island, Johnson Island, or any snake habitat include a large resort Endangered Species Act, it is the Corps’ other islands and rock outcrops within proposed for Middle Bass Island, a responsibility to ensure that issuance of 1.6 km (1 mi) of the Ohio or Ontario 1,220 m (4,000 ft) long sea wall a Corps permit will not jeopardize Lake mainland. proposed for North Bass Island, and Erie water snakes on the offshore Issue 13—Some participants airport expansions proposed for Kelleys islands. If permit issuance by the Corps expressed concern about being Island and Middle Bass Island (Service, may affect the water snake or other prosecuted for removing a Lake Erie in litt. 1999). federally listed species, the Corps must water snake from their basement or B. Overutilization for Commercial, enter into section 7 consultation with yard, or from a fishing hook. Recreational, Scientific, or Educational us. Under section 7 consultation, we Response—Provided that private Purposes work with the Corps and project individuals follow the specific handling proponent to find solutions that allow conditions identified in this rule, the We know of no recreational or the project to proceed while avoiding Service will not prosecute them for commercial overutilization of the Lake jeopardy to listed species. This often removing Lake Erie water snakes from Erie water snake. The impact of means adopting project modifications. If their property or from accidental scientific collecting on the Lake Erie a shoreline project does not require a capture while fishing (see the water snake population is not known, Corps permit and does not involve ‘‘Available Conservation Measures’’ but negative impacts from possible over- Federal funding or other Federal section). collecting cannot be discounted. The historical collection of Lake Erie water authorization or other action, but will Summary of Factors Affecting the snakes is well documented, with reports take water snakes, the landowner may Species be required to obtain an incidental take of from 40 water snakes (Hamilton 1951; permit under section 10 of the Act. After a thorough review and Langlois 1964; Conant 1982; Ohio However, we believe most minor consideration of all information Division of Natural Areas and Preserves, shoreline projects as they are currently available, we have determined that the unpublished data, 1993) to hundreds of undertaken will require few Lake Erie water snake (Nerodia sipedon water snakes (Conant and Clay 1937, modifications. insularum) on western Lake Erie 1963; Conant 1938, 1951, 1982; Camin Issue 10—A few participants asked if offshore islands and adjacent waters and Ehrlich 1958) collected per island listing Lake Erie water snakes as (i.e., offshore islands and their during repeated visits. If the Lake Erie threatened will cause shoreline property surrounding waters that are more than water snake population continues to owners to lose their homes or their land. 1.6 km (1 mi) from the Ohio and Ontario decline, all sources of mortality, Response—Listing Lake Erie water mainland) should be classified as a including collecting, will be snakes as threatened will not cause any threatened species. We followed problematic for the species (see ‘‘Factor landowner or homeowner to lose his/ procedures found in section 4(a)(1) of E’’). her home or land. the Endangered Species Act (16 U.S.C. Issue 11—Some participants are 1531 et seq.) and regulations (50 CFR C. Disease or Predation concerned that listing Lake Erie water part 424) promulgated to implement the We are not aware of any evidence snakes might cause restrictions to be listing provisions of the Act. A species showing that natural predation has placed against land access or fishing may be determined to be an endangered contributed significantly to the decline activities. or threatened species due to one or more of Lake Erie water snakes. Although Response—We do not foresee such of the five factors described in section predation by herring gulls (Larus restrictions to be enacted. We do not 4(a)(1). These factors and their argentatus), great blue herons (Ardea consider unintentional capture or application to the Lake Erie water snake herodias), robins (Turdus migratorius),

VerDate 18-JUN-99 18:56 Aug 27, 1999 Jkt 183247 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.XXX pfrm08 PsN: 30AUR1 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations 47131 and blue racers (Coluber constrictor) majority of the subspecies’ island environmental stresses such as habitat have occurred (Camin and Ehrlich 1958; habitat remains unprotected, including destruction and extermination (Shaffer Goldman 1971; Hoffman and Curnow 13 islands within the United States. Of 1981; King 1987b, 1998b; Dodd 1993; 1979; King 1986, 1987b, 1993c), this the 5 core islands most important to the Nunney and Campbell 1993; King et al. very low level of mortality is not likely lake Erie water snake, 4 occur in the 1997). Though populations naturally to have a significant affect on the Lake United States with little or no protection fluctuate, small populations are more Erie water snake population. However, for the species and its habitat. likely to fluctuate below the minimum as stated above, populations like the Three preserves exist in Ontario, viable population threshold needed for Lake Erie water snake that occur at low Canada, which are inhabited by Lake long-term survival. Likewise, chance densities can be adversely impacted by Erie water snakes and protected from variation in age and sex ratios can cause any mortality factor, whether natural or habitat loss. On Pelee Island, Ontario, death rates to exceed birth rates, causing human-caused. the Lake Erie water snake is protected a higher risk of extinction in small Little is known about the impacts of by Provincial preserves at Fish Point populations. Finally, decreasing genetic disease on water snakes (Nerodia and Lighthouse Point (I. Bowman and P. variability in small populations sipedon). We believe disease is Prevett, Ontario Ministry of Natural increases the vulnerability of a species currently only a minor problem for Lake Resources, pers. comm. 1994). The to extinction due to inbreeding Erie water snakes. However, we Essex Region Conservation Authority depression (decreased growth, survival, recognize that the synergistic effects of also set aside preserve land on Pelee or productivity caused by inbreeding) pollutants, other environmental stress Island which benefits water snakes and and genetic drift (loss of genetic (such as habitat loss), and the locally local plant species (D. Krouse, ERCA, variability that takes place as a result of dense nature of some localized sub- pers. comm. 1994). East Sister Island is chance). A recent study of snakes populations could expose water snakes a Lake Erie water snake Provincial (adders) in Sweden found that to significant disease problems. preserve, but the population of water inbreeding depression in isolated snakes on the island is small and D. The Inadequacy of Existing populations resulted in smaller litter declining (King 1986; I. Bowman and P. Regulatory Mechanisms size, higher proportion of deformed and Prevett, Ontario Ministry of Natural stillborn offspring, and lower degree of Until now, Lake Erie water snakes Resources, pers. comm. 1994; R. King, genetic heterozygosity (Madsen et al. have had no legal protection from take, Northern Illinois University, pers. 1996), which in turn cause reduced harm, or habitat loss within the United comm. 1998). We believe the regulatory fertility and survivorship. Thus, in States. The Ohio Division of Wildlife mechanisms are inadequate because of small populations, environmental, (ODOW) granted State threatened status the small number of water snakes in demographic, and genetic changes can (chapter 119 of the Ohio Revised Code) preserves and the vulnerability from result in an accelerating slide toward to the Lake Erie water snake (N. s. lack of regulatory protection outside of extinction. insularum) in 1990 but this is an preserves. Mace and Lande (1991) describe a administrative designation that does not system used to categorize the status of E. Other Natural or Manmade Factors confer legal protection. The Lake Erie a species as Vulnerable, Endangered, or Affecting Its Continued Existence water snake is listed as endangered by Critical according to risk of extinction the Society for the Study of Amphibians Persecution by humans is the most criteria. Applying these criteria to the and Reptiles but this also confers no significant and well documented factor Lake Erie water snake population, King legal protection. A small fraction of the in the decline of Lake Erie water snakes (1998b) suggests the population in the land area on the western Lake Erie (Conant 1982, Kraus and Schuett 1982, United States qualifies as Endangered or islands comprises public land. The Ohio King 1986, King et al. 1997; Service in Vulnerable. Mace and Lande (1991) State University and the Ohio litt. 1998). During the 1800s, pigs were define Vulnerable as having a 10 Department of Parks and Recreation released on some islands to exterminate percent probability of extinction within (R.B. King, Northern Illinois University, snakes (Hatcher 1945, McDermott 1947). 100 years, and define Endangered as in litt. 1993) own property that is All snake species were eradicated from having a 20 percent probability of inhabited by Lake Erie water snakes, Rattlesnake Island by 1930 (Conant extinction within 20 years or 10 and thus is minimally protected from 1982), but a few water snakes recently generations (whichever is longer). King habitat destruction. moved to the island (King 1987b; King (1998b) indicates that the Lake Erie The Lake Erie water snake (N. s. et al. 1997). Ehrlich and Camin (1960) water snake population meets these insularum) subspecies is currently told of a campaign of extermination criteria because of (1) the decline of protected in Ontario, Canada, under the waged against water snakes on Middle island sub-populations of the snakes, (2) provincial Endangered Species Act, Island. Conant and Clay (1963) noted accelerated habitat alteration (e.g., R.S.O. 1980, c. 138, in 1977 (Regulation that persecution of island water snakes development) during the 1990s, and (3) 328; Regulation 195/88 which amends was severe. Persecution by humans is potential ecological interactions with Regulation 287 of Revised Regulations still a serious problem on several introduced species. Zebra mussels of Ontario). The Lake Erie water snake islands (Service in litt. 1998). The (Dreissena polymorpha) and round (N. s. insularum) subspecies is also effects of past and current persecution gobies (Neogobius melanostmus) can listed as federally endangered by the are evident today and are a threat to the reduce water snake prey (i.e., fish) Committee on the Status of Endangered continued existence of the water snake. availability (Dermott and Munawar Wildlife in Canada (COSEWIC). In The influences of factors A through E, 1993; Fitzsimons et al. 1995; Jude et al. addition, the species Nerodia sipedon is above, on the Lake Erie water snake are 1995). protected under the Ontario Game and exacerbated by the small size of the We have carefully assessed the best Fish Act (Regulation 520; Regulation population. The current low population scientific and commercial information 113/88 which amends Regulation 397/ densities and insular distribution of available regarding the past, present, 84 of Revised Regulations of Ontario). Lake Erie water snakes make them and future threats faced by the Lake Erie Although these regulations provide vulnerable to extinction or extirpation water snake in making this final listing some protection for Lake Erie water from catastrophic events, demographic determination. Based on this evaluation, snakes at a few sites in Canada, the variation, negative genetic effects, and we believe the Lake Erie water snake

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(Nerodia sipedon insularum) meets the to bring the species to the point at currently occupied habitat of this criteria for protection under the Act on which listing under the Act is no longer species as critical habitat. the basis of persecution, destruction and necessary. Though critical habitat designation modification of habitat, curtailment of Section 4(a)(3) of the Act, as directly affects only Federal agency its range, significant population decline amended, and implementing regulations actions, controversy resulting from from historical levels, flat and (50 CFR 424.12) require that, to the critical habitat designation has been vulnerable population status in the maximum extent prudent and known to reduce private landowner 1990s, and the inadequacy of regulatory determinable, we designate critical cooperation in the management of mechanisms. The present distribution habitat at the time the species is species listed under the Act. Critical and abundance of the Lake Erie water determined to be endangered or habitat designation could affect snake is at risk given the potential for threatened. Our regulations (50 CFR landowner cooperation within habitat these impacts to continue. Therefore, 424.12(a)(1)) state that the designation currently occupied by the snake and in based on this evaluation, the preferred of critical habitat is not prudent when areas unoccupied that might be needed action is to list the Lake Erie water one or both of the following situations for recovery. The publication of critical snake as a threatened species. The Act exist—(1) the species is threatened by habitat maps in the Federal Register defines a threatened species as one that taking or other human activity, and and local newspapers, and other is likely to become an endangered identification of critical habitat can be publicity or controversy accompanying species in the foreseeable future expected to increase the degree of threat critical habitat designation may increase throughout all or a significant portion of to the species, or (2) such designation of the potential for persecution as well as its range. Federal threatened status for critical habitat would not be beneficial other collection threats. This applies to the Lake Erie water snake is effective to the species. We find that designation currently occupied habitat and any immediately upon publication of this of critical habitat is not prudent for the unoccupied habitat that were to be final rule (see ‘‘Effective Date’’ section Lake Erie water snake for both reasons designated and subsequently below). stated above. recolonized by the species. Factor ‘‘E’’ of the ‘‘Summary of Factors Affecting Potential benefits of critical habitat Effective Date the Species’’ section details the designation derive from section 7(a)(2) In accordance with 5 U.S.C. 553(d)(3), significant human persecution threats of the Act, which requires Federal we have found good cause to make the that have affected and continue to affect effective date of this rule immediate. agencies, in consultation with us, to Lake Erie water snakes. Because of low Lake Erie water snake ensure that their actions are not likely Based on the above analysis, we have population densities, continuing to jeopardize the continued existence of concluded that critical habitat eradication by people, and accelerating listed species or to result in the designation would provide little habitat destruction, protection provided destruction or adverse modification of additional benefit for this species by the Act is granted to Lake Erie water critical habitat of such species. Critical beyond those that would accrue from snakes (Nerodia sipedon insularum) habitat designation, by definition, listing under the Act. We also conclude located on the western Lake Erie directly affects only Federal agency that any potential benefit from such a offshore islands and adjacent waters actions. Since the Lake Erie water snake designation would be offset by an immediately upon publication of this is semi-aquatic, Federal actions that increased level of vulnerability to final rule. We believe eradication efforts might affect this species and its habitat collecting, persecution, and by a and habitat destruction, in particular, include those with impacts on island possible reduction in landowner would temporarily intensify if the shoreline habitat and water quality. cooperation to manage and recover this effective date of the Act’s protection is Most activities that occur would be species. Therefore, the designation of delayed by the normal 30 days after rule subject to review under section 7(a)(2) critical habitat for Lake Erie water snake publication. We also believe that this of the Act, regardless of whether critical is not prudent. sudden increase in water snake habitat was designated. The Lake Erie persecution and habitat destruction water snake has become so restricted in Available Conservation Measures would seriously jeopardize the already distribution that any significant adverse Conservation measures provided to small, vulnerable Lake Erie water snake modification or destruction of occupied species listed as endangered or population to the extent that the long- habitats would likely jeopardize the threatened under the Act include term recovery process would be continued existence of this species. This recognition, recovery actions, irreversibly impaired. would also hold true as the species requirements for Federal protection, and recovers and its numbers increase. As prohibitions against certain practices. Critical Habitat part of the development of this rule, Recognition through listing encourages Section 3 of the Act defines critical Federal and State agencies were notified and results in conservation actions by habitat as: (i) the specific areas within of this species’ general distribution, and Federal, State, and private agencies, the geographical area occupied by a we requested that they provide data on groups, and individuals. The Act species, at the time it is listed in proposed Federal actions that might provides for possible land acquisition accordance with the Act, on which are adversely affect the species. Should any and cooperation with the States. The found those physical or biological future projects be proposed in areas Act also requires that recovery actions features (I) essential to the conservation inhabited by this snake, the involved be carried out for all listed species. The of the species and (II) that may require Federal agency will already have the protection required of Federal agencies special management considerations or distributional data needed to determine and the prohibitions against take of protection; and (ii) specific areas if its action may impact the species, and species and harm to species are outside the geographic area occupied by if needed, we will provide more specific discussed, in part, below. a species at the time it is listed, upon distribution information. Therefore, Following listing, a number of a determination that such areas are habitat protection for the Lake Erie recovery actions may be initiated by us, essential for the conservation of the water snake can be accomplished in cooperation with the State of Ohio species. ‘‘Conservation’’ means the use through the section 7 jeopardy standard, and numerous other parties. Some of all methods and procedures needed and there is no benefit in designating possible recovery actions are as

VerDate 18-JUN-99 18:56 Aug 27, 1999 Jkt 183247 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.XXX pfrm08 PsN: 30AUR1 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations 47133 follows—(1) continuation of a public Environmental Protection Agency, the increase public awareness of the effect outreach program directed toward U.S. military services, the National Park of this listing on proposed and ongoing island residents and visitors; (2) habitat Service, our Ottawa National Wildlife activities on the offshore islands and protection measures, as needed; (3) Refuge, and Federal agency adjacent waters of western Lake Erie. voluntary conservation agreements with participation in the Great Lakes We believe that, based on the best landowners; (4) design and testing of Initiative, or other cooperative U.S. available information, the following artificial refugia; (5) increased law efforts involving Canadian governments. actions will not result in a violation of enforcement efforts; (6) voluntary land The section 7 consultation process section 9 with respect to Lake Erie water acquisition or conservation easements will play an important role in recovery snakes—(1) brief handling necessary to from willing sellers; (7) monitoring of the Lake Erie water snake. The transfer individual water snakes from studies; (8) winter hibernation studies; resulting habitat protection, habitat roads, sidewalks, structures, yards, and (9) reintroduction of Lake Erie water restoration, education of agency watercraft to adjacent habitat upon snakes to appropriate locations; and (10) personnel, practical seasonal immediate release; (2) brief handling captive rearing. recommendations for construction necessary to free and immediately A public outreach program by us and activity, and beneficial project designs release to adjacent habitat a water snake the Ohio Division of Wildlife has been are vital for the Lake Erie water snake unintentionally hooked or entangled in active on the Lake Erie islands since recovery. Beneficial shoreline projects fishing equipment; (3) non-harmful 1994. The program encourages a ‘‘live contain designs that utilize rock and actions that encourage water snakes to and let live’’ attitude for snakes living vegetation to provide shelter or forage leave, stay off, or keep out of a residence among island residents and visitors. A areas for Lake Erie water snakes. (including swimming pools and yards), poster contest, outdoor sign campaign, Examples of potentially beneficial a business building, the top decks of and personal contacts are helping island project designs are docks with rock- docks, foot paths, and water equipment residents and visitors realize that Lake filled cribs, shoreline erosion barriers (including boats, rafts, swimming decks, Erie water snakes are not poisonous and that utilize medium to large size stone, water intakes, and recreational gear); for pose little threat to people. We look and reefs beneficial to small fish and example, a homeowner using a pool net forward to the continuing success of this amphibians that allow Lake Erie water pole to gently nudge a water snake away public outreach program as part of the snakes to safely feed. from his property; (4) actions that may overall effort to achieve recovery of the The Act and implementing affect offshore island water snakes and Lake Erie water snake. regulations found at 50 CFR 17.21 and are authorized, funded or carried out by Listing Lake Erie water snakes as 17.31 set forth a series of general a Federal agency, when conducted in threatened provides much needed prohibitions and exceptions that apply accordance with any reasonable and coordination and legal protection. to all threatened wildlife. These prudent measures given by the Service Federal threatened status for Lake Erie prohibitions, in part, make it illegal for in accordance with section 7 of the Act; water snakes will automatically result in any person subject to the jurisdiction of (5) actions authorized by a section 10 State of Ohio endangered status, the United States to take (includes permit under the Act. triggering effective State legal protection harass, harm, pursue, hunt, shoot, We believe violations of section 9 of against take. Threatened status in the wound, kill, trap, or collect; or to the Act include, but are not limited to, United States will facilitate Federal attempt any of these), import or export, the following actions on the Lake Erie coordination for Lake Erie water snakes ship in interstate commerce in the offshore islands conducted without a in the form of partnerships with course of commercial activity, or sell or section 10 permit under the Act—(1) landowners, planning and management offer for sale in interstate or foreign intentional killing or injuring of water with Canadian wildlife officials, commerce any listed species. It also is snakes by any means; (2) harassing consultations on Federal projects illegal to possess, sell, deliver, carry, water snakes in any offshore island or (section 7 of the Act), enforcement transport, or ship any such wildlife that adjacent water habitat; (3) unauthorized (section 9 of the Act), conservation has been taken illegally. Certain collecting or handling of the water planning (section 10 of the Act), and exceptions apply to our agents and State snake; (4) altering or destroying permits (section 10 of the Act). conservation agencies. shoreline water snake habitat, including Section 7(a) of the Act, requires Under the Act, permits may be issued adjacent vegetation; (5) illegal discharge Federal agencies to evaluate their to carry out otherwise prohibited or dumping of toxic chemicals or other actions with respect to any species, and activities involving threatened wildlife pollutants into areas occupied by the its critical habitat (if declared), that is species under certain circumstances. water snake. proposed or listed as endangered or Regulations governing permits are Requests for copies of the regulations threatened. Regulations implementing described in 50 CFR 17.22, 17.23, and regarding listed wildlife and inquiries this interagency cooperation provision 17.32. Such permits are available for about prohibitions and permits may be of the Act are codified at 50 CFR Part scientific purposes, for the enhancement addressed to the Division of Endangered 402. Section 7(a)(2) requires Federal or propagation or survival of the Species, Bishop Henry Whipple Federal agencies to ensure that activities they species, or for incidental take in Building, 1 Federal Drive, Ft. Snelling, authorize, fund, or carry out are not connection with otherwise lawful Minnesota 55111–4056 (612–713–5350; likely to jeopardize the continued activities. For threatened species, there fax 612–713–5292). existence of a listed species or to are also permits for zoological destroy or adversely modify its critical exhibition, educational purposes, or National Environmental Policy Act habitat. If a Federal action may affect a special purposes consistent with the We have determined that listed species or its critical habitat, the purposes of the Act. Environmental Assessments and responsible Federal agency must enter It is our policy (July 1, 1994; 59 FR Environmental Impact Statements, as into formal consultation with us. 34272) to identify to the maximum defined under the authority of the Possible Federal actions may include extent practicable, at the time a species National Environmental Policy Act of projects, activities, and permit issuance is listed, those activities that do or do 1969, need not be prepared in by the Corps, the Natural Resources not constitute a violation of section 9 of connection with regulations adopted Conservation Service, the U.S. the Act. The intent of this policy is to pursuant to section 4(a) of the Act. We

VerDate 18-JUN-99 18:56 Aug 27, 1999 Jkt 183247 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.XXX pfrm08 PsN: 30AUR1 47134 Federal Register / Vol. 64, No. 167 / Monday, August 30, 1999 / Rules and Regulations published a notice outlining our reasons References Cited Code of Federal Regulations, as set forth for this determination in the Federal A complete list of all references cited below: Register on October 25, 1983 (48 FR herein, as well as others, is available PART 17Ð[AMENDED] 49244). upon request (see ADDRESSES section). Paperwork Reduction Act Authors 1. The authority citation for part 17 continues to read as follows: This rule does not contain any new The primary authors of this proposed collections of information other than rule are Buddy B. Fazio (614–469–6923) Authority: 16 U.S.C. 1361–1407; 16 U.S.C. those already approved under the of our Reynoldsburg, Ohio office, and 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Jennifer Szymanski (612–713–5342) of Paperwork Reduction Act, 44 U.S.C. 625, 100 Stat. 3500, unless otherwise noted. our Minnesota Regional Office (see 3501 et seq., and assigned Office of ADDRESSES section.) 2. Amend § 17.11(h) by adding the Management and Budget clearance following to the List of Endangered and List of Subjects in 50 CFR Part 17 number 1018–0094. An agency may not Threatened Wildlife, in alphabetical conduct or sponsor, and a person is not Endangered and threatened species, order under REPTILES: required to respond to a collection of Exports, Imports, Reporting and information, unless it displays a recordkeeping requirements, § 17.11 Endangered and threatened currently valid control number. For Transportation. wildlife. additional information concerning Regulation Promulgation * * * * * permit and associated requirements for (h) * * * threatened species, see 50 CFR 17.32. Accordingly, amend part 17, subchapter B of chapter I, title 50 of the

Species Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules

REPTILES

******* Snake, Lake Erie Nerodia sipedon U.S.A. (OH), Canada Lake Erie offshore T 665 N/A N/A water. insularum. (Ont.). Islands and their adjacent waters (located more than 1 mile from mainland)ÐU.S.A. (OH), Canada (Ont.).

*******

Dated: August 16, 1999 tribal requests for U.S. Fish and Wildlife 1918 (40 Stat. 755; 16 U.S.C. 703 et John G. Rogers, Service (hereinafter Service or we) seq.), authorizes and directs the Acting Director, Fish and Wildlife Service. recognition of their authority to regulate Secretary of the Department of the [FR Doc. 99–22459 Filed 8–27–99; 8:45 am] hunting under established guidelines. Interior, having due regard for the zones BILLING CODE 4310±55±P This rule allows the establishment of of temperature and for the distribution, season bag limits and, thus, harvest at abundance, economic value, breeding levels compatible with populations and habits, and times and lines of flight of DEPARTMENT OF THE INTERIOR habitat conditions. migratory game birds, to determine DATES: This rule takes effect on when, to what extent, and by what Fish and Wildlife Service September 1, 1999. means such birds or any part, nest or egg thereof may be taken, hunted, 50 CFR Part 20 ADDRESSES: You may inspect comments captured, killed, possessed, sold, received, if any, on the proposed special RIN 1018±AF24 purchased, shipped, carried, exported or hunting regulations and tribal proposals transported. Migratory Bird Hunting; Migratory Bird during normal business hours in Room 634, Arlington Square Building, 4401 N. In the August 13, 1999, Federal Hunting Regulations on Certain Register (64 FR 44384), we proposed Federal Indian Reservations and Fairfax Drive, Arlington, Virginia. You should send communications regarding special migratory bird hunting Ceded Lands for the 1999±2000 Early regulations for the 1999–2000 hunting Season the documents to: Director (FWS/ MBMO), U.S. Fish and Wildlife Service, season for certain Indian tribes, under AGENCY: Fish and Wildlife Service, ms 634–ARLSQ, 1849 C Street, NW., the guidelines described in the June 4, Interior. Washington, DC 20240. 1985, Federal Register (50 FR 23467). ACTION: Final rule. The guidelines respond to tribal FOR FURTHER INFORMATION CONTACT: Ron requests for Service recognition of their SUMMARY: This rule prescribes special W. Kokel, Office of Migratory Bird reserved hunting rights, and for some early season migratory bird hunting Management, U.S. Fish and Wildlife tribes, recognition of their authority to regulations for certain tribes on Federal Service, (703/358–1714). regulate hunting by both tribal members Indian reservations, off-reservation trust SUPPLEMENTARY INFORMATION: The and nonmembers on their reservations. lands and ceded lands. This responds to Migratory Bird Treaty Act of July 3, The guidelines include possibilities for:

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