38956 Federal Register / Vol. 73, No. 131 / Tuesday, July 8, 2008 / Proposed Rules

attachment/DA 08–1523A1doc. This full this proceeding is extended to October September 8, 2008. Public hearing text may also be downloaded at: 22, 2008. requests must be received by August 22, http://wireless.fcc.gov/releases.html. 5. This action is taken under 2008. Alternative formats (computer diskette, delegated authority pursuant to sections ADDRESSES: You may submit comments large print, audio cassette, and Braille) 0.131 and 0.331 of the Commission’s by one of the following methods: are available by contacting Brian Millin rules, 47 CFR 0.131, 0.331. • Federal eRulemaking Portal: http:// at (202) 418–7426, TTY (202) 418–7365, Federal Communications Commission. www.regulations.gov. Follow the or via e-mail to [email protected]. Joel D. Taubenblatt, instructions for submitting comments. • U.S. mail or hand-delivery: Public Summary of the Order Deputy Chief, Wireless Telecommunications Bureau. Comments Processing, Attn: 1018– 1. On March 20, 2008, the [FR Doc. E8–15445 Filed 7–7–08; 8:45 am] AU97, Division of Policy and Directives Management; U.S. Fish and Wildlife Commission released the Broadband BILLING CODE 6712–01–P Radio Service/Educational Broadband Service; 4401 N. Fairfax Drive, Suite Service Second Further Notice of 222; Arlington, VA 22203. We will post all comments on Proposed Rulemaking (BRS/EBS 2nd DEPARTMENT OF THE INTERIOR FNPRM), FCC 08–83. In the BRS/EBS http://www.regulations.gov. This 2nd FNPRM, comments were due on or Fish and Wildlife Service generally means that we will post any before July 7, 2008, and reply comments personal information you provide us were due on or before August 6, 2008. 50 CFR Part 17 (see the Public Comments section below On May 8, 2008, a summary of the BRS/ for more information). EBS 2nd FNPRM was published in the [FWS–R2–ES–2008–0080; 92220–1113– FOR FURTHER INFORMATION CONTACT: 0000; C6] Federal Register (73 FR 26067, May 8, Adam Zerrenner, Field Supervisor, U.S. 2008). RIN 1018–AU97 Fish and Wildlife Service, Austin 2. On June 13, 2008, National EBS Ecological Services Field Office, 10711 Association (‘‘NEBSA’’), formerly Endangered and Threatened Wildlife Burnet Road, Suite 200, Austin, TX known as the National ITFS Association and Plants; Proposed Removal of the 78758; telephone 512/490–0057, (NIA) and the Catholic Television Concho Water Snake (Nerodia extension 248; facsimile 512/490–0974. Network (‘‘CTN’’) filed a motion for paucimaculata) From the Federal List Persons who use a telecommunications extension of time on June 13, 2008, to of Endangered and Threatened device for the deaf (TDD) may call the extend by 75 days the dates for filing Wildlife; Removal of Federally Federal Information Relay Service comments and reply comments in the Designated Critical Habitat (FIRS) at 800/877–8339, 24 hours a day, proceeding. NEBSA and CTN state that AGENCY: Fish and Wildlife Service, 7 days a week. the comment dates ‘‘fall in the middle Interior. SUPPLEMENTARY INFORMATION: of the summer recess period for ACTION: Proposed rule. Public Comments Solicited virtually all schools, colleges and universities, making it difficult for SUMMARY: The best available scientific Our intent is to use the best available NEBSA, CTN, EBS licensees and other and commercial data indicate that the commercial and scientific data as the educators to coordinate their response Concho water snake (Nerodia foundation for all endangered and to the important issues raised in this paucimaculata) has recovered. threatened species classification proceeding.’’ The Wireless Therefore, under the authority of the decisions. Comments or suggestions Communications Association Endangered Species Act of 1973, as from the public, other concerned International, Inc. supports this request. amended (Act), we, the U.S. Fish and governmental agencies, the scientific No party has opposed the request. Wildlife Service (Service) propose to community, industry, or any other 3. It is the policy of the Commission remove (delist) the Concho water snake interested party concerning this that extensions of time are not routinely (Nerodia paucimaculata) from the proposed rule to delist the (species granted pursuant to 47 CFR 1.46(a). Federal List of Endangered and name) are hereby solicited. Comments Such extensions may be warranted Threatened Wildlife, and accordingly, particularly are sought concerning: when, among other reasons, the also remove its federally designated (1) Any threat (or lack thereof) to the additional time will serve the public critical habitat. This determination is Concho water snake; (2) Additional information on the interest. In the present instance, we based on a thorough review of all range, distribution, and location of any grant NEBSA and CTN’s motion for available information, which indicates additional populations of the Concho extension of time by extending by 75 that the threats to this species have been eliminated or reduced to the point that water snake; days the deadlines to file comments and (3) Information on habitat destruction reply comments in the proceeding. the species has recovered and no longer meets the definition of threatened or and/or preservation for the Concho Ordering Clauses endangered under the Act. water snake; (4) Current or planned activities in the 4. Accordingly, it is ordered that, The Concho water snake is a reptile endemic to central Texas. It was listed species’ habitat and the possible pursuant to section 4(i) of the impacts to the Concho water snake; Communications Act of 1934, as as threatened on September 3, 1986, due to threats of habitat modification and (5) Data on population trends; amended, 47 U.S.C. 154(i), and § 1.46 of (6) Data on the status of Concho water destruction (51 FR 31412). Through the Commission’s rules, 47 CFR 1.46, snakes in reservoirs; that the Motion for Extension of Time implementation of recovery efforts, the (7) Information regarding the filed by National EBS Association and Service has determined that this species sufficiency of planned flows in the the Catholic Television Network on June has been recovered and no longer meets Colorado River to maintain habitat for 13, 2008 is granted, and the time for the definition of threatened or the Concho water snake; filing comments in this proceeding is endangered. (8) Data on the need for movement of extended to September 22, 2008, and DATES: Comments on the proposed rule Concho water snakes around large dams the time for filing reply comments in must be received on or before to maintain genetic diversity; and

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(9) Information pertaining to the McCulloch, Mills, Runnels, San Saba, Dixon 2000). The snakes emerge from design of the required post delisting and Tom Green. mid-March to mid-April for the main monitoring. At the time of listing, there were mating event, which occurs during You may submit your comments and considered to be two subspecies of April and early May, with a lesser event materials concerning this proposed rule Nerodia harteri, the Concho water snake in October (Greene et al. 1999, p. 702; by one of the methods listed in the (N. h. paucimaculata) and the Brazos Williams 1969, p. 11). Most births occur ADDRESSES section. Comments must be water snake (N. h. harteri). Densmore et from late July through September (Dixon submitted to http://www.regulations.gov al. (1992, p. 66) determined the Concho et al. 1988, p. 15; 1990, p. 13; 1991, pp. before midnight (Eastern Standard water snake was a distinct species 30–31; 1992, p. 28; Greene et al. 1999, Time) on the date specified in the DATES based, in part, on its geographic p. 702). Females produce litter sizes that section. Please note that we may not isolation and fixed differences in range from 4 to 29, with a mean of about consider comments we receive after the genetic markers. Therefore, in 1996 we 11 neonate snakes (Greene et al. 1999). date specified in the DATES section in changed the name in the Federal List Concho water snakes feed almost our final determination. from N. h. paucimaculata to N. exclusively on fish (Williams 1969, pp. Before including your address, phone paucimaculata (50 CFR 17.11) in 9–10; Dixon et al. 1988, p. 16; 1989, p. number, e-mail address, or other accordance with Densmore et al. (1992). 8; 1990, p. 36; 1992, p. 6; Greene et al. personal identifying information in your Information about the Concho water 1994, p. 167; Thornton 1990, p. 14), and comment, you should be aware that we snake’s biology and life history can be have been observed feeding both during will post your entire comment— found in the final listing rule (51 FR the day and at night. In riverine habitat including your personal identifying 31412–1422), the Concho Water Snake and especially among neonates (recently information—on http:// Recovery Plan (Service 1993, pp. 4–5), born snakes), minnows (fish in the www.regulations.gov. While you can ask Werner and Dixon (2000, pp. 209–216), Cyprinidae family) are the primary food us in your comment to withhold your and Campbell (2003). source. Concho water snakes may also In 1998, the Colorado River Municipal personal identifying information from opportunistically feed on frogs (Rana Water District (District) (1998, pp. 8–29) and Acris spp.) (Greene 1993, p. 20). public review, we cannot guarantee that summarized 10 years of data collected we will be able to do so. on Concho water snake populations, Previous Federal Action In making a final decision on this status, and distribution. In 2004, the We classified the Concho water snake proposal, we will take into U.S. Geological Survey (USGS) analyzed as threatened on September 3, 1986 (51 consideration the comments and any capture-recapture data from 3 sources: FR 31412). The primary reasons for additional information we receive. Such (1) Mueller (1990, pp. 18–27); (2) listing were extensive habitat loss and communications may lead to a final rule Whiting (1993, Appendix 1); and (3) the imminent threats to a large portion of its that differs from this proposal. 10 years of District data. However, for a remaining population. Critical habitat Comments and materials we receive, number of reasons, primarily was designated on June 29, 1989 (54 FR as well as supporting documentation we insufficient sampling effort at any single 27377). In September 1993, we finalized used in preparing this proposed rule, study site and a host of variables, a recovery plan for the Concho water will be available for public inspection especially environmental variability snake (Service 1993). In June 1998, we on http://www.regulations.gov, or by within a site and among sites, study received a petition to delist the Concho appointment, during normal business results have not been robust enough to water snake from the District. On hours at the Austin Ecological Services allow either population or trend August 2, 1999, we published a 90-day Field Office (see FOR FURTHER estimates with satisfactory precision petition finding that the petitioner did INFORMATION CONTACT section). (Service 2004, p. 23). Additional not present substantial information Public Hearing information, particularly concerning the indicating that delisting the species may habitat requirements of the Concho be warranted (64 FR 41903). The Act provides for one or more water snake, is discussed under Recovery public hearings on this proposal, if Summary of Factors Affecting the requested. Requests must be received by Species below. Section 4(f) of the Act directs us to August 22, 2008. Such requests must be The Concho water snake is develop and implement recovery plans made in writing and addressed to the characterized by being somewhat for listed species unless the Director Field Supervisor (see FOR FURTHER smaller than most other Nerodia. At determines that such a plan will not INFORMATION CONTACT section). maturity, males average about 15 inches benefit the conservation of the species. (in) (38.1 centimeters (cm)) snout-vent The Service completed the Concho Background length (SVL), and females average about Water Snake Recovery Plan in 1993. The The Concho water snake is endemic 18 in (45.7 cm) SVL, with a maximum Concho Water Snake Recovery Plan to the Colorado and Concho Rivers in reported length of 42 in (106.7 cm) SVL. outlines recovery criteria to assist in central Texas (Tennant 1984, p. 344; Hibernation begins in late October to determining when the snake has Scott et al. 1989, p. 373). It occurs on late November, depending upon recovered to the point that the the Colorado River from E.V. Spence weather and temperatures (Williams protections afforded by the Act are no Reservoir to Colorado Bend State Park, 1969, p. 11). Most adults probably longer needed (Service 1993, p. 33). including Ballinger Municipal Lake and hibernate in the tunnels of small These criteria are: (1) Adequate instream O.H. Ivie Reservoir, and on the Concho burrowing animals, particularly flows are assured even when the species River from the City of San Angelo to its crayfish, while hibernating juveniles is delisted. (2) Viable populations are confluence with the Colorado River at may be more common in the crevices present in each of the three major O.H. Ivie Reservoir. The Concho water under rocks on gravel bars (Werler and reaches (the Colorado River above snake can be found in rivers and Dixon 2000, pp. 212, 214). Males reach Freese Dam, Colorado River below streams, and on artificial shoreline sexual maturity at about 1 year of age Freese Dam, and the Concho River). habitat of the three reservoirs. Counties but females produce their first litter at Here, population is defined as all of known occurrence include Brown, 2 or 3 years of age, depending on their Concho water snakes in a given area, in Coke, Coleman, Concho, Lampasas, reproductive development (Werler and this case, each major river reach. (3)

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Movement of an adequate number of Summary of Factors Affecting the species and the threats that are Concho water snakes is assured to Species section below) indicates that all reasonably likely to affect the species in counteract the adverse impacts of three criteria in the Concho water snake the foreseeable future following the population fragmentation. These recovery plan (adequate instream flows delisting or downlisting and the movements should occur as long as even after delisting, viable populations removal or reduction of the Act’s Freese Dam is in place or until such in each of the three major river reaches, protections. time that the Service determines that and movement of snakes to assure A species is ‘‘endangered’’ for Concho water snake populations in the adequate genetic mixing) have been met. purposes of the Act if it is in danger of three reaches are viable and ‘‘artificial Further, recovery of the Concho water extinction throughout all or a movement’’ among them is not needed. snake has been a dynamic process, ‘‘significant portion of its range’’ and is We used the recovery plan to provide which has been furthered by the ‘‘threatened’’ if it is likely to become guidance to the Service, State of Texas, significant amount of new data collected endangered within the foreseeable and other partners on methods to on the biology and ecology of the future throughout all or a ‘‘significant minimize and reduce the threats to the species by numerous species experts. portion of its range.’’ The word ‘‘range’’ Concho water snake and to provide Since the time of listing and completion in the phrase ‘‘significant portion of its measurable criteria that would be used of the recovery plan, biologists have range’’ (SPR) refers to the range in to help determine when the threats to discovered that the snakes are able to which the species currently exists. For the Concho water snake had been persist and reproduce in the shorelines the purposes of this analysis, we will reduced so that it could be removed of reservoirs and that the snakes have evaluate whether the currently listed from the Federal List of Endangered and managed to persist in all three species, the Concho water snake, should Threatened Wildlife. population segments, surviving many be considered threatened or endangered Recovery plans in general are not years of drought. Based on this new throughout all of its range. Then we will regulatory documents and are instead information, the analysis below consider whether there are any portions intended to provide a guide on how to considers the best available data in of the Concho water snake’s range in achieve recovery. There are many paths determining that the Concho water which it is in danger of extinction or to accomplishing recovery of a species snake may no longer meet the definition likely to become endangered within the in all or a significant portion of its of a threatened or endangered species. foreseeable future. range. The main goal is to remove the threats to a species, which may occur Summary of Factors Affecting the For the purposes of this proposed without meeting all recovery criteria Species rule, we consider ‘‘foreseeable future’’ contained in a recovery plan. For Section 4 of the Act and its for the Concho water snake to be 20 example, one or more criteria may have implementing regulations (50 CFR part years. This is a reasonable timeframe for been exceeded while other criteria may 424) set forth the procedures for listing, analysis of factors identified that could not have been accomplished. In that reclassifying, or removing species from affect the species in the future and as instance, the Service may judge that, listed status. ‘‘Species’’ is defined by the they relate to Concho water snake overall, the threats have been reduced Act as including any species or biology. The snakes become sexually sufficiently, and the species is robust subspecies of fish or wildlife or plants, mature at 2 or 3 years old and reproduce enough, to reclassify the species from and any distinct vertebrate population annually (Werner and Dixon 2000, p. endangered to threatened or perhaps to segment of fish or wildlife that 216), with a likely life span rarely delist the species. In other cases, interbreeds when mature (16 U.S.C. exceeding 5 years (Greene et al. 1999, p. recovery opportunities may be 1532(16)). Once the ‘‘species’’ is 707). A 20-year timeframe would recognized that were not known at the determined, we then evaluate whether encompass about 4 life spans and time the recovery plan was finalized. that species may be endangered or multiple generations. Twenty years or Achievement of these opportunities may threatened because of one or more of the about four life spans and multiple be counted as progress toward recovery five factors described in section 4(a)(1) generations is a reasonable duration for in lieu of methods identified in the of the Act. We must consider these same analysis of hydrologic conditions and recovery plan. Likewise, we may learn five factors in delisting a species. We expected responses by a short lived information about the species that was may delist a species according to 50 species such as the Concho water snake. not known at the time the recovery plan CFR 424.11(d) if the best available Factors most likely affecting the was finalized. The new information may scientific and commercial data indicate populations relate to hydrologic cycles change the extent that criteria need to be that the species is neither endangered and stream flows. Texas water law met for recognizing recovery of the nor threatened for the following reasons: requirements, including the District’s species. Overall, recovery of a species is (1) The species is extinct; (2) the species permit (TCEQ permit #3676), requires a dynamic process requiring adaptive has recovered and is no longer minimum flows below Ivie Reservoir management. Judging the degree of endangered or threatened (as is the case that are the same as those the Service recovery of a species is also an adaptive with the (Concho water snake)); and/or found in our 2004 Biological Opinion management process that may, or may (3) the original scientific data used at were the minimum needed by the not, fully follow the guidance provided the time the species was classified were Concho water snake. In 2008 the Service in a recovery plan. in error. entered into a Memorandum of For more information on recovery of A recovered species is one that no Understanding (MOU) with the District the Concho water snake, see the longer meets the Act’s definition of to provide for the maintenance of recovery plan at http://ecos.fws.gov/ threatened or endangered. Determining minimum flow releases in perpetuity docs/recovery_plan/930927b.pdf. We whether a species is recovered requires (see the Floodwater Scouring and caution that research conducted since consideration of the same five categories Instream Flows section under Factor A the recovery plan was completed in of threats specified in section 4(a)(1) of for further discussion of the TCEQ 1993 has modified our understanding of the Act. For species that are already permit and MOU). Therefore, we have habitat requirement of the species. listed as threatened or endangered, this no reason to believe that any significant A review of the best scientific and analysis of threats is an evaluation of changes are expected in the next 20 commercial data currently available (see both the threats currently facing the years in reservoir operations or other

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factors that might affect stream Adult and maturing Concho water Colorado River from the confluence of conditions and snake populations. snakes use a wider range of habitats Beals Creek (above Spence Reservoir), The following analysis examines all than do juveniles (Scott et al. 1989, pp. depending on reservoir stage, to five factors currently affecting, or that 379–381; Werler and Dixon 2000, p. downstream of Ivie Reservoir to are likely to affect, the Concho water 211; Williams 1969, p. 8). In reservoirs Colorado Bend State Park, and on the snake within the foreseeable future. and lakes, juvenile Concho water snakes Concho River downstream of the City of are generally found in low-gradient, San Angelo to the confluence with the A. The Present or Threatened loose-rock shoals adjacent to silt-free Colorado River. This is a total of about Destruction, Modification, or cobble. In streams and rivers, juveniles 280 mi (451 km) of river and about 40 Curtailment of Its Habitat or Range are found in gravel shallows or riffles mi (64 km) of reservoir shoreline. While Habitat and Distribution (Rose 1989, pp. 121–122; Scott et al. the Concho water snake has been 1989, p. 379, Scott and Fitzgerald 1985, extirpated from some reaches of its Concho water snakes are known to p. 35). This habitat is likely the best for historical distribution, mainly upstream occur in rivers, streams, and along the juvenile snakes to successfully prey on of San Angelo (Flury and Maxwell 1981, artificial shoreline of reservoirs. These small fish because the rocky shallows p. 31), since the time of listing it has snakes are air-breathing; however, they concentrate prey and are inaccessible to been confirmed farther downstream feed almost exclusively on fish and are, large predatory fish. The exposed rocky from Ivie Reservoir and upstream from therefore, found only near water sources shoals act as thermal sinks, which may Spence Reservoir (Scott et al. 1989, p. capable of supporting at least a minimal help keep the juvenile snakes warm and 384; and Dixon et al. 1988, p. 12; 1990, fish population. Stream and river maintain a high growth rate (Scott et al. pp. 50, 62–65; 1991, pp. 60–67; 1992, habitat used by the Concho water snake 1989, pp. 380–381). pp. 84, 87, 96–97). is primarily associated with riffles Historically the Concho water snake In 2004 and 2005, Drs. Forstner and (Greene 1993, p. 96; Werler and Dixon was known to occur in spotty Dixon surveyed for Concho water 2000, p. 210; Forstner et al. 2006, p. 13), distribution on the mainstem of the snakes across the species’ range. One where the water is usually shallow and Colorado River below E.V. Spence goal of Forstner et al. (2006, pp. 4–5) the current is of greater velocity than in Reservoir near the City of Robert Lee was to evaluate whether viable Concho the connecting pools. Riffles begin when downstream to the F.M. 45 bridge and water snake populations existed in all an upper pool overflows at a change in then not again until further downstream three reaches of the Colorado and gradient and forms rapids. The stream near the City of Bend (Tinkle and Concho rivers separated by Ivie flows over rock rubble or solid to Conant 1961, pp. 42–43; Williams 1969, Reservoir. To do this, snake localities terraced bedrock substrate through a p. 3). On the Concho River and its were surveyed ‘‘for evidence of chute channel that is usually narrower tributaries, Concho water snakes were reproduction (one measure of than the streambed. The riffle ends historically known from Spring Creek, sustainability).’’ Persistence and when the rapids enter the next Dove Creek, and the South Concho reproduction were documented in the downstream pool. Riffles are believed to River, all upstream of the Twin Buttes Concho River and upstream of Ivie be the favored habitat for foraging, with Reservoir, and on the mainstem of the Reservoir in the Colorado River. young snakes using shallow parts of Concho River downstream from San However, access below Ivie Reservoir riffles and adult snakes using deeper Angelo to the confluence with the was restricted by private property parts of riffles (Greene 1993, pp. 13, 96; Colorado River (Marr 1944, pp. 486– owners, preventing an intense Scott et al. 1989, pp. 380–381; Williams 487; Tinkle and Conant 1961, pp. 42– assessment downstream of the 1969, p. 8; Werler and Dixon 2000, p. 43). By the time the Concho water snake impoundment. Regardless of limited 215; Forstner et al. 2006, p. 13). was federally listed, it had been access, females that exhibited signs of Searches on the mainstream rivers extirpated from the tributaries above the recently giving birth were collected (Concho and Colorado) also indicated City of San Angelo (Flury and Maxwell from accessible areas, which Forstner et 1981, p. 31), and surveys had never al. (2006, p. 18) considered technically Concho water snakes were found in the located snakes in lakes or reservoirs sufficient to demonstrate persistence shallow pools between riffles (Williams (Scott and Fitzgerald 1985, pp. 17, 34). and reproduction downstream of Ivie 1969, p. 8). Dixon et al. (1989, p. 16) At the time of listing, the range of the Reservior. ‘‘Even in the face of demonstrated that adult snakes used a snake included O.C. Fisher, Twin landscape scale or ecosystem wide variety of cover sites for resting, Buttes, and Spence reservoirs and one stresses by severely reduced including exposed bedrock, thick tributary creek reservoir, Ballinger precipitation, increased human uses of herbaceous vegetation, debris piles, and Municipal Lake. A fifth reservoir, O.H. instream flows, introduced species, and crayfish burrows. Ivie (formerly known as Stacy), was ever increasing human densities, the In the reservoirs, Concho water snake already planned for construction at the Concho water snake remains in the habitat is most likely shallow water confluence of the Concho and Colorado majority of the sites visited and with minimal wave action and rocks Rivers and was expected to reduce the continues to reproduce at those along the shoreline (Scott et al. 1989, range of Concho water snakes by more locations (Forstner et al. 2006, p. 18).’’ pp. 379–380; Whiting 1993, p. 112). than 50 percent (Scott and Fitzgerald Forstner et al. (2006, pp. 16–18, 20) state However, Concho water snakes have 1985, pp. 31, 35). that ‘‘self sustain[ed], seemingly viable also been observed on steep shorelines By 1993, Scott et al. (1989, pp. 382, populations in the Concho and Colorado and around boat houses (Scott et al. 384), Thornton (1992, pp. 3–16), and Rivers at the end of a decade of 1989, p. 379; Whiting 1993, p. 112). Whiting (1993, pp.8, 28, 117–118, 121) monitoring’’ occur in the three reaches Unlike many other species of Nerodia, determined the Concho water snake’s of the snake’s range. Concho water snakes do not seem to distribution to be about 233 mi (375 km) move far from water (Werler and Dixon (Service 1993, p. 9). Analysis for a 2004 Reservoir Inundation 2000, p. 208). During Greene’s (1993, p. amendment to the 1986 Biological At the time of listing, we believed the 96) visual and radiotelemetry surveys, Opinion (Service 2004, p. 32) construction of Ivie Reservoir would all snakes occurred within 33 feet (ft) summarized the known distribution of have two major impacts that would (10 meters (m)) of water. the Concho water snake to be the result in loss of Concho water snake

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habitat: (1) above the dam, the rocky water snakes have continued to be both the Concho and Colorado Rivers shoreline and riffle habitat would be found in reservoirs. Dixon’s (2004, pp. form pools that can extend two-thirds of inundated, and (2) below the dam, 3–4) surveys in 2004 confirmed that a mile (1 km) or more up river normal water flow would be curtailed, snakes persist in Spence and Ivie (depending on dam height). The riffles and floodwater scouring would be Reservoirs, and, while Ballinger Lake and pools that lie upstream of these prevented (see the Floodwater Scouring had only a small pool of water (2 feet low-head dams may not completely dry and Instream Flows section below for or less) in 2004 and no snakes were up because of small springs and creeks discussion of below-dam effects). At found, after rains in 2005 Forstner et al. nearby. These pools act as refuges for that time, the Colorado River at the (2006, p. 12) confirmed snake presence juvenile and adult Concho water snakes proposed Ivie Reservoir site was and reproductive activity within the when flow ceases (Dixon 2004, p. 9). believed to support the highest lake. Whiting (1993, p. 17) stated that Concho water snakes have been located concentration of Concho water snakes rocky shorelines were the single most in pools behind low-head dams along (Flurry and Maxwell 1981, pp. 36, 48; important component of snake habitat the Colorado River, and Dixon (2004, p. 51 FR 31419). Outside of this area, the in reservoirs, and that changes in water 9) states that it is reasonable to expect snake had been found only in isolated surface elevation of Spence Reservoir the small pools behind low-head dams occurrences, which indicated a disjunct, affect the availability of that shoreline on the Concho River act in the same fragmented distribution. The snake had habitat (Whiting 1993, p. 13). In way. Even with the drought, water not been collected in reservoirs or in the discussing Spence Reservoir, Forstner et continues to flow over bedrock in some silted in riverine habitat below Spence al. (2006, p. 17) states that, ‘‘there are areas, and snakes have been observed Reservoir (Scott and Fitzgerald 1985, rocky outcrops, boulder slopes, in foraging for fish in the diminished flow. pp. 13, 28). It also had not been found limited areas that have been occupied The extent of solid bedrock in some of in perennial tributaries except Elm by the snake and the populations have the riffle systems tends to maintain the Creek near Ballinger (Scott and remained there over the past decade.’’ nature of the riffle and does not allow Fitzgerald 1985, pp. 15, 34). Thus, we Because Concho water snakes are now vegetation to root and collect debris and believed the inundation of the Ivie known to be reproducing and persisting silt (Dixon 2004, p. 9). Reservoir would result in a substantial in lakes and reservoirs and their current Another way the snakes may endure loss of habitat for the Concho water distribution is larger than reported at drying conditions is to use deep snake. the time of listing and historically, burrows. Greene (1993, pp. 89, 94) As a result of a 1986 formal habitat loss from reservoir inundation is found Concho water snake hibernacula consultation conducted under section 7 no longer believed to be a significant (shelters for hibernating snakes) within of the Act with the U.S. Army Corps of threat to the long-term survival of the 19.7 ft (6 m) of water with a mean depth Engineers (USACE) on construction of species. of 1.7 ft (0.52 m). Hibernacula types Freese Dam to form Ivie Reservoir (1986 included crayfish burrows, rock ledges, Drought Biological Opinion), the District agreed debris piles, and concrete low water to implement conservation measures In severe drought, as the region has crossings for adults and loose that included, but were not limited to: experienced over the last 15 years embankments of rock and soil for Long-term monitoring of the snakes, (TWDB 2006, 1–60, 1–67), the linear juveniles. Dixon (2006, p. 2) stated that completing life-history studies, extent of dewatered riverine habitats during droughts the snakes were maintaining specific flow regimes from could be large and the length of time possibly in the crayfish burrows, since Spence and Ivie reservoirs, creating six without flows could extend for several they may retain moisture. artificial riffles below Spence, and months or more (Service 2004, p. 51). Even in light of the ongoing regional transplanting snakes between Decreased flow will likely reduce the drought (TWDB 2006, pp. 1–60, 1–67), populations above and below Ivie amount of available shallow rocky USGS stream gauges have registered Reservoir (Service 1986, pp. 12–24). habitats in much of the river. However, four flood events greater than 400 cubic As part of their long-term monitoring Concho water snakes appear able to feet per second (cfs) below Spence plan, District field biologists conducted survive these low flow periods. For Reservoir and six flood events greater extensive searches for the Concho water example, Elm Creek had experienced a than 1,000 cfs below Ivie Reservoir over snake beginning in 1987. According to number of extended no flow periods the last 10 years. While both Dixon Dixon et al. (1988, p. 12; 1990, pp. 50, over the 5 years prior to 2004 and then (2004, pp. 8–9) and Forstner et al. (2006, 62–65; 1991, pp. 60–67; 1992, pp. 84, flooded in August 2004. In September pp. 12, 15) document degradation of 87, 96–97), snakes have now been 2004, Dixon (2004, p. 11) noted Concho riffles from siltation, there are still documented within and above Spence water snakes inhabited the site. Dixon numerous riffles continuing to support Reservoir, downstream of Spence (2004, p. 12) surmised that snakes either Concho water snakes (Dixon 2004, pp. Reservoir in the artificial riffles, at moved from the mouth of Elm Creek at 5–8). Ballinger Municipal Lake, the old the Colorado River (a distance of 4.6 The Concho water snake has evolved Ballinger Lake, and the connecting creek mi (7.4 creek km)), or existed in and adapted for thousands of years channel between the two Ballinger deep pools somewhere within a through many documented long-term lakes. The snake has also been returnable distance to the site. Another droughts (Forstner et al. 2006, pp. 17– documented in multiple locations on example of snake persistence during dry 19). Forstner et al. (2006, pp. 16, 20) Elm Creek and two of its tributaries, times was the drying of Ballinger Lake state that ‘‘the impacts and future Bluff Creek and Coyote Creek (Scott and in 2004 and confirmation of stressors on this taxon by anthropogenic Fitzgerald 1985, pp.14–15, 30; and Scott reproductive snakes in the lake in 2005 and natural cycles are inevitable,’’ and et al. 1989, p. 384). following rains (Dixon 2004, p. 4; ‘‘the snake has persisted in an Additionally, during the District’s 10- Forstner et al. 2006, p. 15). environment for the past several year monitoring effort (1987–1997), According to Dixon (2004, p. 9), millennia that has seen frighteningly snakes were regularly found in Spence, during long periods of drought, the low- intense periods of drought.’’ Ivie, and Lake Ballinger Reservoirs, a head dams (small private dams, a few Additionally, while there have never habitat type they were not known to feet tall, that create pools upstream and been minimum flows required for the occupy at the time of listing. Concho riffle-like areas downstream) within Concho River below San Angelo, there

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are several smaller dams ‘‘up and down watershed. Stream flows during 1999 to Colorado and Concho rivers are gaining the Concho River, [which] act as refugia 2003 were substantially lower than the streams (Service 2004, pp. 50–51). for Concho water snakes (Dixon 2004, p. period of record for seven USGS stream Gaining streams gather water as you 4).’’ Therefore, because the snakes have gauges analyzed on the Colorado and progress downstream. This gathering of survived under long-term drought and Concho rivers. Recent flows on the water is exhibited not only by tributary low-flow conditions (Forstner et al. Concho River, where minimum flows inflow but also as bank discharge from 2006, p. 22), we believe that the threat have not been required, have been spring flow that occurs where shallow from drought is not likely to endanger particularly low. Prior to reservoir aquifers interface with the stream. This the Concho water snake in the construction near the City of San gaining stream phenomenon is greatly foreseeable future. Angelo, median annual flow on the controlled by ambient weather Concho River at the San Angelo and conditions. During periods of long-term Floodwater Scouring and Instream Paint Rock gauges was 32 and 26 cfs, drought, the tributaries and springs will Flows respectively, but declined to a median cease flowing; however, during normal As discussed above, at the time of annual flow of 0.2 and 0.1 cfs, rainfall periods, these sources of water listing, we believed the construction of respectively, from 1999 to 2003. help to restore and maintain more stable Ivie Reservoir would curtail normal Discharges on the Colorado River have instream flows in the mainstem (Service water flow and prevent floodwater not ceased since 1986 due partly to 2004, p. 50). Additionally, even when scouring. Without such flooding, riffle minimum flows required by the 1986 releases from dams have ceased, normal habitat is lost as the rocky streambed Biological Opinion on construction of seepage from a dam occurs and provides becomes covered with silt. In their Ivie Reservoir. However, median annual for the formation of pools (large and recent survey of the Concho water snake discharge prior to construction of Ivie small) that can provide habitat for the and its habitat, Forstner et al. (2006, pp. Reservoir was 71 cfs and declined to 9 Concho water snake and the fish it preys 14, 16) found that the lack of flushing cfs between 1999 and 2003 (Service upon for varying periods of time flows has allowed silt to settle and cover 2004, pp. 36–37). depending on ambient weather many of the riffles at historically In July 2004, the USACE reinitiated conditions. When dam releases are occupied sites and that several sites formal consultation (Consultation resumed, the pools (located below dams have changed from riffles to slow- Number 2–15–F–2004–0242) with the and up and downstream from spring flowing sandy sections of river, Service on the District’s activities. Prior areas) that may have served as refugial reducing habitat available to these to completing the consultation, the habitat are reconnected by flowing snakes. Sand and silt fill in graveled District indicated through a letter (2004, water. cobble substrate and provide areas for pp. 1–2), and the USACE concurred via If the Concho water snake is delisted, growth of salt cedar and other e-mail (2004, p. 1), that an emergency the minimum flow requirements vegetation, which further eliminates the situation existed due to a limited water required by the 2004 Biological Opinion rocky-bottomed riffle areas required by supply endangering public health and will no longer apply. However, in Concho water snakes (51 FR 31419; safety to their municipal customers February 2008 the Service entered into Scott and Fitzgerald 1985, p. 13; (450,000 people). The ongoing drought a MOU with the District to provide for Forstner et al. 2006, p. 15). However, and implementation of the conditions in the maintenance of these minimum flow despite some riffle habitat loss and the the 1986 Biological Opinion were given releases in perpetuity. The purpose of presence of other system stressors, as the basis for this emergency. During the MOU is for the District to provide Forstner et al. (2006, p. 18) noted that the emergency, the District was allowed assurance that minimum reservoir the Concho water snake persisted and to cease releasing minimum flows, releases will continue in perpetuity, continued to reproduce at the majority while formal consultation was ongoing. consistent with the 2004 BO (Service, of the sites they visited. Thus, we An amended biological opinion (2004 2004, pp. 11–12). The releases will be believe that the loss of some riffle Biological Opinion) was completed in maintained, to the extent there is habitat does not threaten the Concho December 2004. Shortly thereafter, the inflow, if the Concho water snake is water snake. District and the USACE determined the removed from the Federal list of Since issuance of the 1986 Biological emergency had ended and the threatened species. While this means Opinion and associated minimum flow requirements of the amended Biological the District has the authority to further requirements, stream flows throughout Opinion went into effect (Service 2004, reduce or even terminate flows during the range of the Concho water snake pp. 1, 3). The main component of the times of extremely low inflow, earlier have declined considerably (Forstner et 2004 Biological Opinion was a analysis using 10 years of historical data al. 2006, pp. 13–16). According to the reduction in minimum flow indicated that, based on studies that Regional Water Plan for Region F of the requirements (Service 2004, pp. 11–12). demonstrate persistence of the snake in Texas Water Development Board The new flow requirements included, to the past, such low flows occurring only (TWDB 2006, p. 1–6), ranching, irrigated the extent there is inflow into Spence occasionally and temporarily should not agriculture, and the oil and gas industry Reservoir, that the District will maintain affect the snake’s long-term status. have historically dominated the regional a minimum flow in the Colorado River The District has implemented every economy. The largest water user, about downstream of not less than 4.0 cfs activity requested by the Service in 66 percent of the total demand, is (0.11 cms) during April through previous biological opinions beginning irrigated agriculture (provided mostly September and 1.5 cfs (0.04 cms) during in 1986. The minimum flows required by groundwater pumping), and the months of October through March. in the 2004 Biological Opinion have municipal is the next largest water user While the reduced minimum flows been implemented by the District and at almost 22 percent (provided mostly outlined in the 2004 Biological Opinion those flow requirements were by surface water reservoirs) (TWDB will have an impact on the aquatic duplicated in the 2008 MOU signed by 2006, pp. 1–19, 1–24). Based on an habitat conditions in the Colorado the District. The District has an analysis of USGS stream gauges (Service River, those impacts will be ameliorated excellent track record of carrying out 2004, p. 36), low flows in the rivers in to some degree by the nature of the conservation actions to benefit the recent years have been exacerbated by intervening watersheds that drain each Concho water snake (Freese and Nichols low annual rainfall totals throughout the of these stream segments, since both the 2006, Service pp. 42–47). The Service is

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confident in the District’s commitment 4.0 cfs in the summer (April through many of its [pre-infestation] functions, and ability to carry out the provisions of September) all but 12 days. During the including native riparian habitat for the 2008 MOU to provide for minimum winter (October through March), daily wildlife and improved habitat for fish flows. Even in the absence of the MOU median flows always exceeded 1.5 cfs. and other aquatic organisms,’’ and is flow requirements, minimal amounts of Daily median flows in the reach of the ‘‘one of the most crucial options for water and stream flows will still be Colorado River below Ivie Reservoir (as improving water quality and quantity’’ present at various times of the year in measured at USGS at Winchell since (Freese and Nichols 2006, pp. 6.5–6.6). the gaining reaches of the Colorado Ivie Reservoir was constructed, 1990– We have no information that the River and below Spence and Ivie 2007) exceeded 8.0 cfs in the summer herbicide poses a direct poisoning threat Reservoirs due to: dam leakage/seepage, (April through September) all but 15 to the Concho water snake. inflow from creeks and other drainages, days. During the winter (October Additionally, control programs for and spring activity. through March), daily median flows invasive brush species, such as juniper In addition to the MOU, and the 2004 always exceeded 2.5 cfs. We believe that (Juniperus sp.) and mesquite (Prosopis Biological Opinion, Texas water law the District will continue to maintain sp.), are also being implemented in the requirements also result in maintenance instream flows in the foreseeable future. Concho and Upper Colorado River of instream flow. Texas observes While instream flows have decreased, basins to increase water quantity (Freese traditional appropriative water rights, Concho water snakes have continued to and Nichols 2006, p. 6.6; TSSWCB which is also known as the ‘‘first in be found throughout their range. In 2004, pp. 2–3). The TSSWCB is time, first in right’’ rule (See Texas addition, as discussed above in the currently focusing above O.C. Fisher Water Code § 11.027). The state’s water Drought section, Concho water snakes and Twin Buttes reservoirs on the policy requires the Texas Commission appear to be able to survive low flow Concho River and to date over 175,000 on Environmental Quality (TCEQ) to set, situations. Therefore, because the acres (70,820 hectares) of invasive brush to the extent practicable, minimum snakes have survived under low-flow have been treated in these watersheds instream flows to protect the state’s conditions, and because some minimal (TSSWCB 2004, pp. 2–3). The removal water quality when issuing water rights flows will persist throughout parts of and control of salt cedar and other permits (See Texas Water Code the snake’s range (Forstner et al. 2006, invasive brush from the riparian reaches § 11.0235(c)). Furthermore, Texas water p. 22) due to natural inflows and dam of the Colorado and Concho rivers helps law prohibits the owner of stored water releases by the District, we believe that augment existing stream discharge and from interfering with water rights the Concho water snake is not also reduces buildup of dissolved solids holders downstream or releasing water threatened due to lack of instream flows (salts) in the soils of the riparian zone that will degrade the water flowing in the foreseeable future. (Service 2004, p. 56). Additionally, this through the stream or stored removal encourages reformation of riffle Vegetation Encroachment downstream (Texas Water Code areas, increases stream flow, and § 297.93). Salt cedar (Tamarisk sp.) is a reduces sediment deposition, which The District’s water rights permit nonnative species that was introduced improves instream habitat for the (TCEQ permit #3676) requires the to the United States in the 1800s from Concho water snake and other aquatic District to maintain flows below Ivie southern Europe or the eastern species (Freese and Nichols 2006, p. Reservoir of 8 cfs from April through Mediterranean region (DiTomaso 1998, 6.6). September and 2.5 cfs from October p. 326). In the watersheds of the Spence through March. Flows must be and Ivie Reservoirs, these plants are Fragmentation maintained below both Spence and Ivie abundant and have been reported to At the time of listing, we believed reservoirs to ensure water quality and have greatly affected water quality and construction of Ivie Reservoir (formed provide for downstream water rights. quantity because they consume large by Freese Dam) would likely segment Flows are mandated and releases from volumes of water and then transport Concho water snakes into three separate Spence Reservoir are periodically salts from the water to the surfaces of populations and thereby reduce genetic required by the State of Texas to ensure their leaves. When the leaves are exchange (Scott and Fitzgerald 1985, p. the quality of water entering Ivie dropped in the fall, the salt is 34). Prior to the snake’s listing in 1986, Reservoir. Spence Reservoir is known to concentrated at the soil surface (Freese no researchers had documented Concho be high in dissolved solids and and Nichols 2006, p. 5.5; DiTomaso water snakes traveling over land to chlorides (Service 2004, p. 6), so if flows 1998, p. 334). circumvent the barriers caused by large into Spence Reservoir are low, water In an effort to increase water yield dams, and snakes had not been located quality in the reservoir can become and reduce salt concentrations in in reservoirs. Due to this separation, a degraded unless flushing flows are Spence and Ivie reservoirs, the District, reasonable and prudent measure in the released. The District must also ensure in cooperation with the Texas 1986 Biological Opinion was to transfer that senior water right holders are Cooperative Extension, the Texas snakes annually between the delivered specific amounts of water Department of Agriculture, the U.S. populations separated by the dam. from Ivie Reservoir. Therefore, long- Department of Agriculture— Snakes were transferred in 1995 and term low flow releases or no releases Agricultural Research Service, and the again in 2006 (District 1995, p. 1; from Spence and Ivie Reservoirs are Texas State Soil and Water Conservation District 2006, pp. 1–3). rare. Board (TSSWCB), has initiated a salt Because we now know Ivie Reservoir, The District has been able to maintain cedar control project in the Upper which receives flow from both the flows from both Spence and Ivie Colorado River Basin, which includes Concho and Colorado Rivers, to be reservoirs over the long term as spraying an herbicide to eradicate mass occupied, we believe it is reasonable to evidenced by long-term measures of concentrations of salt cedar and then surmise that snakes are capable of flows at two gages. Daily median flows using a leaf beetle for biological control genetic interchange between the Concho in the reach of the Colorado River below of new plant growth (Freese and Nichols and Colorado Rivers via the reservoirs’ Spence Reservoir (as measured at USGS 2006, p. 6.4). This project ‘‘is an shorelines. The District (1998, p. 14) near Ballinger since Spence Reservoir excellent first step in the recovery of the summarized Concho water snake habitat was constructed, 1969–2007) exceeded Upper Colorado River Basin back to within Ivie Reservoir and found that

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although the habitat is not linearly significant threats to the snake’s the principal food of the Concho water consistent, it does occur throughout the survival. snake (Williams 1969, pp. 9–10; Dixon reservoir. Female Concho water snakes The Concho water snake was listed as et al. 1988, p. 16; 1989, p. 8; 1990, p. produce their first young at 2 or 3 years endangered by the State of Texas in 36; 1992, p. 6; Greene et al. 1994, p. 167; of age (Werler and Dixon 2000, p. 216). 1984. In 2000, it was removed from the Thornton 1990, p. 14). While we do not Based on occupancy of reservoirs and State’s list of threatened species (TPWD know the full extent of the drought’s moderate generation time, we have a 2000, p. 3) because TPWD no longer effects on the local fish populations, we high level of confidence that gene flow considered it likely to become do have information that indicates the occurs between populations. endangered (64 FR 41903). snake is able to survive in captivity for In recent surveys, Forstner et al. 2006 The Texas State Legislature up to 12 months with a reduced food (pp. 10–13, 18) found that Concho water implemented the Texas Clean Rivers supply (Dixon 2006, p. 2), and based on snakes were reproducing in the Concho program in 1991. The District has the snake’s persistence and and Colorado Rivers above Ivie actively participated in the program reproduction within all three reaches Reservoir and in the Colorado River since that time and monitors surface (Forstner et al. 2006, pp. 10–13, 18), we below it; they concluded that the water quality in the upper Colorado believe that the Concho water snake is populations in those three river reaches River basin, which includes the no longer threatened with distribution of the Concho water snake were self sustaining and seemingly endangerment in the foreseeable future above Freese Dam. The Lower Colorado viable (Forstner et al. 2006, pp. 16–18, as a result of potential threats to local River Authority (LCRA) has the 20). The 2008 MOU (mentioned above), food fish populations. responsibility for water quality Article 4.1 also provides that, in the monitoring below Freese Dam. Both of Factor A Summary springtime, the District, in coordination these entities have participated in the In conclusion, over the course of 20 with the Service, should move 5 male Clean Rivers Program since 1991 and years, including the construction of snakes from below Spence and Freese have provided a proactive response for three dams that were anticipated to dams to above these dams, once every ensuring a high level of surface water fragment the distribution of the Concho 3 years. Moving snakes will be quality in the Colorado River and its water snake, a prolonged drought dependent upon availability of funding mainstem reservoirs. These programs accompanied by extreme low water for the District. We believe this are ongoing and designed to ensure flows in parts of the snake’s range, and movement will benefit the snake by water quality integrity for all aquatic concerns about heavy nutrient inflows, enhancing genetic exchange between resources, including the Concho water surveys have confirmed that the snakes the three populations. Should funding snake and fish, its primary food source, have occupied habitat along the new be unavailable in any particular snake- in the upper basin. As water quality lakeshores, survived in or quickly moving year, every effort will be made problems are detected, swift responses reoccupied areas of extreme low flows, to move snakes in the succeeding year. by the District and LCRA to effect and have not been adversely affected by Based on the available data, we do not corrective actions through State of Texas nutrient-related effects. Additionally, believe the species is likely to become regulatory agencies (TCEQ and the habitat restoration efforts such as the threatened or endangered in the Texas Railroad Commission) are removal of salt cedar and other brushy foreseeable future due to genetic completed (Service 2004, pp. 52–53). species may be improving instream isolation. Additional water quality protections habitat for the Concho water snake and Pollution and Water Quality for Concho water snakes in riverine and other aquatic species. We believe that reservoir habitats will continue destruction, modification, or At the time of listing, we believed indirectly under the Clean Water Act curtailment of the Concho water snake buildup of algae in riffle areas reduced (CWA). According to the Environmental habitat or range due to habitat loss, oxygen and nutrients available to Protection Agency (2006, p. 1), the CWA altered instream flows and floodwater populations of fish, the Concho water establishes basic structures for scouring, drought, vegetation snake’s primary food (51 FR 31419). We regulating discharges of pollutants into encroachment, fragmentation, and were also concerned that the inflow of United States waters, protecting water pollution no longer threaten the Concho nutrients into the Concho River in the quality for species dependent on rivers water snake with becoming endangered. San Angelo area, along with reduced and streams for their survival. Forstner (2006 p. 12) cites Soule’s dilution capability associated with According to species experts, 1987 definition that describes the key lower flows, created large minimally maintained, ‘‘mandated criteria for a viable population to concentrations of algae in portions of flows below Ivie Reservoir (TCEQ include the ability of the population to the river (51 FR 31419). A summary of permit #3676) [and] senior water rights be self sustaining, able to persist over the 1987–1996 fish collections in the below both Spence and Ivie reservoirs’’ time (a century or longer for the Concho Colorado and Concho Rivers, included will adequately provide instream flows water snake), and the ability to adapt to in the Service’s 2004 Biological Opinion for the Concho water snake (Forstner et local conditions and evolutionary (Appendix A, pp. 68–69), suggested that al. 2006, p 21), preventing the snake pressures. Forstner stated that the fish populations have persisted despite from likely becoming threatened or criteria of self sustaining, seemingly the presence of algae. Also, no impacts endangered in the foreseeable future viable populations in the Concho and to snakes have been observed or because the snake has persisted under Colorado rivers at the end of a decade documented as a result of water quality these conditions historically, including of monitoring have been met. Recalling conditions during the ongoing drought the ongoing drought, as discussed the three recovery criteria from the 1993 (Service 2004, p. 52). Additionally, earlier in this proposal. Concho Water Snake Recovery Plan: according to Dixon (2006, p. 2), Concho Adequate instream flows, viable water snakes have been documented to Forage Fish Availabilty populations in each of the three major survive in captivity for as long as 12 At the time of listing, we believed that reaches (as indicated by not only the months with a reduced food supply. declining flows, inundation, pollution, repeated presence of snakes at long-term Therefore, we no longer consider algal and other habitat threats would have monitoring sites, but by documented growth and nutrient enrichment to be adverse impacts on riffle-dwelling fish, evidence of reproduction as a measure

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of sustainability), and movement of recreation occurring on the Concho and inadequacy of existing regulatory water snakes to counteract population Colorado Rivers, where the Concho mechanisms does not constitute an fragmentation. Forstner’s 2006 Final water snake occurs, as there is on the ongoing threat to the Concho water Survey Assessment Report (May 18, Brazos River. We are unaware of any snake. 2006 p. 12) concludes that his plans to increase recreational E. Other Natural or Manmade Factors assessment indicates that two out of opportunities in the Colorado and Affecting Its Continued Existence three of the criteria have been met. Concho Rivers to increase recreational Fortner (2006 p. 13) then states that his use. Therefore, we believe that impacts We are unaware of any other natural assessment did not address the final from recreationists will continue to be or manmade factors affecting the instream flow criterion, yet concludes less in the foreseeable future in the areas continued existence of the Concho that ‘‘in addition to the mandated flows occupied by Concho water snakes. water snake at this time. below Ivie Reservoir (TCEQ permit While some limited killing of snakes Conclusion of the Five-Factor Analysis #3676), senior water rights below both is likely still occurring, there is no Spence and Ivie Reservoirs virtually evidence indicating that these As required by the Act, we considered assure maintenance of instream flows mortalities are affecting the species on the five potential threat factors to assess simply as a consequence of meeting a rangewide or population level. whether the Concho water snake is those water right demands. The Therefore, we find that mortality from threatened or endangered throughout all assurance of the instream flow criterion this factor is not likely to cause the or a significant portion of its range. can be met without ever considering the species to become threatened or When considering the listing status of flows agreed to by the District in the endangered in the foreseeable future. the species, the first step in the analysis is to determine whether the species is in 2008 MOU. The Service realizes that C. Disease or Predation severe environmental conditions that danger of extinction throughout all of its reduced reservoir releases and instream At the time of listing, no problems of range. If this is the case, then the species flow have occurred in the past and will disease or predation on Concho water is listed in its entirety. For instance, if occur in the future, and we are snakes were known to exist (51 FR the threats on a species are acting only confident that the District will continue 31420). While currently no disease on a portion of its range, but they are to implement all appropriate problems are known, predators on at such a large scale that they place the conservation actions, including Concho water snakes have been entire species in danger of extinction, providing the flows outlined in the 2008 identified. As is true for most snakes, we would list the entire species. MOU. Furthermore, we believe that the predation is considered a major natural Since the time of listing, it has been District will continue to comply with its source of mortality for Concho water shown that: (1) Concho water snakes TCEQ water rights permit, which snakes (Werler and Dixon 2000, p. 215). can survive lower flows than previously mandates flow releases from Ivie Predators documented to prey on thought necessary for their survival; (2) Reservoir. Since the listing of the Concho water snakes include mandated flows, downstream senior Concho water snake in 1986, the District kingsnakes (Lampropeltis getula), water rights, and the 2008 MOU has an impeccable track record of coachwhip snakes (Masticophis between the District and the Service providing flows, moving snakes, and flagellum), racers (Coluber constrictor), virtually assure maintenance of facilitating/conducting research and raccoons (Procyon lotor), and great blue adequate instream flows; (3) viable monitoring to conserve the species. herons (Ardea herodias) (Greene 1993, populations of Concho water snakes p. 102; Dixon et al. 1988, p. 18; exist in all three reaches of the species’ B. Overutilization for Commercial, Williams 1969, p. 15). Raptors such as range; (4) the snake uses the shoreline Recreational, Scientific, or Educational hawks (Buteo spp.) and falcons (Falco of reservoirs; (5) snakes may not need to Purposes sp p.) are also known to predate upon be transferred between populations in At the time of listing, Concho water snakes (Steenhof and Kochert 1988, p. order to prevent genetic isolation, snakes were known to sometimes be 42). Predatory fish include bass although the 2008 MOU provides for captured or killed by recreationists (51 (Micropterus salmoides) and channel them to be moved; and (6) it persists, FR 31420). The effect of this activity on catfish (Ictaclurus punctatus) (McGrew reproduces, and remains viable Concho water snake populations was 1963, pp. 178–179; Jordan and throughout its range. In addition, the and still is believed to be minimal. Arrington 2001, 158). Predation of removal of salt cedar and other invasive However, instances of Concho and Concho water snakes clearly is brushy species is restoring riparian Brazos water snakes being killed have occurring; however, all of these habitat, small riffles, and water quality been reported in both populated and predators are native to this region and for the Concho water snake. unpopulated areas. For example, Brazos the snakes have persisted in the face of Application of the Results of the Five water snakes have been crushed under such predation both historically and Factor Analysis to the Recovery Plan’s stones at the water’s edge by people during the last 20 years during periods Criteria walking on the banks and shot by small of dam construction and drought. Thus, caliber firearms, and fishermen have we believe that mortality from predation The 1993 Recovery Plan described commented on their success in is not likely to cause them to become maintenance of adequate instream flows removing the ‘‘water moccasins’’ from threatened or endangered in the (Recovery Criterion 1) to maintain both the river (Forstner et al. 2006, pp. 18– foreseeable future. the quantity and quality of Concho 19). At one of the historically most water snake habitat so that occupied productive localities for Brazos water D. The Inadequacy of Existing habitat would continue to support snakes (a closely related species Regulatory Mechanisms viable populations of the species. At the occurring in an adjacent drainage), Due to the Texas Clean Rivers time the recovery plan was completed, Forstner et al. (2006, p. 18) found no program, other Texas water law adequate instream flow rates were based snakes in 2 years of searching. They requirements, and the 2008 MOU on the constituent elements identified noted dozens to hundreds of campers at between the Fish and Wildlife Service in the 1989 critical habitat designation the site each year. According to Dixon and the ASACE, both discussed earlier (54 FR 27382) and the reasonable and (2006, p. 2), there is not as much under Factor A, we believe that prudent alternatives identified in the

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1986 Biological Opinion for the water snake (including snake abundance prescribed the movement of four snakes construction of O.H. Ivie Reservior. and reproductive success). This was (two of each sex) every five years in a However, those requirements changed further confirmed by the Fortner et al. specific pattern above and below Ivie as the following new information 2006 report. Reservoir (Recovery Criterion 3). The became available: In order to maintain riverine habitats 2004 Biological Opinion discussed (1) Lower flow rates support the snake in the Colorado River, we entered into population fragmentation (Service 2004, population; a MOU in 2008 to ensure that the p. 52) and changed the specific (2) Information on the snake’s habitat District will operate Colorado River requirement for snake movements to indicates that they are more of a reservoirs to provide adequate instream five male water snakes above and below generalist and do not depend on the flows if the species were delisted, both the Robert Lee and Freese Dams previously accepted narrow habitat consistent with the 2004 Biological once every three years. The Service requirements; and Opinion (see Factor A section above for believes that these movements are (3) Adequate flow to maintain the more information). sufficient to maintain genetic snake’s habitat and the snake In addition to the MOU, the District heterogeneity between the separated population is provided by a variety of also maintains flows below Spence and populations. The 2008 MOU requires sources in addition to the flow required Ivie reservoirs to ensure water quality the same movements of snakes by the by the 2004 Biological Opinion (and and provide for downstream water District even after the species is subsequently required in a 2008 rights. Flows are mandated and releases delisted. The Service based its belief Memorandum of Understanding from Spence Reservoir are periodically and change in snake movement (MOU)). required by the State of Texas to ensure requirements on information available As discussed above, in 2004, we the quality of water entering Ivie from monitoring and capture and revised the biological opinion and Reservoir. Spence Reservoir is known to release data after the preparation of the determined that lower flow rates were be high in dissolved solids and Recovery Plan. adequate to support riverine habitat for chlorides (Service 2004, p. 6), which As a result of the new information the snake. This was based on new results in period releases of water from discussed above, it is our belief that the information from numerous studies Spence Reservoir to maintain its water Recovery Plan’s criteria for recovery of funded by the District in the 1990s that quality. The District must also ensure the species have been met. greatly added to our knowledge of the that senior water right holders are biology of the snake and its habitat. delivered specific amounts of water Significant Portion of the Range Monitoring of the snake population from Ivie Reservoir. Therefore, long Analysis indicated that the population was term low flow releases or no releases Having determined that the Concho sustained by the lesser flows required in from Spence and Ivie Reservoirs are not water snake no longer meets the the 2004 Biological Opinion (Forstner common practices unless an emergency definition of threatened or endangered, 2006, p. 12). situation occurs. we must next consider whether there It is now known that the Concho The Recovery Plan also required are any significant portions of its range water snake is more of a habitat maintaining viable populations of the that are in danger of extinction or are opportunist than originally believed snake (Recovery Criterion 2). Forstner et likely to become endangered in the (Dixon 2004). In addition to riverine al. (2006, pp. 18, 20) reviewed the past foreseeable future. On March 16, 2007, habitat, the snake is known to use areas population data collected on the snake a formal opinion was issued by the above and below low head dams, pools as well as conducted field surveys in Solicitor of the Department of the created by the dams, man-made lakes, 2005 and 2006. Based on the snakes’ Interior, ‘‘The Meaning of ‘In Danger of naturally occurring pools in the river, persistence and reproduction Extinction Throughout All or a and tributaries, as Concho water snake throughout its range Forstner et al. Significant Portion of Its Range’’’ (U.S. has been found in Elm Creek and two (2006, pp. 18, 20) concluded that DOI 2007). We have summarized our of its tributaries. Further analysis by seemingly viable populations of Concho interpretation of that opinion and the Forstner et al. (2006, p. 16) concluded water snakes exist in all three reaches of underlying statutory language below. A that Concho water snakes can survive in the species’ range. A re-analysis of portion of a species’ range is significant habitats with lower flows than Concho water snake monitoring data if it is part of the current range of the previously thought. collected from 1987 to 1996 attempted species and is important to the While riverine habitat is important for to evaluated the population dynamics of conservation of the species because it the conservation of the snake, the need the species and assess the long-term contributes meaningfully to the to maintain continuous flows at levels viability (Whiting et al. 2008, pp. 438– representation, resiliency, or previously required were determined to 439). The results, however, were redundancy of the species. The no longer be necessary to provide inconclusive due to uncertainties in the contribution must be at a level such that adequate habitat for snakes. The flows various models used and the inability to its loss would result in a decrease in the described in the Recovery Plan and the account for snake movements from the ability to conserve the species. specific flows included in the 1989 database used in the analysis (Whiting The first step in determining whether critical habitat designation were based et al. 2008, p. 443). The study stated that a species is threatened or endangered in on the best scientific information at that snakes continued to persist even in a significant portion of its range is to time; however, subsequent information drought-prone areas with hydrologically identify any portions of the range of the provided by Forstner, Dixon, and dynamic systems (Whiting et al. 2008, species that warrant further Thornton indicated that the snake p. 443). Although we lack adequate data consideration. The range of a species survived, reproduced, and maintained on population size and viability, we can theoretically be divided into population viability with less stream have used data on range, persistence, portions in an infinite number of ways. flow. In response to that new and breeding activity as surrogates. However, there is no purpose to information, the Service required lower The Recovery Plan also discussed the analyzing portions of the range that are stream flows in the 2004 Biological movement of Concho water snakes to not reasonably likely to be significant Opinion and based that decision on the counteract adverse impacts of and threatened or endangered. To continued population viability of the population fragmentation and identify only those portions that warrant

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further consideration, we determine concentration of certain types of habitat the foreseeable future throughout all or whether there is substantial information that are necessary for the species to a significant portion of its range. We indicating that (i) The portions may be carry out its life-history functions, such believe the Concho water snake no significant and (ii) the species may be in as breeding, feeding, migration, longer requires the protection of the Act, danger of extinction there or likely to dispersal, or wintering. and, therefore, we are proposing to become so within the foreseeable future. Redundancy of populations may be remove it from the Federal List of In practice, a key part of this analysis is needed to provide a margin of safety for Endangered and Threatened Wildlife. whether the threats are geographically the species to withstand catastrophic concentrated in some way. If the threats events. This does not mean that any Effects of This Proposed Rule to the species are essentially uniform portion that provides redundancy is a If made final, this rule would revise throughout its range, no portion is likely significant portion of the range of a 50 CFR 17.11 (h) to remove the Concho to warrant further consideration. species. The idea is to conserve enough water snake from the Federal List of Moreover, if any concentration of areas of the range such that random Endangered and Threatened Wildlife. threats applies only to portions of the perturbations in the system act on only The prohibitions and conservation range that are unimportant to the a few populations. Therefore, each area measures provided by the Act, conservation of the species, such must be examined based on whether particularly through sections 7 and 9, portions will not warrant further that area provides an increment of would no longer apply to this species. consideration. redundancy that is important to the Federal agencies would no longer be If we identify any portions that conservation of the species. required to consult with us to insure warrant further consideration, we then Adequate representation insures that that any action they authorize, fund, or determine whether in fact the species is the species’ adaptive capabilities are carry out may affect the Concho water threatened or endangered in any conserved. Specifically, the portion snake. Critical habitat was designated significant portion of its range. should be evaluated to see how it for the Concho water snake on June 29, Depending on the biology of the species, contributes to the genetic diversity of 1989 (54 FR 27377). If finalized, this its range, and the threats it faces, it may the species. The loss of genetically rule would also revise 50 CFR 17.95(x) be more efficient in some cases for the based diversity may substantially to remove the critical habitat Service to address the significance reduce the ability of the species to designation. question first, and in others the status respond and adapt to future question first. Thus, if the Service environmental changes. A peripheral Regulatory Planning and Review determines that a portion of the range is population may contribute meaningfully (Executive Order 12866) not significant, the Service need not to representation if there is evidence The Office of Management and Budget determine whether the species is that it provides genetic diversity due to (OMB) has determined that this rule is threatened or endangered there; its location on the margin of the species’ not significant under Executive Order conversely, if the Service determines habitat requirements. 12866 (E.O. 12866). OMB bases its that the species is not threatened or Applying the process described above determination upon the following four endangered in a portion of its range, the for determining whether a species is criteria: Service need not determine if that threatened in a significant portion of its (a) Whether the rule will have an portion is significant. range, we next addressed whether any annual effect of $100 million or more on The terms ‘‘resiliency,’’ portions of the range of the Concho the economy or adversely affect an ‘‘redundancy,’’ and ‘‘representation’’ are water snake warranted further economic sector, productivity, jobs, the intended to be indicators of the consideration. We concluded through environment, or other units of the conservation value of portions of the the five-factor analysis, in particular government. range. Resiliency of a species allows the Factor A that the existing or potential (b) Whether the rule will create species to recover from periodic threats are consistent throughout its inconsistencies with other Federal disturbance. A species will likely be range, and there is no portion of the agencies’ actions. more resilient if large populations exist range where one or more threats is (c) Whether the rule will materially in high-quality habitat that is geographically concentrated. We believe affect entitlements, grants, user fees, distributed throughout the range of the that there are no small geographic areas loan programs, or the rights and species in such a way as to capture the where localized threats still exist. obligations of their recipients. environmental variability within the Because the low level of threats to the (d) Whether the rule raises novel legal range of the species. It is likely that the species is essentially uniform or policy issues. larger size of a population will help throughout its range, no portion Post-Delisting Monitoring contribute to the viability of the species. warrants further consideration. Thus, a portion of the range of a species In summary, Concho water snakes can Section 4(g)(1) of the Act requires the may make a meaningful contribution to survive lower flows than previously Service to implement a system, in the resiliency of the species if the area thought necessary for their survival; cooperation with the States, to monitor is relatively large and contains mandated flows and downstream senior for not less than 5 years the status of all particularly high-quality habitat or if its water rights virtually assure species that have recovered and been location or characteristics make it less maintenance of instream flows; viable removed from the lists of threatened and susceptible to certain threats than other populations of Concho water snakes endangered wildlife and plants (50 CFR portions of the range. When evaluating exist in all three reaches of the species’ 17.11, 17.12). The purpose of this post- whether or how a portion of the range range. Based on the snake’s use of delisting monitoring (PDM) is to verify contributes to resiliency of the species, reservoirs, persistence, reproduction, that the species remains secure from it may help to evaluate the historical and viability throughout its range, we risk of extinction after it has been value of the portion and how frequently have determined that none of the removed from the protections of the Act. the portion is used by the species. In existing or potential threats, either alone We are to make prompt use of the addition, the portion may contribute to or in combination with others, are likely emergency listing authorities under resiliency for other reasons—for to cause the Concho water snake to section 4(b)(7) of the Act to prevent a instance, it may contain an important become in danger of extinction within significant risk to the well being of any

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recovered species. Section 4(g) of the Clarity of the Rule pursuant to section 4(a) of the Act. We Act explicitly requires cooperation with published a notice outlining our reasons Executive Order 12866 requires each the States in development and for this determination in the Federal agency to write regulations that are easy implementation of PDM programs, but Register on October 25, 1983 (48 FR to understand. We invite your we remain responsible for compliance 49244). comments on how to make this with section 4(g) and, therefore, must proposed rule easier to understand, References Cited remain actively engaged in all phases of including answers to questions such as PDM. We also seek active participation A complete list of all references cited the following: (1) Are the requirements of other entities that are expected to herein is available upon request from in this proposed rule clearly stated? (2) assume responsibilities for the species’ the U.S. Fish and Wildlife Service, Does the proposed rule contain conservation, post-delisting. Austin Ecological Services Field Office technical language or jargon that (see FOR FURTHER INFORMATION CONTACT). The Service is developing a draft PDM interferes with the clarity? (3) Does the plan in cooperation with the District format of the proposed rule (grouping Authors and Texas Parks and Wildlife and order of sections, use of headings, The primary authors of this document Department. We intend to publish a paragraphing, etc.) aid or reduce its notice of availability of the draft plan in are staff located at the Austin Ecological clarity? (4) Would the rule be easier to FOR FURTHER the Federal Register, and solicit public Services Field Office (see understand if it were divided into more INFORMATION CONTACT). comments on that plan, prior to (but shorter) sections? (5) Is the finalizing this proposed rule. All public description of the proposed rule in the List of Subjects in 50 CFR Part 17 comments on the draft PDM will be ‘‘Supplementary Information’’ section of Endangered and threatened species, considered and incorporated into the the preamble helpful in understanding Exports, Imports, Reporting and final PDM plan as appropriate. The final the document? (6) What else could we recordkeeping requirements, and PDM plan and any future revisions will do to make the proposed rule easier to Transportation. be posted on our Endangered Species understand? Send a copy of any written Program’s national Web page (http:// comments about how we could make Proposed Regulation Promulgation endangered.fws.gov) and on the Austin this rule easier to understand to: Office Accordingly, we propose to amend Ecological Services Field Office Web of Regulatory Affairs, Department of the part 17, subchapter B of chapter I, title page (http://www.fws.gov/southwest/es/ Interior, Room 7229, 1849 C Street, NW, 50 of the Code of Federal Regulations, AustinTexas/). Washington, DC 20240. You also may e- as set forth below: Peer Review mail the comments to this address: [email protected]. PART 17—[AMENDED] In accordance with our joint policy Paperwork Reduction Act published in the Federal Register on 1. The authority citation for part 17 July 1, 1994 (59 FR 34270), we will seek This rule does not contain any new continues to read as follows: the expert opinions of at least three collections of information that require Authority: 16 U.S.C. 1361–1407; 16 U.S.C. appropriate and independent specialists approval by OMB under the Paperwork 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– regarding this proposed rule. The Reduction Act. This rule will not 625, 100 Stat. 3500; unless otherwise noted. purpose of such review is to ensure that impose recordkeeping or reporting § 17.11 [Amended] our proposed rule is based on requirements on State or local 2. Section 17.11(h) is amended by scientifically sound data, assumptions, governments, individuals, businesses, or removing the entry ‘‘Snake, Concho and analyses. We will send peer organizations. An agency may not water’’ under ‘‘REPTILES’’ from the List reviewers copies of this proposed rule conduct or sponsor, and a person is not of Endangered and Threatened Wildlife. immediately following publication in required to respond to, a collection of the Federal Register and will invite information unless it displays a § 17.95 [Amended] them to comment, during the public currently valid OMB control number. 3. Amend section 17.95(c) by comment period, on the specific National Environmental Policy Act removing the critical habitat entry for assumptions and conclusions regarding ‘‘Concho water snake, Nerodia the proposal to delist the Concho water We have determined that an paucimaculata.’’ snake. We will consider all comments Environmental Assessment or an and information received during the Environmental Impact Statement, as Dated: June 26, 2008. comment period on this proposed rule defined under the authority of the H. Dale Hall, during preparation of a final National Environmental Policy Act of Director, U.S. Fish and Wildlife Service. rulemaking. Accordingly, the final 1969, need not be prepared in [FR Doc. E8–15133 Filed 7–7–08; 8:45 am] decision may differ from this proposal. connection with regulations adopted BILLING CODE 4310–55–P

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