[Federal Register Volume 64, Number 167 (Monday, August 30, 1999)]
[Rules and Regulations]
[Pages 47126-47134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22459]



[[Page 47126]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC09


Endangered and Threatened Wildlife and Plants; Threatened Status 
for Lake Erie Water Snakes (Nerodia sipedon insularum) on the Offshore 
Islands of Western Lake Erie

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (Act), we (the U.S. Fish and Wildlife Service) determine 
threatened status for the Lake Erie water snake (Nerodia sipedon 
insularum) found among the western Lake Erie offshore islands and 
adjacent waters in the U.S. and Canada. This listing does not extend 
the Act's protection to water snakes (Nerodia sipedon) found on the 
U.S. mainland, Canadian mainland, or the adjacent near-shore U.S. 
islands (e.g., Mouse Island and Johnson Island in Ohio). Small 
population size, persecution by humans, and habitat destruction are the 
primary threats. This action implements the Act's protections for the 
Lake Erie water snake. In addition, it identifies specific handling 
conditions that do not violate the Act's prohibitions.

EFFECTIVE DATE: The effective date of this rule is August 30, 1999 (see 
``Effective Date'' section under SUPPLEMENTARY INFORMATION below).

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours, at offices of the U. S. 
Fish and Wildlife Service in Fort Snelling, Minnesota, and in 
Reynoldsburg, Ohio. The Minnesota office is located at the Federal 
Building, 1 Federal Drive, Fort Snelling, Minnesota 55111-4056. The 
Ohio office is located at 6950-H Americana Parkway, Reynoldsburg, Ohio 
43068.

FOR FURTHER INFORMATION CONTACT: Buddy B. Fazio, endangered species 
biologist, Ohio (614-469-6923 ext. 13) or Jennifer Szymanski, 
biologist, Division of Endangered Species, Minnesota (612-713-5342) at 
the above addresses.

SUPPLEMENTARY INFORMATION:

Background

    This listing provides threatened status and Endangered Species Act 
protection to the Lake Erie water snake (Nerodia sipedon insularum) 
located on the western Lake Erie offshore islands and adjacent waters. 
This listing does not include water snakes (N. sipedon) found on the 
Canadian mainland, U.S. mainland, or adjacent near-shore islands due to 
those areas having high occurrence of northern water snakes (N. s. 
sipedon), intergrades between the two subspecies, and the low 
occurrence of Lake Erie water snakes (N. s. insularum). This means 
water snakes located on Ohio's Catawba/Marblehead Peninsula, Mouse 
Island and Johnson Island (also referred to as Johnson's Island), and 
Canada's Point Pelee are not protected under the Act by this listing. 
We define near-shore islands as those islands or rock outcrops located 
immediately adjacent to, or within 1.6 kilometers (km) (1 mile (mi)) of 
either mainland.
    We define offshore islands as those 22 or more named and unnamed 
western Lake Erie islands and rock outcrops located greater than 1.6 
(km)(1 mi) from the Ohio mainland and Ontario mainland. We define the 
offshore island's adjacent waters as the western Lake Erie waters 
surrounding the offshore islands and located greater than 1.6 (km)(1 
mi) from the Ohio mainland and Ontario mainland. These islands and rock 
outcrops and their adjacent waters are located within boundaries 
roughly defined as 82 deg.22'30'' North Longitude, 83 deg.07'30'' North 
Longitude, 41 deg.33'00'' West Latitude, and 42 deg.00'00'' West 
Latitude. The U.S. Lake Erie offshore islands and rock outcrops 
include, but are not limited to, the islands called Kelleys, South 
Bass, Middle Bass, North Bass, Sugar, Rattlesnake, Green, Gibraltar, 
Starve, Gull, Ballast, Lost Ballast, and West Sister. Canadian Lake 
Erie offshore islands and rock outcrops of Lake Erie include, but are 
not limited to, the islands called Pelee, Middle, East Sister, Middle 
Sister, North Harbour, Hen, Chick, Big Chicken, and Little Chicken.
    Lake Erie water snakes (N. s. insularum) were briefly described by 
Morse (1904) as Natrix fasciata erythrogaster. Conant and Clay (1937, 
1963) described the Lake Erie water snake subspecies more fully. Lake 
Erie water snakes are uniformly gray or brown and have either no color 
pattern or have blotches or banding that are faded or reduced (Conant 
and Clay 1937, 1963; Camin and Ehrlich 1958; Conant 1982; Kraus and 
Schuett 1982; King 1987b, 1991). Color pattern variations among Lake 
Erie water snakes are thought to result from the combined effects of 
both natural selection and gene flow (King 1993b, 1993c; King and 
Lawson 1995). On the rocky shorelines of the western Lake Erie islands, 
water snakes with unbanded or reduced patterns appear to have a 
survival advantage compared to fully patterned water snakes (Camin et 
al. 1954; Camin and Ehrlich 1958; Ehrlich and Camin 1960; King 1992a). 
Female Lake Erie water snakes grow up to 1.1 meters (m) (3.5 feet (ft)) 
long and are larger than males. Newborn Lake Erie water snakes are the 
size of a pencil when born during late summer, or early fall.
    Lake Erie water snakes use habitat composed of shorelines that are 
rocky or contain limestone/dolomite shelves and ledges for sunning and 
shelter (Conant and Clay 1937; Conant 1951; Thomas 1949; Camin and 
Ehrlich 1958; King 1986, 1987b). Shelter (refugia) occurs in the form 
of loose rocks, piled rocks, or shelves and ledges with cracks, 
crevices, and nearby sparse shrubbery (Thomas 1949; King 1986, 1992a). 
Lake Erie water snakes are found less often on shorelines composed of 
small stones, gravel or sand (Conant and Clay 1937; Conant 1938; King 
1986). Certain types of rip-rap, armor stone, or docks made with rock 
cribs can serve as shelter for Lake Erie water snakes (Conant and Clay 
1937; Conant 1938, 1982; King 1990; Service 1994), provided adequate 
space exists in these structures that is above Lake Erie's water and 
ice levels.
    The Lake Erie water snake (N. s. insularum) and the northern water 
snake (N. s. sipedon) are separate subspecies. Northern water snakes 
(N. s. sipedon) are common and widely distributed in eastern North 
America, including the Ohio and Ontario mainland, whereas Lake Erie 
water snakes (N. s. insularum) have declined and occur primarily on the 
offshore islands of western Lake Erie (Schmidt and Davis 1941; Conant 
1982; Kraus and Schuett 1982; King 1986, 1987b, 1989a, 1989b, 1991, 
1993b, 1996; King and Lawson 1995; King 1997; King et al. 1997). Lake 
Erie water snakes have reduced or no color patterns, while northern 
water snakes have sharply defined band patterns (Conant and Clay 1937, 
1963; Camin and Ehrlich 1958; Conant 1982; Kraus and Schuett 1982; King 
1987b, 1991). Lake Erie water snakes occur on rocky limestone and 
dolomite shorelines; northern water snakes use more heavily vegetated 
locations with soil, mud or clay (Conant 1951; King 1986, 1987b; King 
and Lawson 1995). Lake Erie water snakes also have a different diet, a 
larger adult body size, lower growth rates, and shorter tails compared 
to northern water snakes (Conant 1951; Hamilton 1951; Langlois 1964; 
Drummond 1983; King 1986, 1989a, 1993a).

[[Page 47127]]

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

Previous Federal Record

    We identified the Lake Erie water snake as a category 2 candidate 
species in notices of review published in the Federal Register on 
September 18, 1985 (50 FR 37958) and on January 6, 1989 (54 FR 554). 
Our November 21, 1991, Notice of Review (56 FR 225), changed the 
snake's status to category 1 candidate. Prior to 1996, a category 2 
species was one that we were

[[Page 47128]]

considering for possible addition to the Federal List of Endangered and 
Threatened Wildlife, but for which conclusive data on biological 
vulnerability and threat were not available to support a proposed rule. 
We stopped designating category 2 species in the February 28, 1996, 
Notice of Review (61 FR 7596). We now define a candidate species as a 
species for which we have on file sufficient information to propose it 
for protection under the Act (former category 1 classification).
    On August 18, 1993, we published a rule proposing to list the Lake 
Erie water snake (N. s. insularum) as threatened (58 FR 43857). The 
original comment period ended on November 16, 1993, and the deadline 
for receipt of public hearing requests was October 4, 1993. An October 
12, 1993, notice (58 FR 52740) extended the public comment and the 
hearing request deadline for 30 days. On May 13, 1994, we published in 
the Federal Register a notice of public hearing and reopening of the 
comment period (59 FR 25024). We held public hearings on South Bass 
Island, Ohio, on May 31, 1994, and in Port Clinton, Ohio, on June 1, 
1994. The comment period closed on June 16, 1994.
    On April 10, 1995, Congress enacted a moratorium on the processing 
of all final listing actions (Public Law 104-6) and rescinded $1.5 
million from our listing budget, which further delayed action on the 
proposed rule. The Congressional moratorium continued until April 26, 
1996, when President Clinton exercised authority given to him in the 
Omnibus Budget Reconciliation Act of 1996, waiving the moratorium.
    During 1995, due to uncertainty as to the extent of the 
Congressional moratorium, we determined that the available data for the 
listing decision could have become outdated. To ensure responsible 
evaluation of current data, we and the Ohio Division of Wildlife funded 
a two-year study of the Lake Erie water snake population in 1996 and 
1997, with some additional data collection and a final report due in 
1998. We received the report from Dr. Richard King during June of 1998, 
and received an addendum to the final report in September of 1998.
    On May 8, 1998, we published Listing Priority Guidance for Fiscal 
Years 1998 and 1999 (63 FR 25502). The guidance clarifies the order in 
which we will process rule-makings, giving highest priority (Tier 1) to 
processing emergency rules to add species to the Lists of Endangered 
and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to 
processing final determinations on proposals to add species to the 
Lists, processing new proposals to add species to the Lists, processing 
administrative findings on petitions (to add species to the Lists, 
delist species, or reclassify listed species), and processing a limited 
number of proposed or final rules to delist or reclassify species; and 
third priority (Tier 3) to processing proposed or final rules 
designating critical habitat. The processing of this final rule falls 
under Tier 2.

Summary of Comments and Recommendations

    In the August 18, 1993, proposed rule and two subsequent 
notifications, we requested all interested parties (hereafter called 
participants) to submit factual reports or information that might 
contribute to development of a final rule. We contacted appropriate 
Federal and State agencies, county governments, scientific 
organizations, and other interested parties in the United States and 
asked them to comment. We also notified Canadian officials at the 
Ontario Ministry of Natural Resources offices (located in Toronto, 
London, and Chatham) and at the Canadian Wildlife Service in Ottawa, 
Ontario. We published newspaper notices inviting public comment and 
notifying the public of pertinent hearings in the following 
newspapers--``The Port Clinton News Herald'' (Port Clinton, Ohio), 
``The Sandusky Register'' (Sandusky, Ohio), ``The Cleveland Plain 
Dealer'' (Cleveland, Ohio), ``The Toledo Blade'' (Toledo, Ohio), and 
``The Call and Post'' (Cleveland, Columbus, and Cincinnati, Ohio). We 
notified island residents of public hearings and the reopened June 
comment period by placing notices in their local U.S. Post Office 
boxes.
    Public hearings were requested by Donald J. McTigue (of McTigue & 
Brooks, Attorneys at Law, Columbus, Ohio), representing Baycliff's 
Corporation, and by H. R. Clagg (President, Johnson's Island Property 
Owners Association, Marblehead, Ohio). In response, we held public 
hearings on May 31, 1994, at Put-in Bay, South Bass Island, Ohio, and 
on June 1, 1994, in Port Clinton, Ohio. Approximately 20 people 
attended the hearing at Put-in Bay, and approximately 50 people 
attended the hearing at Port Clinton.
    We received comments and information from participants in the form 
of letters, reports, and oral testimony. Out of 96 total comments 
received, 89 supported listing the Lake Erie water snake as threatened, 
while seven did not support listing. We received comments from 2 State 
agencies, 4 universities, 2 zoos, 5 herpetologists, 2 environmental 
groups, 1 corporation, 2 private groups, 12 private citizens and 57 
school children.
    We address comments and oral statements received during the public 
hearings and comment periods in the following summary of issues. 
Comments of a similar nature are grouped into a single issue.
    Issue 1--Some participants asked if other factors besides habitat 
loss and persecution, such as predation, pollution, or collecting, 
contributed to Lake Erie water snake declines.
    Response--The effects of predation, pollution, and collecting on 
Lake Erie water snake population are not clear. We believe it is 
unlikely that natural predators contribute significantly to Lake Erie 
water snake declines. Although Lake Erie water snakes are undoubtedly 
taken as prey by gulls, herons, other birds, and other snakes (Camin 
and Ehrlich 1958; Goldman 1971; Hoffman and Curnow 1979; King 1986, 
1987b, 1993c), the mortality is believed negligible and not likely to 
adversely affect Lake Erie water snake populations.
    Although some water snakes were documented to contain or be 
adversely affected by certain pollutants (Herald 1949, DeWitt et al. 
1960, Peterle 1966, Meeks 1968, Novakowski et al. 1974), the role of 
pollution in the decline of Lake Erie water snakes is not clear. To 
date, comprehensive pollution toxicity studies have not been conducted.
    The impact of scientific collecting on the Lake Erie water snake 
population is also unknown. The number of museum collections and the 
numerous reports of collections within scientific literature suggest 
the Lake Erie water snake population can withstand some level of 
scientific collection. We cannot discount, however, the possible 
negative impacts of over-collection on the population, particularly if 
the population declines further. Federal listing will curtail 
superfluous scientific collecting, as well as any other collecting 
activity.
    Issue 2--Some participants believe the Lake Erie water snake 
population has seriously declined, while others believe the population 
has not declined.
    Response--The decline of Lake Erie water snakes from historical 
levels is well documented (Hatcher 1945; McDermott 1947; Ehrlich and 
Camin 1960; Conant and Clay 1963; Langlois 1964; Conant 1982; Kraus and 
Schuett 1982; Reichenback 1992; Service 1994; King 1986, 1998a; King et 
al. 1997). In addition to obvious decline in abundance from earlier 
this century, the Lake Erie water snake's geographic distribution has 
been restricted. The Lake Erie water snake historically

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

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will prevent landowners from developing their land.
    Response--The purpose of the Act is to conserve species such as the 
Lake Erie water snake (N. s. insularum) and the ecosystems upon which 
they depend. To achieve this goal, it is necessary to minimize the loss 
of Lake Erie water snakes and their habitat. Thus, the Act affords 
protection against take (i.e., killing, injuring, capturing, etc.) of 
Lake Erie water snakes. Projects that will harm individual Lake Erie 
water snakes or destroy their habitat will require an incidental take 
permit from us. Under the ``Available Conservation Measures'' section 
of this notice, we identify activities likely to result in take of Lake 
Erie water snakes. However, many of these actions, such as construction 
of shoreline docks, placement of stone or armor plates to prevent 
erosion, and other shoreline developments, already require a permit 
from the U.S. Army Corps of Engineers (Corps) under section 404 of the 
Clean Water Act or section 10 of the Rivers and Harbors Act. Pursuant 
to the Endangered Species Act, it is the Corps' responsibility to 
ensure that issuance of a Corps permit will not jeopardize Lake Erie 
water snakes on the offshore islands. If permit issuance by the Corps 
may affect the water snake or other federally listed species, the Corps 
must enter into section 7 consultation with us. Under section 7 
consultation, we work with the Corps and project proponent to find 
solutions that allow the project to proceed while avoiding jeopardy to 
listed species. This often means adopting project modifications. If a 
shoreline project does not require a Corps permit and does not involve 
Federal funding or other Federal authorization or other action, but 
will take water snakes, the landowner may be required to obtain an 
incidental take permit under section 10 of the Act. However, we believe 
most minor shoreline projects as they are currently undertaken will 
require few modifications.
    Issue 10--A few participants asked if listing Lake Erie water 
snakes as threatened will cause shoreline property owners to lose their 
homes or their land.
    Response--Listing Lake Erie water snakes as threatened will not 
cause any landowner or homeowner to lose his/her home or land.
    Issue 11--Some participants are concerned that listing Lake Erie 
water snakes might cause restrictions to be placed against land access 
or fishing activities.
    Response--We do not foresee such restrictions to be enacted. We do 
not consider unintentional capture or entanglement as a result of 
recreational fishing to be a violation of the Act's prohibition on take 
provided the snake is immediately freed and released (see the 
``Available Conservation Measures'' section). It is our policy (June 3, 
1996; 61 FR 27978) to pursue cooperative partnerships to minimize and 
resolve conflicts between the implementation of the Act and 
recreational fishing activities.
    Issue 12--Some participants asked which types of shoreline habitat 
will be affected by listing Lake Erie water snakes as threatened.
    Response--Lake Erie water snakes can be found along any shoreline 
of the islands of western Lake Erie. However, they occur more often on 
or near rocky shorelines or shorelines composed of limestone/dolomite 
shelves and ledges (Conant and Clay 1937; Thomas 1949; Conant 1951; 
Camin and Ehrlich 1958; King 1986, 1987b). The Lake Erie water snake is 
protected by the Act on the shorelines of all islands and rock outcrops 
of western Lake Erie, except Mouse Island, Johnson Island, or any other 
islands and rock outcrops within 1.6 km (1 mi) of the Ohio or Ontario 
mainland.
    Issue 13--Some participants expressed concern about being 
prosecuted for removing a Lake Erie water snake from their basement or 
yard, or from a fishing hook.
    Response--Provided that private individuals follow the specific 
handling conditions identified in this rule, the Service will not 
prosecute them for removing Lake Erie water snakes from their property 
or from accidental capture while fishing (see the ``Available 
Conservation Measures'' section).

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that the Lake Erie water snake (Nerodia 
sipedon insularum) on western Lake Erie offshore islands and adjacent 
waters (i.e., offshore islands and their surrounding waters that are 
more than 1.6 km (1 mi) from the Ohio and Ontario mainland) should be 
classified as a threatened species. We followed procedures found in 
section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et seq.) 
and regulations (50 CFR part 424) promulgated to implement the listing 
provisions of the Act. A species may be determined to be an endangered 
or threatened species due to one or more of the five factors described 
in section 4(a)(1). These factors and their application to the Lake 
Erie water snake (Nerodia sipedon insularum) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    Habitat destruction is a major cause of the decline of Lake Erie 
water snakes (Ashton 1976; Kraus and Schuett 1982; King 1986; King et 
al. 1997). During the past 60 years, shoreline habitat important to the 
water snakes has been significantly altered, degraded, and developed 
through the construction of shoreline cottages, marinas, docks, and sea 
walls, the filling of lagoons, and the mining of quarries (Hatcher 
1945; Core 1948; Kraus and Schuett 1982; King 1985, 1986; R. Conant, 
University of New Mexico, in litt. 1993; King et al. 1997). Current 
development on many western Lake Erie islands (e.g., Kelleys, North 
Bass, Middle Bass, South Bass, Pelee) is resulting in increased loss of 
Lake Erie water snake habitat. Some examples of currently proposed 
developments affecting Lake Erie water snake habitat include a large 
resort proposed for Middle Bass Island, a 1,220 m (4,000 ft) long sea 
wall proposed for North Bass Island, and airport expansions proposed 
for Kelleys Island and Middle Bass Island (Service, in litt. 1999).

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    We know of no recreational or commercial overutilization of the 
Lake Erie water snake. The impact of scientific collecting on the Lake 
Erie water snake population is not known, but negative impacts from 
possible over-collecting cannot be discounted. The historical 
collection of Lake Erie water snakes is well documented, with reports 
of from 40 water snakes (Hamilton 1951; Langlois 1964; Conant 1982; 
Ohio Division of Natural Areas and Preserves, unpublished data, 1993) 
to hundreds of water snakes (Conant and Clay 1937, 1963; Conant 1938, 
1951, 1982; Camin and Ehrlich 1958) collected per island during 
repeated visits. If the Lake Erie water snake population continues to 
decline, all sources of mortality, including collecting, will be 
problematic for the species (see ``Factor E'').

C. Disease or Predation

    We are not aware of any evidence showing that natural predation has 
contributed significantly to the decline of Lake Erie water snakes. 
Although predation by herring gulls (Larus argentatus), great blue 
herons (Ardea herodias), robins (Turdus migratorius),

[[Page 47131]]

and blue racers (Coluber constrictor) have occurred (Camin and Ehrlich 
1958; Goldman 1971; Hoffman and Curnow 1979; King 1986, 1987b, 1993c), 
this very low level of mortality is not likely to have a significant 
affect on the Lake Erie water snake population. However, as stated 
above, populations like the Lake Erie water snake that occur at low 
densities can be adversely impacted by any mortality factor, whether 
natural or human-caused.
    Little is known about the impacts of disease on water snakes 
(Nerodia sipedon). We believe disease is currently only a minor problem 
for Lake Erie water snakes. However, we recognize that the synergistic 
effects of pollutants, other environmental stress (such as habitat 
loss), and the locally dense nature of some localized sub-populations 
could expose water snakes to significant disease problems.

D. The Inadequacy of Existing Regulatory Mechanisms

    Until now, Lake Erie water snakes have had no legal protection from 
take, harm, or habitat loss within the United States. The Ohio Division 
of Wildlife (ODOW) granted State threatened status (chapter 119 of the 
Ohio Revised Code) to the Lake Erie water snake (N. s. insularum) in 
1990 but this is an administrative designation that does not confer 
legal protection. The Lake Erie water snake is listed as endangered by 
the Society for the Study of Amphibians and Reptiles but this also 
confers no legal protection. A small fraction of the land area on the 
western Lake Erie islands comprises public land. The Ohio State 
University and the Ohio Department of Parks and Recreation (R.B. King, 
Northern Illinois University, in litt. 1993) own property that is 
inhabited by Lake Erie water snakes, and thus is minimally protected 
from habitat destruction.
    The Lake Erie water snake (N. s. insularum) subspecies is currently 
protected in Ontario, Canada, under the provincial Endangered Species 
Act, R.S.O. 1980, c. 138, in 1977 (Regulation 328; Regulation 195/88 
which amends Regulation 287 of Revised Regulations of Ontario). The 
Lake Erie water snake (N. s. insularum) subspecies is also listed as 
federally endangered by the Committee on the Status of Endangered 
Wildlife in Canada (COSEWIC). In addition, the species Nerodia sipedon 
is protected under the Ontario Game and Fish Act (Regulation 520; 
Regulation 113/88 which amends Regulation 397/84 of Revised Regulations 
of Ontario). Although these regulations provide some protection for 
Lake Erie water snakes at a few sites in Canada, the majority of the 
subspecies' island habitat remains unprotected, including 13 islands 
within the United States. Of the 5 core islands most important to the 
lake Erie water snake, 4 occur in the United States with little or no 
protection for the species and its habitat.
    Three preserves exist in Ontario, Canada, which are inhabited by 
Lake Erie water snakes and protected from habitat loss. On Pelee 
Island, Ontario, the Lake Erie water snake is protected by Provincial 
preserves at Fish Point and Lighthouse Point (I. Bowman and P. Prevett, 
Ontario Ministry of Natural Resources, pers. comm. 1994). The Essex 
Region Conservation Authority also set aside preserve land on Pelee 
Island which benefits water snakes and local plant species (D. Krouse, 
ERCA, pers. comm. 1994). East Sister Island is a Lake Erie water snake 
Provincial preserve, but the population of water snakes on the island 
is small and declining (King 1986; I. Bowman and P. Prevett, Ontario 
Ministry of Natural Resources, pers. comm. 1994; R. King, Northern 
Illinois University, pers. comm. 1998). We believe the regulatory 
mechanisms are inadequate because of the small number of water snakes 
in preserves and the vulnerability from lack of regulatory protection 
outside of preserves.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Persecution by humans is the most significant and well documented 
factor in the decline of Lake Erie water snakes (Conant 1982, Kraus and 
Schuett 1982, King 1986, King et al. 1997; Service in litt. 1998). 
During the 1800s, pigs were released on some islands to exterminate 
snakes (Hatcher 1945, McDermott 1947). All snake species were 
eradicated from Rattlesnake Island by 1930 (Conant 1982), but a few 
water snakes recently moved to the island (King 1987b; King et al. 
1997). Ehrlich and Camin (1960) told of a campaign of extermination 
waged against water snakes on Middle Island. Conant and Clay (1963) 
noted that persecution of island water snakes was severe. Persecution 
by humans is still a serious problem on several islands (Service in 
litt. 1998). The effects of past and current persecution are evident 
today and are a threat to the continued existence of the water snake.
    The influences of factors A through E, above, on the Lake Erie 
water snake are exacerbated by the small size of the population. The 
current low population densities and insular distribution of Lake Erie 
water snakes make them vulnerable to extinction or extirpation from 
catastrophic events, demographic variation, negative genetic effects, 
and environmental stresses such as habitat destruction and 
extermination (Shaffer 1981; King 1987b, 1998b; Dodd 1993; Nunney and 
Campbell 1993; King et al. 1997). Though populations naturally 
fluctuate, small populations are more likely to fluctuate below the 
minimum viable population threshold needed for long-term survival. 
Likewise, chance variation in age and sex ratios can cause death rates 
to exceed birth rates, causing a higher risk of extinction in small 
populations. Finally, decreasing genetic variability in small 
populations increases the vulnerability of a species to extinction due 
to inbreeding depression (decreased growth, survival, or productivity 
caused by inbreeding) and genetic drift (loss of genetic variability 
that takes place as a result of chance). A recent study of snakes 
(adders) in Sweden found that inbreeding depression in isolated 
populations resulted in smaller litter size, higher proportion of 
deformed and stillborn offspring, and lower degree of genetic 
heterozygosity (Madsen et al. 1996), which in turn cause reduced 
fertility and survivorship. Thus, in small populations, environmental, 
demographic, and genetic changes can result in an accelerating slide 
toward extinction.
    Mace and Lande (1991) describe a system used to categorize the 
status of a species as Vulnerable, Endangered, or Critical according to 
risk of extinction criteria. Applying these criteria to the Lake Erie 
water snake population, King (1998b) suggests the population in the 
United States qualifies as Endangered or Vulnerable. Mace and Lande 
(1991) define Vulnerable as having a 10 percent probability of 
extinction within 100 years, and define Endangered as having a 20 
percent probability of extinction within 20 years or 10 generations 
(whichever is longer). King (1998b) indicates that the Lake Erie water 
snake population meets these criteria because of (1) the decline of 
island sub-populations of the snakes, (2) accelerated habitat 
alteration (e.g., development) during the 1990s, and (3) potential 
ecological interactions with introduced species. Zebra mussels 
(Dreissena polymorpha) and round gobies (Neogobius melanostmus) can 
reduce water snake prey (i.e., fish) availability (Dermott and Munawar 
1993; Fitzsimons et al. 1995; Jude et al. 1995).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the Lake Erie water snake in making this final listing 
determination. Based on this evaluation, we believe the Lake Erie water 
snake

[[Page 47132]]

(Nerodia sipedon insularum) meets the criteria for protection under the 
Act on the basis of persecution, destruction and modification of 
habitat, curtailment of its range, significant population decline from 
historical levels, flat and vulnerable population status in the 1990s, 
and the inadequacy of regulatory mechanisms. The present distribution 
and abundance of the Lake Erie water snake is at risk given the 
potential for these impacts to continue. Therefore, based on this 
evaluation, the preferred action is to list the Lake Erie water snake 
as a threatened species. The Act defines a threatened species as one 
that is likely to become an endangered species in the foreseeable 
future throughout all or a significant portion of its range. Federal 
threatened status for the Lake Erie water snake is effective 
immediately upon publication of this final rule (see ``Effective Date'' 
section below).

Effective Date

    In accordance with 5 U.S.C. 553(d)(3), we have found good cause to 
make the effective date of this rule immediate. Because of low Lake 
Erie water snake population densities, continuing eradication by 
people, and accelerating habitat destruction, protection provided by 
the Act is granted to Lake Erie water snakes (Nerodia sipedon 
insularum) located on the western Lake Erie offshore islands and 
adjacent waters immediately upon publication of this final rule. We 
believe eradication efforts and habitat destruction, in particular, 
would temporarily intensify if the effective date of the Act's 
protection is delayed by the normal 30 days after rule publication. We 
also believe that this sudden increase in water snake persecution and 
habitat destruction would seriously jeopardize the already small, 
vulnerable Lake Erie water snake population to the extent that the 
long-term recovery process would be irreversibly impaired.

Critical Habitat

    Section 3 of the Act defines critical habitat as: (i) the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that the designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) the 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species. We find that 
designation of critical habitat is not prudent for the Lake Erie water 
snake for both reasons stated above.
    Potential benefits of critical habitat designation derive from 
section 7(a)(2) of the Act, which requires Federal agencies, in 
consultation with us, to ensure that their actions are not likely to 
jeopardize the continued existence of listed species or to result in 
the destruction or adverse modification of critical habitat of such 
species. Critical habitat designation, by definition, directly affects 
only Federal agency actions. Since the Lake Erie water snake is semi-
aquatic, Federal actions that might affect this species and its habitat 
include those with impacts on island shoreline habitat and water 
quality. Most activities that occur would be subject to review under 
section 7(a)(2) of the Act, regardless of whether critical habitat was 
designated. The Lake Erie water snake has become so restricted in 
distribution that any significant adverse modification or destruction 
of occupied habitats would likely jeopardize the continued existence of 
this species. This would also hold true as the species recovers and its 
numbers increase. As part of the development of this rule, Federal and 
State agencies were notified of this species' general distribution, and 
we requested that they provide data on proposed Federal actions that 
might adversely affect the species. Should any future projects be 
proposed in areas inhabited by this snake, the involved Federal agency 
will already have the distributional data needed to determine if its 
action may impact the species, and if needed, we will provide more 
specific distribution information. Therefore, habitat protection for 
the Lake Erie water snake can be accomplished through the section 7 
jeopardy standard, and there is no benefit in designating currently 
occupied habitat of this species as critical habitat.
    Though critical habitat designation directly affects only Federal 
agency actions, controversy resulting from critical habitat designation 
has been known to reduce private landowner cooperation in the 
management of species listed under the Act. Critical habitat 
designation could affect landowner cooperation within habitat currently 
occupied by the snake and in areas unoccupied that might be needed for 
recovery. The publication of critical habitat maps in the Federal 
Register and local newspapers, and other publicity or controversy 
accompanying critical habitat designation may increase the potential 
for persecution as well as other collection threats. This applies to 
currently occupied habitat and any unoccupied habitat that were to be 
designated and subsequently recolonized by the species. Factor ``E'' of 
the ``Summary of Factors Affecting the Species'' section details the 
significant human persecution threats that have affected and continue 
to affect Lake Erie water snakes.
    Based on the above analysis, we have concluded that critical 
habitat designation would provide little additional benefit for this 
species beyond those that would accrue from listing under the Act. We 
also conclude that any potential benefit from such a designation would 
be offset by an increased level of vulnerability to collecting, 
persecution, and by a possible reduction in landowner cooperation to 
manage and recover this species. Therefore, the designation of critical 
habitat for Lake Erie water snake is not prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States. The Act also requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against take of species and 
harm to species are discussed, in part, below.
    Following listing, a number of recovery actions may be initiated by 
us, in cooperation with the State of Ohio and numerous other parties. 
Some possible recovery actions are as

[[Page 47133]]

follows--(1) continuation of a public outreach program directed toward 
island residents and visitors; (2) habitat protection measures, as 
needed; (3) voluntary conservation agreements with landowners; (4) 
design and testing of artificial refugia; (5) increased law enforcement 
efforts; (6) voluntary land acquisition or conservation easements from 
willing sellers; (7) monitoring studies; (8) winter hibernation 
studies; (9) reintroduction of Lake Erie water snakes to appropriate 
locations; and (10) captive rearing.
    A public outreach program by us and the Ohio Division of Wildlife 
has been active on the Lake Erie islands since 1994. The program 
encourages a ``live and let live'' attitude for snakes living among 
island residents and visitors. A poster contest, outdoor sign campaign, 
and personal contacts are helping island residents and visitors realize 
that Lake Erie water snakes are not poisonous and pose little threat to 
people. We look forward to the continuing success of this public 
outreach program as part of the overall effort to achieve recovery of 
the Lake Erie water snake.
    Listing Lake Erie water snakes as threatened provides much needed 
coordination and legal protection. Federal threatened status for Lake 
Erie water snakes will automatically result in State of Ohio endangered 
status, triggering effective State legal protection against take. 
Threatened status in the United States will facilitate Federal 
coordination for Lake Erie water snakes in the form of partnerships 
with landowners, planning and management with Canadian wildlife 
officials, consultations on Federal projects (section 7 of the Act), 
enforcement (section 9 of the Act), conservation planning (section 10 
of the Act), and permits (section 10 of the Act).
    Section 7(a) of the Act, requires Federal agencies to evaluate 
their actions with respect to any species, and its critical habitat (if 
declared), that is proposed or listed as endangered or threatened. 
Regulations implementing this interagency cooperation provision of the 
Act are codified at 50 CFR Part 402. Section 7(a)(2) requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of a listed 
species or to destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with us. 
Possible Federal actions may include projects, activities, and permit 
issuance by the Corps, the Natural Resources Conservation Service, the 
U.S. Environmental Protection Agency, the U.S. military services, the 
National Park Service, our Ottawa National Wildlife Refuge, and Federal 
agency participation in the Great Lakes Initiative, or other 
cooperative U.S. efforts involving Canadian governments.
    The section 7 consultation process will play an important role in 
recovery of the Lake Erie water snake. The resulting habitat 
protection, habitat restoration, education of agency personnel, 
practical seasonal recommendations for construction activity, and 
beneficial project designs are vital for the Lake Erie water snake 
recovery. Beneficial shoreline projects contain designs that utilize 
rock and vegetation to provide shelter or forage areas for Lake Erie 
water snakes. Examples of potentially beneficial project designs are 
docks with rock-filled cribs, shoreline erosion barriers that utilize 
medium to large size stone, and reefs beneficial to small fish and 
amphibians that allow Lake Erie water snakes to safely feed.
    The Act and implementing regulations found at 50 CFR 17.21 and 
17.31 set forth a series of general prohibitions and exceptions that 
apply to all threatened wildlife. These prohibitions, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
or collect; or to attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken illegally. Certain exceptions 
apply to our agents and State conservation agencies.
    Under the Act, permits may be issued to carry out otherwise 
prohibited activities involving threatened wildlife species under 
certain circumstances. Regulations governing permits are described in 
50 CFR 17.22, 17.23, and 17.32. Such permits are available for 
scientific purposes, for the enhancement or propagation or survival of 
the species, or for incidental take in connection with otherwise lawful 
activities. For threatened species, there are also permits for 
zoological exhibition, educational purposes, or special purposes 
consistent with the purposes of the Act.
    It is our policy (July 1, 1994; 59 FR 34272) to identify to the 
maximum extent practicable, at the time a species is listed, those 
activities that do or do not constitute a violation of section 9 of the 
Act. The intent of this policy is to increase public awareness of the 
effect of this listing on proposed and ongoing activities on the 
offshore islands and adjacent waters of western Lake Erie. We believe 
that, based on the best available information, the following actions 
will not result in a violation of section 9 with respect to Lake Erie 
water snakes--(1) brief handling necessary to transfer individual water 
snakes from roads, sidewalks, structures, yards, and watercraft to 
adjacent habitat upon immediate release; (2) brief handling necessary 
to free and immediately release to adjacent habitat a water snake 
unintentionally hooked or entangled in fishing equipment; (3) non-
harmful actions that encourage water snakes to leave, stay off, or keep 
out of a residence (including swimming pools and yards), a business 
building, the top decks of docks, foot paths, and water equipment 
(including boats, rafts, swimming decks, water intakes, and 
recreational gear); for example, a homeowner using a pool net pole to 
gently nudge a water snake away from his property; (4) actions that may 
affect offshore island water snakes and are authorized, funded or 
carried out by a Federal agency, when conducted in accordance with any 
reasonable and prudent measures given by the Service in accordance with 
section 7 of the Act; (5) actions authorized by a section 10 permit 
under the Act.
    We believe violations of section 9 of the Act include, but are not 
limited to, the following actions on the Lake Erie offshore islands 
conducted without a section 10 permit under the Act--(1) intentional 
killing or injuring of water snakes by any means; (2) harassing water 
snakes in any offshore island or adjacent water habitat; (3) 
unauthorized collecting or handling of the water snake; (4) altering or 
destroying shoreline water snake habitat, including adjacent 
vegetation; (5) illegal discharge or dumping of toxic chemicals or 
other pollutants into areas occupied by the water snake.
    Requests for copies of the regulations regarding listed wildlife 
and inquiries about prohibitions and permits may be addressed to the 
Division of Endangered Species, Bishop Henry Whipple Federal Building, 
1 Federal Drive, Ft. Snelling, Minnesota 55111-4056 (612-713-5350; fax 
612-713-5292).

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We

[[Page 47134]]

published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information, 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
threatened species, see 50 CFR 17.32.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request (see ADDRESSES section).

Authors

    The primary authors of this proposed rule are Buddy B. Fazio (614-
469-6923) of our Reynoldsburg, Ohio office, and Jennifer Szymanski 
(612-713-5342) of our Minnesota Regional Office (see ADDRESSES 
section.)

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following to the List of 
Endangered and Threatened Wildlife, in alphabetical order under 
REPTILES:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                     Vertebrate
--------------------------------------------------------                         population where                        When      Critical     Special
                                                            Historic range         endangered or          Status        listed      habitat      rules
           Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Reptiles
 
                   *                  *                  *                  *                  *                  *                  *
Snake, Lake Erie water...........  Nerodia sipedon       U.S.A. (OH), Canada   Lake Erie offshore    T                       665         N/A         N/A
                                    insularum.            (Ont.).               Islands and their
                                                                                adjacent waters
                                                                                (located more than
                                                                                1 mile from
                                                                                mainland)--U.S.A.
                                                                                (OH), Canada (Ont.).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: August 16, 1999
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 99-22459 Filed 8-27-99; 8:45 am]
BILLING CODE 4310-55-P