Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Northern Population of the Copperbelly Water Snake

DEPARTMENT OF THE INTERIOR

50 CFR Part 17

RIN 1018-AB75

Endangered and Threatened Wildlife and Plants; Determination of

Threatened Status for the Northern Population of the Copperbelly Water

Snake

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines

threatened species status pursuant to the Endangered Species Act of

1973, as amended (Act), for the copperbelly water snake (Nerodia

erythrogaster neglecta) in the northern portion of its range. The

Service also determines that the copperbelly water snake does not

warrant listing as a threatened species in the southern portion of its

range and is not finalizing that portion of the proposal. This snake

was referred to as the northern copperbelly water snake in several

previous Federal Register publications. Historical records and recent

studies indicate that this animal has declined substantially,

especially in the northern portion of its range, and now persists

largely in isolated pockets of suitable habitat. Rangewide, the snake

has been impacted by a variety of human-induced causes, including

urban/suburban encroachment, coal mining, and wetland drainage. These

impacts continue to threaten the snake in the northern portion of its

range but are being substantially reduced in the southern portion of

its range due to modifications in surface coal mining and reclamation

practices.

EFFECTIVE DATE: February 28, 1997.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Service's

Bloomington Field Office, 620 South Walker Street, Bloomington, Indiana

47403; telephone 812/334-4261.

FOR FURTHER INFORMATION CONTACT: David Hudak, Field Supervisor (see

ADDRESSES section), 812/334-4261, extension 200.

SUPPLEMENTARY INFORMATION:

Background

The plain-belly water snake (Nerodia erythrogaster) was formally

described as a species in 1938 as Natrix erythrogaster (Clay 1938). The

copperbelly water snake, Nerodia erythrogaster neglecta, was recognized

as a distinct subspecies in 1949 (Conant 1949). It is one of six

recognized subspecies of the plain-belly water snake (McCranie 1990).

The Act defines ``species'' to include ``any subspecies of fish or

wildlife or plants, and any distinct population segment of any species

of vertebrate fish or wildlife . . .'' (section 3(15)). Thus, although

taxonomically recognized as a subspecies, N. e. neglecta will be

referred to as a ``species'' through the remainder of this rule. This

legal, as opposed to biological, use of the term ``species'' should not

be understood to mean that this rule covers the entire species Nerodia

erythrogaster. The two decisions announced in this rule apply only to

the subspecies N. e. neglecta.

Because N. e. neglecta was not recognized until 1949, museum

specimens of the copperbelly water snake archived before that time were

identified only as the plain-belly water snake. Correction of these

mislabelled specimens is difficult due to the rapid fading of colors

from preserved specimens. Thus, the original range and distribution of

the copperbelly water snake is not precisely known due to this

taxonomic history and the loss of suitable habitat before recognition

of the copperbelly water snake as a distinct subspecies (Conant 1949,

1951, 1955; Minton 1972).

The key field identification feature of the copperbelly water snake

is its coloration. The snake has a solid dark, usually black, back with

a bright orange-red underside that is visible from a side view. The

head and eyes of the copperbelly water snake are proportionally larger

than similar species (Clay 1938; Conant 1938, 1951; Minton 1972). The

copperbelly water snake is most often confused with the yellowbelly

water snake (Nerodia erythrogaster flavigaster), an adjacent subspecies

to the south and west in Illinois and Kentucky. The most obvious single

distinguishing characteristic is the belly color. The copperbelly water

snake has a bright orange-red underside, whereas the yellowbelly water

snake has a pale yellow belly. In addition, it has blotches of dark

pigment extending onto the ventral scales that meet or nearly meet at

the belly, whereas the yellowbelly water snake has dark pigment

encroaching onto only the edge of the ventral scales (Brandon and

Blanford 1995; Minton 1972; Conant 1938, 1949).

After its recognition as a subspecies, the known historical range

of the copperbelly water snake was described by Schmidt (1953) as

``south central Michigan and northwestern Ohio, southwestward through

Indiana to extreme southeastern Illinois and adjacent Kentucky.'' A

notable feature of the documented historical range is the

[[Page 4184]]

large gap in location records between the southern and the northern

population segments. The most widely accepted theory suggests that the

northern segment is a relict of the more extensive southern population

(Conant 1938, 1951; Adler 1963). Today, the distribution of the

copperbelly water snake is clearly divided into a southern segment in

southeastern Illinois, western Kentucky, and southern Indiana; and an

isolated northern segment in northern Indiana, southern Michigan, and

northwestern Ohio.

Currently, within the southern population segment there are five

local clusters known in Illinois, 18 in Kentucky, and 13 in southern

Indiana. The northern population segment consists of eight local

clusters that are known to have had the species present in the last ten

years; copperbelly water snakes were found at five of these northern

sites during 1996 surveys. Local clusters consist of snakes within

connected, or nearly connected, habitat units and which are able to

interbreed because of this proximity. Thus, local clusters may include

several ``sites'' or ``occurrences'' as these terms are commonly used

in databases maintained by states or private conservation

organizations.

It is believed, based on drainage patterns and post-1949 records of

copperbelly water snakes, that its former range was nearly continuous

over the three southern states. Only remnants of that original

distribution are still evident, however; coal mining, drainage and

damming of wetlands, channelization, damming and diversion of streams

and rivers, and residential and commercial development of its habitat

have disrupted and fragmented the distribution of the copperbelly water

snake. Many once-connected local clusters are now isolated.

In Illinois, the copperbelly water snake distribution is believed

to once have been continuous through southern Illinois; however, due to

continued habitat loss and fragmentation, only five small, isolated

local clusters remain today (Brandon pers. comm. 1994).

Kentucky, historically and presently, is considered to have the

largest number of copperbelly water snakes rangewide. It is believed

the species was once abundant and continuous throughout the western

Kentucky coal field. The once-continuous range of the copperbelly water

snake is now restricted to 18 isolated local clusters.

Similarly, in southern Indiana, the distribution of the species has

been fragmented into 13 discrete populations.

The northern population segment has experienced extensive habitat

loss; and the impacts from habitat fragmentation and degradation on

this smaller population are very pronounced. Consequently, the northern

population segment has been relegated to a few small, scattered and

isolated local clusters in southern Michigan, northeastern Indiana, and

northwestern Ohio. Under current conditions and trends, extirpation of

the northern population is expected to occur within the next few

decades (Kingsbury pers. comm. 1994 and 1996).

Copperbelly water snakes migrate seasonally throughout their

habitat, which consists of bottomland forests and shrub swamps.

Although the species is a ``water'' snake, much of its time is spent

away from water in the terrestrial, forested part of its habitat

(Kingsbury pers. comm. 1994). Copperbelly water snakes emerge from

their hibernation sites in early spring and migrate through wooded or

vegetated corridors to wetland areas. They can often be seen basking,

breeding, and foraging near shallow wetland edges in woodlands. When

the woodland swamps begin to dry in late spring or in early June, the

snakes again disperse and move through wooded or vegetated corridors to

their summer habitat areas. Summer activities usually center around

forest and forest edges (Conant 1951, Kingsbury pers. comm. 1994). For

this reason, upland habitat is essential for the snake's summer

foraging activities.

By late fall, copperbelly water snakes seek out hibernation sites.

It is believed that copperbelly water snakes use hibernation sites that

are at elevations higher than the floodstage line and ponding areas

(Sellers 1991). Kingsbury (pers. comm. 1996), based on results of

radio-telemetry studies, reported that copperbelly water snakes do

utilize bottomland hibernation sites. Bottomland hibernation sites have

been identified as felled tree-root networks (Lodato 1985), crayfish

burrows (Kingsbury pers. comm. 1994), dense brush piles, fieldstone

piles, and perhaps beaver and muskrat lodges (Sellers 1991). These

studies indicate that upland hibernation sites are essential to the

long-term survival of viable populations of the snake. A mid-winter

flood, coupled with freezing temperatures, could be lethal to snakes

and could decimate the local copperbelly water snake population if

floodplain and riverbank areas are the only hibernation sites

available.

This species is known to form small groups in the spring and fall.

Groups of snakes have been observed swimming, feeding, courting, and

resting together (Conant 1938; Martin 1982, in Sellers 1991). Courtship

and mating occurs in April, May, and June. Copperbelly water snakes

have a longer gestation period than other water snakes sharing their

range, and their average litter size (18) is also smaller (Schmidt and

Davis 1941). Young snakes are born in the fall near, or in, the

hibernaculum and may not become active until the following spring.

Distinct Population Segments

The range of the copperbelly water snake contains a geographical

barrier between the local clusters in Michigan, Ohio, and northeastern

Indiana, and the rest of the local clusters in southern Indiana,

Kentucky, and Illinois. This gap is apparent from historical and recent

known locations for the snake (Adler 1963, Conant and Collins 1991,

Sellers 1991). This hiatus between the northern and southern

populations currently is approximately 180 miles wide. Within the gap

those areas of habitat that are potentially suitable for copperbelly

water snakes are small and isolated, making copperbelly water snake

movement though this gap extremely unlikely.

These populations qualify as distinct under the Service's Policy

Regarding the Recognition of Distinct Vertebrate Population Segments

Under the Act, published in the Federal Register on February 7, 1996

(61 FR 4722-4725). The Policy identifies three criteria that must be

satisfied in order to list a distinct population segment of a species

or subspecies as threatened or endangered--discreteness, significance,

and conservation status.

The wide geographic gap in suitable and inter-connected habitat

between the northern and southern Indiana local clusters clearly

identifies these as discrete and isolated population segments. The loss

of the peripheral, isolated, northern population is considered

significant as characterized under the policy, as it would result in a

significant reduction in the range of the taxon.

The existence of two distinct population segments for the

copperbelly water snake enables the Service to treat each as a species

and to make separate determinations for each of them. Therefore, the

Service is adopting the following designations of the two population

segments, and these terms will be used in the remainder of this rule.

Northern Population Segment--Michigan, Ohio, and Indiana north of

40 degrees north latitude (approximately Indianapolis, IN).

[[Page 4185]]

Southern Population Segment--Illinois, Kentucky, and Indiana south

of 40 degrees north latitude.

Final Determination on Northern Population Segment

As discussed below in the Summary of Factors Affecting the Species

section, the threats affecting the northern population segment arise

from several sources that are not addressed in the Conservation

Agreements. Because these threats continue to affect the northern

population segment the Service has determined that the northern

population segment of the copperbelly water snake warrants listing as a

threatened species.

Final Determination on Southern Population Segment

Since the 1993 proposal for the threatened listing of the

copperbelly water snake there have been several parallel efforts to

develop formal methods to reduce threats to the species and its

habitat. In recent months these efforts have coalesced into two

Conservation Agreements, with the Service being a signatory to both.

One Agreement deals specifically with the effects of coal mining in

Indiana. The second Agreement covers the impacts of coal mining in

Kentucky and Illinois and also institutes other conservation measures

in all three states.

The Conservation Agreements will promote the conservation of the

copperbelly water snake and its habitat during surface coal mining in

Indiana by delineating approximately 10,400 acres of high quality

copperbelly water snake habitat as core habitat areas that will not be

affected by surface coal mining. Furthermore, the Agreements require

the maintenance of habitat corridors connecting all other copperbelly

water snake habitats, restrict the mining of large habitat fragments

that are outside of the core areas to practices that will ensure the

survival of existing copperbelly water snake local clusters, and ensure

that all snake habitat that is mined will be reclaimed in such a way as

to increase both the quantity and quality of snake habitat.

In Kentucky the Conservation Agreements provide that a maximum of

four percent of the approximately 112,400 acres of known copperbelly

water snake habitat can be disturbed by surface coal mining activities.

All copperbelly water snake habitat has been divided into management

units of which no one unit may have more than ten percent of its area

disturbed by mining activities, and all copperbelly water snake habitat

that is mined will be reclaimed in such a way as to increase both the

quantity and quality of snake habitat.

Similarly, in Illinois, the Agreements require that all copperbelly

water snake habitat that is mined will be reclaimed in such a way as to

increase both the quantity and quality of snake habitat.

The Conservation Agreements also ensure that in all three states

within the southern population segment the state natural resource

departments will emphasize land acquisition, management, and law

enforcement to manage and conserve the copperbelly water snake as if it

were a federally listed species. In Illinois and Kentucky, where the

snake is not listed as threatened or endangered by the states, there

will be special regulations written to provide the species with

protection from take. In addition, the Office of Surface Mining

Reclamation and Enforcement will prioritize their Clean Stream

initiative program to aid protection and enhancement of copperbelly

water snake habitats. The Farm Bureau's role will be to publicize the

conservation needs of the snake to its members.

These provisions of the Conservation Agreements significantly

reduce the threats from surface coal mining at all known copperbelly

water snake local clusters in the southern population segment. Because

habitat destruction and degradation resulting from surface coal mining

was the predominant recent threat to the southern population segment,

the Service has determined that the southern population segment does

not warrant listing as a threatened species at this time.

Previous Federal Action

The copperbelly water snake was recognized as a category 2 species

in the Service's December 30, 1982, (47 FR 58454); January 6, 1989, (54

FR 554); and November 21, 1991, (56 FR 58804) Animal Notices of Review.

On November 12, 1991, the Service reassigned this species to category

1. On August 18, 1993, the Service published the proposed rule to list

the copperbelly water snake as threatened (58 FR 43860). The Service

extended the public comment period on October 12, 1993, (58 FR 52740)

for 30 days. The public comment period was re-opened on March 22, 1994,

for an additional 30 days (59 FR 13472) to hold a public hearing on

April 5, 1994. On July 11, 1994, the Service published a Notice in the

Federal Register (59 FR 35307) indicating that the deadline for the

final listing determination had been extended six months (until

February 18, 1995) while re-opening the public comment period until

November 1, 1994. As a result of significant new data received during,

and immediately following, the public comment period, on December 15,

1994, (59 FR 64647) the Service re-opened the public comment for 30

days, and announced the availability of the new data.

The Service was prohibited from making final determinations on

listing proposals during a congressionally-imposed moratorium that

began on April 10, 1995 (Public Law 104-06). To ensure that the Service

could continue to receive and review relevant data and continue

discussions with interested parties, the comment period was reopened on

August 15, 1995, (60 FR 42140) and closed at the end of the fiscal year

on September 30, 1995. During the first half of fiscal year 1996 the

moratorium and a lack of appropriated funds prevented the Service from

taking any actions related to listing species. Subsequent to the ending

of the moratorium and restoration of funding for listing activities,

the comment period was re-opened on July 16, 1996, (61 FR 37034) to

receive data that might have become available during the moratorium and

listing program shut-down. That comment period was extended another 60

days on September 17, 1996, (61 FR 48876) in order to receive a report

on the northern population segment. The comment period ended on

November 15, 1996.

The processing of this final rule conforms with the Service's final

listing priority guidance published in the Federal Register on December

5, 1996 (61 FR 64475). The guidance clarifies the order in which the

Service will process rulemakings during fiscal year 1997. The guidance

calls for giving highest priority to handling emergency situations

(Tier 1) and second highest priority (Tier 2) to resolving the listing

status of the outstanding proposed listings. This final rule falls

under Tier 2. At this time, there are no pending Tier 1 actions.

Summary of Comments and Recommendations

In the August 18, 1993, proposed rule and subsequent notices

reopening the comment period, all interested parties were requested to

submit factual reports or information that might contribute to the

development of a final rule. Appropriate Federal and state agencies,

county governments, scientific organizations, and other interested

parties were contacted and requested to comment. Newspaper notices were

published in newspapers across the range of the species inviting public

[[Page 4186]]

comment. A public hearing was requested by Mr. James Baker, of the

Western Kentucky Coal Association, and Ms. Bertha Daubendiek, of the

Michigan Nature Association. The public hearing was held in

Indianapolis, IN, on April 5, 1994. Twenty-six people attended the

hearing. One-hundred forty-two comments were received during the

comment periods and at the public hearing and are discussed below; some

parties provided more than one comment.

On July 11, 1994, the Service published a notice (59 FR 35307)

extending the one-year listing decision deadline until February 18,

1995. Comments had been submitted on the proposed rule indicating that

there were scientific disagreements concerning the location of, and

significance of, intergradation in Illinois and Kentucky. When such a

scientific disagreement exists, the one-year period within which the

Service must ordinarily take final action on a proposal to list a

species may be extended for not more than six months in accordance with

section 4(b)(5)(B)(I) of the Act. During the six-month extension the

Service funded additional studies in Illinois and Kentucky. The reports

of these studies, as well as information from a third study funded by

the Indiana Department of Natural Resources, were publicized and made

available for review by the public.

The Service received comments from one-hundred forty-two

individuals and organizations. Forty-eight commentors supported the

proposal. Thirty-three parties provided suggestions and/or information

but did not indicate either support of, or opposition to, the proposal.

Sixty-one commentors expressed opposition to the proposal. Many

provided data further substantiating or clarifying the threats to the

species. During the most recent public comment period two draft

Conservation Agreements were submitted which are intended to

significantly reduce the threats from surface coal mining. This new

information on the reduction in threats has been incorporated into the

final rule where appropriate (see Summary of Factors Affecting the

Species, below).

Written comments and oral statements presented at the public

hearings and/or received during the comment periods are addressed in

the following section. Comments of a similar nature are grouped

together. Comments received on the southern population segment that is

not being listed are also addressed below.

Issue 1: The morphological and genetic research conducted in

Illinois is insufficient to distinguish between N. e. neglecta, N. e.

flavigaster, and their intergrades.

Service Response: Although the results of the genetic analysis did

not prove to be a reliable method for distinguishing neglecta from the

intergrades, the morphological analysis was able to successfully

identify the subspecies for 95 percent of the snakes examined. The

Service believes that, for the purposes of delineating the boundary of

an intergrade zone in southern Illinois, the high degree of reliability

of morphological distinctiveness is sufficient to distinguish between

the two subspecies. However, because there is no intergrade zone

within, or near, the northern population segment, identifying

intergrades from copperbelly water snakes is not a concern with this

final determination.

Issue 2: Critical habitat should be designated.

Service Response: Section 4 of the Act requires designation of

critical habitat concurrent with listing, to the maximum extent prudent

and determinable (also see 50 CFR 424.12). The Service finds that

designation of critical habitat is not prudent for this species. This

finding is based on the conclusion that such a designation would not be

beneficial to the species. As discussed under Factor B in the Summary

of Factors Affecting the species, and in the Critical Habitat section,

the copperbelly water snake would become vulnerable to collectors and

vandals who would be readily able to locate the known populations by

the publication of critical habitat maps and other specific location

information. Furthermore, the Service does not believe critical habitat

will provide any additional benefit beyond that already provided under

section 7 of the Act.

Issue 3: Economic, recreational, and other impacts should be

considered when listing a species.

Service Response: Section 4 of the Act requires the Service to

consider only biological and commercial trade information in

determining whether to list a species. The Service recognizes the

potential for adverse economic impacts stemming from this listing, and

will work closely with mining, development, agricultural, and other

interests throughout the range of the copperbelly water snake to

accommodate economic and recreational activities to the extent possible

while ensuring the continued survival and recovery of the snake.

Issue 4: Exemptions from the taking prohibitions for normal or

routine farming activities should be provided.

Service Response: As of October 1, 1994, the Service must identify,

to the extent possible, specific activities that will and will not

likely result in violation of section 9 of the Act. The Service

believes that agricultural activities on lands considered to be

unsuitable habitat for the copperbelly water snake, but which are

adjacent to copperbelly water snake habitat, are unlikely to result in

a take pursuant to section 9 of the Act. Refer to additional discussion

on actions that may or may not constitute take under Available

Conservation Measures.

Issue 5: Several commentors stated that the status information for

Kentucky is incomplete and inaccurate, therefore, the proposal should

be delayed until further studies can be completed in Kentucky.

Service Response: The Service agrees that total population

estimates are lacking for this species; however, the Service considered

several additional factors that are also important in developing a

biologically accurate species status assessment. Gross population

estimates are particularly important for species for which distinct

local populations are not readily identified. However, the biological

security of many declining species is more a function of the number of

healthy local populations than the total number of individuals in the

wild. Therefore, although quantitative surveying has not been completed

throughout the range of the snake, pertinent and significant

information regarding the other aspects of the snake's status is known.

The Service believes precise population estimates are not necessary to

recognize overall declining trends of the snake. The trends and the

overall health of copperbelly water snake local clusters throughout its

historical and current distribution are a more accurate reflection of

the snake's status than are rough estimates of the number of snakes at

a given time. In addition to the gross population estimates and the

number of populations, the Service also considers factors such as the

size of existing populations, historical and current rates of decline,

current recruitment rates, distribution and proximity of populations,

quantity and quality of available habitat, genetic diversity, and

imminent and potential threats to the species and its habitat.

Issue 6: One commentor stated that the Service is basing their

decision on erroneous data. In particular, the accuracy of the habitat

acreage estimates was questioned within the Bryan et al. (1994)

Kentucky status report.

Service Response: The Service recognizes that earlier habitat

estimates were based on older topographic

[[Page 4187]]

quadrangle maps and limited aerial photography and personal knowledge,

and therefore, the habitat estimates were not necessarily indicative of

what precisely exists today. However, those sources of information

represented the best available information at the time, as the

surveyors were not able to obtain permission to survey current habitat

on most of the land under mining lease. Since the Bryan et al. (1994)

study the Service has updated its habitat estimates for Kentucky and

vastly refined its knowledge of where suitable habitat still exists

within the states. This work involved field verification of topographic

maps, recent aerial photography and geographic information system

mapping of the photos, meeting with copperbelly water snake experts and

state field biologists, and field work by Kentucky State Nature

Preserves Commission biologists. The Conservation Agreement for

Kentucky is based upon this updated information.

Issue 7: Coal mining in Kentucky is creating, rather than

eliminating, copperbelly water snake habitat wherever previously mined

areas are reclaimed to wildlife habitat.

Response: Based on the available information, the Service believes

coal mining reclamation procedures generally are not providing snake

habitat (Bryan et al. 1994; Kingsbury pers. comm. 1996; MacGregor pers.

comm. 1994; Sellers 1991). Mined land generally has been reclaimed to

cropland, hay fields, and wildlife land unsuitable for the snake, such

as upland forest, upland game habitat, and deep water impoundments.

Ponds and wetlands reclaimed or restored on mined lands are often too

widely scattered and lack suitable fish and/or amphibian populations,

hibernation sites, and cover to be suitable copperbelly water snake

habitat. However, the Service believes that coal mining activities can

be compatible with the conservation of the copperbelly water snake if

the extent, timing, and reclamation design are modified to incorporate

snake conservation measures. As described in the Final Determination on

Southern Population Segment section, the Conservation Agreements are

instituting such changes to mining and reclamation activities

throughout the southern population segment. The Service believes that

these reclamation methods will increase and enhance copperbelly water

snake habitat.

Issue 8: The factors threatening the species are no longer

significant because there are Federal and state laws protecting the

species.

Response: The Service recognizes the efforts of private groups and

governmental programs, and agrees that some of the past threats to the

species have been reduced and/or eliminated. However, interpretation

and enforcement of the Food Security Act, the Clean Water Act, and the

Surface Mining Reclamation Control Act have not provided sufficient

protection to the copperbelly water snake or its habitat. Furthermore,

state protection of the copperbelly water snake is not currently

uniform across its range and the lack of any state authority to protect

the habitat of state-listed species significantly weakens the

protection of the species. However, the Service agrees that, for the

Southern Population Segment, where mining and the lack of consistent

state protection against take previously were the major threats to the

species, the recently signed Conservation Agreements will provide

adequate protection.

Issue 9: The population data cited in the proposed rule are

incorrect.

Response: The Service agrees that population numbers for much of

the copperbelly's occupied range are not very useful due to the

difficulty with censusing elusive animals such as water snakes.

However, the Act requires the Service to make its determinations on the

basis of the best available scientific and commercial data, which need

not be population estimates or counts that can be statistically

analyzed. Also, as noted under Issue 5, the Service has not relied

heavily on population data for its determinations. The Service also

points out that additional monitoring of snake habitat and populations

will be carried out as a result of the two Conservation Agreements, so

our knowledge of copperbelly water snake numbers will continue to

improve.

Issue 10: The Service failed to recognize the tracts of habitat

already in protective ownership, such as the Patoka River National

Wildlife Refuge, Land Between the Lakes, and properties under Indiana

Department of Natural Resource ownership.

Service Response: Although the proposed rule did not emphasize the

areas already protected for the species, the Service is aware of these

areas and has concluded that habitat under public and private

conservation ownership is not sufficient to protect the copperbelly

water snake throughout its range. This determination was based on the

following information. First, in the southern population segment, while

suitable habitat does exists within the Patoka River corridor in

southern Indiana, currently the National Wildlife Refuge ownership

consists of only two hundred twenty-five acres which provide benefit to

the snake. Furthermore, significant tracts of copperbelly water snake

habitat within the Patoka River corridor are privately owned and are

currently being adversely impacted by coal mining. Second, snakes found

within the publicly-owned Land Between the Lakes are considered to be

intergrades and would not be included in a listing of the southern

population segment. Third, few populations of copperbelly water snakes

are found on state-owned land. In the northern population segment, only

two of the eight known sites are under partial state ownership and a

third is partly owned by a private conservation organization.

Issue 11: The listing analysis concentrated on historical habitat

degradation and destruction trends rather than current habitat loss

trends.

Service Response: As previously mentioned, the Service considers a

variety of factors in making a listing determination. Although

historical rates of decline are considered during the species' status

assessment, many other factors, including current rates of decline,

potential and imminent threats, gross population estimates, number of

populations, distribution of populations, genetic diversity, and

current recruitment rates are evaluated as well. Historical rates of

decline are utilized by the Service to ascertain if a species is

undergoing a precipitous or gradual decline. Also, the historical trend

information is also useful in identifying the likelihood of natural

cyclical fluctuations in numbers. The Service utilized the historical

trend information in aggregate with all other information in

determining if listing is warranted.

Issue 12: Conservation agreements which significantly reduce the

threats to the species should be considered in the listing decision.

Service Response: The states of Kentucky, Illinois, and Indiana;

the Kentucky Farm Bureau; the Office of Surface Mining, Reclamation,

and Enforcement; the Western Kentucky Coal Association; and others

submitted a Conservation Agreement which primarily addresses coal

mining threats in Kentucky and Illinois. Similarly, the State of

Indiana and the Indiana Coal Council submitted a Conservation Agreement

which addresses coal mining threats in Indiana. The Service has

reviewed those Agreements and concurs that, when fully implemented, the

Agreements will reduce the threats to the southern population segment

of the copperbelly water snake sufficiently to

[[Page 4188]]

preclude the need to list that population segment.

Issue 13: The Service also received comments from conservation

organizations opposed to the use of Conservation Agreements to preclude

the need to list the species. Their opposition is based on the non-

binding nature of Conservation Agreements and the risk of mitigation

efforts failing.

Service Response: Both Conservation Agreements include monitoring

and compliance measures along with the flexibility to respond to

changes needed to allow the Agreements to be successful. The Service is

a signatory on both Agreements and will be an active partner in their

implementation and monitoring. Further, the Service will constantly

evaluate the status of the species, and if the Agreements fail to meet

expectations, will reevaluate the need to list the southern population

segment.

Peer Review

The Service routinely has solicited comments from parties

interested in, and knowledgeable of, taxa which have been proposed for

listing as threatened or endangered species. A July 1, 1994, policy

statement (59 FR 34270) established the formal requirement that a

minimum of three peer reviewers be asked to provide input into the

Service's listing decisions. Although the proposed rule to list the

copperbelly water snake as a threatened species predated that policy,

the Service nonetheless elected to apply the formalized peer review

process to the proposal. During the July 16, 1996, to November 15,

1996, comment period, the Service solicited the expert opinions of five

biologists having recognized expertise in herpetology and/or

conservation biology and requested their review of the published and

unpublished data concerning the copperbelly water snake. In order to

ensure an unbiased examination of the data, the Service contacted

biologists who previously had only minor or no involvement in

discussions on the possible listing of the snake.

Comments were received within the comment period from all five

reviewers. All five reviewers concurred with the Service on factors

relating to the taxonomy, and biological and ecological information.

One reviewer believed current Kentucky data were insufficient.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the northern population

segment of the copperbelly water snake should be classified as a

threatened species, and that listing is not warranted for the southern

population segment of the copperbelly water snake. Procedures found at

section 4(a)(1) of the Act and regulations implementing the listing

provisions of the Act (50 CFR part 424) were followed. 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 copperbelly water snake (Nerodia erythrogaster

neglecta) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Habitat loss and fragmentation were the primary causes of the

decline of the copperbelly water snake and continue to be the major

factors threatening the continued existence of the species. From 1790

to the mid-1980's, much of the copperbelly water snake's wetland

habitat was modified or destroyed. According to Dahl and Johnson

(1990), Indiana has lost 87 percent of its original wetlands, Illinois

85 percent, Michigan 50 percent, Ohio 90 percent, and Kentucky 81

percent. The principal cause of these losses was land conversion to

agricultural use. This was especially true from 1950 through the

1970's, when agriculture was cited as the cause for 87 percent of the

wetland loss nationwide (Dahl and Johnson 1990). However, since that

time, other land uses and modifications such as dredging, coal mining,

stream channelization, road construction, and commercial and

residential development have played a more significant role in the loss

of wetland habitat.

The loss of snake habitat is especially evident in areas occupied

by the northern population segment of the snake, where the species has

been relegated to only a few small, isolated habitat areas. The

northern population segment has, since 1986, occupied only eight very

limited sites in four southern Michigan counties, one northwestern Ohio

county, and one northeastern Indiana county. Six of these local

clusters, including the Indiana and Ohio local clusters, are

encompassed within an area of about 100 square miles. The other two

local clusters are 35 to 60 miles to the northwest.

Two of the eight sites have a portion of their area protected by

state ownership, and one is partially owned by a private conservation

organization. The remaining sites are all private property with

uncertain fates. A key characteristic of these sites is separation by

unsuitable habitat from each other and from important habitat

components. The unsuitable habitat is primarily agricultural land,

rural residential sites, and roads.

Landscape fragmentation and isolation of local clusters from each

other increases the likelihood of extinction by causing each local

cluster to function as an independent, but much smaller population.

Very small populations are far more susceptible to local extirpation

from factors such as drought and from genetic irregularities caused by

inbreeding.

Other factors that may be adversely affecting northern population

habitat include increased residential development, sedimentation, and

contamination caused by fertilizer runoff (Sellers 1996a, 1996b.). A

large residential complex has been developed around a deep water lake

that is utilized by the snake during droughts. New residences have been

built near the Cass/St. Joseph counties local cluster. Residences add

to roadway traffic, increase habitat fragmentation, and increase the

likelihood of direct harm to snakes by people, pets, and vehicles.

Sedimentation, usually resulting from agricultural activities, but also

caused by construction, may change hydrological characteristics and

plant succession, as well as reduce the numbers of amphibian and fish

used by the snake as food.

The presence of copperbellies at two of the eight northern local

clusters has not been confirmed since 1987, and since 1989 at a third

site. Two of these three sites were surveyed in 1996, one of them for

46 hours, and no copperbellies were found. The third site has not been

surveyed since 1987. Suitable habitat at these three sites still seems

to be available. While it may be reasonable to conclude that snake

numbers at the two recently surveyed sites have declined, surveys have

not been frequent enough to conclude with certainty that these two

local clusters no longer support copperbellies. Northern population

survey data since 1986 are not complete for all local clusters, and do

not support any conclusion as to an overall trend of increase or

decrease. However, total numbers of snakes seen have remained very low

since 1986. The low numbers and possible disappearance of snakes from

various sites in the last 10 years indicates that progress toward

extirpation which became apparent in the 1950's and 1960's probably is

continuing, and underscores the perilous state of the northern

population segment. The northern population probably will be

[[Page 4189]]

extirpated within the next few decades without immediate additional

protection (Kingsbury pers. comm. 1994 and 1996).

Specific habitat-related threats that have cumulatively led to the

extirpation of northern population segment copperbelly water snake

local clusters include woodlot, brush, and other land clearing; habitat

constriction and fragmentation from surrounding development; road

construction; and coal mining.

Although coal mining has been a major recent factor in the decline

of the species in the southern portion of its range, the Service

believes mining practices can be compatible with the existence of the

snake. Coal mining can be compatible with the copperbelly water snake

if the extent, the timing of the mining, and the reclamation design are

modified to incorporate snake conservation measures. The Conservation

Agreements for the southern population segment make such changes to

coal mining and reclamation practices, thus greatly reducing mining

threats to the species, and providing compatibility between mining and

snake conservation. Because habitat loss and degradation from surface

coal mining constituted the main threats facing the southern

population, the Service believes that the reduction of the coal mining

impacts by the Conservation Agreements precludes the need to list the

southern population segment.

While the northern population segment is not impacted by coal

mining, it is significantly affected by all of the other threats of

destruction, modification, or curtailment of its habitat listed above.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Scientific overutilization, without careful regulation, can pose a

threat. During the first 30 years after its discovery and formal

publication of its description, many copperbelly water snakes were

collected as specimens for museums. Although museums have abandoned

this practice, amateur collectors continue to take wild snakes (Sellers

1991). The species is believed to be collected fairly regularly because

of its rarity, large size, unique coloration, and value in the pet

trade. For example, an international commercial dealer reportedly

offered $260 to an amateur collector for a breeding pair of copperbelly

water snakes.

C. Disease or Predation

The snakes are vulnerable to predation during migration, especially

when their migration routes are interrupted by cleared areas such as

roads, mowed areas, and farmlands. Dispersing through such areas

increases the likelihood of the snakes being preyed upon by natural

predators such as skunks, raccoons, and raptors. Due to habitat

fragmentation, the ability to use suitable cover to migrate safely

throughout its home range is a limiting factor in the life cycle of the

copperbelly water snake. In addition to predation, vehicle-caused

mortality and injury also has increased as suitable habitat becomes

more fragmented by transportation corridors. Such habitat fragmentation

is especially significant to the northern population segment where

seasonal movements among its smaller habitat patches force snakes to

cross roadways or other open habitat (Sellers 1991).

D. The Inadequacy of Existing Regulatory Mechanisms

The copperbelly water snake receives varying degrees of protection

through state listings as an endangered, threatened, or nongame species

throughout its range. Michigan, Indiana, and Ohio confer full legal

protection to the copperbelly water snake; it is illegal to collect,

kill, or injure the snake in these three states. Illinois and Kentucky

offer no legal protection to the snake at this time.

Whereas three states have laws and regulations which protect the

species from take, the lack of uniform protection throughout the United

States hampers enforcement and imperils the species by creating

loopholes for illegal take and trade. More importantly, legal

provisions for protection and management of copperbelly water snake

habitat at the state level are non-existent. Because destruction and

alteration of habitat are the major reasons for the species' decline,

the inability to protect non-federally listed species' habitat will

exacerbate the continued decline of the copperbelly water snake without

additional Federal protection.

As discussed under Factor A above, to alleviate any potential

threats to the snake from surface mining, the recently-signed

Conservation Agreements will require consideration of the southern

population segment of the copperbelly water snake and its habitat in

the surface mining and reclamation permitting process as if the species

was federally-listed as threatened or endangered in Kentucky and

Illinois. In Indiana core areas of snake habitat have been designated

and will remain undisturbed by surface mining; snake habitat outside of

the core areas can be mined to some extent but new reclamation

standards will produce habitat suitable for copperbelly watersnakes.

The Service believes that this modification to past permitting

practices will remedy the threats presented by surface mining.

E. Other Natural or Manmade Factors Affecting its Continued Existence

Weather extremes such as drought, flooding, and unusually mild, as

well as severe, winters may influence the population of the copperbelly

water snake. These factors affect the snake's ability to estivate for

prolonged periods, as well as impeding access to, and use of, essential

upland hibernation and foraging sites and wetland breeding areas. While

these factors are not as likely to affect larger and healthier

populations, small, isolated copperbelly water snake local clusters,

like those that make up the northern population segment, are especially

vulnerable to these naturally occurring events.

The widely held general dislike for snakes by humans further

threatens copperbelly water snakes. For example, Kingsbury (pers. comm.

1994) reported two incidents in which the species was intentionally

killed, with a gravid (pregnant) female being one of the victims. Such

intentional killing likely has been more common in the southern

population segment, due to geographic proximity to poisonous wetland-

inhabiting snakes. However, one of the Conservation Agreements will

lead to regulations in all three states which will prohibit the killing

of this species.

In the northern population segment, due to the small number and

isolation of the surviving local clusters, the snake remains vulnerable

to habitat modification and destruction and collection and persecution.

The southern population segment is more widespread and consists of

larger and more numerous local clusters. Several of the larger local

clusters are partially or entirely on Federal or state lands. Most of

the remaining local clusters are on private land, and most of these are

covered by approved permits for surface coal mining. The threats from

surface coal mining have been greatly removed by the recently-signed

Conservation Agreements with the coal mining industry and state and

Federal regulatory authorities for surface mining. These Agreements

will preserve existing core habitat needed by the species, and will

modify past post-mining land reclamation practices so

[[Page 4190]]

that suitable copperbelly water snake habitat will be developed

following mining. The Service believes these changes in mining and

reclamation practices reduce the existing and potential threats from

mining to a level at which the species in the southern portion of its

range is no longer likely to become endangered in the foreseeable

future, and therefore does not warrant listing as a threatened species

at this time.

The Service will continue to work closely with the surface coal

mining industry and state and Federal surface mining regulatory

agencies to monitor and evaluate the effects of the modified surface

mining practices on the snake.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by the copperbelly water snake in finalizing this

rule. Based on this evaluation, the preferred action is to list the

northern population segment of the copperbelly water snake, Nerodia

erythrogaster neglecta, as a threatened species; the Service will not

finalize the proposal to list as threatened the southern population

segment of the copperbelly water snake.

Critical Habitat

Critical habitat is defined in section 3 of the Act 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

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use of all methods and

procedures 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) requires that, to the maximum extent

prudent and determinable, the Secretary designate critical habitat at

the time the species is determined to be endangered or threatened. The

Service finds that designation of critical habitat is not prudent for

the northern and southern population segment of the copperbelly water

snake at this time. Service regulations (50 CFR 424.12(a)(1)) state

that designation of critical habitat is not prudent when one or both of

the following situations exist--(1) the species is threatened by taking

or other human activity, and identification of critical habitat can be

expected to increase the degree of threat to the species, or (2) such

designation of critical habitat would not be beneficial to the species.

As discussed under Factor B in the Summary of Factors Affecting the

Species, the copperbelly water snake is known to be subject to

collection, and those snakes would become increasingly vulnerable to

reptile collectors who would be able to locate the known populations by

the publication of critical habitat maps and other specific location

information. Publication of critical habitat locations would also aid

the intentional killing of individual snakes by individuals opposed to

Federal and state conservation efforts for the species. The Service is

concerned that threats made against the snakes during the listing

process will be more likely to be carried out if snake locations are

published.

Furthermore, critical habitat designation would not provide

significant additional protection over that afforded through the normal

recovery process, through section 7 consultation, and the prohibitions

of section 9 of the Act. The precarious status of the northern

population segment necessitates identical section 7 biological opinion

thresholds for determining adverse modification of critical habitat and

jeopardizing the continued existence of the species. Furthermore,

sufficient habitat protection is provided by the Service's current

interpretation of the meaning of ``harm'' in the Act's definition of

``take''; this interpretation holds that habitat degradation which

significantly impairs essential behaviors constitutes ``harm'' and is

prohibited by the Act.

In addition, Conservation Agreements for the snake and its habitat

in the southern portion of its range, have removed significant threats

to this species. Critical habitat for the snake will not be designated

on any lands where the habitat is included in a Conservation Agreement,

for the life of the agreement, so long as the agreement remains in

effect consistent with its terms.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain practices. Recognition through listing results in

public awareness and encourages conservation actions by Federal,

Tribal, state, and local agencies, private organizations, and

individuals. The Act provides for possible land acquisition and

cooperation with the states and requires that recovery actions be

carried out for all listed species. The protection required of Federal

agencies and the prohibitions against taking and harm are discussed, in

part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

Part 402. Section 7(a)(4) requires Federal agencies to confer with the

Service on any action that is likely to jeopardize the continuous

existence of a species proposed for listing or result in destruction or

adverse modification of proposed critical habitat. If a species is

listed subsequently, section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of the species or 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 the Service.

Federal agency actions that may require consultation include the

U.S. Army Corps of Engineers regulatory involvement in projects such as

the construction of roads, bridges, and dredging projects subject to

section 404 of the Clean Water Act (33 U.S.C. 401 et seq.); Office of

Surface Mining Reclamation and Enforcement coal mining permitting

process; Federal Highway Administration funded projects; Bureau of Land

Management lease activities; and Natural Resources Conservation Service

projects.

The Act and implementing regulations set forth a series of general

prohibitions and exceptions that apply to all threatened wildlife. The

prohibitions, codified at 50 CFR 17.21 and 17.31, in part, make it

illegal for any person subject to the jurisdiction of the United States

to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect; or to attempt any of 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

[[Page 4191]]

to agents of the Service and state conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving threatened wildlife species under certain circumstances.

Regulations governing permits are codified at 50 CFR 17.32. Such

permits are available for scientific purposes, to enhance the

propagation or survival of the species, and/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 the policy of the Service, published in the Federal Register

on July 1, 1994, (59 FR 34272) to identify, to the maximum extent

practicable at the time a species is listed, those activities that

would or would not constitute a violation of section 9 of the Act. The

intent of this policy is to increase public awareness of the effects of

the listing on proposed and ongoing activities within a species' range.

The Service believes that, based on the best available information, the

following actions will not result in a violation of section 9 for

listed copperbelly water snakes, provided these activities are carried

out in accordance with existing regulations and permit requirements:

(1) Routine agricultural activities on property adjacent to

occupied copperbelly habitat, excluding activities which convert

wooded, shrubby, or brushy areas to cropland or pasture;

(2) Possession of legally acquired copperbelly water snakes; and

(3) Actions that may affect copperbelly water snakes that are

funded, authorized, or carried out by a Federal agency if the action is

conducted in accordance with section 7 of the Act.

Activities that the Service believes could potentially harm the

copperbelly water snake and result in ``take'' to the northern

population segment of the snake include, but are not limited to;

(1) Collecting or handling of the snake in any manner;

(2) Possess, sell, transport, or ship illegally taken copperbelly

water snakes;

(3) Substantial destruction or degradation of the species' wetland

habitat such as discharge of fill material, drainage, damming of

wetlands, channelization, damming, diversion of streams or rivers,

diversion or alteration of surface or ground water flow into or out of

wetlands (due to roads, impoundments, discharge pipes, storm water

detention basins, etc.);

(4) Discharges or dumping of toxic chemicals, silt, or other

pollutants (e.g., sewage, oil, and gasoline) into waters supporting the

species; and

(5) Interstate and foreign commerce and export without obtaining

the appropriate permit. Permits to conduct these activities are

available for purposes of scientific research and enhancement of

propagation or survival of the species.

Questions regarding whether specific activities may constitute a

violation of section 9 should be directed to the Field Supervisor of

the appropriate Service field office as follows: in Indiana, the

Bloomington Field Office, 620 South Walker Street, Bloomington, Indiana

47403 (812/334-4261); in Michigan, the East Lansing Field Office, 2651

Coolidge Road, East Lansing, Michigan 48823 (517/351-2555); and in

Ohio, the Reynoldsburg Field Office, 6950-H Americana Parkway,

Reynoldsburg, Ohio 43068 (614/469-6923) (see ADDRESSES section).

Requests for copies of the regulations regarding listed species and

inquiries about prohibitions and permits may be addressed to U.S. Fish

and Wildlife Service, Division of Endangered Species, Whipple Federal

Building, 1 Federal Drive, Ft. Snelling, Minnesota 55111-4056

(telephone 612/725-3536; facsimile 612/725-3526).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements. This rulemaking was not subject to review by the Office

of Management and Budget under Executive Order 12866.

References Cited

A complete list of all references cited herein is available upon

request from the Service's Bloomington, Indiana, Ecological Service

Field Office. (See ADDRESSES section.)

Author

The primary authors of this document are Scott Pruitt of the

Service's Bloomington Field Office (see ADDRESSES section) and Jennifer

Szymanski (U.S. Fish and Wildlife Service, Whipple Federal Building, 1

Federal Drive, Ft. Snelling, Minnesota 55111-4056).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended 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, 10080 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by adding the following, in

alphabetical order under REPTILES, to the List of Endangered and

Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Reptiles

[[Page 4192]]

* * * * * * *

Snake, copperbelly water......... Nerodia U.S.A. (IL, IN, KY, Indiana north of 40 T 607 NA NA

erythrogaster MI, OH). degrees north

neglecta. latitude,

Michigan, Ohio.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: January 16, 1997.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 97-2056 Filed 1-27-97; 8:45 am]

BILLING CODE 4310-55-P