Endangered and Threatened Wildlife and Plants; Final Rule to List the Northern Population of the Bog Turtle as Threatened and the Southern Population as Threatened Due to Similarity of Appearance

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD05

Endangered and Threatened Wildlife and Plants; Final Rule to List

the Northern Population of the Bog Turtle as Threatened and the

Southern Population as Threatened Due to Similarity of Appearance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

threatened status pursuant to the Endangered Species Act of 1973, as

amended (Act) for the northern population of the bog turtle (Clemmys

muhlenbergii), which ranges from New York and Massachusetts south to

Maryland. The Service also determines the southern population of the

bog turtle, which occurs in the Appalachian Mountains from southern

Virginia to northern Georgia, to be threatened due to similarity of

appearance to the northern population, with a special rule.

The bog turtle is threatened by a variety of factors including

habitat degradation and fragmentation from agriculture and development,

habitat succession due to invasive exotic and native plants, and

illegal trade and collecting. This rule implements Federal protection

and recovery provisions afforded by the Act.

DATES: Effective November 4, 1997.

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

by appointment, during normal business hours at the Pennsylvania Field

Office, U.S. Fish and Wildlife Service, 315 South Allen Street, Suite

322, State College, Pennsylvania 16801.

FOR FURTHER INFORMATION CONTACT: Carole Copeyon, Endangered Species

Biologist, at the above address (telephone 814/234-4090; facsimile 814/

234-0748).

SUPPLEMENTARY INFORMATION:

Background

The bog turtle was first described and named as Muhlenberg's

tortoise (Testudo muhlenbergii) by Johann David Schoepff in 1801 based

on specimens received in 1778 from Reverend Heinreich Muhlenberg of

Lancaster County, Pennsylvania. In 1835, L.J. Fitzinger transferred the

species to the genus Clemmys, where it remains today (Barton and Price

1955). In 1917, Dunn considered bog turtles within the southern range

to be distinct, and classified the southern population as Clemmys

nuchalis (Amato, Behler, Tryon, and Herman 1993). This taxon was

subsequently synonymized with Clemmys muhlenbergii; however,

researchers still question the taxonomic status of the northern and

southern populations (Amato et al. 1993, Klemens in press). Initial

data from recent preliminary genetic studies, based on examination of

variability at the 16S ribosomal gene, suggest that there may not be

significant genetic differences between the northern and southern

populations. However, due to the conservative nature of this gene in

other species, any definitive conclusions concerning genetic

differences between the northern and southern populations is premature

(Amato et al. 1993).

The bog turtle is sparsely distributed over a discontinuous

geographic range extending from New England south to northern Georgia.

A 250-mile gap within the range separates the species into distinct

northern and southern populations (Klemens in press, Tryon 1990, Tryon

and Herman 1990). The

[[Page 59606]]

northern population extends from southern New York and western

Massachusetts southward through western Connecticut, New Jersey and

eastern Pennsylvania, to northern Delaware and Maryland. Disjunct

populations previously occurred in western Pennsylvania and in the Lake

George and Finger Lakes regions of New York. The western Pennsylvania

and Lake George populations have been extirpated, and only a remnant

population exists at one remaining site in the Finger Lakes region. The

southern population occurs in the Appalachian Mountains from

southwestern Virginia southward through western North Carolina, eastern

Tennessee, northwestern South Carolina, and northern Georgia. The

southern population also occurs in the upper piedmont physiographic

province of North Carolina. The species' disjunct distribution is

thought to be the result of Pleistocene and post-Pleistocene climatic

changes (Lee and Norden 1996).

The Act defines a species to include any subspecies of fish or

wildlife or plants, or any distinct population segment (DPS) of any

species of vertebrate fish or wildlife which interbreeds when mature.

Based on the disjunct distribution of this species, the northern

population of the bog turtle is considered a DPS and, therefore, a

separate species under the Act.

The bog turtle is the smallest member of the genus Clemmys, with

the carapace (upper shell) of adults measuring 7.5 to 11.4 centimeters

(3.0 to 4.5 inches) in length (Bury 1979). The domed carapace is weakly

keeled and ranges in color from light brown to ebony. The scutes of the

shell often have lighter-colored centers resembling a starburst pattern

(Herman and George 1986). The plastron (lower shell) is brownish-black

with contrasting yellow or cream areas, often along the midline. This

species is readily distinguished from other turtles by the large,

conspicuous bright orange, yellow, or red blotch found on each side of

the head. The species is sexually dimorphic. Males have concave

plastrons and long, thick tails, and the vent of the male is located

beyond the posterior carapace margin. Females have proportionately

higher carapaces, flat plastrons, and relatively short tails, and the

vent of the female is located beneath the carapace edge (Bury 1979,

Klemens in press).

Bog turtles are semi-aquatic and are only active during part of the

year (Barton and Price 1955). In the northern part of their range, they

are active from April to mid-October (Arndt 1977, Nemuras 1967).

Reported periods of inactivity in July and August may be an artifact of

collecting bias and the difficulty of locating turtles at that time of

year (Lovich, Herman, and Fahey 1992). Bog turtles hibernate from

October to April, often just below the upper surface of frozen mud or

ice (Chase, Dixon, Gates, Jacobs, and Taylor 1989). Their varied diet

consists of beetles, lepidopteran larvae, caddisfly larvae, snails,

nematodes, millipedes, fleshy pondweed seeds, sedge seeds, and carrion

(Barton and Price 1955, Nemuras 1967). Where population estimates are

available, bog turtles have been found at densities ranging from 7 to

213 turtles per hectare (Chase et al. 1989). Chase et al. (1989) found

an average of 44 turtles per site at 9 study sites in Maryland.

Female bog turtles reach sexual maturity between 5 and 8 years of

age (Barton and Price 1955, Ernst 1977). Mating occurs in May and June,

and females deposit from two to six white eggs in sphagnum moss or

sedge tussocks in May, June, or July (Arndt 1977, Herman 1990, Herman

and George 1986, Klemens in press). Unlike most other semi-aquatic

turtles, bog turtles do not leave their wetland habitat and travel to

dry, upland areas to lay eggs. ``Instead, they select slightly elevated

sites, generally on Carex stricta tussocks, for nesting within their

marshy habitat. Nesting areas typically have limited canopy closure,

support an array of moisture tolerant, low vegetation, and provide

ample solar exposure'' (Robert Zappalorti, Herpetological Associates,

in litt. 1997). The eggs hatch after an incubation period of 42 to 56

days (Arndt 1977, Herman 1990), and the young emerge in August or early

September (Arndt 1977, Barton and Price 1955). Infertile eggs are

common (Arndt 1977, Herman 1990, Tryon 1990), and not all females

produce clutches annually (Tryon 1990). Also, there is no evidence to

suggest that multiple clutches are deposited in a single season.

Bog turtles inhabit shallow, spring-fed fens, sphagnum bogs,

swamps, marshy meadows, and pastures which have soft, muddy bottoms;

clear, cool, slow-flowing water, often forming a network of rivulets;

and open canopies (Arndt 1977, Barton and Price 1955, Herman and George

1986, Klemens in press). In Maryland, Chase et al. (1989) reported that

bog turtles were found in circular basins with spring-fed pockets of

shallow water, a substrate of soft mud and rock, dominant vegetation of

low grasses and sedges, and interspersed wet and dry pockets. In these

types of habitats, bog turtles often utilize the runways of muskrats

and meadow voles (Barton and Price 1955, Nemuras 1967, Taylor et al.

1984). Bog turtles have been found at elevations ranging from near sea

level in the north to 1500 meters (4500 feet) in the south (Herman and

George 1986).

Bog turtles usually occur in small, discrete populations occupying

suitable wetland habitat dispersed along a watershed (Collins 1990).

These wetlands are a mosaic of micro-habitats which include dry

pockets, saturated areas, and areas that are periodically flooded. They

depend upon this diverse hydrological mosaic, utilizing shallow water

in spring, and returning to deeper water in winter (Chase et al. 1989).

Unless disrupted by fire, beaver activity, grazing, or periodic wet

years, open-canopy wetlands are slowly invaded by woody vegetation.

They undergo a transition into closed-canopy, wooded swamplands that

are unsuitable for habitation by bog turtles (Klemens in press, Tryon

1990). Historically, bog turtles probably moved from one open-canopy

wetland patch to another, as succession closed wetland canopies in some

areas, and natural processes (e.g., beaver activity or fire) opened

canopies in other areas (Klemens 1989).

Several plant species commonly associated with bog turtle habitats

include alders (Alnus sp.), willows (Salix sp.), sedges (Carex sp.),

sphagnum moss (Sphagnum sp.), jewelweed (Impatiens capensis), rice cut-

grass (Leersia oryzoides), tearthumb (Polygonum sagittatum), arrow arum

(Peltandra virginica), red maple (Acer rubrum), skunk cabbage

(Symplocarpus foetidus) and bulrushes (Juncus sp. and Scirpus sp.)

(Arndt 1977; Barton and Price 1955; Herman and George 1986; Taylor,

Dawson, Beall, and Schaeffer 1984). Pedestal vegetation, such as

tussock sedge (C. stricta) and sphagnum moss, are utilized for nesting

and basking (Gelvin-Innvaer and Stetzar 1992, Klemens in press).

Currently, many wetlands occupied by bog turtles in agricultural

areas are subject to livestock grazing. Light to moderate grazing may

function to impede succession by preventing or minimizing the

encroachment of invasive native and exotic plant species, thereby

maintaining an intermediate stage of succession (Smith 1994, Tryon

1990). It has been suggested that in precolonial times the grazing

activities of large herbivores, such as bison (Bison bison) and elk

(Cervus canadensis), may have been important in maintaining bog turtle

habitat (Lee and Norden 1996). The occurrence of bog turtles in

wetlands grazed by livestock is probably an instance where grazing by

livestock

[[Page 59607]]

has either replaced grazing by native herbivores or replaced one of the

other historical factors that would have acted to maintain the wetlands

in an early successional stage.

Due to the bog turtle's rarity, small size, predator-evasive

behavior (i.e., tendency to burrow rapidly into the mud), and habitat

preferences (e.g., dense herbaceous vegetation), it is difficult to

obtain reliable bog turtle population demographics. This lack of data

has led to a misconception as to the number of healthy populations

found throughout the species' range. For example, some documented bog

turtle sites support populations consisting primarily of old

individuals. These populations are slowly disappearing due to

negligible recruitment of juveniles over a sustained period of time

(Klemens 1989).

A protocol was developed to assess the capacity of sites to

maintain viable populations of bog turtles. Known as the ``Standardized

Bog Turtle Site-quality Analysis'' (Michael Klemens, Wildlife

Conservation Society, in litt. 1993), it groups bog turtle occurrences

into sites based on the likelihood of turtles moving between documented

occurrence locations and interbreeding. A site is ranked according to

four factors--(1) habitat size and degree of fragmentation; (2) the

presence of invasive plants and later successional species; (3)

immediate threats such as wetland ditching, draining, filling or

excavation; and (4) the type and extent of land use in the area. Where

adequate data are available, sites are also ranked according to

population size and evidence of recruitment.

Using this site-quality analysis in 1993 and 1994, the individuals

most familiar with each site (the primary bog turtle researcher(s) in

each State) assessed and ranked the suitability of almost every known

northern population site. The ranking process resulted in each site

receiving a numerical score, and based on these scores, each site was

then ranked as good, fair, or poor. By incorporating factors related to

habitat quality and threats, these rankings reflect the suitability of

the sites to maintain viable bog turtle populations. The classification

system was based on researchers' best professional judgments regarding

site suitability. The classifications based upon these scores are

conservative for several reasons. Threats from illegal collecting were

not considered in the rankings. Rankings were often based on

interpretation of old maps (more than 10 years old); therefore, recent

land use changes such as development were not considered. Also, at some

sites the presence of turtles had not been confirmed for over 10 years.

Occurrence refers to a documented specific bog turtle location (a

single wetland or a road-crossing sighting), one or more of which are

included in a site. Due to widespread wetland habitat fragmentation

throughout the turtle's range, most sites are comprised of only one

small extant occurrence, often isolated from other such occurrences.

Of 191 known extant bog turtle sites within the northern population

in 1996, 33 were classified as good, 67 as fair, 76 as poor, and 15 as

unknown status. The State-by-State summaries given below present

information primarily about the status and distribution of extant

northern bog turtle populations/sites within each State.

In Connecticut, bog turtles are found in the northwestern corner of

the State in Fairfield and Litchfield Counties. All five remaining

populations are found on private lands; four of these populations are

classified as fair and one as poor (Julie Victoria, Connecticut

Division of Wildlife, in litt. 1994).

In Delaware, bog turtles were historically reported from 11

localities in the piedmont and coastal plain of New Castle County

(Arndt 1977). Currently, only four sites are known to support bog

turtles, and all of these are classified as fair. Two of these sites

occur on State lands and two on private property (Lisa Gelvin-Innvaer,

Jay Greenwood and Bill Zawaki, Delaware Division of Fish and Wildlife,

in litt. 1994).

All three known bog turtle populations in Massachusetts occur on

private property in southern Berkshire County. Two of these sites

receive some degree of protection through landowner conservation

agreements. One population is considered good, one fair, and one poor.

Maryland's 65 remaining extant bog turtle sites occur in the

piedmont region of Baltimore, Carroll, Cecil and Harford Counties, with

approximately 97 percent of the habitat privately owned and the other 3

percent in State ownership (Scott Smith, Maryland Department of Natural

Resources, in litt. 1994). Seventeen of these sites are classified as

good, 23 as fair, and 25 as poor. In 1995 and 1996, five additional bog

turtle sightings were documented from Harford, Baltimore, and Carroll

Counties. However, most of these occurrences are components of

previously identified and ranked sites (Smith, in litt. 1996).

In New Jersey, there are 53 known extant bog turtle sites in

Burlington, Hunterdon, Monmouth, Morris, Ocean, Somerset, Sussex,

Union, and Warren counties (James Sciascia, New Jersey Department of

Fish, Game and Wildlife, and Robert Zappalorti, Herpetological

Associates, Inc., in litt. 1994; Sciascia, in litt. 1997). Eight of

these sites are classified as good, 21 as fair, 18 as poor, and 6 are

of unknown status. Approximately 90 percent of the turtle habitat in

New Jersey is privately owned, while the State and Federal governments

own 5 percent each (Sciascia and Zappalorti, in litt. 1994).

The New Jersey Endangered and Nongame Species Program recently

conducted extensive surveys to locate and document bog turtle habitat.

From 1993 to 1995, the habitat suitability of 473 wetlands in

Hunterdon, Somerset, Sussex, and Warren counties was assessed. Only 77

sites (16 percent) contained potentially suitable bog turtle habitat,

and bog turtles were found at only 8 of these wetlands (Sciascia 1996).

In 1996, additional surveys conducted in Sussex County documented 16

new bog turtle occurrences, primarily in calcareous fen habitats. These

fens are restricted to a 40-square-mile area in central Sussex and

northern Warren counties. The discovery of bog turtles in calcareous

fen habitats is important to the species' conservation within this area

of New Jersey and neighboring Pennsylvania. Fens are primarily shrub

and herb communities formed in low-lying areas where groundwater

percolates over limestone bedrock. This alkaline seepage water most

likely retards the growth of canopy-closing trees such as red maple.

The persistence of this type of shrub/herb community could account for

the presence of bog turtles (James Sciascia, New Jersey Department of

Fish, Game and Wildlife, in litt. 1996).

The bog turtle's range in New York is concentrated primarily in the

extreme southeastern corner of the State. Disjunct populations

historically occurred in the Lake George area in eastern New York, in

the Finger Lakes region in western New York, and in south central New

York. The Lake George and south central populations have been

extirpated, and only one extant Seneca County site remains in the

Finger Lakes region (Alvin Breisch and Michael Kallaji, New York

Department of Environmental Conservation, and Paul Novak, New York

Natural Heritage Program, in litt. 1994; Novak, in litt. 1997).

Potentially, 22 sites remain in southeastern New York; however, only 17

are considered extant. Of the 18 total remaining extant sites in New

York (Seneca, Columbia, Dutchess, Putnam, and Orange counties), 5 are

considered good, 6 fair

[[Page 59608]]

and 7 poor. Nearly all bog turtle habitat (99 percent) occurs on

private lands; the remaining 1 percent is found on State lands (Breisch

et al., in litt. 1994).

In Pennsylvania, bog turtles are still found in 13 of the 17

counties from which the species was previously reported (Adams, Berks,

Bucks, Chester, Cumberland, Franklin, Lancaster, Lebanon, Lehigh,

Monroe, Montgomery, Northampton, and York). Of the 34 remaining sites

evaluated, 2 sites are considered good, 8 fair, and 24 poor.

Approximately 85 percent of the bog turtle habitat is found on private

lands, with the remainder occurring on State and Federal lands (10

percent and 5 percent, respectively) (Barton, in litt. 1994). In

addition, between 1994 and 1996, nine new sightings were reported from

Berks, Chester, and Northampton counties. These sites have yet to be

evaluated; however, some appear to be small and marginal in quality.

The extent of the captive bog turtle population is poorly

documented at this time, with the exception of bog turtles held by

zoological institutions. According to data from the International

Species Information System (ISIS), 102 bog turtles are currently held

by 16 zoos in the United States; 64 percent of these turtles are

captive born and 24 percent wild born (Judy Hendrickson, ISIS, in litt.

1997). Only a few people within the range of the northern and southern

populations have valid State permits to possess bog turtles or conduct

studies of wild turtles. Although the full extent of the illegally-held

bog turtle population is unknown, based on evidence of collection and

trade (see the ``Summary of Factors'' section), it is likely to greatly

exceed that of the legally-held population.

Based on documented losses of bog turtles and their habitat, the

northern population has declined by at least 50 percent, with most of

the decline occurring over the last 20 years. Habitat destruction and

illegal collecting for the pet trade are the primary threats to the

species. Widespread alteration of bog turtle habitat has resulted from

the draining, ditching, dredging, filling, and flooding of wetlands for

residential, urban, and commercial development; road construction;

agricultural activities; and pond and reservoir construction. The

proximity of many remaining bog turtle populations to rapidly

developing areas also poses a significant threat to the species.

Previous Federal Action

The bog turtle was first recognized as a Category 2 candidate

species by the Service in the December 30, 1982, Federal Register

notice of review (47 FR 58454). It was later retained as a Category 2

species in subsequent notices of review (60 FR 37958, September 18,

1995; 54 FR 554, January 6, 1989; and 56 FR 58804, November 21, 1991).

Reclassification of the bog turtle to Category 1 was reflected in the

November 15, 1994, animal notice of review (59 FR 58982). On February

28, 1996 (61 FR 7457), the Service published a notice of review that no

longer included species formerly referred to as Category 2 candidate

species. The notice revised the definition of the term ``candidate'' as

taxa for which the Service has on file sufficient information on

biological vulnerability and threats to list them as endangered or

threatened species. The northern population of the bog turtle was

included as a candidate in this February 28 notice of review. On

January 29, 1997, the Service published a proposed rule in the Federal

Register (62 FR 4229) to list the northern population of the bog turtle

as threatened and the southern population as threatened due to

similarity of appearance.

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

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 following two related events: (1) the

lifting, on April 26, 1996, of the moratorium on final listings imposed

on April 10, 1995 (Public Law 104-6), and (2) the restoration of

significant funding for listing through enactment of the omnibus budget

reconciliation law on April 26, 1996, following severe funding

constraints imposed by a number of continuing resolutions between

November 1995 and April 1996. The guidance calls for giving highest

priority to handling emergency situations (Tier 1) and second highest

priority to resolving the listing status of outstanding proposed

listings (Tier 2). A lower priority is assigned to resolving the

conservation status of candidate species and processing administrative

findings on petitions to add species to the lists or reclassify species

from threatened to endangered (Tier 3). The lowest priority is given to

processing critical habitat determinations, delistings, and other

reclassifications (Tier 4). Processing of this final rule is a Tier 2

action since it resolves the conservation status of a proposed species.

In 1975, the bog turtle was added to Appendix II of the Convention

on International Trade in Endangered Species of Wild Fauna and Flora

(CITES) in order to monitor trade in the species. In 1991, the New York

Zoological Society submitted a proposal to the Service requesting the

transfer of the bog turtle from Appendix II to Appendix I of CITES

(Anon. 1991). In response to a notice (56 FR 33895; July 24, 1991)

calling for changes to the CITES Appendices, a total of 13 comments

were received concerning the bog turtle proposal. All commenters

recommended transferring the bog turtle from Appendix II to Appendix I

due to the increased number of bog turtles being advertised for sale,

the increased price being paid for individuals and pairs, and illegal

trade not being reported under CITES. In the March 4, 1992, Federal

Register notice (57 FR 7722), the Service announced that the party

members to CITES agreed to transfer the bog turtle from Appendix II to

Appendix I; and on June 11, 1992, the species was officially added to

Appendix I.

Summary of Comments and Recommendations

In the January 29, 1997, proposed rule and associated

notifications, 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. Notices were published in newspapers across

the range of the species inviting public comment.

On March 14, 1997, the Service received a written request for a

public hearing from Mr. Gary Hoffman, Chief Engineer for the

Pennsylvania Department of Transportation (PennDOT). As a result, on

April 3, 1997, the Service published a notice in the Federal Register

(62 FR 15873) announcing the public hearing. The Service conducted a

public hearing on April 21, 1997, at the Oley High School in Oley,

Pennsylvania. Testimony was taken from 7:00 to 9:00 p.m. (Eastern

Standard Time). Thirty-two of the approximately 200 people attending

the hearing presented testimony. During the comment period, the Service

received 237 comments (letters and oral testimony) from 15 State

agencies; 6 local governments; and 216 individuals, groups, and

organizations. Eight opposed, 218 supported, and 11 were neutral on the

proposed action.

The Service has reviewed all of the written and oral comments

received during the comment period. Some comments dealt with matters of

opinion or issues unrelated to the question of

[[Page 59609]]

listing, and are, therefore, not addressed as part of this rulemaking.

Comments updating the data presented in the ``Background'' or ``Summary

of Factors Affecting the Species'' sections are incorporated into those

sections of this final rule. Opposing comments and other substantive

comments concerning the rule have been organized into specific issues,

which may be paraphrased. Comments of a similar nature are grouped

together by issue. These issues and the Service's response to each are

summarized as follows.

Issue 1

Two commenters thought the Service should consider economic impacts

when listing species. One commenter further contended that ``all state

and federal actions designed to protect alleged threatened and/or

assumed endangered species pursuant to the ESA should demonstrate that

the benefits to humans exceed the costs to humans.''

Service Response: Under section 4(b)(1)(A) of the Act, a listing

determination must be based solely on the best scientific and

commercial data available. The legislative history of this provision

clearly states the intent of Congress to ``ensure'' that listing

decisions are ``based solely on biological criteria and to prevent non-

biological criteria from affecting such decisions'' (H.R. Rep. No. 97-

835, 97th Cong., 2d Sess. 19 (1982)). As further stated in the

congressional report, ``economic considerations have no relevance to

determinations regarding the status of species.'' Because the Service

is specifically precluded from considering economic impacts in a final

decision on a proposed listing, the Service did not consider the

possible economic consequences of listing the bog turtle.

Issue 2

Two commenters contended that the Service did not provide adequate

opportunity for public comment, and should therefore consider extending

the comment period and holding additional public hearings.

Service Response: The Service went through an extensive

notification process to make the public aware of the proposal,

including Federal Register notification, letters to specific concerned

parties, and notifications to local newspapers. In order to increase

the opportunity for public comment, the Service had a 90-day comment

period on the proposed rule, although only a 60-day comment period is

required. In response to a request by the PennDOT, the Service also

held a public hearing within the core of the bog turtle's range in

Pennsylvania. These processes were described at the beginning of this

section.

Issue 3

One commenter requested additional information regarding the

scientific basis for identifying a species as federally threatened when

the species is not considered threatened throughout its entire

biological range.

Service Response: The Endangered Species Act requires the Secretary

of the Interior (or Commerce, depending on jurisdiction) to determine

whether species are endangered or threatened. A ``species'' as defined

under the Act includes species, subspecies and ``any distinct

population segment of any species of vertebrate fish or wildlife which

interbreeds when mature.'' From a biological perspective, the Act

supports the goals of conserving genetic resources, and maintaining

natural systems and biodiversity over a representative portion of a

species' historical occurrence. In that respect, the listing of DPS's

may allow the Service to protect and conserve species and the

ecosystems upon which they depend before a large-scale decline occurs

that would necessitate listing a species throughout its entire range.

This may allow protection and recovery of declining organisms in a more

timely and less costly manner, and on a smaller scale than the more

costly and extensive efforts that might be needed to recover an entire

species.

Issue 4

One commenter alleged that the northern population of the bog

turtle is not a DPS as defined by Service policy, partially due to the

lack of documented genetic differences between the northern and

southern populations.

Service Response: According to the Service's policy on Distinct

Population Segments (61 FR 4725), three elements are considered

regarding the potential recognition of a DPS as endangered or

threatened--(1) discreteness of the population segment in relation to

the remainder of the species to which it belongs; (2) the significance

of the population segment to the species to which it belongs; and (3)

the population segment's conservation status in relation to the Act's

standards for listing.

With respect to the bog turtle, the northern population meets the

``discreteness'' criterion in that it is markedly separated from the

southern population by a distance of approximately 250 miles. Evidence

of such discreteness may include genetic or morphological differences,

but this is not a requirement. The northern population of the bog

turtle meets the ``significance'' criterion because loss of this DPS,

which occurs in seven States and represents over 50 percent of the

species' range, would result in a significant void in the range and

distribution of the species. The ``status'' criterion is met in that

the northern population of the bog turtle, when evaluated with respect

to the Act's listing factors (see the ``Summary of Factors Affecting

the Species'' section), qualifies for listing as threatened.

Issue 5

With regard to habitat loss, one commenter questioned whether the

Service had historical data on habitat, populations, and the species'

range, or only considered information from the past 20 years, which may

represent an artificial baseline and an ``unusual period in the

species' natural history.'' In considering the species historical

baseline, this commenter questioned whether bog turtles may have

occurred over a smaller range in the distant past, but later followed

deforestation into open areas and livestock pastures along floodplains.

Service Response: In assessing the status of the bog turtle, the

Service reviewed the best available information regarding populations,

past and present distribution, and habitat loss. Information provided

by State wildlife agencies, natural heritage programs, researchers, and

others dated back to the late 1800's, and indicated a reduction in

range, and loss of habitat and populations over this period of time,

with the documented loss dramatically accelerating over the past 20

years. In this respect, the past 20 years may represent an unusual

period in the species' natural history--a period of unprecedented

decline.

Bog turtles inhabit open canopy wetlands, a habitat type which was

more common historically than today because (1) historically, the

ecological factors of fire and beaver activity were unimpeded in

creating and maintaining these areas, and (2) since the 1800's, wetland

draining, dredging, and filling have become a prevalent practice of

land conversion for development, agriculture, and resource extraction.

Bog turtles are occasionally found in grazed wet pastures, and it has

been suggested that in precolonial times the grazing activities of

large herbivores, such as bison and elk, may have been important in

maintaining bog turtle habitat (Lee and Norden 1996). Thus, the

occurrence of bog turtles in wetlands lightly grazed by livestock is

probably an instance where grazing by livestock has replaced grazing by

native herbivores, or replaced one of the other historical factors that

[[Page 59610]]

would have acted to maintain the wetlands in an early successional

stage.

Issue 6

One commenter suggested that the decline in bog turtle habitat may

be due to farm pastures evolving into habitat areas unsuitable for bog

turtles.

Service Response: Bog turtles are occasionally found in grazed wet

pastures, and vegetative succession in these habitats is a contributing

factor, though not the only factor, to the species' decline. Light to

moderate grazing may impede vegetative succession by preventing or

minimizing the encroachment of invasive native and exotic plant

species, and it appears that this level of grazing helps to maintain

the intermediate stage of succession required by the bog turtle (Smith

1994, Tryon 1990). When grazing is discontinued the habitat becomes

less suitable (or unsuitable) due to succession.

Issue 7

Three commenters requested that the Service delay or not list the

bog turtle due to an insufficient amount of data to justify listing.

One commenter alleged that a single modeling study (i.e., the

assessment of sites using the ``Standardized Bog Turtle Site-quality

Analysis'') rather than a sufficient number of diverse studies were

used to support the listing. This commenter also contended that the

information used to justify the listing was not adequate because the

Service did not cite any studies that might question the validity of

the proposal, and that where there are data gaps, the Service must

complete studies to close those gaps. No data or studies were provided

or cited by these commenters supporting their assertion that the

information utilized by the Service was incomplete or incorrect.

Expressing a contrary view, peer reviewers and several other

biologists familiar with the species stated that the Service had

clearly documented the species status and threats to its existence, and

concurred that listing was warranted.

Service Response: The Service concludes, as detailed in the

``Background'' and ``Summary of Factors Affecting the Species''

sections, that there are sufficient biological data to warrant listing

of the bog turtle under the Act. Information, studies, field data, and

site analyses provided by biologists, law enforcement personnel, and

others familiar with the bog turtle and its habitat provided adequate

information on the distribution, habitat requirements, and, most

importantly, threats to the bog turtle to warrant the present action.

The listing process includes an opportunity for the public to comment

and provide information that is evaluated and considered by the Service

before making a final decision. The additional data provided by

respondents during the comment period, and other appropriate

information available to the Service have been incorporated into this

final rule; none of these data indicated that this taxon is not

threatened.

Issue 8

Two commenters contended that the Service has insufficient

population data to justify listing the bog turtle.

Service Response: The Service agrees that estimates of total

population are lacking for this species; however, the Service

considered several additional factors that are also important in

developing a biologically accurate species status assessment. 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. In addition to considering the number of sites

and subpopulations comprising the northern population, the Service also

considered factors such as the size of existing subpopulations,

historical and current rates of decline, the species' low recruitment

potential, distribution and proximity of subpopulations, quantity and

quality of available habitat, genetic diversity, and imminent and

potential threats to the species and its habitat. Therefore, although

quantitative sampling has not been completed throughout the range of

the bog turtle, pertinent and significant information regarding the

other aspects of the species' status is available. The decreasing

number of bog turtle sites and the quality of these remaining sites

throughout the species' historical and current distributions are a more

accurate reflection of the turtle's status than are rough estimates of

the total number of bog turtles. When all of these factors are

considered for the bog turtle, it is clear that listing is warranted.

Issue 9

Seven commenters questioned or criticized the use of a model (i.e.,

the ``Standardized Bog Turtle Site-quality Analysis'') to assess bog

turtle sites, claiming that such evaluations are qualitative and

subjective, and that such assessments should be based on field data.

One commenter requested additional information regarding the methods

and data used to characterize sites.

Service Response: Extensive surveys of potential wetland habitats

have been conducted for bog turtles within the range of the northern

population. Most of these surveys were designed to primarily document

bog turtle presence, not to evaluate habitat quality, threats, or

population demography. Merely knowing the total number of occupied bog

turtle sites did not allow the Service to adequately assess the status

of this species, however. Therefore, a ``Standardized Bog Turtle Site-

quality Analysis'' was developed by Dr. Michael Klemens in conjunction

with other bog turtle researchers to qualitatively assess the capacity

of sites to maintain viable populations of bog turtles. The Service

requested that State wildlife agencies, natural heritage programs, and

researchers evaluate known bog turtle sites using this site analysis

protocol. The evaluators used site-specific information on habitat

conditions and threats obtained from field investigations and maps.

Using these data, each site received a numerical score ranging from one

to five for each of four factors, including--(1) habitat size and

degree of fragmentation; (2) percent coverage of invasive plants and

later successional species; (3) proximity of major threats (e.g.,

wetland alteration via ditching, draining, filling, or excavation); and

(4) the type and extent of land use within a one-mile radius of the

site. When available, data on population size and recruitment were also

used. Although qualitative in nature, the Service believes that this

method presented a more objective approach to assessing the status of

the bog turtle than simply looking at the total number of sites,

without regard to habitat quality and threats. The methods and site

data are contained within the administrative file (see ADDRESSES

section).

Issue 10

Two commenters questioned whether certain factors (i.e., predation,

flooding of habitat by beaver, mortality due to vehicles and livestock,

and pollution) pose a sufficient threat to justify listing.

Service Response: Although these factors pose a significant threat

to several known bog turtle sites, none of them, when considered alone,

poses a sufficient threat to the northern population to justify

listing. When making a listing determination, however, the Service

assesses the potential impact of all threats to the species. Although

listing of a species might not be justified based upon a single factor,

when all factors are considered collectively, the threat may be

substantial enough to warrant listing. Such is the case for the bog

turtle (see

[[Page 59611]]

the ``Summary of Factors Affecting the Species'' section).

Issue 11

One commenter felt that the Service relied almost exclusively on

previous habitat loss to justify the listing, rather than focusing on

the present or threatened destruction, modification, or curtailment of

the species' habitat.

Service Response: The Service considers a variety of factors in

making a listing determination. Although historical habitat loss and

rates of decline are considered during the species' status assessment,

many other factors, including current rates of decline, potential and

imminent threats, number and status of populations, and amount and

quality of remaining habitat, are evaluated as well. Historical habitat

loss and rates of decline are utilized by the Service to ascertain if a

species is undergoing a precipitous or gradual decline. The Service

considered the historical trend information in combination with all

other information to determine whether listing was warranted.

Issue 12

One commenter questioned whether it was warranted to list the bog

turtle in the north if most of the trade occurs in the south, where the

species is not threatened.

Service Response: Trade occurs in the range of the northern

population and poses a threat to the northern population, as documented

under factor ``B'' in the ``Summary of Factors Affecting the Species''

section. When considered in conjunction with the other factors

affecting the species, listing of the northern population is warranted.

Issue 13

Two commenters questioned the degree of threat posed by illegal

collecting. Specifically, one commenter did not believe that over 2000

bog turtles had been shipped overseas for trade, thinking the number

more likely to be 20. Another commenter contended that the Service's

``inference that demand for turtles is increasing simply because the

price is increasing is questionable.'' Neither commenter supplied the

Service with any data or further information to substantiate these

assertions.

Service Response: Considering the number of bog turtles that have

been found in the possession of individual collectors, the Service has

no reason to discount the overseas trade information. The Service's

inference about price and demand for turtles is based on the Service's

experience with other species vulnerable to trade. This inference is

also based upon principles of economics (when supply does not meet

demand, price increases); increasing prices for bog turtles likely mean

that demand is increasing while the supply of wild bog turtles is

decreasing.

Threats from illegal collection are real. Because bog turtles are

not uniformly distributed over their range, collecting is often focused

on a known source or site, thereby threatening the entire population at

the site with extirpation. Listing pursuant to the Act will close the

loopholes in the various existing protective laws and make it easier to

prove illegal collecting activities.

Issue 14

Six commenters questioned the Service's assertion that existing

regulations are inadequate to protect the bog turtle. They argued that

Federal listing is unnecessary and redundant because the bog turtle is

already protected as a State-listed species. Two of these commenters

argued that existing wetland regulations are adequate to protect the

bog turtle.

Expressing a contrary position, 38 commenters (including all peer

reviewers) noted that Federal, State, and local laws have been

ineffective in providing protection for the bog turtle and its habitat.

Several commenters noted that bog turtle habitat is particularly

vulnerable due to various provisions of Federal and State wetland

regulations, including agricultural exemptions, general permits, and

nationwide permits. Referring to Pennsylvania's wetland permitting

program, the Monroe County Conservation District noted that ``tracking

of the state's program demonstrates that permits are generally being

issued as requested which will further fragment habitat locally over

time.'' Another commenter noted that between 1988 and 1996, 1181

actions were authorized through general permits, and none were denied

in 3 Pennsylvania counties inhabited by bog turtles. Several commenters

noted that State endangered species laws are ineffective in deterring

collection and trade.

Service Response: Based on an examination of the available

information, the Service has determined that proposed and on-going

damage or destruction of wetlands due to development and agriculture

throughout the range of the northern population is prevalent despite

existing Federal, State, and local regulations, and that existing

levels of protection are not adequate to assure the survival of the bog

turtle. In addition, although the bog turtle is State-listed throughout

its range, State laws are not sufficient or able to address the threats

of collection and trade. For example, some State law penalties are not

as stringent as others, and law enforcement priorities vary between

States. A more detailed discussion of the inadequacy of existing

regulations can be found under the ``Summary of Factors Affecting the

Species'' section. Listing pursuant to the Act will provide consistency

by providing a uniform regulation that applies across all States.

Issue 15

Two commenters questioned the reliability of surveys in concluding

that previously occupied sites were no longer occupied by bog turtles.

Specifically, one commenter did not believe that the number of

extirpated populations was as high as reported. He noted that surveyors

are not always successful in locating bog turtles, even in wetlands

where turtles are known to occur. Another commenter contended that some

sites may no longer exist, but this ``may only be due to the bog turtle

populations moving to another site.''

Service Response: The Service, State wildlife agencies, and bog

turtle researchers recognize the difficulties associated with

conducting bog turtle surveys; even under the best conditions, bog

turtles can be difficult to locate. For those previously documented bog

turtle sites that still bore evidence of potentially suitable habitat,

repeated surveys were conducted by qualified surveyors before

concluding that bog turtles were indeed extirpated from the site.

Although historically bog turtles probably moved from less suitable

wetlands (e.g., those undergoing succession) to more suitable wetlands

(e.g., those recently formed, or where succession was set back by

natural processes), it is much less likely that such movements would be

successful today. Bog turtle habitats are now highly fragmented, making

successful immigration and emigration difficult due to loss of wetland

travel corridors, and the prevalence of roads, subdivisions, and

agricultural land near, and often encircling, many sites. In addition,

more habitat is becoming unsuitable, and fewer potentially suitable

wetland sites are becoming available because those natural processes

that served to maintain and create bog turtle habitat have been

suppressed or are no longer operative (see the ``Summary of Factors

Affecting the Species'' section).

[[Page 59612]]

Issue 16

One commenter questioned the thoroughness and geographic extent of

the surveys that had been conducted for the species range-wide,

including the area between the currently known northern and southern

populations.

Service Response: Prior to preparation of the proposed rule, the

Service assessed the status of the northern and southern populations.

At that time, the Service queried State wildlife agencies, natural

heritage programs, and bog turtle researchers about the adequacy of

surveys conducted to date. Based on their responses, approximately 10

to 20 percent of the potentially suitable bog turtle habitat within the

northern range remains to be surveyed. Surveys of potential bog turtle

habitat continue in most of the northern range States. Survey coverage

is much less complete in the southern range States, particularly in

North Carolina and Virginia, where less than 50 percent of the

potentially suitable habitat has been surveyed. A comprehensive survey

of the southern population is currently underway, as discussed under

Issue 20. Numerous herpetological surveys have failed to locate bog

turtles between the northern and southern populations.

Issue 17

The PennDOT proposed that a task force be established to develop a

candidate conservation agreement for the bog turtle, rather than list

the species. The PennDOT felt such an agreement would provide a greater

benefit to the species than listing, while at the same time minimizing

Federal intervention, and provide regulatory relief should the species

be listed in the future. The PennDOT also indicated that they would be

precluded from pursuing proactive efforts to conserve the bog turtle

after listing occurs.

Service Response: Candidate conservation agreements are formal

agreements between the Service and one or more parties (i.e., land

owners, land managers, or State fish and wildlife agencies) to address

the conservation needs of proposed or candidate species. The

participants take on the responsibility of developing the agreement,

and voluntarily commit to implementing specific actions that will

remove or reduce the threats to the subject species, thereby

contributing to stabilizing or restoring the species. Conservation

benefits to the species may include an increase in habitat

connectivity, restoration or enhancement of habitats, maintenance or

increase of population numbers or distribution, and establishment of

buffers for protected areas. The ultimate goal of any candidate

conservation agreement is to remove threats to the species thereby

eliminating the need for listing under the Act.

In order to preclude the need for listing the bog turtle, a

sufficient number of candidate conservation agreements would have to be

developed and implemented throughout the seven-State range of the

northern population to remove enough threats for the Service to

conclude that the bog turtle is no longer in need of protection under

the Act. The Service has not been approached by any property owners,

land managers, or State wildlife agencies regarding development of

candidate conservation agreements. Also, although the PennDOT suggested

the development of such an agreement, they have not proposed a specific

plan, nor would they have control over implementation of such a plan

since they do not own or manage land containing any known bog turtle

sites.

Most State wildlife agencies within the range of the northern

population have expressed support for Federal listing of the bog

turtle, often citing the vulnerability of the species to illegal

collection and the need for Federal listing to address this threat.

Because candidate conservation agreements would be unable to address

the significant threats of trade and illegal collection, their

implementation would not preclude the need to list the bog turtle under

the Act.

Regarding implementation of proactive efforts to conserve bog

turtles, these efforts would be encouraged, not precluded, by the

Service after listing. Because the bog turtle occurs primarily on

private property, the Service fully realizes that recovery of this

species will depend upon the voluntary cooperation of private

landowners, and welcomes them as partners in the recovery effort. The

Service will work to provide technical assistance to those property

owners and land managers who wish to implement conservation measures

for this species.

Issue 18

Forty-one commenters (including two peer reviewers) recommended

that the Service list the northern population as endangered rather than

threatened. Although little additional information was offered by these

commenters to support the change in status, some argued that the

threats (particularly the inadequacy of existing regulations) were

substantial enough to support such a listing. Others contended that the

information in the proposed rule supported an endangered listing, or

felt that the species would receive better protection if designated as

endangered.

The Tortoise and Freshwater Turtle Specialist Group of the

International Union for the Conservation of Nature (IUCN) commented

that they recently evaluated the status of the bog turtle and added it

as ``endangered'' to their 1996 IUCN Red List. Based on the information

in the proposed rule, as well as their extensive knowledge of the

species and threats to its survival, they concluded that the northern

population should be federally listed as endangered.

Service Response: Based on the available information on the bog

turtle's status, and a careful assessment of threats, the Service

proposed the bog turtle for listing as threatened. Although the

northern population of the bog turtle faces serious ongoing and

potential threats, it is not currently in imminent danger of

extinction. Although some additional data on threats and the species'

status were received during the public comment period, these data did

not justify a change in the proposed classification of threatened. The

Service, therefore, still believes that a listing of threatened is

appropriate for the northern population.

Issue 19

One commenter stated that listing of the southern population must

be based on more than its similar physical appearance to the northern

population.

Service Response: Listing of the southern population as threatened

due to similarity of appearance is based upon more than its similar

physical appearance to the northern population, as detailed in the

proposed rule and this final rule (see ``Similarity of Appearance''

section).

Issue 20

The Service received 10 comments disagreeing with the proposed

listing of the southern population as threatened due to similarity of

appearance. Four commenters recommended listing the bog turtle as

threatened or endangered in Georgia, Tennessee, and/or South Carolina,

specifically excluding North Carolina and Virginia. Six commenters

recommended listing the entire southern population as threatened or

endangered. In addition, one commenter stated that the Service has

insufficient data on the southern population to say that it is not

biologically threatened or endangered at this time.

Service Response: The northern and southern populations of the bog

turtle can each be considered a DPS under the Service's DPS Policy (see

discussion under Issue 4). However, while both

[[Page 59613]]

populations meet the ``discreteness'' and ``significance'' criteria

under this policy, the Service only has sufficient status and threat

data on the northern population to justify its listing.

Prior to proposing the northern population of the bog turtle for

listing, the Service conducted a status review of both the northern and

southern populations. Several factors weighed into the Service's

decision not to propose the southern population for listing,

including--(1) the recent discovery of bog turtle sites in the Piedmont

physiographic province of North Carolina, well outside the species'

previously known Appalachian Mountains range; (2) limited information

regarding threats; and (3) inadequate survey coverage within the

southern range. A comprehensive status survey of the southern

population is currently underway and is anticipated to be completed by

December 1999. The Service agrees that it is premature to draw any

conclusions regarding the status of the southern population until

additional survey and threat information becomes available.

Although the Service could have delayed action on the northern

population until such time that additional data became available on the

southern population, such an action would have been irresponsible

considering the northern population faces documented and substantial

threats, and forthcoming data on the southern population may or may not

demonstrate that it qualifies for Federal listing.

Federal listing of only a portion of the southern population (e.g.,

bog turtles occurring in Georgia, South Carolina, and Tennessee) is not

appropriate because subpopulations do not qualify as legitimate listing

entities (i.e., DPS's) under the Service's DPS Policy. Also, boundaries

between States are not considered when determining whether a population

is ``discrete'' under the DPS Policy.

Issue 21

Five commenters expressed concerns that listing of the southern

population as threatened due to similarity of appearance will result in

intentional destruction of bog turtle habitat by landowners who fear

the potential for future listing, who don't understand what the

similarity of appearance listing means, or who don't believe that the

southern population will be regulated differently from the northern

population. Some of these commenters were also concerned that the

special rule exempting incidental take would further contribute to loss

of bog turtle habitat in the southern range.

Service Response: The Service recognizes that it has a

responsibility to conduct outreach activities to ensure that the public

understands the implications of the similarity of appearance listing

for the southern bog turtle population. Because bog turtle collection

and trade are already prohibited acts under State law throughout the

southern range, Federal listing will have no effect on landowners

within the southern range unless they are engaged in these already

illegal activities. Wanton destruction of bog turtle habitat within the

southern range, however, could precipitate the action that these

landowners would most like to avoid (i.e., Federal listing of the

southern population).

While the special rule for the southern population does exempt

incidental take, this does not mean that the Service condones the

destruction of bog turtle habitat in the southern range. The Service

recognizes that the bog turtle is State-listed in all five southern

range States, and hopes that land owners, land managers, and Federal,

State and local agencies will take this into account and give the

species the full consideration it deserves when planning and

implementing projects.

Issue 22

The Connecticut Farm Bureau Association presented information which

they felt contradicted the Service's assertion that deleterious

agricultural practices are affecting the bog turtle. They stated that

``according to USDA/NARCS data, between 1982 and 1992, the amount of

cropland still requiring conservation treatment declined by nearly a

quarter. Pasture and forest acres needing conservation treatment also

declined between 1982 and 1992.''

Service Response: While the information presented may reflect

positive national trends in soil conservation, it also implies that

progress is slow and incomplete (i.e., in 10 years, less than 25

percent of the land needing conservation treatment received such

treatment). It also does not contradict available information on known

and potential threats to bog turtles posed by agricultural activities,

including conversion of wetlands to farm ponds; heavy grazing;

hydrological alteration of wetlands (e.g., draining, ditching); and

chemical and sediment input to wetlands.

Issue 23

Seven commenters criticized the Service's decision not to designate

critical habitat for the bog turtle. Three of these commenters felt

that the additional protection and recovery benefits afforded by such

designation would outweigh the potential risk from increased

collecting. Four commenters who opposed the listing stated that the

Service's failure to identify critical habitat would mean that

landowners could be found in violation of the Act without knowledge of

where the species' habitat is located. They also contended that

landowners have a right to know how the listing will affect use of

their property.

Expressing a contrary view, several commenters concurred with the

Service's decision not to designate critical habitat, citing the threat

posed by illegal collection and the pet trade.

Service Response: The Service maintains that the risks associated

with designation of critical habitat for the bog turtle outweigh any

benefits of such designation. Once sites become publicly known, they

can be quickly exploited by collectors; exploitation of sites by

collectors soon after the sites had become publicly known has been

documented. Due to the small size of existing populations and the low

reproductive and recruitment potential of this species, the removal of

even a few breeding adults can do irrevocable damage to a population.

Therefore, due primarily to the threat of illegal collection, the

Service concludes that designation of critical habitat is not prudent,

as discussed in detail in the ``Critical Habitat'' section of this

rule.

The Service appreciates the concern that landowners have about the

potential implications of having a federally listed species on their

property. Therefore, in order to increase awareness of the effect of

listing on proposed and ongoing activities, and minimize the likelihood

of landowners unknowingly affecting listed species and their habitat,

the Service has identified those activities that would or would not

constitute a violation of section 9 of the Act, as detailed in the

``Available Conservation Measures'' section. Questions regarding

whether specific activities may constitute a violation of section 9

should be directed to the appropriate Service Field Office. In

addition, based on information provided by State wildlife agencies and

natural heritage programs, the Service notified persons (within the

northern range States) having known bog turtle habitat on their

property about the proposed rulemaking, and will notify these

landowners about the final listing as well.

[[Page 59614]]

Issue 24

One commenter noted that some bog turtles are legally possessed by

Maryland citizens as grandfathered animals (i.e., they were in

possession prior to State listing), and questioned whether it would be

a violation of section 9 to possess these turtles.

Service Response: The Service would not consider it a violation of

section 9 for a person to possess bog turtles, if at the time of

Federal listing, those bog turtles were legally in their possession

under a permit or other provisions (e.g., ``grandfathering''

provisions) of State law. Documentation (e.g., valid State permit) is

recommended to serve as proof of legal possession. However, as with

other listed species, a ``grandfathered'' bog turtle or its progeny

cannot be sold in interstate commerce.

Issue 25

One commenter noted that the market value of the bog turtle will

increase once the species is listed, which will likely lead to

increased take from the wild. They recommended that the Service address

this concern by either enhancing law enforcement activities, or

allowing for the legal trade of captively-produced bog turtles to meet

market demand.

Service Response: Although Federal listing of the bog turtle may

increase its market value, it is unclear whether this will result in

increased collection pressure. The Service recognizes that Federal

listing of the bog turtle may serve as a deterrent to some collectors.

The subsequent smaller market source for bog turtles would increase the

vulnerability of large-scale illegal operations to exposure.

Fortunately, public awareness about the plight of this species has

increased dramatically since the proposed rulemaking. This has prompted

some citizen groups to establish surveillance at bog turtle sites to

protect the turtles from collection. The Service applauds the efforts

of these groups, and recognizes that concerned citizens, landowners,

and State law enforcement personnel have a vital role to play in

protecting this vulnerable species from collection. The Service

anticipates that its law enforcement efforts will increase as well in

response to the Federal listing of the bog turtle.

The Service believes that if trade in captive-produced bog turtles

were allowed, it would pose a significant threat to wild bog turtles.

We have noted that despite State-listing throughout its range, and the

existence of some captive breeding stock, bog turtles are still being

collected from the wild. Also, considering the low reproductive

potential of the species and the small number of bog turtles known to

be legally in captivity, it is unlikely that there are enough bog

turtles in captivity to legally supply the market demand. If trade were

legalized and the demand could not be met by captive-produced turtles,

it is very likely that turtles would be taken from the wild for direct

sale and for use as breeders. In addition, it would be difficult, if

not impossible, to devise a process that would preclude the possibility

of substituting wild-caught turtles or eggs for those claimed to be

captive-produced. Finally, it would be extremely difficult to prosecute

a case of illegal take unless the actual taking from the wild was

observed or extensive circumstantial evidence was available. Based on

these factors, the Service believes that legalizing trade in bog

turtles would be inconsistent with the Service's responsibilities to

conserve, protect, and recover this species under the Act.

Issue 26

One commenter recommended that the Service define ``heavy grazing''

if violations of section 9 due to heavy grazing are foreseen. Several

other commenters stressed the importance of light to moderate grazing

in maintaining bog turtle habitat in an early successional stage,

thereby preventing canopy closure and minimizing encroachment of

invasive native and exotic plant species.

Service Response: The Service recognizes both the risks and the

benefits associated with livestock grazing of bog turtle habitat. Where

light to moderate grazing serves to maintain the suitability of bog

turtle habitat, the benefits of grazing are likely to outweigh the

risks (e.g., trampling of bog turtles or their nests, and nutrient

input from animal excrement). Heavy grazing, however, is detrimental to

bog turtles and their habitat. At the extreme, it is recognized by

closely cropped vegetation and exposed soil (e.g., denuded, compacted

or muddy) due to trampling and overgrazing. Due to the damage inflicted

upon pasture land, heavy grazing is probably not a desirable or

sustainable land use practice.

The Service recognizes that the terms light, moderate, and heavy

grazing are subjective; however, at this time the Service is unable to

quantify these terms with respect to potential positive and negative

effects to bog turtles and their habitat. The Service looks forward to

working cooperatively with the agricultural community, researchers, and

others to determine what levels of grazing (e.g., animal densities,

seasons, rotations, etc.) are most beneficial to bog turtles.

Issue 27

One commenter requested that if the Service proceeds with listing,

information should be included with the listing to identify which

population and/or habitat criteria must be met for the species to be

considered no longer threatened.

Service Response: This type of information is not included in the

listing; however, it will be included in the species' recovery plan.

Recovery plans, which are developed after a species is listed, identify

delisting criteria and the tasks which must be implemented to achieve

recovery.

Peer Review

In conformance with Service policy on information standards under

the Act (59 FR 34270; July 1, 1994), the Service solicited the expert

opinions of three appropriate and independent specialists (Dr. Michael

Klemens; Dr. Joseph Mitchell; and Dr. C. Kenneth Dodd, Jr.) regarding

issues and assumptions relating to the biological and ecological

information in the rule, and scientific data relating to the factors

for listing. Comments received from these reviewers were supportive of

Federal listing of the northern population.

Dr. Klemens indicated that the Service had conducted a ``thorough

analysis of the biological, ecological, and commercial issues that

threaten this turtle,'' and had accurately depicted the conservation

status and viability of the northern population. He also thought that

the species had surpassed the threshold of threatened and should be

listed as endangered (see Issue 18 for the Service's response), based

on the Service's data, his professional opinion, and ``given the

alarming drop in both suitable habitat and viable populations.'' He

stated that the prognosis for the northern population ``is very poor if

this species is reliant upon the varied habitat and take protection

offered by the range States and the total absence of protection from

commercial exploitation afforded by the non-range States.'' He

concurred that designation of critical habitat is not prudent. With

regard to the southern population, he (1) concurred with its listing as

threatened due to similarity of appearance; (2) felt that with large

areas of potential habitat unsurveyed, it was impossible for the

Service to draw any conclusions about the status of the southern

population (see Issue 20 for the Service's response); and (3) was

[[Page 59615]]

concerned that incidental take under the special rule would reduce bog

turtle habitat and populations (see Issue 21 for the Service's

response).

Dr. Dodd also supported Federal listing of the bog turtle,

concurring that illegal collection and trade posed a significant threat

which States have been unable to address. He also agreed that loss of

wetland habitat had reduced bog turtle populations, particularly within

the northern range.

Dr. Mitchell recommended that the northern population of the bog

turtle be listed as endangered, and the southern population be listed

as threatened. Despite the lack of geographic survey coverage in North

Carolina, he felt that the trends in land use in the south were similar

to those in the north, and that in the next 20 to 30 years the southern

population would be in the same shape the northern population is in now

(see Issue 20 for the Service's response). He referred to the status of

the northern population as ``dire'' and stated that with most of the

known bog turtle populations occurring on private lands, ``remaining

habitat will certainly be reduced in the very near future to a point

where most of them will be unable to support viable populations.'' He

questioned whether the Service may have been politically motivated in

proposing the northern population as threatened instead of endangered,

and stated that such a decision ``should be based solely on biological

criteria.''

Dr. Mitchell agreed that the species is vulnerable to illegal

collection and trade, and noted that bog turtles had even been stolen

from the Atlanta Zoo, a locked facility. He also noted that a few days

after a newspaper article appeared in the Richmond Times-Dispatch

mentioning the proposed listing, he received ``information that several

people in that area who collected turtles in the genus Clemmys for the

pet trade were hard at work scouring topographic maps looking for

potential sites to poach.''

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the northern population of

the bog turtle should be classified as a threatened species. 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 bog turtle (Clemmys muhlenbergii)

are as follows:

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

of its Habitat or Range

Habitat loss is a major factor for the past and present decline of

bog turtles throughout much of their range. Wetland habitats have been

drained and filled for development, agriculture, road construction, and

impoundments. These activities have also severely fragmented the

remaining habitat and have created physical barriers to movement, thus

isolating existing bog turtle populations from other such sites.

Even when located in upland areas, development and agriculture can

also cause indirect hydrological alterations of adjacent wetland

habitats. If these alterations present a barrier to surface water or

groundwater flow, the wetland can become wetter or drier, either of

which may render the habitat less suitable or unsuitable for bog

turtles. If surface water flow is intercepted, groundwater recharge may

be reduced, potentially reducing water levels in adjacent wetlands.

The concentration of storm water runoff, such as discharges from

storm water detention basins associated with developments, poses a

threat to adjacent bog turtle habitat, as illustrated by a documented

case of habitat destruction. A New Jersey bog turtle site was destroyed

over the course of 4 years as water from an upland storm water

detention basin was released into an adjacent wetland. The storm water

discharge carved a channel through the wetland; modified the site

hydrology by removing the surface inundation and many of the spring-fed

seeps; and increased the invasion of woody and annual plant species

which replaced the sedges and rushes typical of bog turtle habitat. Bog

turtles no longer occur at this site (Torok 1994).

Development in the vicinity of wetlands also poses a threat when

the water table is lowered due to the sinking of wells, or when roads

act as barriers to the normal flow of surface water (Klemens 1988,

1989). Urban, commercial, and residential development contribute to

increased traffic (leading to increased bog turtle road-kills), surface

water pollution, and accelerated succession by invasive native and

exotic plant species (due to changes in wetland hydrology, and

suppression of natural factors that impede succession).

Untimely mowing or burning and the use of herbicides and pesticides

on adjacent agricultural fields also degrade bog turtle habitat

(Klemens 1988). Many wetlands occupied by bog turtles are located in

agricultural areas that are subject to frequent livestock grazing.

Light to moderate grazing impedes plant succession by minimizing the

encroachment of invasive native and exotic plant species. However,

heavy grazing destroys bog turtle habitat by cropping and trampling

vegetation that is necessary for turtle nesting, basking, foraging, and

cover.

Three of Connecticut's eight known bog turtle sites have already

been extirpated. A Fairfield County population was obliterated by

industrial development, and two Litchfield County populations were

destroyed by pond construction. The five remaining sites are small,

isolated pockets ringed by development, with ``no opportunity for

turtle movement between locations for interbreeding or to escape

successional changes'' (Julie Victoria, Connecticut Department of

Environmental Protection, in litt. 1997). Residential development and

natural plant succession have already contributed to the partial loss

of two of these extant populations in Litchfield and Fairfield counties

(Victoria, in litt. 1994). Also, in the vicinity of the current

populations are ``remnants of what were at one time suitable habitats

which have been altered by agricultural practices, housing development,

ponding, etc.'' (Hank Gruner, Science Center of Connecticut, in litt.

1997).

Only a small fraction of Delaware's freshwater wetlands are

potential bog turtle habitat, and between approximately 40 and 50

percent of the State's freshwater wetlands have already been lost

(Tiner 1985). The four remaining bog turtle populations are threatened

by invasive exotic plant species, collecting, and development (Gelvin-

Innvaer and Stetzar 1992); one of these sites is also threatened by a

proposed reservoir project.

Maryland's 178 historical bog turtle occurrence locations (Taylor

et al. 1984) are represented by 90 (population analysis) sites, 25 of

which have been lost in the last 15 years (Smith, in litt. 1994). Plant

succession and exotic plant invasions have caused the extirpation of

turtles at some of these sites, while other sites were lost due to

wetland destruction and alteration and stream channelization. In

addition, heavy grazing has been implicated in the loss of at least six

sites (Smith, in litt. 1994).

Of the remaining 65 sites, 17 are considered good, 23 fair and 25

poor. Habitat at 31 of these sites has been partially destroyed or

degraded by pond construction (6 sites), filling of wetlands (1 site),

heavy grazing (4 sites), and wetland ditching, draining, tiling and

[[Page 59616]]

stream channelization (13 sites) (Smith, in litt. 1994). Succession,

exotic plants, pollution, and beaver activity also pose a threat to

many of the remaining populations. In addition, at least five wetlands

known or suspected to support bog turtle populations are threatened by

proposed highway bypass projects and residential developments (Jeffrey

Trulick, in litt. 1997).

In Massachusetts, the bog turtle has a limited range, limited

available habitat, and small populations (Thomas French, Massachusetts

Division of Fisheries and Wildlife, in litt. 1997). There are four

recorded bog turtle sites for the State; three extant and one

historical. The historical population was lost when the fen was

inundated after dam construction. One extant site supports a healthy

bog turtle population but faces encroachment by giant reed, succession

by alders, and the drying of several large channels feeding the fen

(possibly due to diversion of water for agricultural purposes). Another

site is threatened by residential development and by invasion of giant

reed and alder (Klemens 1988). Although there are conservation

agreements in place to protect the above two sites, they do not address

the threats to habitat quality. In 1986, the fen at the third site was

ditched and most of the water was diverted for cattle use. The water

supply has subsequently been restored to the fen and the habitat

partially restored. However, much of the suitable bog turtle habitat

continues to be threatened by annual burning, severe overgrazing, and

nutrient enrichment (Klemens 1986, 1988).

Bog turtles have been extirpated from 8 of the 17 New Jersey

counties in which they occurred (Bergen, Camden, Cape May, Gloucester,

Mercer, Middlesex, Passaic, and Salem). Surveys conducted in 1988 and

1989, revealed that 44 of the 75 known sites (recent and historical)

had been lost due to natural succession (17 sites), wetland alteration

(9 sites), and development (18 sites). In addition, bog turtles were

located at only 12 of the 31 remaining sites (Zappalorti, in litt.

1997). By 1994, a total of at least 53 sites had been lost--33 to

urban, commercial, and residential development and wetland alteration

and the remainder to plant community succession and the invasion of

exotic plants (Sciascia and Zappalorti 1989; Sciascia and Zappalorti,

in litt. 1994). Many of the remaining populations are small, isolated,

and threatened by development, collection, agricultural pollution, and

vegetative succession (Michael Torocco, in litt. 1997; Zappalorti, in

litt. 1997); these threats are exacerbated by the proximity of the

sites to urban and suburban areas (e.g., Philadelphia, Camden, Trenton,

and New York City). As of 1996, there were 53 known extant bog turtle

sites in New Jersey (Sciascia and Zappalorti, in litt. 1994; Sciascia,

in litt. 1997). Eight are considered good, 21 fair, and 18 poor, and 6

are of unknown status. Based on recent surveys, the suitability of

three of these sites declined since they were originally ranked in 1993

and 1994 (Sciascia, in litt. 1997).

Bog turtles were reported from 17 counties in New York, but have

been eliminated from 12 counties (Albany, Genessee, Onondaga, Oswego,

Otsego, Rockland, Sullivan, Tompkins, Ulster, Warren, Wayne, and

Westchester) (Breisch et al., in litt. 1994). Of New York's 24

remaining sites, only 18 populations are extant; of the 18 occupied

sites, 5 are considered good, 6 fair, and 7 poor. This represents a

significant reduction in range and reflects the loss of at least 33 of

57 bog turtle sites.

The bog turtle's range in New York is now limited to the Lower

Hudson River and Housatonic River drainages in the southeastern corner

of the State, and to one site in western New York. In western New York,

six of the seven historical bog turtle sites have been lost. Two sites

were eliminated due to plant community succession; one was destroyed by

a sand and gravel mining operation and dumping of concrete rubble; and

two were eliminated due to plant succession and hydrological alteration

(due to agricultural activities at one site and construction of the

Erie Canal at another) (Breisch et al., in litt, 1994; Collins 1990).

Loss of the disjunct population in the Lake George watershed is

attributed to plant succession, while the loss of the Susquehanna River

drainage population was caused by the construction of an interstate

highway (Breisch et al., in litt. 1994).

At least 26 known bog turtle sites have been lost in southeastern

New York due primarily to road construction, impoundments, plant

succession, and development. In addition, the historical bog turtle

sites on Staten Island were eliminated by development (Nemuras 1967).

In western New York, the viability of the Seneca County site is

questionable, since it is threatened by collecting, plant succession

and construction of an interstate highway through the wetland within

200 feet of bog turtle habitat (Breisch et al., in litt. 1994).

Of the remaining 24 bog turtle sites in New York, most are of poor

quality. The presence of bog turtles at six sites is highly

questionable since turtles have not been reported from these sites for

15 to 25 years, and habitat conditions at most of these sites have

deteriorated. Most of the known extant sites are threatened by habitat

loss and degradation due to residential and commercial development,

road construction, and vegetative succession. The New York Natural

Heritage Program recently reported that, based on additional surveys

conducted since 1994, ``there are no sites in New York whose status has

improved since the 1994 assessment, whereas several sites have

declined'' (Novak, in litt. 1997). At least 99 percent of bog turtle

habitat in New York occurs on private lands and all but two of the

remaining populations are found in areas of high human population

density. One researcher noted that even State acquisition does not

necessarily ensure the protection of bog turtle habitat, as one site

acquired by New York has been negatively affected by subdivisions,

exotic plant species, and collection (Behler, in litt. 1997).

In Pennsylvania, 28 of the 71 known bog turtle occurrences are

considered extirpated. Bog turtles have been extirpated from Mercer,

Crawford, Delaware, and Philadelphia counties. The reasons for the loss

of a disjunct population, represented by three historical locations, in

the northwestern counties are unknown. However, much of the historical

bog turtle habitat at Pymatuning Swamp was destroyed after a dam was

constructed to create Pymatuning Lake.

In Pennsylvania, most bog turtle habitat is concentrated in the

southeastern corner of the State, within portions of the Delaware and

Susquehanna River drainages. Land use in southeastern Pennsylvania is

primarily urban (several large cities, including Philadelphia,

Harrisburg, Reading, Lancaster, and York are located there),

residential, and agricultural. Agricultural areas are intensively

farmed and are facing increasing threats from residential development.

Development, urbanization, road construction, and agriculture are

largely responsible for the loss of bog turtle habitat in southeastern

Pennsylvania, and continue to pose threats to the species. Extirpation

of bog turtle populations was noted by Robotham (in Nemuras 1967), who

documented the destruction of two bog turtle sites in the West Chester-

Downington area of Chester County in the early 1960s. One site was

destroyed after a housing development company constructed a road

through the center of the marsh and drained the marsh for development.

The other site

[[Page 59617]]

was destroyed by a bypass road, commercial development, and excavation

for a lake.

Due to prevalent habitat fragmentation, many remaining extant sites

in Pennsylvania are small, isolated, and support few bog turtles; these

sites are at great risk from collection, agricultural pollution, and

vegetative succession (Torocco, in litt. 1997). Some sites are in the

process of being encircled by residential developments; these

developments often encroach to the very edge of delineated wetlands,

and it is not unusual for lot boundaries to extend well into wetlands.

Ground water withdrawal also poses a threat to some sites; a site in

Berks County is threatened by a proposal to withdraw over 250,000

gallons of groundwater per day to market as spring water.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

The bog turtle is a target for pet collectors due to its rarity in

the wild, distinctive coloration, and small size. Take (primarily

illegal) both for the national and international commercial pet trade

industry has occurred for many years. Collecting is a significant

factor in the species decline and is an ongoing threat to its continued

existence in the wild (Anon. 1991; Earley 1993; David Flemming, U.S.

Fish and Wildlife Service, in litt. 1991; Herman 1990; Klemens in

press; Stearns et al. 1990; Tryon 1990; Tryon and Herman 1990). During

the last 5 to 10 years, an increasing number of bog turtles have been

advertised for sale, and prices have increased substantially. The

increase in price most likely reflects the increase in demand for the

turtles; the increase in demand increases the threats to the wild

populations (Tryon and Herman 1990).

Atlanta Zoo personnel reported that from 1989 to early 1991, over

1000 bog turtles were exported to Japan. These figures differ

significantly from CITES data and represent a significant amount of

unreported illegal trade (Anon. 1991). The World Wildlife Fund recently

listed bog turtles as among the world's top 10 ``most wanted''

endangered species (Earley 1993). According to Alan Salzburg, President

of the American Turtle and Tortoise Society, the bog turtle is

considered the most prized turtle in the United States, and when bog

turtle locations become publicly known, they are exploited by

collectors within 1 year (Laura Hood, Defenders of Wildlife, in litt.

1997).

Due to the threats facing bog turtle populations, the Society for

the Study of Amphibians and Reptiles adopted a resolution calling for

the prohibition of collection from wild populations (Stearns et al.

1990). Due to the small size of existing populations, and the low

reproductive and recruitment potential of this species, the removal of

even a few breeding adults can do irrevocable damage to a population

(Tryon 1990). Collecting has been a factor in the reduction or

extirpation of several bog turtle populations in Delaware (Anon. 1991),

Maryland (Anon. 1991; Smith, in litt. 1994), Massachusetts (Anon.

1991), New Jersey (Farrell and Zappalorti 1989; Zappalorti, pers. comm.

1994; Zappalorti, in litt. 1997), New York (Breisch, in litt. 1993;

Breisch et al., in litt. 1994; Collins 1990; Behler, in litt. 1997),

and Pennsylvania (Ralph Pisapia, U.S. Fish and Wildlife Service, in

litt. 1992; Zappalorti, in litt. 1997). Many sites in these States have

suitable habitat, but have much-reduced bog turtle populations,

probably due to collecting.

Throughout the bog turtle's entire range, States regulate take

through classification of the species as endangered (in Connecticut,

Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and

Virginia) or threatened (in Georgia, Maryland, North Carolina, South

Carolina and Tennessee), yet trade continues.

Illegal trade is difficult to detect due to the questionable origin

of turtles being offered for sale. Bog turtles are often ``laundered''

through States which either do not have native populations (e.g., West

Virginia, Florida, California), or through States which have inadequate

protection of their own bog turtle populations (Charles Bepler, U.S.

Fish and Wildlife Service, in litt. 1993; Breisch, in litt. 1993;

Michael Klemens, in litt. 1990). For example, in recent years dealers

have claimed West Virginia as the State of origin for bog turtles;

however, there is no evidence to support the contention that the bog

turtle occurs in that State (Dennis Herman, Project Bog Turtle

Coordinator, in litt. 1997; Tom Thorp, North Carolina Herpetological

Society, in litt. 1997). Hatchling and juvenile turtles marketed as

``captive-born'' are usually offspring from gravid adult females

illegally brought into captivity and held until they deposit eggs. The

eggs are then hatched in captivity, and the captive-born (but not

captive-bred) offspring are then marketed or retained (Bepler, in litt.

1993).

A few specific instances of illegal bog turtle collecting and trade

are reported below:

(1) An undercover officer purchased eight bog turtles from a person

who had collected them near Lancaster, Pennsylvania. Also, two

additional bog turtles were recovered from persons who had gotten them

from friends allegedly in the New York area (Bepler, in litt. 1993);

(2) An individual from New Jersey was arrested for bringing bog

turtles from New Jersey to Florida and selling them as captive-born. It

is suspected that he collected about six turtles per year over a period

of several years (Bepler, in litt. 1993);

(3) A reliable source in New York reported that over 2000 wild-

caught bog turtles were shipped to Japan in a 2-year period (Murdock,

in litt. 1990);

(4) Researchers found several turtle traps and a much-diminished

bog turtle population at an important bog turtle site in Pennsylvania

(Pisapia, in litt. 1992);

(5) In 1993, a New Jersey resident purchased 47 bog turtles in

Florida, and since 1984 had also bought 20 additional bog turtles. This

individual supposedly has an active breeding program for bog turtles

(Terry Tarr, U.S. Fish and Wildlife Service, in litt. 1993);

(6) When confronted in a New York wetland, an individual claiming

to be a birdwatcher revealed the contents of the cloth bag he was

carrying--a bog turtle and spotted turtle (Paul Novak, New York Natural

Heritage Program, in litt. 1990);

(7) A reliable source reported seeing approximately 60 bog turtles

at the Ohio residence of a person who frequents reptile shows. Based on

the physical appearance of the bog turtles, they were not captive-bred

(Scott Smith, Maryland Department of Natural Resources, in litt. 1996);

(8) Bog turtles have been available at the major Herpetological

Expo in Orlando, Florida for the last 2 years (Herman, in litt. 1997;

Thorp, in litt. 1997); and

(9) Bog turtles were observed in several Florida dealerships in

1996, although they have not been openly advertised for sale (Herman,

in litt. 1997).

The general consensus among bog turtle researchers, nongame

biologists, and law enforcement officials is that illegal collecting is

occurring at a much greater rate than detected or reported (Anon. 1991;

Breisch, in litt. 1993; Flemming, in litt. 1991). Bog turtles are

already extremely low in numbers throughout much of their range, and

any additional take could eliminate marginal populations and hamper

survival and recovery efforts.

Protecting existing sites for bog turtles can pose a threat when

these specific sites are revealed and publicized. In addition to the

threat of collection for the pet trade industry, collection of bog

[[Page 59618]]

turtles for exhibition at nature centers is also a threat (Anon. 1991).

C. Disease or Predation

Bog turtles (particularly the eggs and young) are preyed upon by

raccoons, opossums, skunks, foxes, snapping turtles, water snakes, and

large birds (Herman and George 1986). Predation by raccoons appears to

increase in areas with high human density, since raccoons favor

fragmented areas consisting of farmland, forests, and residential

development (Klemens 1989).

In some cases, predation contributes to population declines by

impairing reproductive recruitment so that the population age structure

is skewed toward older individuals (Zappalorti and Rocco 1993).

Zappalorti (in litt. 1997) reported that one of his Pennsylvania study

sites has undergone a dramatic population decline in the past 25 years.

Although 14 different nests containing 52 eggs were located at this

site, the only non-adults found during the 3-year study were an empty

shell of a dead juvenile and 3 hatchlings. Also, 93 percent of the

population structure was strongly skewed towards old adults, in favor

of females. In monitoring the fate of 21 eggs, he documented that 6

hatched, 10 were taken by predators, 2 were broken by nesting females,

and 3 failed to hatch. Predation of eggs and/or hatchlings, therefore,

may play a significant role in reducing the size of the population and

skewing its age structure.

Of additional concern is the recent discovery of Mycoplasma (the

bacterium that adversely affects the desert tortoise (Gopherus

agassizii)) at a bog turtle site in New York (Behler, in litt. 1997;

Paul Novak, New York Natural Heritage Program, in litt. 1997). This

disease has the potential to cause significant declines in bog turtle

populations. The site where Mycoplasma has been discovered ``has been

identified as one of the best remaining New York sites and lies in a

valley with additional, extant sites leading to the possibility of

spread of the disease through a significant portion of the remaining

bog turtle range in New York State'' (Novak, in litt. 1997).

D. The Inadequacy of Existing Regulatory Mechanisms

Bog turtles receive some degree of protection through State

listings as endangered or threatened species, and take from the wild

within all range States requires a valid permit.

In Connecticut, the bog turtle is listed as endangered and the take

of endangered species is prohibited. Regulations require that any

person owning or possessing a bog turtle must register with the

Wildlife Bureau of the Department of Environmental Protection. There

are no special provisions for the protection of species of special

concern under Connecticut's wetland laws and regulations and only about

10 percent of the wetland permits issued by townships are checked for

species of special concern (Doug Cooper, Connecticut Department of

Environmental Protection, pers. comm. 1994).

In Delaware, the bog turtle is listed as endangered and, except

under permit, it is unlawful to import, transport, possess, or sell

this species. Currently, there is no regulatory mechanism to protect

wetland habitat, since Delaware's wetland laws only address tidal

wetlands.

In Maryland, the bog turtle was listed as endangered in 1972 when

bog turtle populations were extant at only 5 of the 23 then known

historical occurrence locations. However, it was removed from the State

endangered species list in 1982 after 173 new occurrence locations were

discovered during surveys conducted between 1976 and 1978 (Smith 1994,

Taylor et al. 1984). In 1992 and 1993, the Maryland Department of

Natural Resources conducted follow-up surveys of the 178 occurrence

locations documented by Taylor et al. (1984) to support bog turtles. Of

the 159 occurrence locations surveyed, bog turtles were found at 91

occurrence locations; this represents a 43 percent reduction of bog

turtle occurrence locations over a 15-year period (Smith 1994). Based

on the results of these surveys, bog turtles are now classified as

threatened in Maryland. Bog turtles also receive additional protection

under the State's Reptile and Amphibian Possession and Permit

Regulations which regulate the possession, breeding, sale, and trade of

certain native reptiles and amphibians. Under these regulations, it is

illegal to take bog turtles from the wild or to breed them in

captivity. In addition, the regulations prohibit the possession, sale,

offering for sale, trade, or barter of any turtle with a carapace

length less than 4 inches (which applies to most bog turtles due to

their small size).

A portion of bog turtle habitat in Maryland receives some degree of

protection under the Nontidal Wetlands Protection Act. Habitat in

agricultural areas receives little or no protection due to the Act's

exemption of agricultural activities from permit requirements.

In Massachusetts, the species is classified as endangered, and it

is unlawful to take or possess bog turtles without a permit. Currently

no person in the State has a valid permit to possess bog turtles (Tom

French, Massachusetts Department of Fisheries and Wildlife, pers. comm.

1994). Its habitat receives some degree of protection under the

Massachusetts Wetlands Protection Act which prohibits permitted

projects from having an adverse effect on wetland habitat that supports

endangered and threatened species or species of special concern. This

law also allows for a 100-foot buffer zone around such wetlands when

activities in the buffer zone could result in the alteration of

adjacent wetlands (Melvin and Roble 1990).

In New Jersey, the bog turtle is listed as endangered. It is

unlawful to take, possess, transport, export, process, sell, offer for

sale, or ship bog turtles without a permit. Bog turtle habitat receives

some protection under the Exceptional Resource Value Wetland provision

of New Jersey's Freshwater Wetland Protection Act. This law allows for

a 150-foot buffer zone around wetlands, includes a stringent permit

review process, and prohibits activities that would likely jeopardize

or destroy bog turtles habitat (Torok, pers. comm., 1994). Many

agricultural activities are exempt from these regulations.

In New York, the bog turtle has been listed as endangered since

1971, and the animal and its parts (including eggs) are protected from

unauthorized take, import, transport, possession, or sale. Wetlands

occupied by an endangered or threatened species are considered Class 1

Wetlands, which receive some added protection from filling and

excavation. Certain activities, such as draining of wetlands for

agriculture, are exempted from permitting requirements as long as no

excavations are required to accomplish the draining.

In Pennsylvania, the bog turtle is listed as endangered. It is

illegal to catch, take, kill, possess, import, export, sell, offer for

sale, or purchase any individual of this species, alive or dead, or any

part thereof, without a special permit. Bog turtle habitat receives

some degree of protection under State wetland regulations which

categorize wetlands that serve as habitat for endangered or threatened

flora or fauna as ``exceptional value wetlands.'' Issuance of permits

to alter such wetlands is contingent upon meeting specific

requirements.

Section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.) (CWA)

regulates the discharge of dredged or fill material into the waters of

the United States. The phrase ``waters of the United States'' reaches

to the farthest extent permissible under the Commerce Clause

[[Page 59619]]

and includes rivers, lakes, streams, ponds and wetlands. It does not

include prior converted cropland. The U.S. Army Corps of Engineers

(Corps) and the U.S. Environmental Protection Agency (EPA) are

responsible for administering section 404. The Corps is responsible for

program administration; the EPA has an important oversight role.

Section 404 requires that project proponents obtain a CWA section 404

permit from the Corps before undertaking activities in waters of the

United States involving a discharge of dredged or fill material. These

regulatory agencies are also required to consult with the Service and

State resource agencies regarding potential impacts of these projects

on fish and wildlife.

The Corps authorizes projects involving the discharge of dredged or

fill material into waters of the United States using either individual

permits or general permits. Individual permits are carefully evaluated

through the Corps' public interest review and its analysis of

compliance with the EPA's 404(b)(1) guidelines. The EPA's 404(b)(1)

guidelines require a rigorous examination of the availability of

practicable alternatives, and prohibit the authorization of any project

that would result in significant adverse impacts, among other

requirements. General permits are issued for activities which are

similar in nature and which result in no more than minimal

environmental effects on a single project and cumulative adverse impact

basis. General permits also take several forms, including nationwide

permits, which are available for the entire country, and State

Programmatic General Permits, which are linked to State wetland

regulatory programs, and which attempt to integrate State and Federal

programs for authorizing minor impact activities. The purposes of all

general permits are to provide workload relief for the Corps for

projects which should not require a lot of analysis and to provide some

measure of relief for the public for activities which are similar in

nature and result in only minor impacts.

The regulatory relief and expedited permit review associated with

general permit authorization is based on a one-time only determination

that the general permit itself will meet the 404(b)(1) guidelines and

thus would not allow authorization of projects with more than minimal

impacts. Following adoption of a general permit, projects which fit the

terms and conditions of the general permit are authorized with little

scrutiny. Some require that the applicant notify the Corps before using

the permit; others do not require any notification as long as they meet

the permit conditions.

The Corps currently utilizes 39 nationwide permits, including

Nationwide Permit 26, which addresses the discharge of dredged or fill

material for any purpose in isolated waters or headwaters. Nationwide

Permit 26, until 1996, was available for use for projects up to 10

acres. It has now been modified for use for fills of up to no more than

3 acres. When the fill activity is larger than \1/3\ acre, the permit

applicant must notify the Corps prior to permit use. For projects less

than \1/3\ acre, the permittee must submit a report within 30 days to

the Corps providing basic information about the permit's use. The Corps

plans to phase out Nationwide Permit 26 as there is a high likelihood

that the permit has resulted in more than minimal single project and

cumulative adverse impacts. In its place, however, will be an

additional unknown number of nationwide permits which will be designed

for activities which are similar in nature. The potential adverse

impacts of these additional nationwide permits are unknown at this

time.

The Corps can take discretionary authority and require an applicant

to undergo a full individual permit process, if the Corps believes that

the resource issues are significant, and if the Corps believes that the

project requires additional consideration. For workload management

reasons, this authority is not invoked frequently.

Many of the States in the Northeast have eliminated many or most of

the nationwide permits and replaced them with a single programmatic

general permit which combines the State and Federal programs and sets

thresholds and conditions for its use tailored to the aquatic resources

and threats to those resources in their areas of jurisdiction.

The bog turtle could potentially be affected by projects requiring

404 permits, especially projects which would appear to meet the terms

and conditions of nationwide permits such as Nationwide Permit 26. The

Corps is planning to initiate a programmatic consultation on the

impacts of nationwide permits on endangered species, and it is our

expectation that listed species will receive adequate consideration

following completion of the consultation process. However, under the

CWA section 404 program, destruction of bog turtle habitat continues to

be authorized.

Furthermore, the bog turtle is affected by agricultural practices

which are entirely exempt from regulation under section 404. Such

activities take place without Corps or EPA oversight or review. In

addition to an agricultural exemption for maintenance of existing

agricultural drainage systems, other exempted activities include

plowing, planting and harvesting in existing cropped wetlands, and

construction or maintenance of farm roads and stock ponds as long as

the activity is part of an ongoing farming operation.

On July 1, 1975, the bog turtle was added to Appendix II of the

Convention on International Trade in Endangered Species of Wild Fauna

and Flora (CITES), and on June 11, 1992 (57 FR 20443), it was

transferred from Appendix II to Appendix I. Both import and export

permits are required from the importing and exporting countries before

an Appendix I species can be transported, and an Appendix I species can

not be exported for primarily commercial purposes. These CITES permits

are not issued if the export will be detrimental to the survival of the

species or if the specimens were not legally acquired.

E. Other Natural or Manmade Factors Affecting its Continued Existence

Plant community succession and the invasion of wetland systems by

exotic plant species have also contributed to the decline of the bog

turtle (Behler, in litt. 1997; Zappalorti, in litt. 1997). Unless set

back by fire, beaver activity, light to moderate grazing, or periodic

wet years, some bog turtle habitats succeed into wooded swampland and

become unsuitable for the species. Various human activities, such as

fire suppression, beaver control, fertilizer and sediment runoff, and

wetland draining, ditching and filling accelerate both natural

succession and the invasion of exotic plants (Gelvin-Innvaer and

Stetzar 1992, Klemens 1984).

Development and agriculture adjacent to bog turtle habitat can

result in soil disturbance and increases in the nutrient and sediment

load, thus allowing for the invasion of exotic species such as

multiflora rose (Rosa multiflora), purple loosestrife (Lithrum

salicaria), giant reed (Phragmites australis), and reed canary grass

(Phalaris arundinacea), as well as native species such as red maple and

alder (Klemens 1984, 1989, and in press).

Beavers pose a threat to those bog turtle populations that are

isolated and/or occur within the only remaining suitable habitat within

a watershed. Smith (in litt. 1994) reported that flooding caused by

beavers now poses a threat to three bog turtle populations in Maryland.

Thick deposits of iron bacteria, suggesting possible contamination

from pollutants, have been found at three bog

[[Page 59620]]

turtle sites in Maryland. Reptile and amphibian populations at these

sites are much smaller in size than one would expect based on the

habitat characteristics (Smith, in litt. 1994). Wetland habitats are

also vulnerable to pollutants (oil and grease) carried by storm water

runoff. Farrell and Zappalorti (1989) reported that one New Jersey

wetland occupied by bog turtles was degraded by trash and motor oil

that was carried through a storm drain.

The bog turtle is also vulnerable to local extirpation and range-

wide reduction due to--(1) the small size of many populations; (2) the

isolation of existing populations; (3) the delay in reaching sexual

maturity; (4) low juvenile recruitment rates; and (5) relatively low

mobility and small home ranges (Arndt 1977, Chase et al. 1989).

Isolation of populations prevents gene flow which can result in an

inbred population with low fecundity. Further, isolation and habitat

fragmentation prevent recolonization of existing habitat or expansion

and colonization into newly created habitats.

Vehicles and livestock pose a direct threat to bog turtles because

they can kill and injure individuals. Roads near occupied bog turtle

sites contribute significantly to mortality as is evidenced by the

number of dead turtles found along roadsides. Roads that are adjacent

to or within wetlands pose the greatest threat to bog turtles (Arndt

1977). Because livestock can trample bog turtles, a large number of

livestock within a wetland can pose a threat to the turtle population

(M. Klemens, pers. comm. 1994; S. Smith, pers. comm. 1994).

The Tortoise and Freshwater Turtle Specialist Group of the IUCN

recently evaluated the status of the bog turtle. Based on the species'

precipitous decline and threats to its continued existence, the bog

turtle was included as an endangered species on their 1996 IUCN Red

List (Behler, in litt. 1997).

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present and future

threats faced by the species in determining to make this rule final.

Based on this evaluation, the preferred action is to list the northern

population of the bog turtle as threatened, and the southern population

as threatened due to similarity of appearance. In spite of existing

State protective regulations, the northern population has declined by

approximately 50 percent (primarily over the past 20 years) and has

experienced a significant decrease in its known range. Currently, less

than 200 extant sites remain in the north, and only 33 of these sites

are likely to be able to support viable bog turtle populations over the

long term. Most of the extant sites consist of small wetlands isolated

from one another and often in close proximity to human habitation.

Although the northern population of the bog turtle faces serious

ongoing and potential threats, it is not currently in imminent danger

of extinction. The northern population is, however, likely to become

endangered throughout all or a significant portion of its range in the

foreseeable future; therefore, classification of the northern

population of the bog turtle as threatened is appropriate. Critical

habitat is not being designated for the reasons described below.

Although final listing determinations are usually not effective

until 30 days after their publication in the Federal Register, such a

delay would pose an additional, unacceptable risk to the bog turtle.

Several persons and State agencies have expressed a concern about the

heightened risk of illegal collection due to the proposed listing, and

requested that the final listing be implemented as soon as possible to

reduce this risk. One of the peer reviewers of the proposed rule noted

that he had ``received reliable reports of increased interest in the

location of bog turtle sites by well-known collectors. There is a

heightened threat of take right now as collectors are stockpiling bog

turtles in anticipation of a federal listing.'' Therefore, due to the

significant ongoing threats of illegal collection and trade, the

Service has determined that the bog turtle will receive full protection

under the Act effective upon publication of this rule in the Federal

Register.

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 required.

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, 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 for the bog turtle is not

prudent. 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.

Listing of the bog turtle as threatened elevates the awareness of

the rarity of the species, thereby increasing the likelihood of take by

private and commercial collectors. The listing could lead to increased

illegal take and the risk of eggs being accidentally destroyed by

collectors searching for adult turtles. The publication of precise maps

and descriptions of critical habitat in the Federal Register would

increase the vulnerability of the bog turtle to the threats of

collection and accidental destruction of its eggs.

Designation of critical habitat could also increase the

vulnerability of bog turtle habitat to intentional destruction by

landowners who do not want a protected species on their property. Tryon

and Herman (1990) report that on more than one occasion, landowners,

fearing involvement from State or Federal authorities, have drained

(ditched) bog turtle habitat after researchers visited the site.

Furthermore, designation of critical habitat for the bog turtle

would provide little or no benefit to the species or its habitat.

Critical habitat receives consideration under section 7 of the Act with

regard to actions carried out, authorized, or funded by a Federal

agency. Critical habitat designation serves as notification to Federal

agencies of the habitats which are essential for the conservation of

the species; the Act requires Federal agencies to ensure that their

actions do not result in destruction or adverse modification of

critical habitat. The Service believes that notification to Federal

agencies of the habitats which are essential for the conservation of

the species can be accomplished informally through periodic

coordination meetings, project-specific meetings, and other contacts;

the Service believes that notification through these means ensures that

other Federal agencies receive the most recent and reliable information

concerning habitats

[[Page 59621]]

important for the conservation of the species. In addition, the Service

believes that, because the ``jeopardy'' and ``adverse modification''

standards are similar, any project which would cause destruction or

adverse modification of critical habitat would also jeopardize the

continued existence of the species. In fact, biological opinions that

conclude that a Federal agency action is likely to adversely modify

critical habitat but not jeopardize the species are extremely rare.

Because any benefit potentially provided by designation of critical

habitat for the bog turtle would be outweighed by the increase in

threats to the species and its habitat from illegal collecting and

vandalism caused by such designation, the Service has determined that

designation of critical habitat is not prudent. Protection of bog

turtle habitat will be addressed through the section 7 consultation

process and through recovery actions.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery action,

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, 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 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 any species listed as endangered or threatened,

or destroy or adversely modify its critical habitat. If a Federal

action could affect a listed species or its critical habitat, the

responsible Federal agency must enter into consultation with the

Service.

Federal agency actions that may require consultation as described

in the preceding paragraph include--Corps involvement in projects such

as the construction of roads and bridges; Corps permitting of wetland

filling and dredging projects subject to section 404 of the CWA and

section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et

seq.); Natural Resources Conservation Service projects; EPA

authorization of discharges under the National Pollutant Discharge

Elimination System; and U.S. Housing and Urban Development projects. In

addition, Federal involvement under section 7 would be expected for

management and other land use activities on Federal lands with bog

turtle populations.

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, 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 is also illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that has been taken illegally.

Certain exceptions apply to agents of the Service and State

conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving threatened wildlife under certain circumstances. Regulations

governing permits are codified at 50 CFR 17.22 and 17.23. Such permits

are available for scientific purposes, to enhance the propagation or

survival of the species, and/or for incidental take in the course of

otherwise lawful activities. For threatened species, permits also are

available for zoological exhibition, educational purposes, or special

purposes consistent with the purposes of the Act.

It is the policy of the Service (59 FR 34272; July 1, 1994) 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 effect of the listing on proposed and ongoing

activities within a species' range. The Service believes, based on the

best available information, that the following actions will not result

in a violation of section 9:

(1) Transferring individual turtles from roads to immediately

adjacent habitat;

(2) Light to moderate livestock grazing that prevents or minimizes

the encroachment of invasive native and exotic plant species;

(3) Possession of bog turtles legally acquired prior to the

effective date of this rule and consistent with 50 CFR 17.4; and

(4) Actions that may affect bog turtles and are authorized, funded

or carried out by a Federal agency when the action is conducted in

accordance with section 7 of the Act.

With respect to both the northern and southern populations of the

bog turtle, the following actions would be considered a violation of

section 9:

(1) Take of bog turtles without a permit (this includes harassing,

harming, pursuing, hunting, shooting, wounding, killing, trapping,

capturing, or collecting, or attempting any of these actions). However,

with respect solely to the southern population, incidental take (see

special rule below) would not be considered a violation of section 9;

(2) Possess, sell, deliver, carry, transport, or ship illegally

taken bog turtles:

(3) Interstate and foreign commerce (commerce across State and

international boundaries) and import/export (as discussed earlier in

this section) without prior obtaining a threatened species, similarity

of appearance, or CITES permit.

With respect solely to the northern population, activities that the

Service believes could result in the take of bog turtles include, but

are not limited to:

(1) Destruction or alteration of the species' habitat by activities

that include, but are not limited to, draining, ditching, discharging

fill material, excavation, impoundment, or water diversion, except as

outlined in (4) above;

(2) Destruction or degradation of wetland vegetation used by the

turtles for nesting, basking, foraging, or cover; and

(3) Discharging or dumping of toxic chemicals or other pollutants

into wetlands occupied by 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 Pennsylvania, the

Pennsylvania Field Office, 315 S. Allen Street, Suite 322, State

College, PA 16801 (814/234-4090); in Maryland and Delaware, the

Chesapeake Bay Field Office, 177 Admiral Cochrane Drive, Annapolis, MD

21401 (410/224-2732); in New York, the New York Field Office, 3817

Luker Road, Cortland, NY 13045 (607/758-9334); in Massachusetts and

Connecticut, the New England Field Office, 22 Bridge Street, Concord,

NH 03301-4986 (603/225-1411); and, in New Jersey, the New Jersey Field

Office, 927 North Main Street, Building D1, Pleasantville, NJ 08232

(609/747-0620). Requests for copies of the regulations

[[Page 59622]]

regarding listed wildlife and inquiries about prohibitions and permits

may be addressed to the U.S. Fish and Wildlife Service, 300 Westgate

Center Drive, Hadley, Massachusetts 01035 (telephone 413/253-8200;

facsimile 413/253-8482).

Similarity of Appearance

Section 4(e) of the Act authorizes the treatment of a species

(subspecies or population segment) as endangered or threatened even

though it is not otherwise listed as endangered or threatened if--(a)

the species so closely resembles in appearance an endangered or

threatened species that enforcement personnel would have substantial

difficulty in differentiating between the listed and unlisted species;

(b) the effect of this substantial difficulty is an additional threat

to an endangered or threatened species; and (3) such treatment of an

unlisted species will substantially facilitate the enforcement and

further the policy of the Act.

There are only slight morphological differences in this species

throughout its range (Amato et al. 1993; Nemuras 1967), making it

extremely difficult to differentiate the location from where bog

turtles are taken. Presently, the origin and legality of a specimen

(specific wetland, locality, or State) cannot be determined. This poses

a problem for Federal and State law enforcement agents trying to stem

illegal trade in the threatened northern population. The listing of the

southern population as threatened due to similarity of appearance

eliminates the ability of commercial collectors to commingle northern

bog turtles with southern ones or to misrepresent them as southern bog

turtles for commercial purposes. For these reasons, the Service is

listing the southern population (occurring in the States of Georgia,

North Carolina, South Carolina, Tennessee and Virginia) as threatened

due to similarity of appearance to the northern population.

The special rule exempts incidental take of the southern population

of bog turtles. Incidental take is take that results from, but is not

the purpose of, carrying out an otherwise lawful activity. For example,

legal application of pesticides and fertilizers, livestock grazing and

other farming activities, mowing, burning, water diversion, and any

other legally undertaken actions that result in the accidental take of

a bog turtle will not be considered a violation of section 9 of the Act

in the States of Georgia, North Carolina, South Carolina, Tennessee,

and Virginia. The Service believes that listing the southern population

under the similarity of appearance provision of the Act, coupled with

the special rule, minimizes enforcement problems and helps to conserve

the northern population. It is the intent of the special rule to treat

bog turtles from the southern population in the same way as the

threatened northern population with regard to permit requirements for

pre-Act wildlife (50 CFR 17.4).

The Service believes that the provision to allow incidental take

for the southern population (i.e., for land alteration activities in

Georgia, North Carolina, South Carolina, Tennessee, and Virginia) will

not pose a threat to the northern population because--(1) the two

populations are sufficiently separate that incidental take of southern

specimens will not inadvertently be applicable to members of the

northern population, and (2) the primary threat to the northern

population from activities involving the southern population stem from

commingling of specimens in commercial trade.

National Environmental Policy Act

The Service has determined that Environmental Assessments and

Environmental Impact Statements, as defined by 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).

References Cited

A complete list of all references cited herein is available upon

request from the U.S. Fish and Wildlife Service, Pennsylvania Field

Office (see ADDRESSES section).

Author

The primary author of this document is Carole K. Copeyon (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, the Service amends 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 section 17.11(h) by adding the following, in alphabetical

order under ``Reptiles,'' to the List of Endangered and Threatened

Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate

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

Historic range endangered or Status When listed habitat Special rules

Common name Scientific name threatened

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

Reptiles

* * * * * * *

Turtle, bog (=Muhlenberg)....... Clemmys U.S.A. (CT, DE, Entire, except GA, T 626 NA NA

muhlenbergii. GA, MD, MA, NC, NC, SC, TN, VA.

NJ, NY, PA, SC,

TN, VA).

Do.......................... ......do........... ......do.......... U.S.A. (GA, NC, T(S/A) ........... NA 17.42(f)

SC, TN, VA).

* * * * * * *

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

3. Amend section 17.42 by adding paragraph (f) as follows:

Sec. 17.42 Special rules--reptiles.

* * * * *

(f) Bog turtle (Clemmys muhlenbergii), southern population--(1)

Definitions of

[[Page 59623]]

terms. For the purposes of this paragraph (f): Bog turtle of the

southern population means any member of the species Clemmys

muhlenbergii, within Georgia, North Carolina, South Carolina, Tennessee

and Virginia, regardless of whether in the wild or captivity, and also

applies to the progeny of any such turtle.

(2) Prohibitions. Except as provided in paragraph (f)(3) of this

section, the provisions of Sec. 17.31 (a) and (b) of this part applies

to bog turtles of the southern population (see also 50 CFR part 23).

(3) Take. Incidental take, that is, take that results from, but is

not the purpose of, carrying out an otherwise lawful activity, does not

apply to bog turtles of the southern population.

Dated: October 23, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97-29088 Filed 11-3-97; 8:45 am]

BILLING CODE 4310-55-P