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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC09

Endangered and Threatened Wildlife and Plants; Threatened Status

for Lake Erie Water Snakes (Nerodia sipedon insularum) on the Offshore

Islands of Western Lake Erie

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as

amended (Act), we (the U.S. Fish and Wildlife Service) determine

threatened status for the Lake Erie water snake (Nerodia sipedon

insularum) found among the western Lake Erie offshore islands and

adjacent waters in the U.S. and Canada. This listing does not extend

the Act's protection to water snakes (Nerodia sipedon) found on the

U.S. mainland, Canadian mainland, or the adjacent near-shore U.S.

islands (e.g., Mouse Island and Johnson Island in Ohio). Small

population size, persecution by humans, and habitat destruction are the

primary threats. This action implements the Act's protections for the

Lake Erie water snake. In addition, it identifies specific handling

conditions that do not violate the Act's prohibitions.

EFFECTIVE DATE: The effective date of this rule is August 30, 1999 (see

``Effective Date'' section under SUPPLEMENTARY INFORMATION below).

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

by appointment, during normal business hours, at offices of the U. S.

Fish and Wildlife Service in Fort Snelling, Minnesota, and in

Reynoldsburg, Ohio. The Minnesota office is located at the Federal

Building, 1 Federal Drive, Fort Snelling, Minnesota 55111-4056. The

Ohio office is located at 6950-H Americana Parkway, Reynoldsburg, Ohio

43068.

FOR FURTHER INFORMATION CONTACT: Buddy B. Fazio, endangered species

biologist, Ohio (614-469-6923 ext. 13) or Jennifer Szymanski,

biologist, Division of Endangered Species, Minnesota (612-713-5342) at

the above addresses.

SUPPLEMENTARY INFORMATION:

Background

This listing provides threatened status and Endangered Species Act

protection to the Lake Erie water snake (Nerodia sipedon insularum)

located on the western Lake Erie offshore islands and adjacent waters.

This listing does not include water snakes (N. sipedon) found on the

Canadian mainland, U.S. mainland, or adjacent near-shore islands due to

those areas having high occurrence of northern water snakes (N. s.

sipedon), intergrades between the two subspecies, and the low

occurrence of Lake Erie water snakes (N. s. insularum). This means

water snakes located on Ohio's Catawba/Marblehead Peninsula, Mouse

Island and Johnson Island (also referred to as Johnson's Island), and

Canada's Point Pelee are not protected under the Act by this listing.

We define near-shore islands as those islands or rock outcrops located

immediately adjacent to, or within 1.6 kilometers (km) (1 mile (mi)) of

either mainland.

We define offshore islands as those 22 or more named and unnamed

western Lake Erie islands and rock outcrops located greater than 1.6

(km)(1 mi) from the Ohio mainland and Ontario mainland. We define the

offshore island's adjacent waters as the western Lake Erie waters

surrounding the offshore islands and located greater than 1.6 (km)(1

mi) from the Ohio mainland and Ontario mainland. These islands and rock

outcrops and their adjacent waters are located within boundaries

roughly defined as 82 deg.22'30'' North Longitude, 83 deg.07'30'' North

Longitude, 41 deg.33'00'' West Latitude, and 42 deg.00'00'' West

Latitude. The U.S. Lake Erie offshore islands and rock outcrops

include, but are not limited to, the islands called Kelleys, South

Bass, Middle Bass, North Bass, Sugar, Rattlesnake, Green, Gibraltar,

Starve, Gull, Ballast, Lost Ballast, and West Sister. Canadian Lake

Erie offshore islands and rock outcrops of Lake Erie include, but are

not limited to, the islands called Pelee, Middle, East Sister, Middle

Sister, North Harbour, Hen, Chick, Big Chicken, and Little Chicken.

Lake Erie water snakes (N. s. insularum) were briefly described by

Morse (1904) as Natrix fasciata erythrogaster. Conant and Clay (1937,

1963) described the Lake Erie water snake subspecies more fully. Lake

Erie water snakes are uniformly gray or brown and have either no color

pattern or have blotches or banding that are faded or reduced (Conant

and Clay 1937, 1963; Camin and Ehrlich 1958; Conant 1982; Kraus and

Schuett 1982; King 1987b, 1991). Color pattern variations among Lake

Erie water snakes are thought to result from the combined effects of

both natural selection and gene flow (King 1993b, 1993c; King and

Lawson 1995). On the rocky shorelines of the western Lake Erie islands,

water snakes with unbanded or reduced patterns appear to have a

survival advantage compared to fully patterned water snakes (Camin et

al. 1954; Camin and Ehrlich 1958; Ehrlich and Camin 1960; King 1992a).

Female Lake Erie water snakes grow up to 1.1 meters (m) (3.5 feet (ft))

long and are larger than males. Newborn Lake Erie water snakes are the

size of a pencil when born during late summer, or early fall.

Lake Erie water snakes use habitat composed of shorelines that are

rocky or contain limestone/dolomite shelves and ledges for sunning and

shelter (Conant and Clay 1937; Conant 1951; Thomas 1949; Camin and

Ehrlich 1958; King 1986, 1987b). Shelter (refugia) occurs in the form

of loose rocks, piled rocks, or shelves and ledges with cracks,

crevices, and nearby sparse shrubbery (Thomas 1949; King 1986, 1992a).

Lake Erie water snakes are found less often on shorelines composed of

small stones, gravel or sand (Conant and Clay 1937; Conant 1938; King

1986). Certain types of rip-rap, armor stone, or docks made with rock

cribs can serve as shelter for Lake Erie water snakes (Conant and Clay

1937; Conant 1938, 1982; King 1990; Service 1994), provided adequate

space exists in these structures that is above Lake Erie's water and

ice levels.

The Lake Erie water snake (N. s. insularum) and the northern water

snake (N. s. sipedon) are separate subspecies. Northern water snakes

(N. s. sipedon) are common and widely distributed in eastern North

America, including the Ohio and Ontario mainland, whereas Lake Erie

water snakes (N. s. insularum) have declined and occur primarily on the

offshore islands of western Lake Erie (Schmidt and Davis 1941; Conant

1982; Kraus and Schuett 1982; King 1986, 1987b, 1989a, 1989b, 1991,

1993b, 1996; King and Lawson 1995; King 1997; King et al. 1997). Lake

Erie water snakes have reduced or no color patterns, while northern

water snakes have sharply defined band patterns (Conant and Clay 1937,

1963; Camin and Ehrlich 1958; Conant 1982; Kraus and Schuett 1982; King

1987b, 1991). Lake Erie water snakes occur on rocky limestone and

dolomite shorelines; northern water snakes use more heavily vegetated

locations with soil, mud or clay (Conant 1951; King 1986, 1987b; King

and Lawson 1995). Lake Erie water snakes also have a different diet, a

larger adult body size, lower growth rates, and shorter tails compared

to northern water snakes (Conant 1951; Hamilton 1951; Langlois 1964;

Drummond 1983; King 1986, 1989a, 1993a).

[[Page 47127]]

The geographic interface where both subspecies of water snake

(Nerodia sipedon) occur is the Ohio mainland (the Catawba/Marblehead

Peninsula) and its near-shore islands (Mouse Island and Johnson

Island). Water snake populations in these areas have northern water

snakes (N. s. sipedon), Lake Erie water snakes (N. s. insularum), and

intergrades between the two subspecies (Conant and Clay 1937, 1963;

Conant 1938; Camin and Ehrlich 1958; Kraus and Schuett 1982; King 1986,

1987a, 1987b; Pfingston 1991; Reichenbach 1992a, 1992b, 1997, 1998).

Intergrades naturally occur on the Peninsula and near-shore islands

because there is no barrier to prevent the two subspecies from

interbreeding. Lake Erie water snakes (N. s. insularum) occur in this

interface zone in low frequencies (Conant and Clay 1937; Camin and

Ehrlich 1958; Kraus and Schuett 1982; King 1987b; Reichenbach 1997,

1998).

Approximately 95 percent of the Lake Erie water snake (N. s.

insularum) population's gene pool occurs on the offshore islands of

western Lake Erie (King 1998a, 1998b). The offshore islands are

isolated from the Ohio and Ontario mainland by approximately 5 to 14 km

(3 to 9 mi) of water. Although not a complete barrier, the distance

from offshore islands to the mainland (and the near-shore islands)

creates a natural barrier. This barrier maintains the integrity of the

Lake Erie water snake gene pool by limiting interbreeding between

offshore island Lake Erie water snakes and mainland and near-shore

northern water snakes. Thus, species experts believe that the genetic

pool on the western Lake Erie offshore islands is primarily Lake Erie

water snake (Conant and Clay 1963 using data from Cliburn 1961; King

1986, 1987b, 1992a, 1992b, 1998a) and the genetic pool on the mainlands

and near-shore islands is predominately northern water snake (N. s.

sipedon).

Lake Erie water snake movements and related gene flow are lower

among mainland and island sites compared to movements among islands

(King 1987b; King and Lawson 1995). King (1987b) reports that all 202

water snakes, recaptured up to 1,146 days after initial capture, were

found within 50 m to 300 m (164 ft to 984 ft) of the original capture

site. No water snakes were observed to move among island study sites

separated by as little as 1.3 km (.8 mi), confirming the observations

of Fraker (1970) that water snakes practice high site fidelity. King

(1987b) estimates that less than 3 percent of adult water snakes move

among islands or among sites on a given island, each year, and thus, by

inference, movement between near-shore islands/mainland and off-shore

islands is likely very limited. King and Lawson (1995) estimated that,

for each generation, an average 9.2 water snakes migrate between Pelee

Island and the Ontario mainland, and 3.6 water snakes migrate between

the islands and the Ohio mainland. Enserink (1997) notes that

populations with 10 or more migrants per generation tend to not

experience natural forces, such as natural selection, that promote

speciation (i.e., a subspecies eventually evolving into a full species

over geologic time). Thus, the Lake Erie water snake remains a unique

insular population that is affected by the opposing forces of natural

selection and gene flow (King and Lawson 1995).

The historic abundance of water snakes on the Lake Erie islands was

first noted in descriptions by early travelers (McDermott 1947; Parker

1976). During the 1700s, the islands of western Lake Erie were called

``Les Iles aux Serpentes,'' the islands of snakes (McDermott 1947;

Langlois 1964). Other accounts by early travelers describe islands with

``myriads (or `wreaths') of water snakes basking in the sun'' or with

water snakes ``sunning themselves in heaps, knots and snarls'' (Ballou

1878; Hatcher 1945; McDermott 1947; Parker 1976; Wright and Wright

1957:534). Morse (1904) noted that many of the water snakes on the

islands of western Lake Erie were uniquely grey, unbanded individuals

(at that time, Natrix fasciata erythrogaster).

The Lake Erie water snake population has declined over 150 years

due to persecution and habitat alteration (Hatcher 1945, Langlois 1964,

Conant 1982, Kraus and Schuett 1982; King 1986, 1987a, 1987b, 1990,

1998a, 1998b; King and Lawson 1995; King et al. 1997). One example is

Middle Island, Ontario, where Thomas (1949) observed up to seven snakes

per ``clump'' of shrubbery at ``close intervals'' over a distance of

several hundred yards of limestone shoreline. King (1986) estimated a

population size for Middle Island that is three to five times lower

than the number of water snakes collected in a single day by Camin et

al. (1954) or in two days by Ehrlich and Camin (1960). In another

example, it took King (1986) a month or more on several islands to

achieve sample sizes similar to that achieved by Conant and Clay (1937)

or Camin and Ehrlich (1958) in a single day. Finally, in terms of

numbers of water snakes per investigator hour, King (Service 1994)

noted that Lake Erie water snake capture rates declined from 10 snakes

per hour (during the 1930s through 1950s) to less than one snake per

hour (during the early 1980s), a ten-fold decline over 30 to 50 years.

Recent data also show declines in population density (i.e., number

of Lake Erie water snakes per km of shoreline) on three of the four

U.S. islands most important to the water snake's long-term survival

(King 1998a, 1998b). When compared to the 1986 population estimate

(King 1986), the 1998 estimate indicates the overall Lake Erie water

snake population continues to remain at a small size. Small population

size makes the Lake Erie water snake population vulnerable to

extinction or extirpation. (See discussions under the ``Issue 2'' and

``Factor E'' sections later in this document.)

The current distribution of Lake Erie water snakes is small

compared to their historic distribution. The historic range of the Lake

Erie water snake (N. s. insularum) included 22 or more offshore islands

and rock outcrops of western Lake Erie, a portion of the Ontario

mainland that includes Point Pelee, and shorelines of the Catawba/

Marblehead Peninsula, Mouse Island, and Johnson Island in Ohio (Conant

and Clay 1937, 1963; Conant 1938; Kraus and Schuett 1982; King 1986,

1987a, 1987b, 1998a). Water snakes were found on Green Island in 1930

(Conant 1982) and early museum records (Ohio State University F.T.

Stone Laboratory collection) initially confirmed water snakes on West

Sister Island. Today, Lake Erie water snakes no longer occur on the

Ontario mainland and four islands: West Sister Island, Green Island,

Middle Sister Island, and North Harbour Island (King 1986, 1998a,

1998b).

In summary, the Lake Erie water snake has declined in population

abundance and in distribution. The current estimate for the U.S.

population ranges from 1,530 to 2,030 adults and is restricted to only

8 islands (King 1998a, 1998b). Stated another way, 95 percent of the

Lake Erie water snake population is currently restricted to an area

with a diameter of less than 40 km (25 mi) comprising 12 western Lake

Erie offshore islands in the U.S. and Canada combined (King 1986,

1987a, 1998a, 1998b).

Previous Federal Record

We identified the Lake Erie water snake as a category 2 candidate

species in notices of review published in the Federal Register on

September 18, 1985 (50 FR 37958) and on January 6, 1989 (54 FR 554).

Our November 21, 1991, Notice of Review (56 FR 225), changed the

snake's status to category 1 candidate. Prior to 1996, a category 2

species was one that we were

[[Page 47128]]

considering for possible addition to the Federal List of Endangered and

Threatened Wildlife, but for which conclusive data on biological

vulnerability and threat were not available to support a proposed rule.

We stopped designating category 2 species in the February 28, 1996,

Notice of Review (61 FR 7596). We now define a candidate species as a

species for which we have on file sufficient information to propose it

for protection under the Act (former category 1 classification).

On August 18, 1993, we published a rule proposing to list the Lake

Erie water snake (N. s. insularum) as threatened (58 FR 43857). The

original comment period ended on November 16, 1993, and the deadline

for receipt of public hearing requests was October 4, 1993. An October

12, 1993, notice (58 FR 52740) extended the public comment and the

hearing request deadline for 30 days. On May 13, 1994, we published in

the Federal Register a notice of public hearing and reopening of the

comment period (59 FR 25024). We held public hearings on South Bass

Island, Ohio, on May 31, 1994, and in Port Clinton, Ohio, on June 1,

1994. The comment period closed on June 16, 1994.

On April 10, 1995, Congress enacted a moratorium on the processing

of all final listing actions (Public Law 104-6) and rescinded $1.5

million from our listing budget, which further delayed action on the

proposed rule. The Congressional moratorium continued until April 26,

1996, when President Clinton exercised authority given to him in the

Omnibus Budget Reconciliation Act of 1996, waiving the moratorium.

During 1995, due to uncertainty as to the extent of the

Congressional moratorium, we determined that the available data for the

listing decision could have become outdated. To ensure responsible

evaluation of current data, we and the Ohio Division of Wildlife funded

a two-year study of the Lake Erie water snake population in 1996 and

1997, with some additional data collection and a final report due in

1998. We received the report from Dr. Richard King during June of 1998,

and received an addendum to the final report in September of 1998.

On May 8, 1998, we published Listing Priority Guidance for Fiscal

Years 1998 and 1999 (63 FR 25502). The guidance clarifies the order in

which we will process rule-makings, giving highest priority (Tier 1) to

processing emergency rules to add species to the Lists of Endangered

and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to

processing final determinations on proposals to add species to the

Lists, processing new proposals to add species to the Lists, processing

administrative findings on petitions (to add species to the Lists,

delist species, or reclassify listed species), and processing a limited

number of proposed or final rules to delist or reclassify species; and

third priority (Tier 3) to processing proposed or final rules

designating critical habitat. The processing of this final rule falls

under Tier 2.

Summary of Comments and Recommendations

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

notifications, we requested all interested parties (hereafter called

participants) to submit factual reports or information that might

contribute to development of a final rule. We contacted appropriate

Federal and State agencies, county governments, scientific

organizations, and other interested parties in the United States and

asked them to comment. We also notified Canadian officials at the

Ontario Ministry of Natural Resources offices (located in Toronto,

London, and Chatham) and at the Canadian Wildlife Service in Ottawa,

Ontario. We published newspaper notices inviting public comment and

notifying the public of pertinent hearings in the following

newspapers--``The Port Clinton News Herald'' (Port Clinton, Ohio),

``The Sandusky Register'' (Sandusky, Ohio), ``The Cleveland Plain

Dealer'' (Cleveland, Ohio), ``The Toledo Blade'' (Toledo, Ohio), and

``The Call and Post'' (Cleveland, Columbus, and Cincinnati, Ohio). We

notified island residents of public hearings and the reopened June

comment period by placing notices in their local U.S. Post Office

boxes.

Public hearings were requested by Donald J. McTigue (of McTigue &

Brooks, Attorneys at Law, Columbus, Ohio), representing Baycliff's

Corporation, and by H. R. Clagg (President, Johnson's Island Property

Owners Association, Marblehead, Ohio). In response, we held public

hearings on May 31, 1994, at Put-in Bay, South Bass Island, Ohio, and

on June 1, 1994, in Port Clinton, Ohio. Approximately 20 people

attended the hearing at Put-in Bay, and approximately 50 people

attended the hearing at Port Clinton.

We received comments and information from participants in the form

of letters, reports, and oral testimony. Out of 96 total comments

received, 89 supported listing the Lake Erie water snake as threatened,

while seven did not support listing. We received comments from 2 State

agencies, 4 universities, 2 zoos, 5 herpetologists, 2 environmental

groups, 1 corporation, 2 private groups, 12 private citizens and 57

school children.

We address comments and oral statements received during the public

hearings and comment periods in the following summary of issues.

Comments of a similar nature are grouped into a single issue.

Issue 1--Some participants asked if other factors besides habitat

loss and persecution, such as predation, pollution, or collecting,

contributed to Lake Erie water snake declines.

Response--The effects of predation, pollution, and collecting on

Lake Erie water snake population are not clear. We believe it is

unlikely that natural predators contribute significantly to Lake Erie

water snake declines. Although Lake Erie water snakes are undoubtedly

taken as prey by gulls, herons, other birds, and other snakes (Camin

and Ehrlich 1958; Goldman 1971; Hoffman and Curnow 1979; King 1986,

1987b, 1993c), the mortality is believed negligible and not likely to

adversely affect Lake Erie water snake populations.

Although some water snakes were documented to contain or be

adversely affected by certain pollutants (Herald 1949, DeWitt et al.

1960, Peterle 1966, Meeks 1968, Novakowski et al. 1974), the role of

pollution in the decline of Lake Erie water snakes is not clear. To

date, comprehensive pollution toxicity studies have not been conducted.

The impact of scientific collecting on the Lake Erie water snake

population is also unknown. The number of museum collections and the

numerous reports of collections within scientific literature suggest

the Lake Erie water snake population can withstand some level of

scientific collection. We cannot discount, however, the possible

negative impacts of over-collection on the population, particularly if

the population declines further. Federal listing will curtail

superfluous scientific collecting, as well as any other collecting

activity.

Issue 2--Some participants believe the Lake Erie water snake

population has seriously declined, while others believe the population

has not declined.

Response--The decline of Lake Erie water snakes from historical

levels is well documented (Hatcher 1945; McDermott 1947; Ehrlich and

Camin 1960; Conant and Clay 1963; Langlois 1964; Conant 1982; Kraus and

Schuett 1982; Reichenback 1992; Service 1994; King 1986, 1998a; King et

al. 1997). In addition to obvious decline in abundance from earlier

this century, the Lake Erie water snake's geographic distribution has

been restricted. The Lake Erie water snake historically

[[Page 47129]]

occurred on the Ohio mainland, the Ontario mainland, 2 or more near-

shore Ohio islands, and 22 or more offshore islands and rock outcrops.

Today, the Lake Erie water snake does not occur on the Ontario

mainland, has disappeared from four islands, and has declined

significantly on the remaining islands (King 1986, 1987a, 1998a, 1998b;

King et al. 1997).

We recognize the population estimates provided by King (1986,

1987a, 1998a, 1998b) and Reichenbach (1997, 1998) as the best available

scientific information with respect to current estimates of Lake Erie

water snake population size in the United States. The Lake Erie water

snake population size is currently estimated to be 1,530 to 2,030

adults (King 1998a, 1998b). When compared to the 1986 population

estimate (King 1986), the 1998 estimate verifies that the Lake Erie

water snake population has remained at a small size for over a 12-year

period (King 1998).

The Lake Erie water snake population suffers from three problems.

First, the Lake Erie water snake continues to decline in terms of

population density (i.e., water snakes per km of shoreline) on three

out of four U.S. islands most important to the water snake's long-term

survival (King 1998a, 1998b). Second, current reproduction and survival

rates appear insufficient to allow the population to increase to levels

higher than existing vulnerable thresholds. Third, low population

densities and insular distribution of the Lake Erie water snake render

it vulnerable to extinction or extirpation.

Issue 3--Participants asked for an explanation of characteristics

that distinguish the Lake Erie water snake subspecies (Nerodia sipedon

insularum) from the northern water snake subspecies (Nerodia sipedon

sipedon).

Response--The two water snake subspecies are distinguished from

each other by habitat, behavioral, and morphological differences. Lake

Erie water snakes occur on rocky limestone and dolomite shorelines with

some plants, whereas northern water snakes use more heavily vegetated

locations with soil, mud or clay (Conant 1951; King 1986, 1987b; King

and Lawson 1995). Lake Erie water snakes also have a different diet, a

larger adult body size, lower growth rates, and shorter tails compared

to northern water snakes (Conant 1951; Hamilton 1951; Langlois 1964;

King 1986, 1989a, 1993a). Furthermore, Lake Erie water snakes are

uniformly gray or brown and either have no color pattern or have

blotches or banding that are faded or reduced, whereas northern water

snakes have sharply defined, complete banding patterns (Conant and Clay

1937, 1963; Camin and Ehrlich 1958; Conant 1982; Kraus and Schuett

1982; King 1987b, 1991). It is important to note, however, that at

locations where the two subspecies co-occur, subspecies intergrades

exist which are difficult to identify as either a Lake Erie water snake

or northern water snake.

Issue 4--Some participants inquired about the status of the Lake

Erie water snake on Johnson Island and the Catawba/Marblehead

Peninsula. The participants also asked if these locations are within

the documented range of the Lake Erie water snake.

Response--The Peninsula and two near-shore islands (i.e., Johnson

Island and Mouse Island) are within the current and historic range of

the Lake Erie water snake (Kraus and Schuett 1982; King 1986; King et

al. 1997; Reichenbach 1998). However, the core gene pool comprising 95

percent of the Lake Erie water snake population occurs on the off-shore

islands (i.e., islands located more than one mile from the Ohio or

Ontario mainland) of western Lake Erie (King 1986, 1998). The near-

shore islands and mainland locations contain a gene pool dominated by

northern water snakes (N. s. sipedon) with a much lower frequency of

Lake Erie water snakes (N. s. insularum) and intergrades between the

two subspecies (Conant and Clay 1937, 1963; Conant 1938; Conant 1982;

Camin and Ehrlich 1958; Kraus and Schuett 1982; King 1986; Pfingston

1991; Reichenbach 1997, 1998).

Issue 5--Some participants believe that water snakes on Ohio's

Catawba/Marblehead Peninsula, Mouse Island and Johnson Island should be

included in the Lake Erie water snake listing as threatened.

Response--In responding to Issues 3 and 4, above, we explain that

the Peninsula, Johnson Island, and Mouse Island comprise a zone

dominated by the northern water snake (N. s. sipedon). This is because

these areas lack the natural barrier, distance from the mainland, that

buffers the Lake Erie water snake populations on the offshore islands.

Johnson Island located in Sandusky Bay is 480 m (1600 ft) from the

Catwaba/Marblehead peninsula that separates it from the other offshore

islands. A rip-rap lined causeway connects Johnson Island to the

Catwaba/Marblehead peninsula, facilitating the movement of northern

water snakes to Johnson Island. Mouse Island is located less than 300 m

(1000 ft) from the Ohio shore. We believe that the protection of the

offshore populations ensures the long-term survival of the Lake Erie

water snake (N. s. insularum).

Issue 6--Some participants asked that ``Critical habitat'' be

declared for Lake Erie water snakes.

Response--As explained later in this rule under the ``Critical

Habitat'' section, we believe designation of critical habitat is not

prudent.

Issue 7--Some participants believe water snakes are a nuisance,

poisonous, and dangerous to small children, adults, and pets.

Response--The Lake Erie water snake may appear dangerous because of

its large body size and defensive temperament. However, when approached

by humans it will choose escape over confrontation, if possible. If

escape is not possible, like any wild animal, it will try to protect

itself. The Lake Erie water snake is not poisonous and does not have

fangs; instead, the snake has small teeth that give a pinching bite. In

1994, we and the Ohio Division of Wildlife began a public awareness

campaign on the Lake Erie islands. This campaign encourages adults and

children to respect and not handle the Lake Erie water snake just as

they would respect other wild animals.

Issue 8--Some participants asked if artificial structures or

artificial habitat can benefit Lake Erie water snakes. Participants

also asked if the presence of artificial structures would cause the

Lake Erie water snake subspecies to expand its range into locations

where it did not previously occur.

Response--Certain types of artificial habitat (rip-rap, certain

armor stone, rock piles, or docks made with rock-filled cribs) may

provide shelter for Lake Erie water snakes (Conant and Clay 1937;

Conant 1938, 1982; King 1990; Service 1994). However, the extent to

which such artificial refugia benefit Lake Erie water snakes is

currently unknown. The conservation of Lake Erie water snakes can also

be aided by incorporating rock-oriented designs into shoreline

developments and associated erosion control structures. Such measures

have already been adopted by one developer on Johnson Island (Pfingston

1991; Reichenbach 1992a, 1992b, 1997, 1998). These structures, however,

are unlikely to precipitate the expansion of the Lake Erie water snake

(N. s. insularum) population because of outside pressures such as

habitat degradation, natural selection, and natural gene flow from the

northern water snake (N. s. sipedon).

Issue 9--Some participants asked if listing Lake Erie water snakes

as threatened will cause additional permits to be required for

shoreline development. Others asked if listing

[[Page 47130]]

will prevent landowners from developing their land.

Response--The purpose of the Act is to conserve species such as the

Lake Erie water snake (N. s. insularum) and the ecosystems upon which

they depend. To achieve this goal, it is necessary to minimize the loss

of Lake Erie water snakes and their habitat. Thus, the Act affords

protection against take (i.e., killing, injuring, capturing, etc.) of

Lake Erie water snakes. Projects that will harm individual Lake Erie

water snakes or destroy their habitat will require an incidental take

permit from us. Under the ``Available Conservation Measures'' section

of this notice, we identify activities likely to result in take of Lake

Erie water snakes. However, many of these actions, such as construction

of shoreline docks, placement of stone or armor plates to prevent

erosion, and other shoreline developments, already require a permit

from the U.S. Army Corps of Engineers (Corps) under section 404 of the

Clean Water Act or section 10 of the Rivers and Harbors Act. Pursuant

to the Endangered Species Act, it is the Corps' responsibility to

ensure that issuance of a Corps permit will not jeopardize Lake Erie

water snakes on the offshore islands. If permit issuance by the Corps

may affect the water snake or other federally listed species, the Corps

must enter into section 7 consultation with us. Under section 7

consultation, we work with the Corps and project proponent to find

solutions that allow the project to proceed while avoiding jeopardy to

listed species. This often means adopting project modifications. If a

shoreline project does not require a Corps permit and does not involve

Federal funding or other Federal authorization or other action, but

will take water snakes, the landowner may be required to obtain an

incidental take permit under section 10 of the Act. However, we believe

most minor shoreline projects as they are currently undertaken will

require few modifications.

Issue 10--A few participants asked if listing Lake Erie water

snakes as threatened will cause shoreline property owners to lose their

homes or their land.

Response--Listing Lake Erie water snakes as threatened will not

cause any landowner or homeowner to lose his/her home or land.

Issue 11--Some participants are concerned that listing Lake Erie

water snakes might cause restrictions to be placed against land access

or fishing activities.

Response--We do not foresee such restrictions to be enacted. We do

not consider unintentional capture or entanglement as a result of

recreational fishing to be a violation of the Act's prohibition on take

provided the snake is immediately freed and released (see the

``Available Conservation Measures'' section). It is our policy (June 3,

1996; 61 FR 27978) to pursue cooperative partnerships to minimize and

resolve conflicts between the implementation of the Act and

recreational fishing activities.

Issue 12--Some participants asked which types of shoreline habitat

will be affected by listing Lake Erie water snakes as threatened.

Response--Lake Erie water snakes can be found along any shoreline

of the islands of western Lake Erie. However, they occur more often on

or near rocky shorelines or shorelines composed of limestone/dolomite

shelves and ledges (Conant and Clay 1937; Thomas 1949; Conant 1951;

Camin and Ehrlich 1958; King 1986, 1987b). The Lake Erie water snake is

protected by the Act on the shorelines of all islands and rock outcrops

of western Lake Erie, except Mouse Island, Johnson Island, or any other

islands and rock outcrops within 1.6 km (1 mi) of the Ohio or Ontario

mainland.

Issue 13--Some participants expressed concern about being

prosecuted for removing a Lake Erie water snake from their basement or

yard, or from a fishing hook.

Response--Provided that private individuals follow the specific

handling conditions identified in this rule, the Service will not

prosecute them for removing Lake Erie water snakes from their property

or from accidental capture while fishing (see the ``Available

Conservation Measures'' section).

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we have determined that the Lake Erie water snake (Nerodia

sipedon insularum) on western Lake Erie offshore islands and adjacent

waters (i.e., offshore islands and their surrounding waters that are

more than 1.6 km (1 mi) from the Ohio and Ontario mainland) should be

classified as a threatened species. We followed procedures found in

section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et seq.)

and regulations (50 CFR part 424) promulgated to implement the listing

provisions of the Act. A species may be determined to be an endangered

or threatened species due to one or more of the five factors described

in section 4(a)(1). These factors and their application to the Lake

Erie water snake (Nerodia sipedon insularum) are as follows:

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

of its Habitat or Range

Habitat destruction is a major cause of the decline of Lake Erie

water snakes (Ashton 1976; Kraus and Schuett 1982; King 1986; King et

al. 1997). During the past 60 years, shoreline habitat important to the

water snakes has been significantly altered, degraded, and developed

through the construction of shoreline cottages, marinas, docks, and sea

walls, the filling of lagoons, and the mining of quarries (Hatcher

1945; Core 1948; Kraus and Schuett 1982; King 1985, 1986; R. Conant,

University of New Mexico, in litt. 1993; King et al. 1997). Current

development on many western Lake Erie islands (e.g., Kelleys, North

Bass, Middle Bass, South Bass, Pelee) is resulting in increased loss of

Lake Erie water snake habitat. Some examples of currently proposed

developments affecting Lake Erie water snake habitat include a large

resort proposed for Middle Bass Island, a 1,220 m (4,000 ft) long sea

wall proposed for North Bass Island, and airport expansions proposed

for Kelleys Island and Middle Bass Island (Service, in litt. 1999).

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

We know of no recreational or commercial overutilization of the

Lake Erie water snake. The impact of scientific collecting on the Lake

Erie water snake population is not known, but negative impacts from

possible over-collecting cannot be discounted. The historical

collection of Lake Erie water snakes is well documented, with reports

of from 40 water snakes (Hamilton 1951; Langlois 1964; Conant 1982;

Ohio Division of Natural Areas and Preserves, unpublished data, 1993)

to hundreds of water snakes (Conant and Clay 1937, 1963; Conant 1938,

1951, 1982; Camin and Ehrlich 1958) collected per island during

repeated visits. If the Lake Erie water snake population continues to

decline, all sources of mortality, including collecting, will be

problematic for the species (see ``Factor E'').

C. Disease or Predation

We are not aware of any evidence showing that natural predation has

contributed significantly to the decline of Lake Erie water snakes.

Although predation by herring gulls (Larus argentatus), great blue

herons (Ardea herodias), robins (Turdus migratorius),

[[Page 47131]]

and blue racers (Coluber constrictor) have occurred (Camin and Ehrlich

1958; Goldman 1971; Hoffman and Curnow 1979; King 1986, 1987b, 1993c),

this very low level of mortality is not likely to have a significant

affect on the Lake Erie water snake population. However, as stated

above, populations like the Lake Erie water snake that occur at low

densities can be adversely impacted by any mortality factor, whether

natural or human-caused.

Little is known about the impacts of disease on water snakes

(Nerodia sipedon). We believe disease is currently only a minor problem

for Lake Erie water snakes. However, we recognize that the synergistic

effects of pollutants, other environmental stress (such as habitat

loss), and the locally dense nature of some localized sub-populations

could expose water snakes to significant disease problems.

D. The Inadequacy of Existing Regulatory Mechanisms

Until now, Lake Erie water snakes have had no legal protection from

take, harm, or habitat loss within the United States. The Ohio Division

of Wildlife (ODOW) granted State threatened status (chapter 119 of the

Ohio Revised Code) to the Lake Erie water snake (N. s. insularum) in

1990 but this is an administrative designation that does not confer

legal protection. The Lake Erie water snake is listed as endangered by

the Society for the Study of Amphibians and Reptiles but this also

confers no legal protection. A small fraction of the land area on the

western Lake Erie islands comprises public land. The Ohio State

University and the Ohio Department of Parks and Recreation (R.B. King,

Northern Illinois University, in litt. 1993) own property that is

inhabited by Lake Erie water snakes, and thus is minimally protected

from habitat destruction.

The Lake Erie water snake (N. s. insularum) subspecies is currently

protected in Ontario, Canada, under the provincial Endangered Species

Act, R.S.O. 1980, c. 138, in 1977 (Regulation 328; Regulation 195/88

which amends Regulation 287 of Revised Regulations of Ontario). The

Lake Erie water snake (N. s. insularum) subspecies is also listed as

federally endangered by the Committee on the Status of Endangered

Wildlife in Canada (COSEWIC). In addition, the species Nerodia sipedon

is protected under the Ontario Game and Fish Act (Regulation 520;

Regulation 113/88 which amends Regulation 397/84 of Revised Regulations

of Ontario). Although these regulations provide some protection for

Lake Erie water snakes at a few sites in Canada, the majority of the

subspecies' island habitat remains unprotected, including 13 islands

within the United States. Of the 5 core islands most important to the

lake Erie water snake, 4 occur in the United States with little or no

protection for the species and its habitat.

Three preserves exist in Ontario, Canada, which are inhabited by

Lake Erie water snakes and protected from habitat loss. On Pelee

Island, Ontario, the Lake Erie water snake is protected by Provincial

preserves at Fish Point and Lighthouse Point (I. Bowman and P. Prevett,

Ontario Ministry of Natural Resources, pers. comm. 1994). The Essex

Region Conservation Authority also set aside preserve land on Pelee

Island which benefits water snakes and local plant species (D. Krouse,

ERCA, pers. comm. 1994). East Sister Island is a Lake Erie water snake

Provincial preserve, but the population of water snakes on the island

is small and declining (King 1986; I. Bowman and P. Prevett, Ontario

Ministry of Natural Resources, pers. comm. 1994; R. King, Northern

Illinois University, pers. comm. 1998). We believe the regulatory

mechanisms are inadequate because of the small number of water snakes

in preserves and the vulnerability from lack of regulatory protection

outside of preserves.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Persecution by humans is the most significant and well documented

factor in the decline of Lake Erie water snakes (Conant 1982, Kraus and

Schuett 1982, King 1986, King et al. 1997; Service in litt. 1998).

During the 1800s, pigs were released on some islands to exterminate

snakes (Hatcher 1945, McDermott 1947). All snake species were

eradicated from Rattlesnake Island by 1930 (Conant 1982), but a few

water snakes recently moved to the island (King 1987b; King et al.

1997). Ehrlich and Camin (1960) told of a campaign of extermination

waged against water snakes on Middle Island. Conant and Clay (1963)

noted that persecution of island water snakes was severe. Persecution

by humans is still a serious problem on several islands (Service in

litt. 1998). The effects of past and current persecution are evident

today and are a threat to the continued existence of the water snake.

The influences of factors A through E, above, on the Lake Erie

water snake are exacerbated by the small size of the population. The

current low population densities and insular distribution of Lake Erie

water snakes make them vulnerable to extinction or extirpation from

catastrophic events, demographic variation, negative genetic effects,

and environmental stresses such as habitat destruction and

extermination (Shaffer 1981; King 1987b, 1998b; Dodd 1993; Nunney and

Campbell 1993; King et al. 1997). Though populations naturally

fluctuate, small populations are more likely to fluctuate below the

minimum viable population threshold needed for long-term survival.

Likewise, chance variation in age and sex ratios can cause death rates

to exceed birth rates, causing a higher risk of extinction in small

populations. Finally, decreasing genetic variability in small

populations increases the vulnerability of a species to extinction due

to inbreeding depression (decreased growth, survival, or productivity

caused by inbreeding) and genetic drift (loss of genetic variability

that takes place as a result of chance). A recent study of snakes

(adders) in Sweden found that inbreeding depression in isolated

populations resulted in smaller litter size, higher proportion of

deformed and stillborn offspring, and lower degree of genetic

heterozygosity (Madsen et al. 1996), which in turn cause reduced

fertility and survivorship. Thus, in small populations, environmental,

demographic, and genetic changes can result in an accelerating slide

toward extinction.

Mace and Lande (1991) describe a system used to categorize the

status of a species as Vulnerable, Endangered, or Critical according to

risk of extinction criteria. Applying these criteria to the Lake Erie

water snake population, King (1998b) suggests the population in the

United States qualifies as Endangered or Vulnerable. Mace and Lande

(1991) define Vulnerable as having a 10 percent probability of

extinction within 100 years, and define Endangered as having a 20

percent probability of extinction within 20 years or 10 generations

(whichever is longer). King (1998b) indicates that the Lake Erie water

snake population meets these criteria because of (1) the decline of

island sub-populations of the snakes, (2) accelerated habitat

alteration (e.g., development) during the 1990s, and (3) potential

ecological interactions with introduced species. Zebra mussels

(Dreissena polymorpha) and round gobies (Neogobius melanostmus) can

reduce water snake prey (i.e., fish) availability (Dermott and Munawar

1993; Fitzsimons et al. 1995; Jude et al. 1995).

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by the Lake Erie water snake in making this final listing

determination. Based on this evaluation, we believe the Lake Erie water

snake

[[Page 47132]]

(Nerodia sipedon insularum) meets the criteria for protection under the

Act on the basis of persecution, destruction and modification of

habitat, curtailment of its range, significant population decline from

historical levels, flat and vulnerable population status in the 1990s,

and the inadequacy of regulatory mechanisms. The present distribution

and abundance of the Lake Erie water snake is at risk given the

potential for these impacts to continue. Therefore, based on this

evaluation, the preferred action is to list the Lake Erie water snake

as a threatened species. The Act defines a threatened species as one

that is likely to become an endangered species in the foreseeable

future throughout all or a significant portion of its range. Federal

threatened status for the Lake Erie water snake is effective

immediately upon publication of this final rule (see ``Effective Date''

section below).

Effective Date

In accordance with 5 U.S.C. 553(d)(3), we have found good cause to

make the effective date of this rule immediate. Because of low Lake

Erie water snake population densities, continuing eradication by

people, and accelerating habitat destruction, protection provided by

the Act is granted to Lake Erie water snakes (Nerodia sipedon

insularum) located on the western Lake Erie offshore islands and

adjacent waters immediately upon publication of this final rule. We

believe eradication efforts and habitat destruction, in particular,

would temporarily intensify if the effective date of the Act's

protection is delayed by the normal 30 days after rule publication. We

also believe that this sudden increase in water snake persecution and

habitat destruction would seriously jeopardize the already small,

vulnerable Lake Erie water snake population to the extent that the

long-term recovery process would be irreversibly impaired.

Critical Habitat

Section 3 of the Act defines critical habitat as: (i) the specific

areas within the geographical area occupied by a species, at the time

it is listed in accordance with the Act, on which are found those

physical or biological features (I) essential to the conservation of

the species and (II) that may require special management considerations

or protection; and (ii) specific areas outside the geographic area

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

that such areas are essential for the conservation of the species.

``Conservation'' means the use of all methods and procedures needed to

bring the species to the point at which listing under the Act is no

longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, we designate critical habitat at the time the species

is determined to be endangered or threatened. Our regulations (50 CFR

424.12(a)(1)) state that the designation of critical habitat is not

prudent when one or both of the following situations exist--(1) the

species is threatened by taking or other human activity, and

identification of critical habitat can be expected to increase the

degree of threat to the species, or (2) such designation of critical

habitat would not be beneficial to the species. We find that

designation of critical habitat is not prudent for the Lake Erie water

snake for both reasons stated above.

Potential benefits of critical habitat designation derive from

section 7(a)(2) of the Act, which requires Federal agencies, in

consultation with us, to ensure that their actions are not likely to

jeopardize the continued existence of listed species or to result in

the destruction or adverse modification of critical habitat of such

species. Critical habitat designation, by definition, directly affects

only Federal agency actions. Since the Lake Erie water snake is semi-

aquatic, Federal actions that might affect this species and its habitat

include those with impacts on island shoreline habitat and water

quality. Most activities that occur would be subject to review under

section 7(a)(2) of the Act, regardless of whether critical habitat was

designated. The Lake Erie water snake has become so restricted in

distribution that any significant adverse modification or destruction

of occupied habitats would likely jeopardize the continued existence of

this species. This would also hold true as the species recovers and its

numbers increase. As part of the development of this rule, Federal and

State agencies were notified of this species' general distribution, and

we requested that they provide data on proposed Federal actions that

might adversely affect the species. Should any future projects be

proposed in areas inhabited by this snake, the involved Federal agency

will already have the distributional data needed to determine if its

action may impact the species, and if needed, we will provide more

specific distribution information. Therefore, habitat protection for

the Lake Erie water snake can be accomplished through the section 7

jeopardy standard, and there is no benefit in designating currently

occupied habitat of this species as critical habitat.

Though critical habitat designation directly affects only Federal

agency actions, controversy resulting from critical habitat designation

has been known to reduce private landowner cooperation in the

management of species listed under the Act. Critical habitat

designation could affect landowner cooperation within habitat currently

occupied by the snake and in areas unoccupied that might be needed for

recovery. The publication of critical habitat maps in the Federal

Register and local newspapers, and other publicity or controversy

accompanying critical habitat designation may increase the potential

for persecution as well as other collection threats. This applies to

currently occupied habitat and any unoccupied habitat that were to be

designated and subsequently recolonized by the species. Factor ``E'' of

the ``Summary of Factors Affecting the Species'' section details the

significant human persecution threats that have affected and continue

to affect Lake Erie water snakes.

Based on the above analysis, we have concluded that critical

habitat designation would provide little additional benefit for this

species beyond those that would accrue from listing under the Act. We

also conclude that any potential benefit from such a designation would

be offset by an increased level of vulnerability to collecting,

persecution, and by a possible reduction in landowner cooperation to

manage and recover this species. Therefore, the designation of critical

habitat for Lake Erie water snake is not prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States. The Act also requires that recovery

actions be carried out for all listed species. The protection required

of Federal agencies and the prohibitions against take of species and

harm to species are discussed, in part, below.

Following listing, a number of recovery actions may be initiated by

us, in cooperation with the State of Ohio and numerous other parties.

Some possible recovery actions are as

[[Page 47133]]

follows--(1) continuation of a public outreach program directed toward

island residents and visitors; (2) habitat protection measures, as

needed; (3) voluntary conservation agreements with landowners; (4)

design and testing of artificial refugia; (5) increased law enforcement

efforts; (6) voluntary land acquisition or conservation easements from

willing sellers; (7) monitoring studies; (8) winter hibernation

studies; (9) reintroduction of Lake Erie water snakes to appropriate

locations; and (10) captive rearing.

A public outreach program by us and the Ohio Division of Wildlife

has been active on the Lake Erie islands since 1994. The program

encourages a ``live and let live'' attitude for snakes living among

island residents and visitors. A poster contest, outdoor sign campaign,

and personal contacts are helping island residents and visitors realize

that Lake Erie water snakes are not poisonous and pose little threat to

people. We look forward to the continuing success of this public

outreach program as part of the overall effort to achieve recovery of

the Lake Erie water snake.

Listing Lake Erie water snakes as threatened provides much needed

coordination and legal protection. Federal threatened status for Lake

Erie water snakes will automatically result in State of Ohio endangered

status, triggering effective State legal protection against take.

Threatened status in the United States will facilitate Federal

coordination for Lake Erie water snakes in the form of partnerships

with landowners, planning and management with Canadian wildlife

officials, consultations on Federal projects (section 7 of the Act),

enforcement (section 9 of the Act), conservation planning (section 10

of the Act), and permits (section 10 of the Act).

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

their actions with respect to any species, and its critical habitat (if

declared), that is proposed or listed as endangered or threatened.

Regulations implementing this interagency cooperation provision of the

Act are codified at 50 CFR Part 402. Section 7(a)(2) requires Federal

agencies to ensure that activities they authorize, fund, or carry out

are not likely to jeopardize the continued existence of a listed

species or to destroy or adversely modify its critical habitat. If a

Federal action may affect a listed species or its critical habitat, the

responsible Federal agency must enter into formal consultation with us.

Possible Federal actions may include projects, activities, and permit

issuance by the Corps, the Natural Resources Conservation Service, the

U.S. Environmental Protection Agency, the U.S. military services, the

National Park Service, our Ottawa National Wildlife Refuge, and Federal

agency participation in the Great Lakes Initiative, or other

cooperative U.S. efforts involving Canadian governments.

The section 7 consultation process will play an important role in

recovery of the Lake Erie water snake. The resulting habitat

protection, habitat restoration, education of agency personnel,

practical seasonal recommendations for construction activity, and

beneficial project designs are vital for the Lake Erie water snake

recovery. Beneficial shoreline projects contain designs that utilize

rock and vegetation to provide shelter or forage areas for Lake Erie

water snakes. Examples of potentially beneficial project designs are

docks with rock-filled cribs, shoreline erosion barriers that utilize

medium to large size stone, and reefs beneficial to small fish and

amphibians that allow Lake Erie water snakes to safely feed.

The Act and implementing regulations found at 50 CFR 17.21 and

17.31 set forth a series of general prohibitions and exceptions that

apply to all threatened wildlife. These prohibitions, in part, make it

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

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

or collect; or to attempt any of these), import or export, ship in

interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

also is illegal to possess, sell, deliver, carry, transport, or ship

any such wildlife that has been taken illegally. Certain exceptions

apply to our agents and State conservation agencies.

Under the Act, permits may be issued to carry out otherwise

prohibited activities involving threatened wildlife species under

certain circumstances. Regulations governing permits are described in

50 CFR 17.22, 17.23, and 17.32. Such permits are available for

scientific purposes, for the enhancement or propagation or survival of

the species, or for incidental take in connection with otherwise lawful

activities. For threatened species, there are also permits for

zoological exhibition, educational purposes, or special purposes

consistent with the purposes of the Act.

It is our policy (July 1, 1994; 59 FR 34272) to identify to the

maximum extent practicable, at the time a species is listed, those

activities that do or do not constitute a violation of section 9 of the

Act. The intent of this policy is to increase public awareness of the

effect of this listing on proposed and ongoing activities on the

offshore islands and adjacent waters of western Lake Erie. We believe

that, based on the best available information, the following actions

will not result in a violation of section 9 with respect to Lake Erie

water snakes--(1) brief handling necessary to transfer individual water

snakes from roads, sidewalks, structures, yards, and watercraft to

adjacent habitat upon immediate release; (2) brief handling necessary

to free and immediately release to adjacent habitat a water snake

unintentionally hooked or entangled in fishing equipment; (3) non-

harmful actions that encourage water snakes to leave, stay off, or keep

out of a residence (including swimming pools and yards), a business

building, the top decks of docks, foot paths, and water equipment

(including boats, rafts, swimming decks, water intakes, and

recreational gear); for example, a homeowner using a pool net pole to

gently nudge a water snake away from his property; (4) actions that may

affect offshore island water snakes and are authorized, funded or

carried out by a Federal agency, when conducted in accordance with any

reasonable and prudent measures given by the Service in accordance with

section 7 of the Act; (5) actions authorized by a section 10 permit

under the Act.

We believe violations of section 9 of the Act include, but are not

limited to, the following actions on the Lake Erie offshore islands

conducted without a section 10 permit under the Act--(1) intentional

killing or injuring of water snakes by any means; (2) harassing water

snakes in any offshore island or adjacent water habitat; (3)

unauthorized collecting or handling of the water snake; (4) altering or

destroying shoreline water snake habitat, including adjacent

vegetation; (5) illegal discharge or dumping of toxic chemicals or

other pollutants into areas occupied by the water snake.

Requests for copies of the regulations regarding listed wildlife

and inquiries about prohibitions and permits may be addressed to the

Division of Endangered Species, Bishop Henry Whipple Federal Building,

1 Federal Drive, Ft. Snelling, Minnesota 55111-4056 (612-713-5350; fax

612-713-5292).

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental

Impact Statements, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to section 4(a) of the Act. We

[[Page 47134]]

published a notice outlining our reasons for this determination in the

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

Paperwork Reduction Act

This rule does not contain any new collections of information other

than those already approved under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned Office of Management and Budget

clearance number 1018-0094. An agency may not conduct or sponsor, and a

person is not required to respond to a collection of information,

unless it displays a currently valid control number. For additional

information concerning permit and associated requirements for

threatened species, see 50 CFR 17.32.

References Cited

A complete list of all references cited herein, as well as others,

is available upon request (see ADDRESSES section).

Authors

The primary authors of this proposed rule are Buddy B. Fazio (614-

469-6923) of our Reynoldsburg, Ohio office, and Jennifer Szymanski

(612-713-5342) of our Minnesota Regional Office (see ADDRESSES

section.)

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

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

the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following to the List of

Endangered and Threatened Wildlife, in alphabetical order under

REPTILES:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate

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

Historic range endangered or Status listed habitat rules

Common name Scientific name threatened

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

Reptiles

* * * * * * *

Snake, Lake Erie water........... Nerodia sipedon U.S.A. (OH), Canada Lake Erie offshore T 665 N/A N/A

insularum. (Ont.). Islands and their

adjacent waters

(located more than

1 mile from

mainland)--U.S.A.

(OH), Canada (Ont.).

* * * * * * *

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

Dated: August 16, 1999

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 99-22459 Filed 8-27-99; 8:45 am]

BILLING CODE 4310-55-P