[Federal Register: August 30, 1999 (Volume 64, Number 167)]

[Rules and Regulations]               

[Page 47126-47134]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]


[[Page 47126]]




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.


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 


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.



    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, 


    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. 


    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, 


    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 


    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 


    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 


    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 


    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 


    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 


[[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 


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).


    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 


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:


    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 


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



                   *                  *                  *                  *                  *                  *                  *

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


                                                                                (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]