[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Proposed Rules]
[Pages 30319-30338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12910]



[[Page 30319]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2010-0039]
[92220-113-000; ABC Code: C6]
RIN 1018-AW62


Endangered and Threatened Wildlife and Plants; Proposed Rule to 
remove the Lake Erie Watersnake (Nerodia sipedon insularum) from the 
Federal list of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; critical habitat prudency determination; notice 
of availability draft post-delisting monitoring plan.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
remove the Lake Erie Watersnake (Nerodia sipedon insularum) from the 
List of Threatened and Endangered Wildlife due to recovery. This action 
is based on a review of the best available scientific and commercial 
data, which indicate that the subspecies is no longer endangered or 
threatened with extinction, or likely to become so within the 
foreseeable future. Based on our determination that the Lake Erie 
Watersnake is no longer endangered or threatened with extinction, we 
have also determined that designation of critical habitat for the Lake 
Erie Watersnake is not prudent. We seek information, data, and comments 
from the public regarding the Lake Erie Watersnake, this proposal to 
delist, and the draft post-delisting monitoring plan. This proposal 
implements the recommendations from the 5-year status review initiated 
on April 22, 2008 (73 FR 21643).

DATES: We will consider comments received on or before August 2, 2010. 
We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by July 
16, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R3-ES-2010-0039; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept comments by e-mail or fax. We will post all 
comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Mary Knapp, Field Office Supervisor, 
or Megan Seymour, Wildlife Biologist, U.S. Fish and Wildlife Service 
Ohio Field Office, 4625 Morse Road, Suite 104, Columbus, OH 43230 
(telephone: 614-416-8993). Individuals who are hearing-impaired or 
speech-impaired may call the Federal Relay Service at (800) 877-8337 
for TTY assistance.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and effective as possible. Therefore, we request data, 
comments, new information, or suggestions from the public, other 
concerned governmental agencies, the scientific community, Tribes, 
industry, or any other interested party on this proposed rule. We 
particularly seek comments concerning:
    (1) Biological information concerning this subspecies;
    (2) Relevant data concerning any current or likely future threats 
(or lack thereof) to this subspecies, including the extent and adequacy 
of Federal and State protection and management that would be provided 
to the Lake Erie Watersnake as a delisted subspecies;
    (3) Additional information concerning the range, distribution, 
population size, and population trends of this subspecies;
    (4) Current or planned activities in the subject area and their 
possible impacts on this subspecies;
    (5) What regional climate change models are available, and whether 
they are reliable and credible to use as step-down models for assessing 
the effect of climate change on the species and its habitat; and
    (6) Our draft post-delisting monitoring plan.
    You may submit your comments and materials considering the proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we use in preparing this proposed rule, will be available 
for public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Ohio Field Office (see FOR FURTHER INFORMATION CONTACT section). You 
may obtain copies of the proposed rule on the Internet at http://www.regulations.govat Docket Number FWS-R3-2010-0039, or by mail from 
the Ohio Field Office (see FOR FURTHER INFORMATION CONTACT section).

Public Hearing

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of this publication in the Federal Register. Such requests must be made 
in writing and addressed to the Field Supervisor (see FOR FURTHER 
INFORMATION CONTACT section). We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings at least 15 days before the first hearing.

Background

    The Lake Erie Watersnake is a subspecies of the Northern Watersnake 
(N. sipedon sipedon) that occurs primarily on the offshore islands of 
western Lake Erie in Ohio and Ontario, Canada, but also on a small 
portion of the U.S. mainland on the Catawba and Marblehead peninsulas 
of Ottawa County, Ohio (Conant and Clay 1937, p. 2; King 1986, p. 760). 
Lake Erie Watersnakes are uniformly gray or brown, and have either no 
banding pattern, or have blotches or banding that are either faded or 
reduced (Conant and Clay 1937, pp. 2-5; Camin and Ehrlich 1958, p. 504; 
King 1987, pp. 243-244) . Female Lake Erie Watersnakes grow up to 1.1 
meters (m) (3.5 feet (ft)), long, and are larger than males (King 1986, 
p. 762). Newborn Lake Erie Watersnakes are the size of a pencil, and 
are born during late summer or early fall (King 1986, p. 764).
    Lake Erie Watersnakes are distinct from Northern Watersnakes in 
their reduced or absent banding patterns (Conant and Clay 1937, pp. 2-
5; Camin and Ehrlich 1958, p. 504; King 1987, pp. 243-244), use of 
substrates dominated by limestone or dolomite (Conant and Clay 1937, p. 
6; King 1986, p.760) , diet composition (Hamilton 1951, p. 64-65), 
larger body size (King 1989, pp. 85-86),

[[Page 30320]]

lower growth rates (King 1986, p. 770), and shorter tails (King 1986, 
p. 768).
    Lake Erie Watersnake summer habitat is composed of rocky shorelines 
with limestone or dolomite shelves, ledges, or boulders for sunning and 
shelter. Shelter occurs in the form of loose rocks, piled rocks, or 
shelves and ledges with cracks, crevices, and nearby vegetation. Rip-
rap erosion control, armor stone, and docks incorporating a stone crib 
structure often serve as summer habitat for the snake. Lake Erie 
Watersnakes typically forage for fish and amphibians in Lake Erie, and 
research indicates that more than 90 percent of their current diet is 
composed of the nonnative, invasive fish round goby (Neogobius 
melanostomus) (King et al. 2006b, p. 110). Jones et al. (2009, p. 441) 
report that the mean foraging distance from shore was 85 m (279 ft) and 
the average water depth of the foraging locations was 3.32 m (10.9 ft). 
During the summer, 75 percent of Lake Erie Watersnakes are found within 
13 m (42.7 ft) of the water's edge (King 2003, p.4). King (2003, p. 4) 
identified that 75 percent of Lake Erie Watersnakes used 437 m (1433 
ft) of shoreline or less as a home range. In the winter, Lake Erie 
Watersnakes hibernate below the frost level, in cracks or crevices in 
the bedrock, interstitial spaces of rocky substrates, tree roots, 
building foundations, and other similar natural and human-made 
structures. Seventy-five percent of Lake Erie Watersnakes hibernate 
within 69 m (226 ft) of the water's edge (King 2003, p. 4). Individual 
snakes often demonstrate site fidelity, returning to the same shoreline 
area and the same or nearby hibernacula in successive years (King 2003, 
pp. 4, 11-17).
    Additional information on the Lake Erie Watersnake's life history 
and biology can be found in the final listing rule (64 FR 47126; August 
30, 1999) and the Lake Erie Watersnake (Nerodia sipedon insularum) 
Recovery Plan (Service 2003a, pp. 6-11).

Previous Federal Actions

    We classified the distinct population segment (DPS) of the 
subspecies, Lake Erie watersnake, that occurs on the U.S. offshore 
islands of western Lake Erie as a threatened species on August 30, 1999 
(64 FR 47126) under the Endangered Species Act of 1973, as amended 
(Act). On September 25, 2003, we announced the availability of a final 
recovery plan for the Lake Erie Watersnake (68 FR 55411). In the 
recovery plan (Service 2003a, p. G-19) we describe a revision to the 
common name from ``Lake Erie water snake'' to ``Lake Erie Watersnake'' 
per the peer-reviewed naming convention outlined in ``Scientific and 
Standard English Names of Amphibians and Reptiles of North America 
North of Mexico, with Comments Regarding Confidence in Our 
Understanding'' (most recent version, Crother 2008, p. 58). 
Subsequently, we refer to the subspecies as ``Lake Erie Watersnake'' in 
this and future documents. On April 27, 2005 the Service received a 
``60-Day Notice Letter of Intent to Sue for Violation of Section 4 of 
the Endangered Species Act for Failure to Designate Critical Habitat 
for the Lake Erie Water Snake'' (Wall and Fremont v. DOI, 1:05-cv-
01363-RCL). On May 2, 2006, a Settlement Agreement and Order was 
stipulated, which included conditions that would prompt the Service to 
issue a new critical habitat prudency determination. Briefly, the 
Settlement Agreement stipulated that a new critical habitat prudency 
determination would be issued by June 1, 2010, provided the Lake Erie 
Watersnake continues to be a listed species under the Act; or within 90 
days of receiving population survey results indicating the snake is not 
attaining the delisting population goals identified in the recovery 
plan (Service 2003a). On April 22, 2008, we announced the initiation of 
a 5-year review for the Lake Erie Watersnake (73 FR 21643). The 5-year 
review recommended that the Lake Erie Watersnake be delisted due to 
recovery. Thus, we are submitting this proposal for public review and 
comment.

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for listed species unless the Secretary determines that 
such a plan will not benefit the conservation of the species. The 
Service completed the final Lake Erie Watersnake Recovery Plan in 2003 
(Service 2003a). We used the Recovery Plan to provide guidance to the 
Service, State of Ohio, and other partners on methods to minimize and 
reduce the threats to the Lake Erie Watersnake, to guide and prioritize 
research on the watersnake, and to provide measurable criteria that 
would help determine when the threats to the snake had been reduced so 
that it was no longer endangered or threatened and could be removed 
from the Federal List of Endangered and Threatened Wildlife (List).
    Recovery Plans in general are not regulatory documents and are 
instead intended to provide a guide on how to achieve recovery. There 
are many paths to accomplishing recovery of a species in all or a 
significant portion of its range. The main goal is to remove the 
threats to a species, which may occur without meeting all recovery 
criteria contained in a recovery plan. For example, one or more 
criteria may have been exceeded while other criteria may not have been 
accomplished. In that instance, the Service may judge that, overall, 
the threats have been reduced sufficiently, and the species is robust 
enough, to reclassify the species from endangered to threatened or 
perhaps to delist the species. In other cases, recovery opportunities 
may be recognized that were not known at the time the recovery plan was 
finalized. Achievement of these opportunities may be counted as 
progress toward recovery in lieu of methods identified in the recovery 
plan. Likewise, we may learn information about the species that was not 
known at the time the recovery plan was finalized. The new information 
may change the extent that criteria need to be met for recognizing 
recovery of the species. Overall, recovery of a species is a dynamic 
process requiring adaptive management. Judging the degree of recovery 
of a species is also an adaptive management process that may, or may 
not, fully follow the guidance provided in a recovery plan.
    The Lake Erie Watersnake Recovery Plan (Service 2003a, pp. 28-30) 
outlines three recovery criteria, each with two parts, to assist in 
determining when the snake has recovered to the point that the 
protections afforded by the Act are no longer needed. All three of the 
criteria in the Lake Erie Watersnake Recovery Plan have been fully met 
and, in most cases, substantially exceeded. Each criterion and its 
attainment are described fully below.

Criterion 1: Population Persistence

    Criterion 1(a): Estimated population size reaches or exceeds 5,555 
adult Lake Erie Watersnakes on the U.S. islands combined (Kelleys, 
South Bass, Middle Bass, North Bass, Rattlesnake, West Sister, Sugar, 
Green, Ballast, and Gibraltar) for a period of 6 or more consecutive 
years.
    Researchers at Northern Illinois University (NIU) have led 
intensive annual Lake Erie Watersnake censuses since 2001 and have 
collected data to generate annual adult population estimates as 
recommended in the Lake Erie Watersnake Recovery Plan (Service 2003a, 
pp. 39-40). The methodology for conducting censuses and calculating the 
adult population estimates based on the census data is detailed in King 
et al. (2006a, pp. 88-92). Generally, population estimates are 
generated using multiple years of mark-recapture data, and applying 
closed- and open-population methods to analyze the data

[[Page 30321]]

(King et al. 2006a, pp. 88-92). The preferred and most accurate method 
for calculating population size, the Jolly-Seber method (Jolly 1965, 
Seber 1965), requires at least three census periods and does not 
provide an estimate for the first or last period. Thus, the most recent 
year for which Jolly-Seber population estimates were generated is 2008. 
To provide population estimates for 2009, the Lincoln-Petersen method 
(as modified by Bailey in Caughley 1977, p.142) or Schumacher's method 
(Caughley 1977, p. 145) or a relationship between population density 
and capture rate was used, depending on the number of within-year 
census events and captures at a given sampling location (King and 
Stanford 2010, p.3). As data are collected each year, previous years' 
estimates are refined and current year estimates are generated using 
the above methods.
    King and Stanford (2010, p. 11) report the results of these annual 
adult Lake Erie Watersnake population estimates from the time period 
encompassing 2001 through 2009. These population estimates indicate 
that Criterion 1(a) has been fully achieved, and in recent years 
substantially exceeded, during the period 2001-2009 (see Table 1 
below). Based on the most recent population estimates in King and 
Stanford (2010), this criterion's population goal of at least 5,555 
adults was first achieved in 2002 when there were an estimated 6,200 
adult watersnakes on the U.S. islands combined, and has remained well 
above that level for the last 8 years. While the adult population 
estimate for 2009 seems low compared to other recent years, this is 
simply a factor associated with the method used to calculate the adult 
population size for the most recent year's data. As noted above, the 
Jolly-Seber method cannot be used to generate current-year population 
estimates, so a different though less exact method is used, depending 
on the number of within-year census events and capture numbers. It is 
expected that with another year of census data, the refined population 
estimates for each island and for the total population for 2009 will be 
considerably larger and more accurate.
    Even more enlightening than the adult population estimates is the 
calculation of realized population growth of adult Lake Erie 
Watersnakes since intensive monitoring began in 2001. King and Stanford 
(2009, p. 6) used the program MARK (White 2004, Cooch and White 2008) 
to model realized population growth using annual census data from 
2001through 2008 at eight intensive study sites with the most complete 
capture histories. This model documented realized population growth of 
approximately 6 percent per year for the years 2001-2008, with 95 
percent confidence limits of 2-10 percent, providing strong evidence of 
a minimum of 2 percent population growth per year across multiple sites 
(King and Stanford 2009, pp. 6-7). This indeed demonstrates that the 
adult Lake Erie Watersnake population has grown measurably since the 
time of listing, and validates the population estimates that also show 
increasing trends. Criterion 1a has been fully achieved.

   Table 1. Total estimated U.S. adult Lake Erie Watersnake population size, 2001-2009. Estimates that exceed
 island-specific and overall population size goals specified in the Lake Erie Watersnake Recovery Plan (Service
                    2003a) are shown in BOLD. Modified from King and Stanford 2010, Table 4.
----------------------------------------------------------------------------------------------------------------
                                                                                                       Combined
               Year                   Kelleys     South Bass  Middle Bass   North Bass     Small         U.S.
                                                                                          Islands*     Islands
----------------------------------------------------------------------------------------------------------------
Recovery Goal                               900          850          620          410          Not         5555
                                                                                         applicable
----------------------------------------------------------------------------------------------------------------
2001                                       1860         1560          770          160          780         5130
----------------------------------------------------------------------------------------------------------------
2002                                       2160         1410         1300          550          780         6200
----------------------------------------------------------------------------------------------------------------
2003                                       2270         1490         1920          270          780         6730
----------------------------------------------------------------------------------------------------------------
2004                                       2780         1580         1740          480         1220         7800
----------------------------------------------------------------------------------------------------------------
2005                                       2490         1580         3140          770          920         8900
----------------------------------------------------------------------------------------------------------------
2006                                       2820         2790         2960         1440         1430        11440
----------------------------------------------------------------------------------------------------------------
2007                                       2630         2110         3660         1010          890        10300
----------------------------------------------------------------------------------------------------------------
2008                                       3270         2270         2610          970         2280        11400
----------------------------------------------------------------------------------------------------------------
2009                                       2600         2220         1090          550          800         7260
----------------------------------------------------------------------------------------------------------------
*See Criterion 1(b)

    Criterion 1(b): Subpopulations on each of the five small U.S. 
islands capable of supporting Lake Erie Watersnakes year-round 
(Rattlesnake, Sugar, Green, Ballast, and Gibraltar) persist during the 
same 6-or-more-year-period as Criterion 1a, and estimated population 
size reaches or exceeds the population size stated below for each of 
the four largest islands simultaneously during the same 6-or-more-year-
period as Criterion 1(a): Kelleys Island--minimum of 900 adults; South 
Bass Island--minimum of 850 adults;Middle Bass Island--minimum of 620 
adults; and (iv) North Bass Island--minimum of 410 adults.
    Populations of Lake Erie Watersnakes have been confirmed on the 
following small U.S. islands throughout the period of 2002-2008: 
Rattlesnake, Sugar, Green, Ballast, and Gibraltar (King and Stanford 
2009, pp. 6, 16). Populations of Lake Erie Watersnakes have persisted 
on the small islands during the same 6-year period as Criterion 1(a).
    As identified in Table 1 above, estimated population sizes for each 
of the four largest U.S. islands have exceeded their population size 
criteria for the 7 consecutive years between 2002 and 2008. This is the 
same consecutive 7-year period as Criterion 1(a), with only one 
exception--North Bass Island in 2003 (King 2008, pp. 5, 16). King 
(2008, p. 5) describes the

[[Page 30322]]

circumstances of the sampling on North Bass Island that year: ``North 
Bass Island was surveyed just once in 2003 and weather conditions were 
poor (partly cloudy and cool) during this survey. As a result, capture 
rates, especially at the NE,E,SE Shore site, were low.'' King (2008, p. 
5) goes on to say that the Lake Erie Watersnake adult population 
estimate for North Bass Island in 2003 is likely inaccurate because the 
population estimates for the years prior to and after the 2003 census 
substantially exceeded the population estimate for 2003, and because 
watersnakes require 3 to 4 years to reach adulthood. King (2008, p. 5) 
concludes that, ``It is unlikely that these year-to-year differences in 
estimated population size (from 610 to 270 to 440) reflect true 
variation in population numbers. Instead, the low estimate for 2003 
appears to reflect inadequate sampling in that year.''
    Based on the information above, it is reasonable to assume that 
North Bass Island has indeed met the population size criterion for 7 
consecutive years, as have the other three largest U.S. islands. 
Therefore, Criterion 1(b) has been fully achieved.

Criterion 2: Habitat Protection and Management

    Criterion 2(a): Sufficient summer and hibernation habitat protected 
in perpetuity and sustained in a manner suitable for the continued 
persistence of the Lake Erie Watersnake. Individual parcels will 
collectively encompass a total of 7.4 kilometers (km) (4.6 mi) of 
shoreline, and 0.51 km\2\ (126 acres (ac)) of inland habitat lying 
within 69 m (226 ft) of the shoreline on U.S. islands in Lake Erie. To 
be included under this criterion, each parcel will have a written 
agreement, which may be represented by a conservation easement (such as 
is currently offered by the Ohio Department of Natural Resources (ODNR) 
and Lake Erie Islands Chapter of the Black Swamp Conservancy (LEIC-
BSC)) or other habitat management plan that has been approved by the 
USFWS (such as the ``Lake Erie Watersnake Habitat Management Planning'' 
document for Middle Bass Island State Park). Individual parcels may be 
publicly or privately owned.
    Criterion 2(b): Protected shoreline habitat and inland habitat 
within 69 m (226 ft) of the shoreline, as described in Criterion 2a, 
will be distributed among the four major islands as follows, with the 
remaining protected habitat occurring on any of the U.S. islands
    (i) Kelleys Island--minimum 1.2 km (0.75 mi) shoreline, 0.083 km\2\ 
(20.5 ac) inland;
    (ii) South Bass Island--minimum 1.1 km (0.70 mi) shoreline, 0.078 
km\2\ (19.3 ac) inland;
    (iii) Middle Bass Island--minimum 0.82 km (0.51 mi) shoreline, 
0.057 km\2\ (14.1 ac) inland; and
    (iv) North Bass Island--minimum 0.54 km (0.34 mi) shoreline, 0.037 
km\2\ (9.1 ac) inland.
    By working collaboratively with partners, primarily ODNR, LEIC-BSC, 
Western Reserve Land Conservancy (WRLC), Put-in-Bay Township Park 
District, and Cleveland Museum of Natural History (CMNH), we have 
ensured the permanent protection of 18.03 km (11.27 mi) of shoreline 
habitat and 0.79 km\2\ (313.88 ac) of inland habitat within 69 m (226 
ft) of shore (see Table 2 below). The total protected habitat indicated 
in Table 2 is more than double the goal established in Criterion 2 of 
the Recovery Plan. Further, as evidenced in Table 2, the goals for each 
of the four major islands have either been met or exceeded.

                                                     Table 2. Lake Erie Watersnake protected habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Land within 69 m of       Length of shoreline
                                                                                   shore          --------------------------
                  Island                             Property           --------------------------                                     Partner
                                                                             (ac)       (km\2\)        (mi)         (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kelleys                                    Kelleys Island State Park;          36.90        0.149         1.09         1.74  ODNR
                                            North Pond State Nature
                                            Preserve; Kelleys Island
                                            Alvar
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Long Point Preserve                 21.40        0.087         0.36         0.57  CMNH
 
                                           Schollenberger Easement              0.14        0.001         0.02         0.03  LEIC-BSC
 
subtotal                                                                       58.44        0.237         1.47         2.34  ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Bass                                 South Bass Island State             12.90        0.052         0.50         0.80  ODNR
                                            Park; Oak Point State Park
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Scheef East Point Nature              6.4        0.026         0.32         0.52  WRLC
                                            Preserve
 
subtotal                                                                       19.30        0.078         0.82         1.32  ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middle Bass                                Middle Bass Island State            48.70        0.197         1.71         2.74  ODNR
                                            Park;
                                           Kuehnle Wildlife Area.......
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Petersen Woods                       1.55        0.006         0.02         0.03  LEIC-BSC
 
                                           Lawrence Evans                       0.75        0.003            0            0  LEIC-BSC
 
subtotal                                                                       51.00        0.206         1.73         2.77  ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Bass                                 North Bass Island State            168.80        0.683         6.19         9.90  ODNR
                                            Park; Fox's Marsh Wildlife
                                            Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
subtotal                                                                       168.8        0.683         6.19         9.90  ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Green                                      Green Island Wildlife Area          16.34        0.066         1.06         1.70  ODNR
--------------------------------------------------------------------------------------------------------------------------------------------------------
TOTAL                                                                         313.88        1.270        11.27        18.03  ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 30323]]

    While the Service's partners in establishing Lake Erie Watersnake 
protected habitat are all generally conservation organizations, the 
Service has ensured that some form of permanent protection is in place 
for each protected habitat. Each property that counts towards Criterion 
2 is protected by one of the following methods, which have been 
reviewed and endorsed by the Service: A permanent conservation easement 
which specifically incorporates Lake Erie Watersnake habitat management 
and preservation; a Letter of Agreement between the landowner and the 
Service indicating that the habitat will be maintained in a natural 
habitat suitable for the Lake Erie Watersnake in perpetuity; a 
perpetual management plan to protect Lake Erie Watersnake habitat; or 
an Environmental Covenant and permanent deed restriction that supports 
conservation of the Lake Erie Watersnake and its habitat in perpetuity. 
For example, ODNR's properties compose 90 percent of the total 
protected inland habitat. In 2005, ODNR submitted to the Service the 
``Lake Erie Water Snake Habitat Management Planning; Lake Erie Island 
Properties Owned or Managed by the Ohio Department of Natural 
Resources'' (ODNR 2005, p. 1) document to qualify these properties as 
recovery habitat for the snake. This document identified specific 
management actions that will be undertaken on each island property to 
avoid injury and harm to the Lake Erie Watersnake during typical land 
management activities such as mowing, tree removal, maintenance and 
repair of structures, and vegetation control (ODNR 2005, pp. 3-6). Some 
of these management actions include: avoiding excavation during the 
Lake Erie Watersnake hibernation season; removing only the above-ground 
portion of a tree while maintaining the root mass for hibernation 
habitat; and establishing ``no mow buffer zones'' within 21 m (70 ft) 
of the water's edge between the shoreline and more manicured lawn areas 
to provide summer habitat for the Lake Erie Watersnakes (ODNR 2005, pp. 
3-5). Further, the document specifies proactive measures ODNR will 
implement to enhance watersnake habitat, conduct outreach activities 
regarding the watersnake, and promote research on the watersnake (ONDR 
2005, p. 6). Finally, the document specifies that ODNR will initiate 
early consultation with the Service prior to submitting an application 
to a Federal agency to determine how to avoid and minimize impacts to 
the Lake Erie Watersnake (ODNR 2005, p. 2). The ODNR plans to continue 
this early coordination, as well as implementing all portions of the 
Lake Erie Watersnake habitat management plan, after delisting (ODNR 
2010, pers. comm.).
    Another example of protected habitat is property protected by a 
conservation easement held by the Lake Erie Islands Chapter of the 
Black Swamp Conservancy. These easements include as their purpose 
statement, ``The purpose of this Conservation Easement is to 
permanently maintain the Protected Property as Lake Erie Water Snake 
habitat as a scenic area of the Lake Erie Island Region and to prevent 
or remedy any subsequent activity or use that significantly impairs or 
interferes with this purpose'' (Black Swamp Conservancy 2003, p. 2). 
The easement includes a number of prohibited uses designed to maintain 
the natural habitat of the property for the Lake Erie Watersnake (Black 
Swamp Conservancy 2003, pp. 2-3). Finally, the easement includes 
management guidelines for allowable activities that avoid disturbance 
of Lake Erie Watersnakes and their habitat (Black Swamp Conservancy 
2003, pp. 13-14).
    Both ODNR's Habitat Management Plan and Black Swamp Conservancy's 
Conservation Easement program provide examples of mechanisms for 
protecting Lake Erie Watersnake habitat, while allowing for reasonable 
actions such as vegetation maintenance. All areas that qualify as 
protected habitat for the Lake Erie Watersnake have similar management 
plans or similar documents, and all of these properties are overseen in 
some way by ODNR or another conservation-based organization. Based on 
this information, Criteria 2(a) and 2(b) have been fully achieved.

Criterion 3: Reduction of Human-Induced Mortality

    Criterion 3(a): Objective analysis of public attitude on the 
islands indicates that intentional human persecution is no longer a 
significant threat to the continued existence of the snake.
    As indicated in the final listing rule for the Lake Erie Watersnake 
(64 FR 47131; August 30, 1999), ``persecution by humans is the most 
significant and well documented factor in the decline of Lake Erie 
Watersnakes.'' Lake Erie Watersnake adults are large, readily 
encountered along the shoreline and in nearshore waters, and cluster in 
groups during portions of the year. Though not venomous, Lake Erie 
Watersnakes will bite and secrete musk if handled, and sometimes will 
not flee when approached by humans. These Lake Erie Watersnake 
characteristics, coupled with a general fear of snakes among a broad 
sector of the human population, may have contributed to an increased 
desire to eliminate them within the island environment, compared to 
other areas and other species of snake. Therefore the recovery strategy 
for the watersnake focused heavily on public outreach and education, in 
an attempt to change the negative perception and hostile behavior of 
some island residents and visitors towards the watersnake. Public 
outreach focused on several basic messages: Lake Erie Watersnakes are 
not venomous, Lake Erie Watersnakes are a natural part of the island 
environment, and Lake Erie Watersnakes should not be harmed or killed. 
Several public opinion surveys were recently conducted to gauge island 
landowner perception of the Lake Erie Watersnake, and past, current, 
and future behavior towards the snake. Information on public opinion 
was derived primarily from formal surveys conducted by Wayne Wilkinson, 
Northern Illinois University (NIU) (Wilkinson 2008) and Andrea Olive 
(Olive 2008).
    The Lake Erie Watersnakes Public Opinion Survey (Wilkinson 2008) of 
754 randomly selected island residents within the range of the Lake 
Erie Watersnake resulted in 348 responses from residents of five U.S. 
islands, one response from one Canadian island resident, and one 
response from one non-island resident (Wilkinson 2008, p. 7). Nineteen 
questions were asked to gauge the general knowledge, perceptions, and 
threat of human persecution among island residents. Respondents were 
also given the opportunity to provide written comments. Several of the 
survey questions were identical to survey questions asked of island 
residents in a 1999 public opinion survey (Service 1999), and answers 
were compared to determine changes over time.
    Responses from the 2008 survey indicate that 99 percent of 
respondents are aware that the Lake Erie Watersnake occurs on the 
island, and that 94 percent of respondents are aware that it is a 
protected animal (Wilkinson 2008, pp. 1, 5). Eighty-three percent of 
respondents indicate that their knowledge of Lake Erie Watersnake has 
increased since listing in 1999 (Wilkinson 2008, pp. 5). Respondents 
cite a large variety of methods by which they have become more familiar 
with the snake, including: the Service and ODNR's biannual newsletter 
``LEWS News''; the ``Island Snake Lady'' (an NIU researcher funded by 
ODNR and the Service), and; various media sources

[[Page 30324]]

(Wilkinson 2008, pp. 2-4). Generally, these data indicate that Federal, 
State, and nongovernmental organizations' outreach and education 
campaigns are reaching the vast majority of island residents, and are 
helping to increase their access to information about the watersnake.
    Additionally, Wilkinson (2008, p. 1) reports that 66 percent of 
respondents indicated that their attitude toward the watersnake is 
generally positive or neutral, while 34 percent indicate that their 
attitude is generally negative. While it is apparent that not all 
residents feel positively toward the snake, it is very notable that, 
despite human persecution being the most significant factor in the 
decline of the Lake Erie Watersnake, only about 4 percent of 
respondents indicated they had knowingly killed a watersnake since the 
time of listing, and only about 14 percent of respondents said they 
would knowingly kill a watersnake if it was no longer protected by 
State or Federal laws (Wilkinson 2008, p. 6). We interpret these 
responses to indicate that, while the watersnake will still face some 
human persecution, the vast majority of islanders would not resort to 
lethal means if they encountered watersnakes on their property.
    Similarly, in 2007, Olive (2008, p. 83) randomly selected and 
interviewed 44 individual property owners from Middle Bass Island 
regarding the Endangered Species Act and the Lake Erie Watersnake. Of 
those interviewed, 7 percent admitted to killing a snake and 18 percent 
admitted they might kill a snake while it is listed (Olive 2008, pp. 
112-113, 153).
    Despite the admitted intentional mortality documented by both 
Wilkinson (2008, p. 6) and Olive (2008, pp. 112-113, 153) adult Lake 
Erie Watersnake populations have increased substantially since the time 
of listing, both across the U.S. range and on each large island (King 
and Stanford 2010, p. 11; King and Stanford 2009, pp. 6-7). This 
indicates that the adult Lake Erie Watersnake population can tolerate 
some degree of intentional mortality of individual snakes and still 
persist at a recovery level.
    Wilkinson's 2008 public opinion survey found that 31 percent of 
respondents' attitudes toward Lake Erie Watersnakes have become more 
negative since listing, 30 percent have become more positive, and 39 
percent have not changed (Wilkinson 2008, p1). While this survey did 
not attribute reasons to the change in attitude, 69 out of 168 (41 
percent) of the optional comments on Wilkinson's (2008, pp. 8-13) 
survey response form indicated the belief that there are now too many 
snakes, that the snakes are becoming nuisances due to their numbers and 
their habits of clustering along the shoreline, or that the snakes 
should no longer be protected.
    Public opinion of the Lake Erie Watersnake varies widely among 
those who support it, those who have no opinion, and those that dislike 
or fear the snake. Outreach efforts have reached nearly all island 
residents, increasing access to information about the Lake Erie 
Watersnake, including non-lethal ways to address nuisance snakes. 
Opinion surveys seem to indicate that most people do not now and will 
not in the future kill Lake Erie Watersnakes, however many people 
indicate that the sheer number of snakes along the shoreline has become 
a nuisance, and this may contribute to negative feelings towards the 
snake. As Lake Erie Watersnake numbers have rebounded, and a 
significant amount of habitat has now been permanently protected to 
support Lake Erie Watersnakes, the Lake Erie Watersnake population can 
withstand a limited amount of intentional mortality. While the threat 
of intentional mortality likely can never be completely eliminated, 
results of public opinion surveys indicate that the number of 
mortalities anticipated from intentional human persecution on its own 
and with other residual threats is not likely to cause the subspecies 
to become threatened or endangered again within the foreseeable future.
    Continued outreach regarding the Lake Erie Watersnake's role in the 
island ecosystem is important, and this is proposed to continue through 
various partners post-delisting. Proposed on-going outreach activities 
are addressed in the Summary of Factors Affecting the Species - Factor 
E, below. Public opinion will be monitored post-delisting to ensure 
this remnant threat is not affecting the Lake Erie Watersnake 
population as a whole. Therefore, Criterion 3(a) has been fully 
achieved.
    Criterion 3(b): Accidental human-induced mortality, such as occurs 
from roadkill and fishing, has been reduced to the maximum extent 
practicable, and no longer represents a significant threat to the 
population.
    Several sources of accidental human-induced mortality have been 
examined to determine to what degree they may be contributing to 
overall mortality of Lake Erie Watersnakes, and if they are a 
significant threat to the population.
    A survey of registered boaters in the Lake Erie island region was 
conducted to determine how many members of the Lake Erie Island boating 
and fishing community had direct encounters with snakes, and to 
characterize the responses from these encounters (Stanford 2004). Of 
1,437 surveys mailed out, 468 were completed and returned (Stanford 
2004, p. 1). An additional 21 surveys were completed voluntarily by 
individuals who picked them up at various outreach events that occurred 
in the vicinity of the islands, for a total of 489 survey responses 
(Stanford 2004, p. 1). Of the respondents, 118 reported having 
encountered a watersnake on their boat, and not a single encounter 
resulted in a boater or angler killing a snake (Stanford 2004, p. 2). 
These data suggest that encounters between boaters and watersnakes 
typically do not result in mortality. Only 13 of the 489 respondents 
(less than 3 percent) indicated that they have ever caught a snake by 
hook and line while fishing with both live and artificial baits, and 
from both boat and shore, though no information was provided regarding 
snake mortality during these incidents (Stanford 2004, p. 2). It is 
clear that bycatch of Lake Erie Watersnakes due to hook and line 
fishing incidents is very rare, and does not pose a significant threat 
to the population. Despite the rarity of mortality during fishing and 
boating, approximately 25 percent of boaters and anglers near the Lake 
Erie islands may encounter a Lake Erie Watersnake (Stanford 2004, p. 
2). ODNR Division of Wildlife developed pamphlets entitled, ``Lake Erie 
Watersnake-Make your Boating Experience More Pleasant'' to aid anglers 
and boaters in deterring Lake Erie Watersnakes from entering their 
boats, and to recommend non-lethal methods to remove snakes from boats 
(ODNR 2003). These pamphlets are available online (http://respectthesnake.com) and at a number of state parks, boat launches, and 
marinas in the island region.
    To address the effect roadkill mortality may have on the Lake Erie 
Watersnake population a survey of roadkill mortality was conducted on 
the four large U.S. islands between June 26 and July 15, 2005 (King 
2007, pp. 5-6). This survey found a total of 71 roadkill snakes, 
including 45 roadkill Lake Erie Watersnakes (King 2007, p.5). King 
(2007, p. 6) states, ``Among watersnakes, 38 were neonates, 5 were 
juveniles, and 2 were adults. These results suggest that adult Lake 
Erie Watersnake roadkill mortality is relatively low (Brown and 
Weatherhead 1999). Available data on watersnake mortality suggest that 
survivorship of neonates is low. Thus, roadkill mortality of this age-
class likely has little impact on watersnake

[[Page 30325]]

population trends.'' Therefore, the number of mortalities anticipated 
from accidental human-induced mortality due to roadkill events alone or 
coupled with other residual threats is not likely to cause the 
subspecies to become threatened or endangered again within the 
foreseeable future.
    The Lake Erie Watersnake Recovery Plan (Service 2003a, pp. 18, 38, 
49, 57) recommended that additional studies be conducted to document 
the impact that invasive species, including the round goby, may have on 
the watersnake. King et al. (2006b, p. 110) found that since the 
appearance of round goby in the Great Lakes in the early 1990's, Lake 
Erie Watersnake diets have shifted from a diet of native fishes and 
amphibians to a diet composed of more than 90 percent round goby. This 
dietary shift corresponds to increased watersnake growth rates, 
increased body size, and increase in fecundity, with female watersnakes 
producing on average 25 percent more offspring post-invasion (King et 
al. 2008, pp.155, 158; King et al. 2006b, pp.111-113). King et al. 
(2008, p. 159) suggest that, ``resource availability may have 
contributed to population declines in Lake Erie Watersnakes during the 
mid- to late- 1900s...While habitat loss and human-caused mortality are 
likely contributors to past watersnake population declines, the 
possibility exists that a reduction in benthic [lake bottom] fish 
biomass, resulting in reduced watersnake fecundity, was also a factor. 
Unfortunately, quantitative data on long-term temporal trends in 
benthic fish biomass are lacking.'' If it is correct that limited 
foraging opportunities were a cause of the watersnake's population 
declines, the overabundance of the round goby within the island region 
of western Lake Erie will likely provide a significant prey source into 
the foreseeable future, negating any threats from limited prey 
availability.
    The Lake Erie Watersnake Recovery Plan (Service 2003a, pp. 18-19, 
38, 49, 57) also recommended that additional studies be conducted to 
document the impact that contaminants may have on the watersnake. In 
particular, this research became a high priority when it became 
apparent that the watersnake's diet switched from native fish and 
amphibians to almost exclusively round goby, which prey extensively on 
zebra mussels (Dreissena polymorpha) and quagga mussels (Dreissena 
bugensis). Potential biomagnification of contaminants through this 
change in food web was thought to be a possible threat to the 
watersnake. Polychlorinated biphenyls (PCBs) have been documented in 
Lake Erie Watersnakes in fairly high levels (113 micrograms per gram 
([mu]g/g) (Bishop and Rouse 2006, pp. 454, 456) and 167 [mu]g/g (Bishop 
and Rouse 2000, pp. 500-501)). Recent research compared the levels of 
contaminants in Lake Erie Watersnakes pre- and post-goby invasion and 
found ``a marginal increase in hexachlorobenzene levels, and a 
significant decline in dieldrin, oxychlordane, and heptachlor 
epoxide,'' and found that, ``sum PCBs and p,p'-DDE remained stable in 
the watersnakes after the invasion of round goby...suggesting that 
although the dietary switch to round gobies meant consumption of a more 
contaminated diet, their diet remained at the same trophic position 
[place in the food chain]'' (Fernie et al. 2008 p. 344). Fernie et al. 
(2008, pp. 344, 349-350) did recommend additional studies to determine 
if these contaminants affect reproductive and physiological parameters 
in Lake Erie Watersnakes; however, as Bishop and Rouse (2006, pp. 452, 
454, 456) did not correlate high levels of PCBs with embryonic 
mortality or number of embryos produced by female watersnakes, no 
additional research on contaminants is deemed necessary at this time.
    Research confirms that the dietary switch from native fish and 
amphibians to round gobies has not resulted in significant increases in 
contaminant loads in Lake Erie Watersnakes. Additionally, while 
relatively high levels of PCBs were detected in watersnakes in the 
past, these levels did not correspond with embryonic survivorship. Lake 
Erie Watersnake population numbers continue to increase despite 
relatively stable exposure to contaminants over the past 18 years of 
study, and therefore we conclude at this time and into the foreseeable 
future that contaminants do not pose a significant threat to the Lake 
Erie Watersnake.
    As described further under Summary of Factors Affecting the Species 
- Factor A and Factor E below, intensive public outreach has occurred 
to increase awareness of island residents and visitors of the presence 
of the Lake Erie Watersnake on the Lake Erie islands and in nearby 
waters, and to reduce both accidental and intentional mortality of Lake 
Erie Watersnakes. To reduce accidental mortality from typical land 
management activities such as lawn mowing and tree clearing, and to 
guide residents in an appropriate way to address Lake Erie Watersnakes 
that are found in garages, pools, lawns, patios, basements, and other 
similar areas, various outreach documents have been developed by both 
the Service and ODNR. The Service's ``Lake Erie Watersnake Management 
Guidelines for Construction, Development, and Land Management 
Activities'' (Service 2009, Service 2003b) provide guidance on how to 
avoid take during typical land-management activities, while ODNR's ``A 
Lakeshore Property Owner's Guide to Living with Lake Erie Watersnakes'' 
(ODNR 2006) provides guidance on dealing with nuisance snakes in human 
living areas in a non-lethal way. These documents are available on the 
internet (http://respectthesnake.com) and at various locations on the 
islands.
    In summary, we have assessed the impact of accidental human-induced 
mortality on the adult Lake Erie Watersnake population. We have used an 
intensive public outreach campaign to increase awareness of residents 
and visitors to the presence and protected status of the Lake Erie 
Watersnake, and have provided guidance and tools for minimizing human-
snake encounters and addressing snakes encountered in boats, homes, 
yards, and other human-inhabited areas in a non-lethal way. We have 
determined that accidental human-induced mortality, such as occurs from 
boating, fishing, and roadkill events, does not pose a substantial 
threat to the adult Lake Erie Watersnake population, and therefore does 
not warrant further action. Further, invasive species and contaminants 
do not appear to significantly threaten the adult Lake Erie Watersnake 
population. We assert that Criterion 3(b) has been achieved.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of fish or 
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the 
``species'' is identified, we then evaluate whether that species may be 
endangered or threatened because of one or more of the five factors 
described in section 4(a)(1) of the Act. We must consider these same 
five factors in delisting a species. We may delist a species according 
to 50 CFR 424.11(d) if the best available scientific and commercial 
data indicate that the species is neither endangered nor threatened 
because (1) The species is extinct, (2) the species has recovered and 
is no longer endangered or threatened, or (3) the original scientific 
data used at the time the species was classified were in error.

[[Page 30326]]

    A recovered species is one that no longer meets the Act's 
definition of threatened or endangered. The analysis for a delisting 
due to recovery must be based on the five factors outlined in section 
4(a)(1) of the Act. This analysis must include an evaluation of threats 
that existed at the time of listing, those that currently exist, and 
those that could potentially affect the species once the protections of 
the Act are removed.
    In the context of the Act, the term ``threatened species'' means 
any species or subspecies or, for vertebrates, Distinct Population 
Segment (DPS) that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. The term ``endangered species'' means any species that is in 
danger of extinction throughout all or a significant portion of its 
range. The Act does not define the term ``foreseeable future.'' For the 
purpose of this proposal, we define the ``foreseeable future'' to be 
the extent to which, given the amount and substance of available data, 
we can anticipate events or effects, or reliably extrapolate threat 
trends, such that we reasonably believe that reliable predictions can 
be made concerning the future as it relates to the status of the Lake 
Erie Watersnake.
    The following analysis examines all five factors currently 
affecting, or that are likely to affect, the Lake Erie Watersnake 
within the foreseeable future.

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

    The islands on which the Lake Erie Watersnake occurs provide 
seasonal residences and vacation areas to large numbers of people 
during the summer months. Further, the western Lake Erie basin is 
widely known for recreational and fishing opportunities, and is a 
regional destination area, particularly during the summer months. It is 
therefore not surprising that most of the islands have faced and 
continue to face development pressure (Seymour 2009, pers. comm.).
    Prior to listing, three of the large islands (Kelleys, Middle Bass, 
and South Bass) were fairly well developed with residences and small-
scale commercial businesses, with scattered natural areas throughout. 
North Bass Island supported a few residences, but was primarily 
agricultural, and dedicated to viticulture (vineyards). The small 
islands are mostly privately owned, and typically support a few 
residences interspersed with natural areas. Development activities on 
the islands since the Lake Erie Watersnake was listed in 1999 include 
the following types of projects: residential construction on three of 
the four large islands; hotel and motel structures on two of the large 
islands; dock construction and rehabilitation on most of the islands; 
shoreline stabilization on most of the islands; small and large marina 
construction and rehabilitation on several of the islands; utility line 
installation on three of the large islands; road rehabilitation 
projects on two of the large islands; wastewater treatment facilities 
on several of the islands; beach nourishment projects on several of the 
islands; small-scale commercial development on several of the large 
islands; and airport upgrades on several of the islands (Seymour 2009, 
pers. comm.). Many of these activities occur on or near the shoreline, 
where Lake Erie Watersnakes spend much of their time. In some cases, 
development activities can result in habitat loss or degradation, for 
example, when a building is constructed along a segment of shoreline 
that previously supported natural vegetation, or when a vertical wall 
is constructed along the shoreline to protect against erosion. However, 
some types of development actually provide suitable Lake Erie 
Watersnake habitat. For example, Lake Erie Watersnakes will readily use 
rip-rap or armor stone erosion control structures and crib docks that 
incorporate stone fill for summer habitat.

Destruction or Modification of Summer Habitat

    As described in the Background section, Lake Erie Watersnake summer 
habitat consists of the rocky and vegetated island shorelines and the 
adjacent nearshore waters of Lake Erie. Seventy-five percent of adult 
Lake Erie Watersnakes are found within 13 m (42.7 ft) of the water's 
edge during the summer (King 2003, p. 4). Destruction or modification 
of summer habitat typically occurs due to residential or, less often, 
commercial development, installation or modification of roadways and 
associated utilities, shoreline erosion control projects, dock 
construction or modification, and dredging activities. These activities 
may result in loss or degradation of rocky shorelines, vegetation, and 
nearshore aquatic habitats, which the snakes use for basking, resting, 
cover, mating, and foraging.
    Lake Erie Watersnakes are affected by summer habitat destruction 
and modification in a variety of ways, depending on the method, design, 
and timing of the specific project. Lake Erie Watersnakes are resilient 
to many modifications to summer habitat, such as installation of rip-
rap erosion control structures and crib docks. Repeated observations 
over multiple years document that individual Lake Erie Watersnakes 
displaced during construction activities will return to the same area 
once construction is complete, so long as rocky or vegetated shoreline 
habitat is present (Stanford 2009, pers. comm.). Further, artificial 
habitat such as crib docks and rip-rap erosion control are known to 
support large number of Lake Erie Watersnakes during the summer season 
on all of the large islands, and may actually provide habitat where 
natural rocky shoreline habitat was previously limited. Projects that 
impact summer habitat, but occur during the winter season, may have no 
observable impacts on the Lake Erie Watersnake, while projects that 
impact summer habitat during the summer may cause temporary 
displacement of Lake Erie Watersnakes from all or a portion of their 
shoreline home range. The vast majority of the islands' shorelines are 
either composed of small private lots or larger parcels (typically ODNR 
properties) that are protected Lake Erie Watersnake habitat. In most 
cases, projects that impact Lake Erie Watersnake summer habitat occur 
on small private parcels, and therefore impacts will be limited to only 
a small portion of an individual snake's home range.
    There are only a few activities that may permanently displace Lake 
Erie Watersnakes from their summer habitat, including installation of 
vertical steel or concrete walls along the shoreline or over the sides 
of existing rock-filled crib docks. In instances where homes, 
businesses, roads, or other similar structures are built close to the 
shoreline, the presence of manicured lawns and shorelines may degrade 
summer habitat through loss of cover, though Lake Erie Watersnakes are 
often encountered basking in grassy areas near the shoreline, despite 
the presence of homes or roads. While Lake Erie Watersnakes may use 
grassy areas near shorelines and roads for basking, this habitat is not 
ideal because snakes are highly visible and may be more susceptible to 
predation or human persecution, and less cover is generally available 
in these areas. Further, maintenance activities such as mowing may kill 
or injure snakes that use maintained grass areas. Finally, snakes 
basking along road edges may be more susceptible to road kill than 
snakes basking near natural shorelines. Threats such as roadkill and 
human persecution are addressed under Factor E below.
    Impacts to foraging habitat (Lake Erie) are typically limited to 
fill placement

[[Page 30327]]

for erosion control, docks, or navigation structures, or dredging to 
facilitate navigation. All impacts to foraging habitat are regulated by 
the U.S. Army Corps of Engineers (Corps) through section 10 of the 
Rivers and Harbors Act and section 404 of the Clean Water Act (see 
Factor D). Projects such as these typically cover only a small 
geographic area, and are of limited duration. Impacts to the Lake Erie 
Watersnake from these activities may include a limited amount of 
foraging habitat loss due to placement of fill within Lake Erie, 
degradation of foraging habitat due to short-term turbidity, and 
temporary displacement from foraging areas where construction 
activities are occurring. While watersnakes may be temporarily 
displaced from foraging habitat during construction, on repeated 
occasions over multiple years, individual Lake Erie Watersnakes have 
been documented recolonizing disturbed foraging areas shortly after 
construction activities are complete (Stanford 2009, pers. comm.). As 
noted above, the primary prey of Lake Erie Watersnakes is round goby, 
and these fish are superabundant in the island region (King et al. 
2006b, p. 110). Foraging habitat and prey do not appear to be a 
limiting factor for Lake Erie Watersnakes, and therefore limited 
construction activities within foraging habitat are not anticipated to 
have significant impacts on Lake Erie Watersnakes.
    Prior to listing, summer habitat modification included the 
activities described above, but of particular concern was the 
proliferation of sheet steel docks and vertical concrete and steel 
shoreline walls. Development of homes, businesses, and roads along the 
island shorelines may have degraded natural watersnake habitat to some 
degree, but as described above, Lake Erie Watersnakes appear to be 
fairly resilient to the presence of these types of structures, as long 
as rocky or vegetated shorelines persist once construction is complete.
    Since the time of listing, most destruction and modification of 
Lake Erie Watersnake summer habitat has been subject to consultation 
under section 7 of the Act through the issuance of Corps permits under 
section 10 of the Rivers and Harbors Act and section 404 of the Clean 
Water Act (see Factor D). These laws provide the Service the 
opportunity to review and comment on all projects affecting Lake Erie 
Watersnake foraging habitat and many projects affecting shoreline 
habitat. Under these authorities, the Service has consistently 
recommended installation of rip-rap erosion control structures and crib 
docks in lieu of vertical concrete or sheet steel structures, seasonal 
timeframes for construction activities if appropriate, educational 
signage, and other appropriate avoidance and minimization measures. 
This consultation has reduced shoreline habitat degradation 
substantially, and has resulted in the creation of artificial shoreline 
habitat for Lake Erie Watersnakes on many islands.
    We anticipate that similar projects impacting the islands' 
shorelines and the Lake Erie Watersnake's summer habitat will continue 
into the foreseeable future. As noted above, the vast majority of these 
projects are regulated by section 10 of the Rivers and Harbors Act and 
section 404 of the Clean Water Act, and as such, the Service will still 
have the opportunity to review and comment on these Corps projects via 
the Public Notice process. The Service will continue recommending rock 
structures as opposed to vertical structures on these types of 
projects, under the authority of the Fish and Wildlife Coordination 
Act, as rock structures are beneficial not only to snakes, but to fish 
and other aquatic species as well. We anticipate that construction of 
shoreline structures beneficial to Lake Erie Watersnakes will continue 
into the foreseeable future.
    The destruction or modification of summer habitat may temporarily 
displace individual watersnakes, but these impacts do not affect the 
population as a whole. Shoreline habitat loss has been minimized while 
the species has been listed and is expected to remain minimal within 
the foreseeable future due to coordination and consultation with the 
Corps under section 10 of the Rivers and Harbors Act and section 404 of 
the Clean Water Act, and use of snake-friendly designs such as rip-rap 
and crib docks. Lake Erie Watersnakes have been documented to readily 
use these structures for summer habitat. Further, while shoreline 
construction activities may temporarily displace Lake Erie Watersnakes 
from portions of summer habitat, they will readily recolonize these 
areas shortly after construction activities are complete, as long as 
rocky or vegetated shorelines still exist (Stanford 2009, pers. comm.). 
Destruction and modification of foraging habitat is typically limited 
in scope and duration, and does not appear to be a limiting factor for 
the watersnake. However, the Service plans to address potential impacts 
to summer habitat by use of voluntary guidelines and by the presence of 
permanently protected habitat for the Lake Erie Watersnake, both 
described further below.

Destruction or Modification of Hibernation Habitat

    As described in the Background section, during winter (generally 
mid-September through mid-April) Lake Erie Watersnakes hibernate below 
the frost level, in cracks or crevices in the bedrock, interstitial 
spaces of rocky substrates, tree roots, building foundations, and other 
similar natural and human-made structures (King 2003, pp. 5, 11-18). 
Seventy-five percent of Lake Erie Watersnakes hibernate within 69 m 
(226 ft) of the water's edge (King 2003, p. 4). Individual snakes often 
demonstrate site fidelity, returning to the same shoreline area and the 
same or nearby hibernacula in successive years (King 2003, pp. 4, 11-
17).
    Destruction or modification of hibernation habitat typically occurs 
due to residential or less often, commercial development, installation 
or modification of roadways or utilities, removal of tree roots, 
agriculture, and other excavation activities in areas within 
approximately 69 m (226 ft) of the shoreline. These activities may 
result in excavation, filling, or general disturbance of the rock, 
soil, root or other substrates within which Lake Erie Watersnakes 
hibernate.
    Lake Erie Watersnakes are affected by hibernation habitat 
destruction and modification in a variety of ways, depending on the 
extent and timing of the specific project. Destruction or modification 
of hibernation habitat during the winter when Lake Erie Watersnakes are 
hibernating will likely result in death of hibernating snakes due to 
exposure, as well as the loss of the hibernacula for future generations 
of snakes. Destruction or modification of hibernation habitat during 
the summer when Lake Erie Watersnakes are not hibernating may result in 
temporary or permanent displacement from the hibernation area, and may 
force the snakes to find alternate hibernation sites. Though Lake Erie 
Watersnakes often demonstrate hibernacula fidelity, individual snakes 
have survived the winter when accidentally relocated to areas outside 
of their home range (King and Stanford 2009, p. 8), and when documented 
moving between islands (King 2002, p. 4), indicating that they are 
capable of finding new hibernation sites when previous sites are 
inaccessible. While this indicates that some Lake Erie Watersnakes are 
able to locate suitable alternate hibernacula, it is also likely that 
some Lake Erie Watersnakes are unable to locate suitable alternate 
hibernacula and die

[[Page 30328]]

from exposure or predation. As Lake Erie Watersnakes appear to use a 
variety of substrates and materials as hibernation habitat, and 
hibernation habitat sufficient to support approximately 50 percent of 
the adult Lake Erie Watersnake population is now protected, it is 
unlikely that the presence of suitable hibernation habitat is a 
limiting factor for the snake. It is more likely that loss of 
hibernation habitat during the winter when watersnakes are using it is 
problematic due to the accompanying mortality.
    Prior to the Watersnake's 1999 listing, three of the four large 
islands were subject to substantial residential and commercial 
development. North Bass Island, while not subject to substantial 
development, was intensively farmed for grapes. Destruction and 
modification of hibernation habitat for development and agricultural 
activities likely occurred on a regular basis throughout the year. 
During portions of the Watersnake's hibernation season, the lake and 
ground are frozen and snow-covered, limiting access to construction 
vehicles and likely precluding some, but not all, ground-disturbing 
activities. Therefore, it is likely that Lake Erie Watersnakes were 
injured or killed during excavation or filling activities within 
hibernation habitat that occurred during the hibernation season. It is 
also likely that Lake Erie Watersnakes were displaced from their 
hibernation habitat when excavation or filling of hibernacula occurred 
during the summer months.
    Since listing, many excavation or filling activities within 
proximity to the shoreline have been coordinated with the Service to 
determine if the activity would result in take of Lake Erie Watersnakes 
or to determine if avoidance or minimization measures were warranted. 
Some projects involving small areas of excavation, excavation of 
topsoil only, or excavation far inland from the shoreline were 
completed during the summer months and were not anticipated to cause 
direct mortality or substantial displacement of Lake Erie Watersnakes. 
Other projects that resulted in substantial excavation or fill within 
proximity to the shoreline were anticipated to destroy or modify 
hibernacula and cause take of Lake Erie Watersnakes, and for these 
projects, formal consultation under section 7 of the Act or the 
issuance of a section 10(a)(1)(B) permit under the Act occurred. During 
the 11-year period during which Lake Erie Watersnakes have been listed, 
only five projects were anticipated to cause loss of hibernation 
habitat and take of Lake Erie Watersnakes. So while development is 
fairly evenly spread across three of the large islands, most projects 
reviewed since the Watersnake's listing did not cause loss of 
hibernation habitat.
    We anticipate that within the foreseeable future, loss of Lake Erie 
Watersnake hibernation habitat will likely proceed at approximately the 
same rate as within the past 11 years. We anticipate that approximately 
one large-scale development every 2.5 years will cause loss of Lake 
Erie Watersnake hibernation habitat (Seymour 2009, pers. comm.). The 
presence of hibernation habitat is not likely a limiting factor for the 
subspecies; however to limit mortality of watersnakes, it is important 
that large-scale excavation or filling activities within approximately 
69 m (226 ft) of the shoreline do not occur during the winter 
hibernation season. Once the species is delisted, there will be no 
requirement to consult with the Service on activities that may affect 
hibernation habitat, nor is there a separate Federal nexus that would 
trigger Service review of the project as is the case with projects that 
may affect summer habitat. The Service has addressed this gap in 
hibernation habitat protection and management by the presence of 
permanently protected habitat for the Lake Erie Watersnake, and by use 
of voluntary guidelines, both described further below.
    The destruction or modification of hibernation habitat may displace 
individual watersnakes and result in minimal mortality, but these 
impacts do not affect the population as a whole. Hibernation habitat 
loss during listing was minimal, and within the foreseeable future is 
likely to continue to be minimal, based on recent trends (Seymour 2009, 
pers. comm.). Lake Erie Watersnakes have recently been documented to 
survive winters despite their former hibernacula being inaccessible, 
indicating they are capable of finding alternate hibernacula if 
historical hibernacula are lost. The potential loss of some hibernation 
habitat due to development post-delisting will be alleviated by the 
presence of permanently protected habitat on each of the large islands, 
described further below.

Protected Habitat

    While it is true that Lake Erie Watersnakes are fairly resilient to 
some habitat modifications and persist along and within developed 
areas, the Service recognizes that it is important to also have 
portions of habitat that are permanently protected and managed to 
benefit the Lake Erie Watersnake, and which will provide a substantial 
amount of suitable summer and hibernation habitat for the snake in the 
foreseeable future. The Lake Erie Watersnake Recovery Plan called for 
the permanent protection and management of summer and hibernation 
habitat sufficient to support 20 percent of the recovery population 
goal of 5,555 adult Lake Erie Watersnakes (Service 2003a, p.34). This 
habitat must encompass a total of 7.4 km (4.6 mi) of shoreline, and 
0.51 km\2\ (126 ac) of inland habitat lying within 69 m (226 ft) of the 
shoreline on U.S. islands in Lake Erie (Service 2003a, p. 29). 
Additionally, this habitat must be distributed among the large U.S. 
islands as described below to support multiple subpopulations 
throughout the range of the subspecies: Kelleys Island--1.2 km (0.75 
mi) shoreline, 0.083 km\2\ (20.5 ac) inland; South Bass Island--1.1 km 
(0.70 mi) shoreline, 0.078 km\2\ (19.3 ac) inland; Middle Bass Island--
0.82 km (0.51 mi) shoreline, 0.057 km\2\ (14.1 ac) inland; and North 
Bass Island--0.54 km (0.34 mi) shoreline, 0.037 km\2\ (9.1 ac) inland 
(Service 2003a, p. 29). The remaining protected habitat may occur on 
any of the U.S. islands. To be included as protected habitat, each 
parcel will have a written agreement, which may be represented by a 
conservation easement or other habitat management plan that has been 
approved by the USFWS (Service 2003a, p. 29) and protects Lake Erie 
Watersnake habitat in perpetuity.
    As discussed in the Recovery section, by working collaboratively 
with partners, primarily ODNR, LEIC-BSC, Western Reserve Land 
Conservancy, Put-in-Bay Township Park District, and Cleveland Museum of 
Natural History, we have ensured the permanent protection and 
management of 18.03 km (11.27 mi) of shoreline habitat and 1.270 km\2\ 
(313.88 ac) of inland habitat within 69 m (226 ft) of shore (see Table 
2) in perpetuity. The total protected habitat indicated in Table 2 
above is more than double the goal established in Criterion 2 of the 
Recovery Plan, and is sufficient to support nearly 50 percent of the 
recovery population goal of 5,555 adult Lake Erie Watersnakes. Further, 
as evidenced in Table 2, the recovery goals for protected habitat on 
each of the four major islands have either been met or exceeded. This 
protected habitat will provide a series of permanent refugia 
distributed across the islands and across the U.S. range of the 
subspecies that can support a substantial portion of the Lake Erie 
Watersnake population.

Voluntary Guidelines

    Destruction or modification of hibernation habitat during the 
winter months when Lake Erie Watersnakes are

[[Page 30329]]

using such habitat may result in mortality of individual snakes, but 
will not threaten the population as a whole once the protection of the 
Act is removed. If snakes are excavated during the hibernation season 
it is unlikely that they would be able to search for and find alternate 
hibernacula due to cold temperatures and frozen or snow-covered ground, 
and would not survive exposure to winter weather. Once the species is 
delisted, no regulatory options will exist to address timing of impacts 
to hibernation habitat. To minimize impact to individual Watersnakes 
from this threat, the Service will widely distribute a revised version 
of ``Lake Erie Watersnake Management Guidelines for Construction, 
Development, and Land Management Activities'' (Service 2009). Further, 
we will recommend to local governments that they adopt and broadly 
distribute these voluntary guidelines.
    The Service initially developed Lake Erie Watersnake Management 
Guidelines for Construction, Development, and Land Management 
Activities (Service 2009, Service 2003b) when the subspecies was 
listed. These voluntary guidelines were intended to substantially 
reduce the potential for take to occur during typical private and 
public land management activities such as lawn mowing, tree cutting, 
and excavation activities. The guidelines recommend seasonal 
restriction on activities such as excavation and mowing, design 
recommendations for shoreline structures that will enhance Lake Erie 
Watersnake summer habitat, and suggestions for monitoring snakes during 
construction activities (Service 2009, p. 1-2; Service 2003b, pp. 2-4). 
Though the guidelines are voluntary, they have been added as mandatory 
conditions on Federal permits and as Reasonable and Prudent Measures in 
Biological Opinions and Incidental Take Statements to avoid and 
minimize take during the completion of projects that required section 7 
consultation or section 10 permits under the Act (for example, see 
Service 2008, p. 5). If the subspecies is delisted, these guidelines 
will still be recommended under the auspices of the Fish and Wildlife 
Coordination Act, as amended (16 U.S.C. 661-667e) when reviewing 
Federal activities that are planned within Lake Erie Watersnake habitat 
areas. This will aid in avoiding and minimizing habitat loss to 
individual watersnakes due to typical land management actions on 
private property. However, for any incidental take statements or 
incidental take permits that have already been issued under sections 7 
or 10 of the Act, but for which the projects have not yet been 
implemented, Lake Erie Watersnake conservation measures will no longer 
be mandatory.
Range Curtailment
    The historical range of the Lake Erie Watersnake includes the 
offshore islands of the western Lake Erie basin in the U.S. and Canada 
and portions of the Catawba-Marblehead peninsula on the mainland of 
Ohio, though the threatened DPS includes only those Lake Erie 
Watersnakes occurring on U.S. islands greater than 1.6 km (1 mi) from 
the Ohio mainland (64 FR 47126). The U.S. islands and rock outcrops 
within the historic range 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, 
West Sister, Mouse, and Johnson. The Canadian islands and rock outcrops 
within the historical range include, but are not limited to, the 
islands called Pelee, Middle, East Sister, Middle Sister, North 
Harbour, Hen, Chick, Big Chicken, and Little Chicken (Figure 1).
BILLING CODE 4310-55-S

[[Page 30330]]

[GRAPHIC] [TIFF OMITTED] TP01JN10.001

BILLING CODE 4310-55-C
    Figure 1. Historical range of Lake Erie Watersnake within the 
western Lake Erie basin of Ohio and Canada. Map courtesy of Barbara 
Ball and Department of Biological Sciences, Northern Illinois 
University.
    At the time of listing, Lake Erie Watersnakes had been extirpated 
from two U.S. islands within the range, Green and West Sister, and two 
Canadian islands, Middle Sister and North Harbour. Further, population 
declines documented over several decades, along with the limited 
geographic range and insular nature of the Lake Erie Watersnake 
population, indicated that without the Act's protection, further range 
contraction was possible.
    Since the time of listing, Lake Erie Watersnakes have naturally 
recolonized Green Island, a small island close to South Bass Island, 
and a viable population of adult watersnakes has persisted there for 6 
years after an absence of 10 or more years (King and Stanford 2009, p. 
7; King 2002, p. 4). This natural recolonization demonstrates the 
importance of maintaining multiple subpopulations of the Lake Erie 
Watersnake on as many islands as possible, to provide source 
populations for recolonization, should a stochastic event occur that 
eliminates all or a significant portion of the population on another 
island.
    Lake Erie Watersnakes were known from West Sister Island based on 
specimens collected there in 1938 and 1939 but were not collected 
during repeated searches in the 1980s and 1990s (King et al. 2006a, p. 
86). While it is not known why Lake Erie Watersnakes disappeared from 
West Sister Island, it is the most isolated of the U.S. islands, 
located approximately 13.7 km (8.5 mi) from the mainland and 
approximately 20.9 km (13.0 mi) from

[[Page 30331]]

the nearest island. Three intensive snake surveys since the time of 
listing have documented two adult female watersnakes on West Sister 
Island, one in 2002 and one in 2008, though it is unclear if these 
individuals were members of a permanent resident population, or 
transient individuals that swam or drifted to the island (King and 
Stanford 2009, p. 9). King and Stanford (2009, p. 9) conclude that 
``Lake Erie Watersnakes remain exceedingly rare or absent from West 
Sister Island.''
    A main portion of the 2003 Recovery Plan's strategy was to ensure 
the persistence of multiple subpopulations of the Lake Erie Watersnake 
on each of the large islands, as well as the small islands on which the 
watersnake was already present. The presence of multiple population 
centers helps to protect against stochastic events, such as storms, 
severe winters, or fire. If entire subpopulations are lost from a 
catastrophic event, the presence of other subpopulations provides the 
opportunity for individuals to recolonize the disturbed area. The 
chance that the species will persist over time increases with the 
presence of additional subpopulations. Further, the maintenance of 
multiple subpopulations ensures that genetic diversity that may exist 
across the range is maintained. The Service and our partners have 
demonstrated over the past 8 years that Lake Erie Watersnakes have met 
the population persistence criterion in the Recovery Plan (Service 
2003a, pp. 28-29), including the portion of the criterion requiring a 
specific adult Lake Erie Watersnake population estimate on each of the 
four large islands, and persistence of Lake Erie Watersnakes on the 
small islands (Rattlesnake, Sugar, Gibraltar, Ballast, and Green) 
throughout this same period. Further, annual surveys have documented 
range expansion of the Lake Erie Watersnake within its historical range 
since the time of listing, including the recolonization of Green 
Island. Coupled, these data indicate that the population of Lake Erie 
Watersnakes is secure across its range and is likely to persist into 
the foreseeable future, even if the protections of the Act are removed 
(see Factor D).
    Summary of Factor A: Individuals of the Lake Erie Watersnake face a 
low amount of residual threat from habitat destruction or modification 
due to development within the Lake Erie islands within the foreseeable 
future, though the watersnake population has proven resilient to much 
of the development that has occurred since listing. Summer and 
hibernation habitat sufficient to support approximately 50 percent of 
the adult Lake Erie Watersnake recovery population has been protected 
in perpetuity. Impacts to summer shoreline and foraging habitat will 
still be regulated by the Corps, and the Service will provide comments 
to avoid and minimize impacts to Lake Erie Watersnake under the 
authority of the Fish and Wildlife Coordination Act. Impacts to 
hibernation habitat will directly affect individual watersnakes if the 
impacts occur during the hibernation season, however, existing 
standardized voluntary guidelines to limit winter excavation have been 
and will continue to be widely distributed to address those impacts. 
The Lake Erie Watersnake has recolonized a portion of its historic 
range, its adult populations have shown conclusive growth, and the 
recovery criteria for island-specific and overall adult population size 
have been substantially exceeded for the past eight years. Therefore, 
we determine that the present or threatened destruction, modification, 
or curtailment of its habitat or range, is not currently causing, or 
likely to cause in the foreseeable future, the subspecies to be 
threatened or endangered.

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

    We know of no recreational, commercial, or educational 
overutilization of the Lake Erie Watersnake. Lake Erie Watersnakes are 
not currently a collected or sought-after species, and no recreational 
or commercial collection of this subspecies has been documented to 
date. The historical collection of Lake Erie Watersnakes for scientific 
purposes is well-documented in the final listing rule (64 FR 47126; 
August 30, 1999). However, since 1966, formal research on wild animals 
has been regulated by the U.S. Department of Agriculture, Animal and 
Plant Health Inspection Services, Animal Care Division, under the 
Animal Welfare Act, as amended (7 U.S.C. 2131-2159). Further, 
institutions conducting research using live vertebrate animals and 
receiving funding from the Public Health Service require approval of 
research proposals by the Institutional Animal Care and Use Committee. 
This oversight will help to ensure that any scientific collection will 
not result in overutilization of the species, to the point that 
population-level effects are likely to occur. Therefore, we do not 
believe overutilization to be a current threat to the species, nor 
likely to be in the foreseeable future.

C. Disease or Predation

    At the time of listing, neither disease nor predation was 
implicated in the decline of Lake Erie Watersnakes. We currently have 
no data indicating that disease is a threat to the Lake Erie 
Watersnake. Predators of the Lake Erie Watersnake include a number of 
species native to the islands, specifically herring gull (Larus 
argentatus), great blue heron (Ardea herodias), robin (Turdus 
migratorius), raccoon (Procyon lotor), red fox (Vulpes vulpes), blue 
racer (Coluber constrictor), and mink (Mustela vison) (Camin and 
Ehrlich 1958, p. 510; Goldman 1971, p. 197; King 1986, p 769; King 
1987, p. 242, 250; King 1989. p. 87; Stanford 2009, pers. comm.). We 
anticipate that other birds, predatory fish, and mammals likely prey on 
Lake Erie Watersnakes, particularly neonate and immature snakes. 
Predation of individual Lake Erie Watersnakes clearly is occurring, 
however all of these predators are native to the islands and the 
snake's population has persisted in the face of such predation both 
historically and currently. As the Lake Erie Watersnake population has 
shown steady increases despite no observed change in predation pressure 
since the time of listing, we determine that mortality due to predation 
is not a substantial threat to the subspecies now, nor will it be 
within the foreseeable future.

D. The Inadequacy of Existing Regulatory Mechanisms

    The 1999 final listing rule (64 FR 47126) describes various status 
designations of the Lake Erie Watersnake at State, Provincial, and 
Federal Canadian levels , but concluded that ``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.'' As described above in Factor A, a substantial amount of 
Lake Erie Watersnake habitat has been protected since 1999 by 
management agreements, conservation easements, or deed restrictions. 
Protected habitat includes 18.03 km (11.27 mi) of summer habitat and 
1.270 km\2\ (313.88 ac) of hibernation habitat within 69 m (226 ft) of 
shore (Table 2). This amount of habitat is sufficient to support 
approximately 50 percent of the recovered population goal of 5,555 
adult Lake Erie Watersnakes, and is distributed throughout the U.S. 
range of the subspecies.
    In addition to the protected habitat, since the time of listing a 
substantial portion of additional island habitat has

[[Page 30332]]

been acquired by the Ohio Department of Natural Resources. These lands 
include 0.5 km\2\ (123 ac) of Middle Bass Island and 2.4 km\2\ (593 ac) 
of North Bass Island. The portions of these islands within 69 m (226 
ft) of shore are included as protected habitat, but the remainder of 
these properties may also provide habitat for the 25 percent of Lake 
Erie Watersnakes that hibernate greater than 69 m (226 ft) inland. 
Middle Bass Island State Park is dedicated to boating, camping, and 
recreation, while North Bass Island will remain primarily natural (ODNR 
2004, p.1).
    Further, since the time of listing, the Lake Erie Islands Chapter 
of the Black Swamp Conservancy, a non-profit land conservancy, was 
established and is acquiring conservation easements on island 
properties. All of their properties within 69 m (226 ft) of shore are 
included as protected habitat, however an additional 6 acres (0.02 
km\2\) of land may also provide habitat for the 25 percent of Lake Erie 
Watersnakes that hibernate greater than 69 m (226 ft) inland. This 
habitat will remain in a natural state for the foreseeable future.
    The Cleveland Museum of Natural History maintains multiple preserve 
properties on Kelleys Island. All of their properties within 69 m (226 
ft) of shore are included as protected habitat, however an additional 
99 acres (0.4 km\2\) of land may also provide habitat for the 25 
percent of Lake Erie Watersnakes that hibernate greater than 69 m (226 
ft) inland. This habitat will remain in a natural state for the 
foreseeable future.
    As discussed under Factor A above, since the Lake Erie Watersnake 
was listed in 1999, destruction and modification of watersnake summer 
habitat has been addressed under section 7 of the Act through the Corps 
section 10 of the Rivers and Harbors Act and section 404 of the Clean 
Water Act authority. These laws provide the Service the opportunity to 
review and comment on all projects affecting Lake Erie Watersnake 
foraging habitat, and many projects affecting shoreline habitat. Under 
these authorities, the Service has consistently recommended 
installation of rip-rap erosion control structures and crib docks in 
lieu of vertical concrete or sheet steel. This substantially reduced 
shoreline habitat degradation and resulted in the creation of 
artificial shoreline habitat for Lake Erie Watersnakes on many islands. 
We anticipate that similar projects impacting the islands' shorelines 
and the Lake Erie Watersnake's summer habitat will continue into the 
foreseeable future. As noted above, the vast majority of these projects 
are regulated by section 10 of the Rivers and Harbors Act and section 
404 of the Clean Water Act, and as such, the Service will still have 
the opportunity to review and comment on these projects via the Corps' 
Public Notice process, even if the watersnake is delisted. The Service 
plans to continue recommending rock structures as opposed to vertical 
structures on these types of projects, under the authority of the Fish 
and Wildlife Coordination Act. This regulatory mechanism will remain in 
place into the foreseeable future, allowing the Service to maintain 
some oversight and input relative to the condition of island shorelines 
for the Lake Erie Watersnake.
    Currently, the Lake Erie Watersnake is listed as a State endangered 
species under the Ohio Revised Code 1531.25. State endangered status is 
defined as: ``A native species or subspecies threatened with 
extirpation from the state. The danger may result from one or more 
causes, such as habitat loss, pollution, predation, interspecific 
competition, or disease'' (ODNR 2008, p. 1). Coordination with ODNR 
Division of Wildlife indicates that the State is supportive of the 
Service's proposal to delist the Lake Erie Watersnake as they believe 
that ``the snake population appears secure and growing throughout its 
range,'' and, ``[t]he snake warrants removal from Federal protection'' 
(ODNR 2009, p. 1). ODNR Division of Wildlife has proposed that, upon 
Federal delisting, the Lake Erie Watersnake would be reclassified to 
State threatened status, and is likely to remain as such for the 
foreseeable future (ODNR 2009, p.1). State threatened status ``affords 
a heightened perception of importance and conservation need by the 
public,'' and ``provides a mechanism for filing criminal charges 
against people who are responsible for direct mortality'' (ODNR 2009, 
p. 1). Therefore, State take prohibitions reducing the threat from 
intentional human persecution will still exist if the Lake Erie 
Watersnake is Federally delisted.
    In summary, substantial protected habitat and permanently conserved 
natural habitat on the U.S. western Lake Erie islands have been 
established since the time of listing. These areas are sufficient to 
support approximately 50 percent of the recovery population goal of 
5,555 adult Lake Erie Watersnakes. Some jurisdiction over impacts to 
Lake Erie Watersnake summer habitat will be maintained post-delisting 
via the Corps section 404 and section 10 authorities. Further, the 
proposed State reclassification of the Lake Erie Watersnake to a 
threatened designation will maintain the existing prohibition on 
intentional mortality of watersnakes and will provide a mechanism for 
filing criminal charges should intentional direct mortality occur. We 
have determined that tese regulatory mechanisms and cooperative 
agreements are sufficient to ensure the persistence of Lake Erie 
Watersnakes in the foreseeable future, and therefore Lake Erie 
Watersnakes will not be threatened by the inadequacy of existing 
regulatory mechanisms post-delisting.

E.Other Natural or Manmade Factors Affecting Its Continued Existence

Human Persecution and Other Human-Induced Mortality

    As indicated in the final listing rule for the Lake Erie Watersnake 
(64 FR 47131; August 30, 1999), ``persecution by humans is the most 
significant and well documented factor in the decline of Lake Erie 
Watersnakes.'' Therefore, the recovery strategy for the watersnake 
focused heavily on public outreach and education in an attempt to 
change the negative perception and hostile behavior of some island 
residents and visitors towards the watersnake. As described in detail 
in Recovery above, public opinion surveys were conducted to gauge 
island landowner perception of the Lake Erie Watersnake, and past, 
current, and likely future behavior towards the snake (Olive 2008, 
Wilkinson 2008).
    Generally, the survey results indicate that Federal, State, and 
non-governmental organizations' outreach and education campaigns are 
reaching the vast majority of island residents, and are helping to 
increase their access to information about the watersnake (Wilkinson 
2008, p. 5). While it is apparent that not all residents feel 
positively toward the snake, it is very notable that, despite human 
persecution being the most significant factor in the historical decline 
of the Lake Erie Watersnake, only about 4 percent of respondents 
indicated they had knowingly killed a watersnake since the time of 
listing, and only about 14 percent of respondents said they would 
knowingly kill a watersnake if it was no longer protected by State or 
Federal laws (Wilkinson 2008, p. 6). Of those Middle Bass Island 
residents interviewed by Olive (2008, pp. 112-113, 153), 7 percent 
admitted to killing a snake and 18 percent admitted they might kill a 
snake while it is listed. We interpret these responses to indicate 
that, while individual watersnakes still face some human persecution, 
the vast majority of islanders would not resort to

[[Page 30333]]

lethal means if they encountered watersnakes on their property.
    Despite the admitted intentional mortality documented by both 
Wilkinson (2008, p. 6) and Olive (2008, pp. 112-113, 153) adult Lake 
Erie Watersnake populations have increased substantially since the time 
of listing, both across the U.S. range and on each large island (King 
and Stanford 2010, p. 11; King and Stanford 2009, pp. 6-7). This 
indicates that the adult Lake Erie Watersnake population can tolerate 
some degree of intentional mortality of individual snakes and still 
persist at a recovery level.
    Public opinion of the Lake Erie Watersnake varies widely among 
those who support it, those that who have no opinion, and those that 
dislike or fear the watersnake specifically, or snakes in general. 
Outreach efforts have reached nearly all island residents, increasing 
access to information about the Lake Erie Watersnake, including non-
lethal ways to address nuisance snakes. Opinion surveys indicate that 
most people do not now, and will not in the future, kill Lake Erie 
Watersnakes, however many people indicate that the sheer number of 
snakes along the shoreline has become a nuisance, and this may 
contribute to negative feelings towards the snake. As Lake Erie 
Watersnake numbers have rebounded, and a significant amount of habitat 
has now been permanently protected to support its populations, the Lake 
Erie Watersnake population can withstand a limited amount of 
intentional mortality. While the threat of intentional mortality likely 
can never be completely eliminated, results of public opinion surveys 
indicate that the amount of mortality anticipated from intentional 
human persecution on its own and with other residual threats is not 
likely to cause the subspecies to become threatened or endangered again 
within the foreseeable future.
    Continued outreach regarding the Lake Erie Watersnake after 
delisting will be important in ensuring that island landowners and 
visitors maintain access to information about the biology of the snake, 
its conservation status, and its role in the ecosystem. Following 
delisting, outreach will continue to focus on changing the negative 
perceptions and hostile behavior of some island residents and visitors 
towards the watersnake. Outreach activities will continue through 
various partners, focusing on establishing permanent informational 
displays at specific island locations. For example, an Ohio 
Environmental Education Grant was recently awarded to the Lake Erie 
Islands Nature and Wildlife Center and Lake Erie Islands Historical 
Society to design interpretive posters and a permanent display that 
specifically address the Lake Erie watersnake, its current status, and 
conservation needs (Stanford 2009, pers. comm.). The display will be 
housed at the Lake Erie Islands Nature and Wildlife Center on South 
Bass Island while the posters will be made available to local 
organizations and school teachers and will promote consistent education 
among a variety of audiences and locations (Stanford 2009, pers. 
comm.). The permanent display at the Lake Erie Islands Nature and 
Wildlife Center will provide education for the entire island community, 
as well as the estimated 5,000-10,000 visitors anticipated per year 
(Stanford 2009, pers. comm.). This display will explain the current 
Lake Erie Watersnake legal status and the protective guidelines, which 
can be updated as needed if the snake is delisted (Stanford 2009, pers. 
comm.). Similarly, a permanent display on the Lake Erie Watersnake is 
currently being developed at ODNR's Aquatic Visitor's Center on South 
Bass Island. Additional signage or displays about the Lake Erie 
Watersnake are planned for ODNR's Middle Bass Island State Park 
(Service 2008, p. 5) and the Scheef East Point Nature Preserve on South 
Bass Island (ODNR 2007, pp. 6, 9).
    In addition to intentional human persecution, several sources of 
accidental human-induced mortality were examined to determine to what 
degree they contribute to overall mortality of Lake Erie Watersnakes, 
and if they are a threat to the population. These include mortality 
from hook and line fishing, roadkill mortality, contaminants, and the 
interaction between Lake Erie Watersnakes and invasive species. These 
potential threats are discussed in detail under Recovery, above. Based 
on recent research, accidental human-induced mortality occurring from 
boating, fishing, and roadkill events does not pose a threat to the 
adult Lake Erie Watersnake population (Brown and Weatherhead 1999, 
Stanford 2004, King 2007). Further, invasive species and contaminants 
do not threaten the adult Lake Erie Watersnake population (Bishop and 
Rouse 2006, King et al. 2006b, Fernie et al. 2008) now or in the 
foreseeable future.
    However, one new potential threat to Lake Erie Watersnakes has 
emerged. In May 2008 erosion control blankets were placed over an 
excavated area on Gibraltar Island, a small Lake Erie island. Within 
three days, 25 adult Lake Erie Watersnakes became entangled in the 
erosion control blankets that were placed over approximately 1347 m\2\ 
(0.33 ac) (Stanford 2008, pers. comm.). The erosion control blankets 
were single net, filled with straw, and photodegradable within 45 days 
(Stanford 2008, pers. comm.). Entanglement occurred on the first warm 
days of the summer and we assume that many snakes were emerging to 
bask, forage, and mate. When the entangled snakes were discovered, they 
were cut from the blankets; however 14 adult male Lake Erie Watersnakes 
died (Stanford 2008, pers. comm.). Mortality was thought to be due to 
suffocation or sun exposure, though necropsies were not conducted. Upon 
discovery of the snakes, all of the erosion mesh was immediately 
removed (Stanford 2008, pers. comm.). Since this event, when consulting 
on projects on the islands, the Service has requested that erosion 
control blankets not be used (for example, see Service 2008, p. 2). If 
this proposal is finalized and the species is delisted, we will 
continue to include this recommendation under the authority of the Fish 
and Wildlife Coordination Act when reviewing Federal activities on the 
islands. Additionally, we have incorporated this recommendation into 
the revised Lake Erie Watersnake Management Guidelines for 
Construction, Development, and Land Management Activities (Service 
2009, p. 2), which will be widely distributed, as described under 
Factor A above. We believe that through these mechanisms, entanglement 
in erosion control blankets or similar materials will not pose a 
substantial threat to the Lake Erie Watersnake population.

Small Population Size

    As noted in the listing document (64 FR 47126; August 30, 1999), 
all of the known threats were exacerbated by the small population size 
and the insular distribution of Lake Erie Watersnakes. According to the 
listing document, ``the current low population densities and insular 
distribution of Lake Erie Watersnake make them vulnerable to extinction 
or extirpation from catastrophic events, demographic variation, 
negative genetic effects, and environmental stresses such as habitat 
destruction and extermination'' (64 FR 47126; August 30, 1999). Since 
the time of listing, the adult Lake Erie Watersnake population has 
increased substantially. Annual adult Lake Erie Watersnake population 
censuses and estimates indicate that the population is growing by 
approximately 6 percent per year, and that the current snake population 
far outnumbers the goal of 5,555 adult Lake Erie Watersnakes required 
for the population to be

[[Page 30334]]

recovered (King and Stanford 2009, pp. 6-7; Service 2003a, pp. 28-29, 
33).
    King and Stanford (2009, pp. 5-8) recently analyzed Lake Erie 
Watersnake survey data from the period 1996-2008, and used Program MARK 
to model adult survival, and used Jolly-Seber population estimates to 
estimate sex ratios in adult Lake Erie Watersnakes. The generated 
estimates for adult sex ratio (1.6 male: 1 female) and adult survival 
(0.70) proved to be different than the sex ratio and adult survival 
rates used in setting the overall Population Persistence criterion of 
the 2003 Lake Erie Watersnake Recovery Plan at 5,555 adult Lake Erie 
Watersnakes. Incorporating the new adult sex ratio and adult survival 
estimates into the formula used in the Recovery Plan to generate the 
adult Lake Erie Watersnake population goal (Service 2003a, p. 31) 
yielded a revised population goal of 6,100 adult Lake Erie Watersnakes 
(King and Stanford 2009, p. 8). King and Stanford (2009, p. 8) note 
that, ``the estimated adult Lake Erie Watersnake population size 
exceeds this value [6,100] for all years from 2002-2008.'' Further, 
King and Stanford (2009, p.8) caution that the adult population goals 
``are based on a series of approximations...As a consequence, such 
estimates are best viewed as ``educated guesses'' that may change as 
more information is obtained.'' Irrespective of which adult population 
goal is used, 5,555 as outlined in the Recovery Plan (Service 2003a, p. 
28) or 6,100 as recently recalculated using more current information 
(King and Stanford 2009, p. 8), the adult Lake Erie Watersnake 
population has met and exceeded both of these goals for seven 
consecutive years (2002-2008) (King and Stanford 2009, p. 22). 
Therefore we no longer find that low population numbers increase the 
severity of any potential threats.
    Further, the presence of multiple subpopulations distributed 
throughout the range of the subspecies provides assurance that genetic 
diversity is being maintained, and provides multiple source populations 
should one subpopulation be eliminated due to a catastrophic event. 
Because Lake Erie Watersnakes are an island-dwelling subspecies, and 
their range is naturally restricted to a series of relatively small 
islands in western Lake Erie, it is likely that they will always have a 
population size that may be considered small relative to species with a 
much larger range. However, analysis of Lake Erie Watersnake population 
size, as described in the Recovery Plan (Service 2003a) indicates that 
a census population size of 5,555 adult watersnakes constitutes a 
viable, persistent population. Therefore, we no longer find that the 
insular distribution of the Lake Erie Watersnake increases the severity 
of any potential threats.

Climate Change

    Global climate change due to trapping of greenhouse gases, 
particularly carbon dioxide, within the atmosphere is widely predicted 
by scientists all over the world (IPCC 2007, p. 9). Within the Great 
Lakes region and Ohio specifically, climate change is expected to bring 
increased temperatures, increased but altered distribution patterns of 
precipitation, and greater intensity of extreme weather events 
including drought, storms, floods, and heat waves (Karl et al. 2009, p. 
117; Kling et al. 2003, pp. 17-18). Winters will be of shorter duration 
and warmer temperatures and snow melt will occur earlier (Kling et al. 
2003, pp. 17-18). These projected changes in seasonal temperature 
patterns may cause Lake Erie Watersnakes to hibernate for shorter 
periods of time, to seek cover more frequently during the active season 
to escape extreme weather events, and to forage more frequently than 
they do now to compensate for an extended active season. It is unlikely 
that these potential behavioral changes brought on by warmer 
temperatures would constitute a threat to the population.
    Warmer temperatures and decreased ice cover across the Great Lakes 
region predicted by multiple models could result in warmer water 
temperatures and water levels between 0.3-0.6 m (1-2 ft) below current 
levels in Lake Erie (Karl et al. 2009, pp. 119, 122; Kling et al. 2003, 
pp. 23-24). Decreases in Lake Erie water levels, which define the 
boundaries of the western Lake Erie islands, can lead to increases in 
the area of the island exposed, expansion or loss of coastal wetland 
habitat (depending on elevation and topography), changes in extent or 
composition of island shoreline habitat, and changes in erosion and 
accretion patterns. Over all, lower water levels will likely create 
additional linear footage of island shorelines within the western Lake 
Erie basin, potentially expanding Lake Erie Watersnake summer 
terrestrial habitat areas. Portions of former foraging habitat may dry, 
requiring watersnakes to seek out additional foraging territories. 
Water depth decreases of 0.3 to 0.6 m (1 to 2 ft) are unlikely to 
disturb large portions of Lake Erie Watersnake foraging habitat. As 
noted previously, Lake Erie Watersnakes' diets are composed primarily 
of round goby, which are plentiful in the warm waters of the western 
Lake Erie island region, and would likely remain plentiful despite 
potential effects from climate change. It is unlikely that lower water 
levels would significantly change Lake Erie Watersnake behavior, or 
represent a threat to the population.
    Climate change projections for Lake Erie indicate that increases in 
water temperature during the summer may result in lower dissolved 
oxygen, and prolonged stratification of lake water, resulting in an 
increase in the potential for dead-zones to occur or expand across time 
and space (Karl et al. 2009, p. 122; Kling et al. 2003, p. 22). 
However, the western Lake Erie basin is generally shallow, with an 
average depth of 7.4 m (24 ft), and stratification is rare here, and 
brief when it does occur (USEPA and Environment Canada 2008, p. 18), 
and therefore we do not anticipate a threat to the population from this 
projected change. However, low dissolved oxygen could also result in 
more easily mobilized mercury and other contaminants that exist in Lake 
Erie sediments, and introduction of increased contaminant loads into 
the food chain (Karl et al. 2009, p. 122). It is possible that 
additional contaminant loads could result in physiological or 
reproductive impacts to Lake Erie Watersnakes, but what the effective 
concentrations of these contaminants are is unknown. As discussed 
above, contaminants have been detected in Lake Erie Watersnakes in 
relatively high levels, but have not been documented to cause adverse 
effects; therefore we do not anticipate that a potential increase in 
contaminant mobilization within the waters of Lake Erie due to warming 
water temperatures poses a threat to Lake Erie Watersnakes.
    Warmer lake waters are anticipated to result in coldwater habitat 
being eliminated or shifting north in some areas, potentially changing 
the fish communities in these areas (Karl et al. 2009, p. 122; Kling et 
al. 2003, pp. 53-54). However, the western basin of Lake Erie is 
composed of warm water habitat already (USEPA and Environment Canada 
2008, p. 18) and is too shallow to support coldwater habitat, therefore 
we do not anticipate shifts in fish species composition within the 
western Lake Erie basin due to climate change, and therefore no threat 
to the Lake Erie Watersnake is anticipated.
    At this time, we do not have sufficient information to document 
that climate change poses a significant threat to the continued 
existence of the Lake Erie Watersnake.
    Summary of Factor E: Intentional human-induced mortality is a 
residual threat to the Lake Erie Watersnake,

[[Page 30335]]

however Lake Erie Watersnake numbers have rebounded and a significant 
amount of habitat has now been permanently protected to support Lake 
Erie Watersnake populations, and the Service believes that the Lake 
Erie Watersnake population can withstand a limited amount of 
intentional mortality and still maintain recovery-level population 
size. While the threat of intentional mortality likely can never be 
completely eliminated, results of public opinion surveys indicate that 
the amount of mortality anticipated from intentional human persecution 
on its own and with other residual threats is not likely to cause the 
subspecies to become threatened or endangered again within the 
foreseeable future. Unintentional human-induced mortality, such as 
occurs from road-kill, hook and line fishing, contaminants, and impacts 
of invasive species, has been researched throughout the recovery period 
and has not been documented to cause take in levels sufficient to 
impact the adult Lake Erie Watersnake population. Unintentional 
mortality through entanglement in erosion control fabrics, though rare, 
will be addressed through continued outreach and through coordination 
with the Corps on projects that impact Lake Erie Watersnake summer 
habitat. Lake Erie Watersnake persistence is no longer threatened by 
small population size or limited distribution, as they have 
substantially increased in number and expanded in range since the time 
of listing, and protected habitat sufficient to support 50 percent of 
the recovery population is distributed across all of the large islands. 
Finally, we have assessed the potential for climate change to impact 
the Lake Erie Watersnake based on projected habitat changes in Great 
Lakes-regional and Ohio models, and have determined that we do not have 
sufficient information to document that climate change poses a 
significant threat to the continued existence of the Lake Erie 
Watersnake. Therefore, we find that other natural or man-made factors, 
coupled with any other residual threats are not likely to cause the 
subspecies to become threatened or endangered again within the 
foreseeable future.

Summary of Threats

    As demonstrated in our Summary of Factors Affecting the Species, 
threats to the Lake Erie Watersnake have been abated or sufficiently 
minimized over the U.S. range of the subspecies. Recovery actions and a 
reduction or abatement of threats have lead to demonstrated population 
growth at multiple sites, increasing population estimates, range 
expansion within the historical range, proof of resiliency of the Lake 
Erie Watersnake to some habitat modification, and protection of a 
significant amount of summer and hibernation habitat throughout the 
range.
    The biological principles under which we evaluate the rangewide 
population status of the Lake Erie Watersnake relative to its long-term 
conservation are representation, redundancy, and resiliency (Groves, et 
al. 2003, pp. 30-32). At the time of listing, the Lake Erie Watersnake 
population had declined substantially from historical numbers and its 
range had contracted due to extirpation from several U.S. and Canadian 
islands. Since listing, population numbers have rebounded, real 
population growth at multiple sites has been documented, and the range 
has expanded to include multiple stable or increasing subpopulations 
across most of its historical range (West Sister Island is the only 
U.S. exception, as discussed in Factor A above) (King and Stanford 
2009, pp. 6-9). Thus, there is adequate representation (occupancy of 
representative habitats formerly occupied by the Lake Erie Watersnake 
across its range) and redundancy (distribution of populations in a 
pattern that offsets unforeseen losses across a portion of the range) 
to support the long-term persistence of the Lake Erie Watersnake.
    The Lake Erie Watersnake has demonstrated resilience and behavioral 
plasticity to both ecological and human-induced changes in its 
environment in the recent past. As described above, the Lake Erie 
Watersnake has made a nearly complete dietary shift since the invasion 
of the round goby in the early 2000's, indicating flexibility in prey 
selection (King et al. 2006b, p. 110). We now know that crib docks and 
armored shorelines provide valuable Lake Erie Watersnake summer habitat 
and that the Lake Erie Watersnake can persist in stable numbers in 
human-dominated island landscapes, as long as rocky or vegetated 
shorelines are present. Further, we have documented multiple situations 
where Lake Erie Watersnakes have been able to identify and successfully 
use new hibernation sites when historical hibernation sites are 
destroyed or unavailable, indicating that the Lake Erie Watersnake is 
more resilient to certain types of habitat modification than was 
previously known. The Lake Erie Watersnake has also demonstrated its 
ability to naturally re-colonize historical habitat after an absence of 
many years. Thus, despite any residual threats to individual 
watersnakes, we find the Lake Erie Watersnake has sufficient resiliency 
to persist within the foreseeable future.
    Intensive adult Lake Erie Watersnake censuses and subsequent 
analysis of the census data over the past 10 years have demonstrated a 
growing population, range expansion, and successful reproduction over 
multiple generations (King and Stanford 2009, pp. 6-7, 9). There is no 
evidence of recent extirpations of subpopulations, nor of a population 
sink. As previously described, habitat destruction and modification are 
not thought to be significant threats to the population now or within 
the foreseeable future (see Factor A above).
    Recovery efforts have provided increased attention and focus on the 
Lake Erie Watersnake and the habitat upon which it depends. Numerous 
conservation actions have been implemented by government agencies, 
universities, and conservation groups. Most notably, these include 
intensive research and population monitoring of Lake Erie Watersnakes 
by NIU and other partners, and land purchase and conservation on many 
islands within the range of the subspecies by ODNR, LEIC-BSC, Western 
Reserve Land Conservancy, and Put-in-Bay Township Park District.
    In summary, all of the past, existing, or potential future threats 
to the Lake Erie Watersnake, either alone or in combination, have 
either been eliminated or largely abated throughout all of its range. 
The major factors in listing the Lake Erie Watersnake were human 
persecution and habitat destruction and modification. These threats 
have largely been abated as evidenced by the substantial recovery of 
the snake. Therefore, we have determined that the Lake Erie Watersnake 
is no longer in danger of extinction or likely to become so throughout 
all of its range in the foreseeable future.

Significant Portion of the Range Analysis

    Having determined that the Lake Erie Watersnake is not in danger of 
extinction or likely to become so in the foreseeable future throughout 
all of its range, we must next consider whether the subspecies is in 
danger of extinction or is likely to become so in any significant 
portion of its range.
    A portion of a species' range is significant if it is part of the 
current range of the species (species used here is as defined in the 
Act, to include species, subspecies, or DPS) and if it is important to 
the conservation of the species because it contributes meaningfully to 
the representation,

[[Page 30336]]

resiliency, or redundancy of the species. The contribution must be at a 
level such that its loss would result in a decrease in the ability to 
conserve the species.
    Applying the definition described above for determining whether a 
species is endangered or threatened in a significant portion of its 
range, we first addressed whether any portions of the range of the Lake 
Erie Watersnake warranted further consideration. As described in Factor 
A and Factor E above, some threats to the species will remain post-
delisting, primarily loss of hibernation habitat during the winter 
hibernation season and intentional human persecution. These threats 
exist across the range of the species, and are not concentrated in any 
one area. We concluded, however, that these threats were not 
substantial enough to pose a threat to the viability of the subspecies 
within the DPS. Therefore, based on the discussion of the threats 
above, we do not foresee the loss or destruction of any portions of the 
subspecies' range such that our ability to conserve the subspecies 
would be decreased. Therefore, we find that the Lake Erie Watersnake is 
not in danger of extinction and is not likely to become endangered in 
the foreseeable future throughout all or a significant portion of its 
range.

Summary

    The Service has considered the status of the Lake Erie Watersnake 
relative to the recovery criteria, which looked in general at 
population trends and status, and we have completed the five-factor 
analysis, and on all counts we have determined that this subspecies no 
longer meets the definition of threatened or endangered throughout all 
or any significant portion of its range. Thus, we propose to remove the 
Lake Erie Watersnake from the List due to recovery.

Effects of the Proposed Rule

    If made final, this rule would revise 50 CFR 17.11 (h) to remove 
the Lake Erie Watersnake from the List. The prohibitions and 
conservation measures provided by the Act, particularly through 
sections 7 and 9, would no longer apply to this species. Federal 
agencies would no longer be required to consult with us if any action 
they authorize, fund, or carry out may affect the Lake Erie Watersnake.

Critical Habitat Prudency Determination

    In this proposed rule to delist the Lake Erie Watersnake, we have 
determined that it is no longer in danger of extinction or likely to 
become so throughout all or a significant portion of its range. The 
major factors for listing the Lake Erie Watersnake were human 
persecution and habitat and range destruction, modification or 
curtailment and these threats have been abated. In particular, as 
discussed above in ``Summary of Factors Affecting the Species'', we 
have determined that the Lake Erie Watersnake is more adaptable to 
changes in its habitat, able to use more types of habitat than 
previously thought and will recolonize habitat after a substantial 
amount of time. Therefore, based on a review of the best available 
data, we have determined that the present or future habitat 
destruction, modification or curtailment is no longer a factor leading 
to threatened or endangered status for the Lake Erie Watersnake. For 
these reasons, the designation of critical habitat and subsequent 
regulatory protections of designated critical habitat through section 7 
of the Act would not be beneficial to the species. Therefore, we have 
determined that designation of critical habitat is not prudent. In the 
event that during the public review and comment period of this proposed 
rule to delist we receive information that would lead us to determine 
that the Lake Erie Watersnake should be listed as endangered or 
threatened, we will reconsider this critical habitat prudency 
determination.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than five years 
for all species that have been recovered and delisted. The purpose of 
this requirement is to develop a program that detects the failure of 
any delisted species to sustain itself without the protective measures 
provided by the Act. If, at any time during the monitoring period, data 
indicate that protective status under the Act should be reinstated, we 
can initiate listing procedures, including, if appropriate, emergency 
listing.
    A draft post-delisting monitoring plan has been developed for the 
Lake Erie Watersnake, building upon and continuing the research that 
was conducted during the listing period. In summary, the plan proposes 
to conduct annual adult Lake Erie Watersnake population censuses, as 
have occurred throughout the listing period, for a period of 5 years 
post-delisting. The data collected will be used to generate annual 
adult Lake Erie Watersnake population estimates for the population as a 
whole, and for each of the four large islands, using the same methods 
as used previously (King et al. 2006a, pp. 88-91). During years one, 
three, and five, the collective data will be used to calculate lambda, 
the population growth rate, as described in King and Stanford (2009, 
pp. 5-7). Annual reports detailing the population estimates and 
population growth rates (if applicable) will be submitted to the 
Service and ODNR upon completion of data analysis by the individuals or 
groups conducting the census.
    Additionally, all areas included as protected habitat will be 
monitored once per year, in collaboration with partners that manage the 
protected habitat (for example, ODNR, LEIC-BSC). The monitoring will 
ensure that the management plans, conservation easements, or other 
documents are being implemented as agreed, and that Lake Erie 
Watersnakes or suitable habitat persists on the site. Written 
documentation of the protected habitat monitoring will be filled in the 
Service's Ohio Field Office (see FOR FURTHER INFORMATION section).
    Public opinion surveys will be conducted during year four of the 
post-delisting monitoring. These surveys will follow the same protocol 
and ask similar questions as the survey conducted in 2008, and 
responses will be compared to determine if and how public opinion of 
Lake Erie Watersnake may be changing, and if and to what extent human 
persecution may be impacting the Lake Erie Watersnake population post-
delisting.
    The post-delisting monitoring plan identifies measurable management 
thresholds and responses for detecting and reacting to significant 
changes in Lake Erie Watersnake protected habitat, distribution, and 
persistence. If declines are detected equaling or exceeding these 
thresholds, described below, the Service in combination with other 
post-delisting monitoring participants will investigate causes of these 
declines, including considerations of habitat changes, substantial 
human persecution, stochastic events, or any other significant 
evidence. The result of the investigation will be to determine if the 
Lake Erie Watersnake warrants expanded monitoring, additional research, 
additional habitat protection, or resumption of Federal protection 
under the Act.
    The management thresholds for determining how the Service will 
respond to various monitoring outcomes are as follows:
    (1) Post-delisting monitoring indicates that the species remains 
secure without the Act's protections if all the following are met: (a) 
The calculated population growth rate is greater than or equal to 1.0 
for two out of three sampling

[[Page 30337]]

periods, including the last sampling period, (b) the adult population 
estimates are greater than 5,555 overall, and (c) each of the four 
large islands maintains the population goals as defined in the recovery 
plan (Service 2003a, pp. 28-29). Under these circumstances there would 
be no reason to relist the species, or continue PDM.
    (2) Post-delisting monitoring indicates that the species may be 
less secure than anticipated at the time of delisting, but information 
does not indicate that the species meets the definition of threatened 
or endangered if the calculated population growth rate is less than 1.0 
for two consecutive sampling periods. Should this situation occur, the 
Service would look closely at the results of the dietary study, public 
opinion survey, and implementation of voluntary guidelines to determine 
if any residual threats or concerns may be contributing to population 
declines. Variable courses of action may be considered to address any 
residual or emerging threats. The Service will also consider whether 
the population may be reaching carrying capacity and these population 
declines are a result of normalization around carrying capacity. 
Further, the Service would consider extending the PDM period for the 
Lake Erie Watersnake to ensure that the population does not meet the 
definition of threatened or endangered.
    (3) Post-delisting monitoring yields substantial information 
indicating threats are causing a decline in the species' status since 
delisting, such that listing the species as threatened or endangered 
may be warranted if the calculated population growth rate is less than 
1.0 for three consecutive sampling periods. Should this situation occur 
the Service would look closely at the results of the dietary study, 
public opinion survey, and implementation of voluntary guidelines to 
determine if any residual threats or concerns may be contributing to 
population declines. Variable courses of action may be considered to 
address any residual or emerging threats. The Service will also 
consider whether the population may be reaching carrying capacity and 
these population declines are a result of normalization around carrying 
capacity. Further, the Service would consider whether listing the Lake 
Erie Watersnake as threatened or endangered is warranted.
    (4) Post-delisting monitoring documents a decline in the species' 
probability of persistence, such that the species once again meets the 
definition of a threatened or endangered species under the Act if the 
calculated population growth rate is less than 1 for two consecutive 
sampling periods and one of the two following situations occurs: The 
estimated population falls below the recovery goal of 5,555 adult Lake 
Erie Watersnakes, or one or more of the large island subpopulations 
fall below the population recovery goal specified in the recovery plan 
(Service 2003a pp. 28-29), when using the Jolly-Seber method of 
population estimation (Jolly 1965, Seber 1965).
    The Service will complete a final report at the end of the 5-year 
post-delisting monitoring period, assessing the current status of the 
Lake Erie Watersnake population. It is the intent of the Service to 
work with all of our partners towards maintaining the recovered status 
of the Lake Erie Watersnake.
    The draft post-delisting monitoring plan is available at 
www.regulations.govwith this proposed rule OR on the Service's Midwest 
region web site: http://www.fws.gov/midwest/endangered.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our proposed rule is based on scientifically sound data, 
assumptions, and analyses. We will send peer reviewers copies of this 
proposed rule immediately following publication in the Federal Register 
and will invite them to comment, during the public comment period, on 
the specific assumptions and conclusions regarding the proposal to 
delist the Lake Erie Watersnake. We will consider all comments and 
information received during the comment period on this proposed rule 
during preparation of a final rulemaking. Accordingly, the final 
decision may differ from this proposal.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Paperwork Reduction Act of 1995

    Office of Management and Budget (OMB) regulations at 5 CFR 1320 
implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.). The OMB regulations at 5 CFR 1320.3(c) define a collection of 
information as the obtaining of information by or for an agency by 
means of identical questions posed to, or identical reporting, 
recordkeeping, or disclosure requirements imposed on, 10 or more 
persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ``ten or more 
persons'' refers to the persons to whom a collection of information is 
addressed by the agency within any 12-month period. For purposes of 
this definition, employees of the Federal government are not included.
    This proposed rule and draft post-delisting monitoring plan do not 
include any new collections of information that require approval by OMB 
under the Paperwork Reduction Act.
    This proposed rule does not include any collections of information 
that require approval by OMB under the Paperwork Reduction Act. We do 
not anticipate a need to request data or other information from 10 or 
more persons during any 12-month period to satisfy monitoring 
information needs. If it becomes necessary to collect standardized 
information from 10 or more non-Federal individuals, groups, or 
organizations per year, we will first obtain information collection 
approval from OMB.

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 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a) of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

[[Page 30338]]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands affected by this proposal.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov, or upon request from the 
Field Supervisor, Ohio Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this document are the staff members of the 
Ohio Field Office, U.S. Fish and Wildlife Service (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as follows:

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 removing the entry ``Snake, Lake Erie 
water'' under ``REPTILES'' from the List of Endangered and Threatened 
Wildlife.

    Dated: May 17, 2010
Gregory E. Siekaniec
Acting Director, Fish and Wildlife Service
[FR Doc. 2010-12910 Filed 5-28-10; 8:45 am]
BILLING CODE 4310-55-S