Endangered and Threatened Wildlife and Plants; Proposed Rule to remove the Lake Erie Watersnake (Nerodia sipedon insularum, 30319-30338 [2010-12910]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Proposed Rules]
[Pages 30319-30338]
From the Federal Register Online via the Government Printing 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: https://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 https://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 https://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 https://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 https://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 https://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 (https://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 (https://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 
proj