[Federal Register Volume 76, Number 158 (Tuesday, August 16, 2011)]
[Rules and Regulations]
[Pages 50680-50702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20104]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2010-0039; 92220-1113-000; ABC Code: C6]
RIN 1018-AW62


Endangered and Threatened Wildlife and Plants; Removal of the 
Lake Erie Watersnake (Nerodia sipedon insularum) From the Federal List 
of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; notice of availability of final post-delisting 
monitoring plan.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (Act), we, the U.S. Fish and Wildlife Service (Service), are 
removing the Lake Erie watersnake (Nerodia sipedon insularum) from the 
Federal List of Endangered and Threatened 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.

DATES: This rule becomes effective September 15, 2011.

ADDRESSES: This final rule is available on the Internet at: http://www.regulations.gov and http://www.fws.gov/endangered. Supporting 
documentation used in preparing this final rule will be available for 
public inspection, by appointment, during normal business hours, at the 
U.S. Fish and Wildlife Service, Ohio Ecological Services Field Office, 
4625 Morse Road, Suite 104, Columbus, Ohio 43230.

FOR FURTHER INFORMATION CONTACT: Mary Knapp, Field Office Supervisor, 
or Megan Seymour, Wildlife Biologist, U.S. Fish and Wildlife Service, 
Ohio Ecological Services Field Office, 4625 Morse Road, Suite 104, 
Columbus, Ohio 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: 

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 United States (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, pp. 64-65), 
larger body size (King 1989, pp. 85-86), lower growth rates (King 1986,

[[Page 50681]]

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 is 85 m (279 ft) and 
the average water depth of the foraging locations is 3.32 m (10.9 ft). 
Data from 56 radio-tracked adult Lake Erie watersnakes indicate that 
during the summer, 75 percent of this population ranged within 13 m 
(42.7 ft) of the water's edge (King 2003, p.4). King (2003, p. 4) 
identified that 75 percent of the 56 radio-tracked 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 49 radio-tracked 
Lake Erie watersnakes hibernated within 69 m (226 ft) of the water's 
edge (King 2003, p. 4). Individual snakes often demonstrated 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

    On June 1, 2010, we published a proposed rule to remove the Lake 
Erie watersnake from the Federal List of Endangered and Threatened 
Wildlife (75 FR 30319). We solicited data and comments from the public 
on the proposed rule. The comment period opened on June 1, 2010 and 
closed on August 2, 2010. We discuss the comments received later in 
this document. For more information on previous Federal actions 
concerning the Lake Erie watersnake, please refer to the proposed rule 
published in the Federal Register on June 1, 2010 (75 FR 30319).

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. The Act directs that, to the 
maximum extent practicable, we incorporate into each plan:
    (1) Site-specific management actions that may be necessary to 
achieve the plan's goals for conservation and survival of the species;
    (2) Objective, measurable criteria, which when met would result in 
a determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the list; and
    (3) Estimates of the time required and cost to carry out the plan.
    However, revisions to the list (adding, removing, or reclassifying 
a species) must reflect determinations made in accordance with sections 
4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the 
Secretary determine whether a species is endangered or threatened (or 
not) because of one or more of five threat factors. Therefore, recovery 
criteria must indicate when a species is no longer endangered or 
threatened by any of the five factors. In other words, objective, 
measurable criteria, or recovery criteria contained in recovery plans, 
must indicate when we would anticipate an analysis of the five threat 
factors under section 4(a)(1) would result in a determination that a 
species is no longer endangered or threatened. Section 4(b) of the Act 
requires that the determination be made ``solely on the basis of the 
best scientific and commercial data available.''
    Thus, while recovery plans are intended to provide guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and on criteria that may be used to determine when 
recovery is achieved, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. Determinations to remove a 
species from the list made under section 4(a)(1) of the Act must be 
based on the best scientific and commercial data available at the time 
of the determination, regardless of whether that information differs 
from the recovery plan.
    In the course of implementing conservation actions for a species, 
new information is often gained that requires recovery efforts to be 
modified accordingly. There are many paths to accomplishing recovery of 
a species, and recovery may be achieved without all criteria being 
fully met. For example, one or more recovery criteria may have been 
exceeded while other criteria may not have been accomplished, yet the 
Service may judge that, overall, the threats have been minimized 
sufficiently, and the species is robust enough, that the Service may 
reclassify the species from endangered to threatened or perhaps delist 
the species. In other cases, recovery opportunities may have been 
recognized that were not known at the time the recovery plan was 
finalized. These opportunities may be used instead of methods 
identified in the recovery plan.
    Likewise, information on the species may be learned 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 species is a dynamic 
process requiring adaptive management, planning, implementing, and 
evaluating the degree of recovery of a species that may, or may not, 
fully follow the guidance provided in a recovery plan.
    Thus, while the recovery plan provides important guidance on the 
direction and strategy for recovery, and indicates when a rulemaking 
process may be initiated, the determination to remove a species from 
the Federal List of Endangered and Threatened Wildlife is ultimately 
based on an analysis of whether a species is no longer endangered or 
threatened. The following discussion provides a brief review of 
recovery planning for the Lake Erie watersnake as well as an analysis 
of the recovery criteria and goals as they relate to evaluating the 
status 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, the 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). 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

[[Page 50682]]

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

    The first criterion is intended to indicate when threats related to 
small population size and limited distribution of the species have been 
ameliorated, and the species is no longer ``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). Attainment of the 
criterion would indicate when the population size constitutes a viable, 
persistent population and threats have been ameliorated sufficiently. 
The criterion also includes a distribution component that would 
indicate the presence of multiple subpopulations distributed throughout 
the range of the subspecies to provide assurance that genetic diversity 
is being maintained, and provide multiple source populations should one 
subpopulation be eliminated due to a catastrophic event. The rationale 
for the targets set in this criterion is further explained in the Lake 
Erie Watersnake Recovery Plan (Service 2003a, pp. 27-29, 31-33).
    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 (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 2009. To 
provide population estimates for 2010, 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 2011, 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 (2011, p. 17) report the results of these annual 
adult Lake Erie watersnake population estimates from the time period 
encompassing 2001 through 2010. These population estimates indicate 
that Criterion 1(a) has been fully achieved, and in recent years 
substantially exceeded, during the period 2002-2010 (see table 1 
below). Based on the most recent population estimates in King and 
Stanford (2011, p. 17), this criterion's population goal of at least 
5,555 adults was first achieved in 2002 when there were an estimated 
6,180 adult watersnakes on the U.S. islands combined, and has remained 
well above that level for the last 9 years. While the adult population 
estimate for 2010 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 2010 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 2001 
through 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. As discussed below under Factor E, new analyses 
incorporating improved sex ratio and adult survival data indicate that 
a recovery population goal should be 6,100 snakes (King and Stanford 
2009, p. 8). However, such estimates are best viewed as approximations 
given the available information at the time (King and Stanford 2009, 
p.8). Irrespective of which population goal is used, 5,555 adult snakes 
or 6,100 adult snakes, both population goals have been met and exceeded 
for nine consecutive years (2002-2010) (King and Stanford 2011, p. 17). 
We conclude that Criterion 1a has been fully achieved and indicates 
that threats related to small population size have been ameliorated.

   Table 1--Total Estimated U.S. Adult Lake Erie Watersnake Population Size, 2001-2010 (King and Stanford 2011, p. 17). Estimates That Exceed Island-
            Specific and Overall Population Size Goals Specified in the Lake Erie Watersnake Recovery Plan (Service 2003a) Are Shown in Bold
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Four largest U.S. Islands with Lake Erie Watersnake populations       Small islands with Lake
               Year                ------------------------------------------------------------------------       Erie Watersnake         Combined U.S.
                                         Kelleys         South bass        Middle bass       North bass            populations *             islands
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recovery Goal.....................               900               850               620               410  Not applicable............              5555
2001..............................              1860              1560               770               160  780.......................              5130
2002..............................              2150              1400              1300               550  780.......................              6180
2003..............................              2190              1490              1920               270  780.......................              6650
2004..............................              2750              1590              1460               460  1270......................              7530

[[Page 50683]]

 
2005..............................              2450              1590              1920               790  920.......................              7670
2006..............................              2800              2670              3710              1380  1430......................             11990
2007..............................              3930              2110              2480               970  890.......................             10380
2008..............................              3430              2540              3090               760  2060......................             11880
2009..............................              2850              2630              4370              1170  960.......................             11980
2010..............................              3700              2070              2030               730  1270......................              9800
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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 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 2002-2010: 
Rattlesnake, Sugar, Green, Ballast, and Gibraltar (King and Stanford 
2010b, pp. 6-7). Populations of Lake Erie watersnakes have persisted on 
the small islands during the same 9-year period as Criterion 1(a), 
exceeding the minimum 6 years specified in the recovery plan.
    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 9 consecutive years between 2002 and 2010. This is the 
same consecutive 9-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 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) states 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 met the population size criterion for 9 
consecutive years, as have the other three largest U.S. islands. Even 
if we exclude the North Bass Island population estimate for 2003, all 
four islands have met population size goals for 6 or more consecutive 
years. We, therefore, conclude that Criterion 1(b) has been fully 
achieved.

Criterion 2: Habitat Protection and Management

    Criterion 2 is intended to ensure that sufficient habitat exists to 
protect approximately one-fifth of the Lake Erie watersnake delisting 
population goal of 5,555 adult snakes. The goal for protecting a total 
of 7.4 km (4.6 mi) of shoreline habitat and 0.51 km\2\ (126 ac) of 
inland habitat within 69 m (226 ft) of shore accounts for approximately 
10 percent of the total shoreline of the four largest islands and 13 
percent of the total inland habitat within 69 m (226 ft) of shore of 
the four largest U.S. islands. As described in Factor A, The Present or 
Threatened Destruction, Modification, or Curtailment of Its Habitat or 
Range below and the recovery plan (Service 2003a, pp. 9, 15), Lake Erie 
watersnakes are fairly resilient to habitat modifications and can 
persist along and within developed areas. However, it is important to 
also have habitat areas that are permanently protected and managed for 
the snake to provide a series of permanent refugia distributed across 
the islands that can support a substantial portion of the Lake Erie 
watersnake population. These protected and managed areas provide 
habitat for snakes that are temporarily displaced from other areas as 
well as provide core areas of habitat with reduced sources of mortality 
to support core populations necessary to maintain a viable population. 
We estimated in our recovery plan (Service 2003a, p. 34) that the 
protection of enough habitat to permanently support one-fifth (20 
percent) of the recovery population goal is sufficient to maintain a 
viable population on the U.S. islands. The criterion also includes a 
distribution component that stratifies a portion of protected habitat 
across the four largest islands to ensure protected habitat is 
available for multiple subpopulations distributed throughout the range 
of the subspecies. As described in Criterion 1(a) above, multiple 
populations provide assurance that genetic diversity is being 
maintained, and provide multiple source populations should one 
subpopulation be eliminated due to a catastrophic event. The rationale 
for the targets set in this criterion is further explained in the Lake 
Erie Watersnake Recovery Plan (Service 2003a, pp. 29-30, 34-35).
    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 miles (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

[[Page 50684]]

approved by the Service (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 (PIBTPD), and Cleveland Museum of Natural History (CMNH), we 
have ensured the permanent protection of 18.25 km (11.41 mi) of 
shoreline habitat and 1.287 km\2\ (318.18 ac) of inland habitat within 
69 m (226 ft) of shore (table 2). The total protected habitat indicated 
in table 2 is more than double the goal established in Criterion 2 of 
the Recovery Plan, and is sufficient to support approximately half (50 
percent) of the recovery population goal. 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 by Island-Specific and Overall Habitat Protection and Management Goals Specified in the Lake Erie
                                                                Watersnake Recovery Plan
                                                               [Service 2003a, pp. 29-30]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Length of shoreline     Land within 69 m of
                                                                   ------------------------          shore
                 Island                           Property                                 ------------------------                Partner
                                                                       (km)        (mi)       (km\2\)      (ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kelleys................................  Kelleys Island State             1.74        1.09       0.149       36.9   ODNR.
                                          Park; North Pond State
                                          Nature Preserve; Kelleys
                                          Island Alvar.
                                         Long Point Preserve......        0.57        0.36       0.087       21.4   CMNH
                                         Schollenberger Easement..        0.03        0.02       0.001        0.14  LEIC-BSC.
                                                                   ------------------------------------------------
    Subtotal...........................  .........................        2.34        1.47       0.237       58.44  ....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kelleys Goal...........................  .........................        1.2         0.75       0.083       20.5   ....................................
South Bass.............................  South Bass Island State          0.8         0.5        0.052       12.9   ODNR.
                                          Park; Oak Point State
                                          Park.
                                         Scheef East Point Nature         0.52        0.32       0.026        6.4   PIBTPD, LEIC-BSC.
                                          Preserve.
                                                                   ------------------------------------------------
    Subtotal...........................  .........................        1.32        0.82       0.078       19.3   ....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Bass Goal........................  .........................        1.1         0.7        0.078       19.3   ....................................
Middle Bass............................  Middle Bass Island State         2.74        1.71       0.197       48.7   ODNR.
                                          Park; Kuehnle Wildlife
                                          Area.
                                         Petersen Woods...........        0.03        0.02       0.006        1.55  LEIC-BSC.
                                         Lawrence Evans...........        0           0          0.003        0.75  LEIC-BSC.
                                         Middle Bass East Point           0.22        0.14       0.017        4.3   PIBTPD, LEIC-BSC.
                                          Preserve.
                                                                   ------------------------------------------------
    Subtotal...........................  .........................        2.99        1.87       0.223       55.3   ....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middle Bass Goal.......................  .........................        0.82        0.51       0.057       14.1   ....................................
North Bass.............................  North Bass Island State          9.9         6.19       0.683      168.8   ODNR.
                                          Park; Fox's Marsh
                                          Wildlife Area.
                                                                   ------------------------------------------------
    Subtotal...........................  .........................        9.9         6.19       0.683      168.8   ....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Bass Goal........................  .........................        0.54        0.34       0.037        9.1   ....................................
Green..................................  Green Island Wildlife            1.7         1.06       0.066       16.34  ODNR.
                                          Area.
                                                                   ------------------------------------------------
        Total All Islands..............  .........................       18.25       11.41       1.287      318.18  ....................................
                                                                   ------------------------------------------------
            Total Goal.................  .........................        7.4         4.6        0.51       126     ....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Service's partners in establishing Lake Erie watersnake 
protected habitat are generally conservation organizations and we 
expect our partners to manage and protect Lake Erie watersnake habitat 
consistent with their conservation missions. However, the Service has 
additionally 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, all of 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

[[Page 50685]]

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 watersnake (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 to determine how to avoid and minimize 
impacts to the Lake Erie watersnake prior to submitting an application 
to a Federal agency for conducting activities in snake habitat (ODNR 
2005, p. 2). Once a species is delisted, Federal agencies would not be 
required to consult with the Service on their action of issuing 
permits, but the ODNR plans to continue this early consultation, 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) is intended to ensure that the Lake Erie watersnake 
will no longer be threatened by intentional human persecution, the main 
factor that led to the listing of the snake. This criterion will 
measure whether outreach efforts have been successful in reducing human 
persecution. Criterion 3(b) is intended to ensure that accidental 
human-induced mortality, such as occurs from roadkill, has been reduced 
to the maximum extent practicable, and no longer represents a 
significant threat to the population.
    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 
water snakes.'' 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 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 Wilkinson, 
Northern Illinois University (NIU) (Wilkinson 2008) and 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 5 U.S. 
islands, 1 response from 1 Canadian island resident, and 1 response 
from 1 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 the Lake Erie watersnake 
has increased since the species was listed in 1999 (Wilkinson 2008, p. 
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 
(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

[[Page 50686]]

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 human persecution 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 2010a, p. 11; King and Stanford 2009, pp. 6-7). This 
positive population growth indicates that the adult Lake Erie 
watersnake population can tolerate some loss of individuals due to 
intentional mortality 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, p. 1). 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 who dislike 
or fear the snake. Outreach efforts have reached nearly all island 
residents, increasing access to information about the Lake Erie 
watersnake, including nonlethal 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 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 along with population estimates 
indicate that the number of mortalities anticipated from intentional 
human persecution on its own and with other residual threats are not 
limiting population persistence or growth.
    Continued outreach regarding the Lake Erie watersnake's role in the 
island ecosystem is important, and this effort will continue through 
various partners post-delisting. Planned ongoing outreach activities 
are addressed in the Summary of Factors Affecting the Species--Factor 
E, Other Natural or Manmade Factors Affecting Its Continued Existence, 
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, we conclude 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 nonlethal 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, King (2007, pp. 5-6) conducted a survey of 
roadkill mortality on the four large U.S. islands between June 26 and 
July 15, 2005. 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 population trends.'' 
Therefore, we conclude that the number of mortalities

[[Page 50687]]

anticipated from accidental human-induced mortality due to roadkill 
events alone or coupled with other residual threats is not likely to 
limit population growth or persistence.
    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, and 
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 manner. 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 nonlethal manner. We have 
determined that accidental human-induced mortality, such as that which 
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. We assert that Criterion 
3(b) has been achieved.

Identification of Additional Threats

    The Lake Erie Watersnake Recovery Plan also identified potential 
additional threats that should be investigated. The plan did not 
recommend any specific criteria in regard to these potential threats, 
but instead recommended research to determine the degree of threat, if 
any, posed by invasive species and contaminants.
    The Lake Erie Watersnake Recovery Plan (Service 2003a, pp. 18, 38, 
49, 57) recommended that additional studies be conducted to document 
the impact 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.''
    Since the establishment of round goby in Lake Erie in the mid 1990s 
they have become ubiquitous and plentiful throughout the Lake. Johnson 
et al. (2005, p. 83) estimated that the western basin alone supported 
9.9 billion round goby, and found that population assessments using 
nonvisual techniques (such as trawl surveys) tend to be conservative. 
ODNR annually samples for selected fish species within the western 
basin of Lake Erie using trawl surveys, and has included round goby in 
the sampling since 1995. Since 1998, mean catch-per-hectare of all age 
classes of round goby from trawl surveys in August and September range 
from 38.6 to 226.9 (ODNR 2010a, pp. 84-85), with sometimes substantial 
differences in catch-per-hectare rates between months in the same year. 
This sampling indicates an oscillating trend in goby abundance since 
their establishment in the western basin, and should be considered a 
conservative detection method based on Johnson et al.'s findings (2005, 
p. 83). ODNR Fisheries Researcher Carey Knight (2010, pers. comm.) 
indicates that round goby are likely to remain established and 
plentiful within the Lake Erie basin over time, but that localized 
botulism or hypoxia/anoxia events could result in localized, temporary 
depletions of goby, including within the range of the Lake Erie 
watersnake. Regardless of these localized events, it is likely that the 
round goby will persist within the western Lake Erie basin for the 
foreseeable future.
    If it is correct that limited foraging opportunities were a cause 
of the watersnake's population declines, the abundance 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 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 (King et al. 2006b, p. 
110). Round goby is a nonnative, invasive species that arrived from the 
Black and Caspian Seas in ballast water and became established within 
the Great Lakes in the early 1990's (Jude et al. 1992, pp. 418-419). 
Round goby is abundant in the western basin of Lake Erie, with an 
estimate of 9.9 billion round gobies in 2002 (Johnson et al. 2005, p. 
83). Round goby prey extensively on zebra mussels (Dreissena 
polymorpha) and quagga mussels (Dreissena bugensis) (Ray and Corkum 
1997, p. 270). Zebra and quagga mussels are nonnative, invasive species 
from the Black and Caspian Seas that have become established within the 
Great Lakes and are abundant in and around the western Lake Erie 
islands reaching densities up to 3.4x10\5\ mussels per m\2\ in the 
western basin of Lake Erie (Leach 1993, p. 381).
    Zebra and quagga mussels are filter feeders and are known to 
bioaccumulate contaminants including PCBs (Kwon et al. 2006, pp. 1072, 
1075). Biomagnification of PCBs has been documented in the zebra 
mussel--round goby--smallmouth bass food chain in Lake Erie (Kwon et 
al. 2006, p. 1075), so biomagnification of contaminants through the 
consumption of round goby by Lake Erie watersnakes 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

[[Page 50688]]

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'-Dichlorodiphenyldichloroethylene (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, because Bishop and Rouse (2006, pp. 
452, 454, 456) tested for and did not find a correlation between high 
levels of PCBs and 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 goby has not resulted in significant increases in 
contaminant loads in Lake Erie watersnakes. Additionally, while 
relatively high levels of PCBs were detected in watersnakes, these 
levels did not correspond with reduced 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 that contaminants do not pose a 
significant threat to the Lake Erie watersnake at this time or in the 
foreseeable future.

Results of Recovery Plan Review

    Available data indicate that all recovery criteria have been fully 
met. In addition, we investigated other potential threats and concluded 
they do not pose significant threats, and, therefore, no further action 
with respect to these potential threats is necessary. Based on our 
review of the Lake Erie Watersnake Recovery Plan, we conclude that 
review of the status of the Lake Erie watersnake under section 4(a)(1) 
would result in a determination that the species be removed from the 
List of Endangered and Threatened Wildlife. That analysis is presented 
below.

Summary of Public and Peer Review Comments and Recommendations

    In our June 1, 2010, proposed rule, we requested that all 
interested parties submit information, data, and comments concerning 
multiple aspects of the status of the Lake Erie watersnake. The comment 
period was open from June 1, 2010, through August 2, 2010.
    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited review from five expert scientists who 
are familiar with this species regarding pertinent scientific data and 
assumptions relating to supportive biological and ecological 
information for the proposed rule. Reviewers were asked to review the 
proposed rule, the supporting data, and the post-delisting monitoring 
plan, to point out any mistakes in our data or analysis, and to 
identify any relevant data that we might have overlooked. Three of the 
five peer reviewers submitted comments. All three were supportive of 
the proposal to remove the Lake Erie watersnake from the Federal List 
of Endangered and Threatened Wildlife. All peer reviewer comments are 
incorporated directly into this final rule or the final post-delisting 
monitoring plan.
    During the 60-day comment period, we received comments from five 
individuals, organizations, and government agencies. We have read and 
considered all comments received. We updated the rule where it was 
appropriate. The only substantive issue raised was by ODNR Office of 
Coastal Management. ODNR Office of Coastal Management commented that 
Federal agency activities having reasonably foreseeable effects on any 
land or water use or natural resource of Ohio's designated coastal zone 
must be consistent to the maximum extent practicable with the 
enforceable policies of the federally approved Ohio Coastal Management 
Program. If coastal effects are reasonably foreseeable, the Service 
should submit a Consistency Determination to the ODNR Office of Coastal 
Management; however, if there are no coastal effects, a Negative 
Determination can be submitted to ODNR. Removing the Lake Erie 
watersnake from the List of Endangered and Threatened Wildlife will not 
result in any foreseeable effects on land or water use or natural 
resources of Ohio's designated coastal zone. The Service submitted a 
Negative Determination to ODNR Office of Coastal Management on 
September 28, 2010. On November 12, 2010, ODNR Office of Coastal 
Management provided a concurrence letter indicating no further 
coordination on this issue is necessary (ODNR 2010b).

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.
    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 rule, 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.

[[Page 50689]]

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 a large number 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, as 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 a 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 typically composed 
of either larger parcels (typically ODNR properties) that are protected 
Lake Erie watersnake habitat or smaller private lots. Larger parcels 
comprise approximately one-quarter (25 percent) of the islands' 
shoreline, and these areas are designated as protected habitat for Lake 
Erie watersnakes. In most cases, projects that impact Lake Erie 
watersnake summer habitat occur on small private parcels. Because of 
the limited size of these parcels and the types of shoreline projects 
that would occur there, impacts will be limited to only a small portion 
of an individual snake's home range. While individual snakes may be 
displaced from portions of their home ranges, displacement would likely 
be temporary, as Lake Erie watersnakes are known to return to former 
home ranges once construction actions are complete, and adjacent 
portions of an individual watersnake's habitat would likely remain 
undisturbed and available to support the snake's breeding, feeding, and 
sheltering needs.
    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 grassy 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 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, The Inadequacy of Existing Regulatory Mechanisms). 
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

[[Page 50690]]

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, The Inadequacy of Existing Regulatory 
Mechanisms). 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 have 
the opportunity to review and comment on these Corps projects via the 
public notice process following delisting. 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. However, these impacts do not affect 
the population as a whole because individuals are generally not lost 
from the population and displacement does not appear to significantly 
affect survival and reproduction to the point that it would affect 
population growth or viability. 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 the 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. The presence of 
permanently protected habitat for the Lake Erie watersnake will reduce 
the potential for impacts to summer habitat, as will the use of 
voluntary guidelines to minimize impacts of habitat modification and 
promote the use of compatible structures and materials beneficial to 
the snake. Both are 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 development, 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. 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. 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 during the summer 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 
from exposure or

[[Page 50691]]

predation. Because Lake Erie watersnakes appear to use a variety of 
substrates and materials as hibernation habitat, and hibernation 
habitat sufficient to support approximately half (50 percent) of the 
adult Lake Erie watersnake recovery 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 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, and 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. It 
is likely that Lake Erie Watersnakes were displaced from their 
hibernation habitat when excavation or filling of hibernacula 
associated with the above activities occurred during the summer months. 
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 during this most sensitive time period. Therefore, it is 
likely that some Lake Erie watersnakes were injured or killed during 
excavation or filling activities within hibernation habitat that 
occurred during the hibernation season.
    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. 
Projects involving small areas of excavation, excavation of topsoil 
only, or excavation far inland from the shoreline, and that were 
completed during the summer months, 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. 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 12-year period during which Lake Erie watersnakes have been listed, 
only six projects were anticipated to cause loss of hibernation habitat 
and take of Lake Erie watersnakes. 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 12 years. We anticipate 
that approximately one large-scale development every 2 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 mitigated 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 calls for 
the permanent protection and management of summer and hibernation 
habitat sufficient to support one-fifth (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 Service (Service 2003a, p. 29) and protects Lake Erie 
watersnake habitat in perpetuity.
    As discussed in Recovery, 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 18.25 km (11.41 
mi) of shoreline habitat and 1.287 km\2\ (318.18 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 approximately half (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.
    The recovery plan (Service 2003a, p. 34) describes why this 
quantity of protected habitat is sufficient to

[[Page 50692]]

maintain a viable population of Lake Erie watersnakes: Lake Erie 
watersnakes are fairly resilient to habitat modifications and can 
persist along and within developed areas (Service 2003a, pp. 9, 15); 
adult population estimates at the time the recovery plan was drafted 
were nearing the recovery goals even though only 0.046 km\2\ (11.4 ac) 
of inland habitat and 0.89 km (0.55 mi) of shoreline habitat met the 
definition of protected habitat; and hibernation sites can support more 
than one snake, therefore, protection of the specified habitat amounts 
could support more than the estimated half (50 percent) of the recovery 
population. Based on the above information, the Service assumes that 
the remaining half (50 percent) of the recovery population will persist 
on the other 75 percent of island shoreline and 67 percent of inland 
areas within 69 m (226 ft) of shoreline that is not protected habitat.
    While not considered in the Recovery Criterion, it is important to 
note that several of the islands in Canada also support Lake Erie 
watersnake habitat that is permanently protected: Middle Island (18.5 
ha (48 ac)) is owned by Parks Canada and is part of Point Pelee 
National Park (Dobbie 2008, p. 8); East Sister Island (15 ha (37 ac)) 
is protected as a Provincial Nature Reserve by Ontario Parks (Ontario 
Parks 2009, p. 1); Pelee Island, the largest Canadian island within the 
range of the Lake Erie watersnake, contains three nature reserves: Fish 
Point and Lighthouse Point (combined 114 ha (282 ac)), established and 
managed by the Ontario Ministry of Natural Resources; Stone Road Alvar 
(approximately 178 ha (439 ac)), portions of which are owned by the 
Nature Conservancy of Canada, Ontario Nature, and Essex Region 
Conservation Authority (Municipality of Pelee Island 2007, p. 1); and 
Mill Point (1.5-2 km (0.9-1.2 mi) of shoreline habitat) under the 
protection of the Essex Region Conservation Authority and Ontario 
Nature (COSEWIC 2006, p. 8). Habitat management to maintain native 
plant communities and benefit species at risk (including the Lake Erie 
watersnake) and their habitat is ongoing on protected habitat in Canada 
(for examples see Dobbie 2008, Ontario Parks 2009).
Voluntary Guidelines
    Destruction or modification of hibernation habitat during the 
winter months when Lake Erie watersnakes are using such habitat may 
result in mortality of individual snakes, but will not threaten the 
population as a whole once the protections of the Act are 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 continue to widely distribute ``Lake Erie 
Watersnake Management Guidelines for Construction, Development, and 
Land Management Activities'' (Service 2009). Further, we will continue 
to recommend to local governments that they adopt and broadly 
distribute these voluntary guidelines, and we will monitor compliance 
with these voluntary guidelines when the watersnake is delisted.
    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). 
These actions aid in avoiding and minimizing habitat loss to individual 
watersnakes due to typical land management actions on private property.
    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). When 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.
Range Curtailment
    The historical range of the Lake Erie watersnake includes the 
offshore islands of the western Lake Erie basin in the United States 
and Canada as well as portions of the Catawba-Marblehead peninsula on 
the mainland of Ohio, though the threatened subspecies included only 
those Lake Erie watersnakes occurring on U.S. and Canadian islands 
greater than 1.6 km (1 mi) from the Ohio mainland (64 FR 47126). The 
U.S. islands and rock outcrops within the historical 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).
    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.

[[Page 50693]]

[GRAPHIC] [TIFF OMITTED] TR16AU11.000

    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 likely.
    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 8 
years after an absence of 10 or more years (King and Stanford 2011, p. 
18; 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 part of the population 
on another island.
    Lake Erie watersnakes were known to occur on 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 50694]]

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.''
    Lake Erie watersnakes also occur on islands in Canada. The most 
recent Committee on the Status of Endangered Wildlife in Canada 
(COSEWIC) Assessment and Update Status Report on the Lake Erie 
Watersnake in Canada (COSEWIC 2006, pp. 5-6, 12-13) concludes that 
within Canada the subspecies is likely restricted to four Canadian 
islands: East Sister, Hen, Middle, and Pelee. Population estimates have 
not been calculated systematically for Lake Erie watersnakes on 
Canadian islands as they have in the United States. As of the 2006 
status assessment, population estimates for all Canadian islands 
combined were ``likely less than 1,000 adults'' (COSEWIC 2006, p. 19).
    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 in the United States. 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 increases the likelihood that genetic diversity 
that may exist across the range is maintained.
    The Service and our partners have demonstrated over the past 9 
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. Lake Erie watersnakes 
also persist on four Canadian islands. 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, The Inadequacy of 
Existing Regulatory Mechanisms).
    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 the 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 historical 
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 
Educational 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). 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 is it likely to become a threat 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. We have no data to indicate that there has 
been a change in predation pressure. As the Lake Erie watersnake 
population has shown steady increases despite ongoing 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, The Present or Threatened 
Destruction, Modification, or Curtailment of Its Habitat or Range, a 
substantial amount of Lake Erie watersnake habitat has been

[[Page 50695]]

protected since 1999 by management agreements, conservation easements, 
or deed restrictions. Protected habitat includes 18.25 km (11.41 mi) of 
summer habitat and 1.287 km\2\ (318.18 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 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 
ODNR's portion of 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 nonprofit 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 0.04 km\2\ (9.6 
acres) 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 
0.4 km\2\ (99 acres) 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 described under Factor A, The Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range, several of the 
islands in Canada also support Lake Erie watersnake habitat that is 
permanently protected: Middle Island (18.5 ha (48 ac)) is owned by 
Parks Canada and is part of Point Pelee National Park (Dobbie 2008, p. 
8); East Sister Island (15 ha (37 ac)) is protected as a Provincial 
Nature Reserve by Ontario Parks (Ontario Parks 2009, p.1); Pelee 
Island, the largest Canadian island within the range of the Lake Erie 
watersnake, contains three nature reserves: Fish Point and Lighthouse 
Point (combined 114 ha (282 ac)), established and managed by the 
Ontario Ministry of Natural Resources; Stone Road Alvar (approximately 
178 ha (439 ac)), portions of which are owned by the Nature Conservancy 
of Canada, Ontario Nature, and Essex Region Conservation Authority 
(Municipality of Pelee Island 2007, p. 1); and Mill Point (1.5-2 km of 
shoreline habitat) under the protection of the Essex Region 
Conservation Authority and Ontario Nature (COSEWIC 2006, p. 8). Habitat 
management to maintain native vegetation communities and to benefit 
species at risk (including Lake Erie watersnakes) and their habitat is 
ongoing on protected habitat in Canada (for examples, see Dobbie 2008, 
Ontario Parks 2009).
    As discussed under Factor A, The Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range, 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 when 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 supports delisting 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 when the Lake Erie watersnake is federally 
delisted.
    The province of Ontario, Canada, designated the Lake Erie 
watersnake an endangered species under their Endangered Species Act in 
1977, while COSEWIC listed the Lake Erie watersnake as endangered in 
April 1991 (COSEWIC 2006, pp. 16, 19). Upon the passage of Canada's 
Species At Risk Act (SARA) in 2003, the Lake Erie watersnake continued 
to be listed under Schedule 1 as an endangered species (Canada Gazette 
Part II 2009, p. 404). Once delisted in the United States, the Lake 
Erie watersnake will continue to be protected under these Federal and 
Provincial laws. The SARA (2002) makes it an offense to ``kill, harm, 
harass, capture or take an individual of a listed species that is 
extirpated, endangered or threatened; possess, collect, buy, sell or 
trade an individual of a listed species that is extirpated, endangered 
or threatened, or its part or derivative; or, damage or destroy the 
residence of one or more individuals of a listed endangered or 
threatened species or of a listed extirpated species

[[Page 50696]]

if a recovery strategy has recommended its reintroduction.''
    Further, a recovery team for the Lake Erie watersnake has been 
established in Canada, and a preliminary draft Recovery Strategy has 
been developed (Government of Canada 2010, p. 4) to guide recovery 
efforts. These mechanisms and approaches to guide recovery of the Lake 
Erie watersnake in Canada are similar to those implemented in the 
United States. We have no reason to believe that these actions will be 
any less effective in Canada than they have been in the United States. 
Further, because Lake Erie watersnakes typically show site fidelity 
(King 2003, pp. 4, 11-17) and have only rarely been documented to move 
between islands (King 2002, p. 4), the status of the watersnake 
population on the Canadian islands is not likely to influence the 
status of the watersnake populations on U.S. islands.
    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. Additional protected habitat exists 
in Canada. 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. Lake Erie 
watersnakes maintain endangered status in Canada and Ontario, and 
recovery actions in Canada are ongoing. We have determined that these 
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 
water snakes.'' Therefore, the recovery strategy for the watersnake 
focused heavily on public outreach and education in an attempt to 
change the negative perception and behavior of some island residents 
and visitors toward 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 toward the snake (Olive 2008, Wilkinson 2008).
    Generally, the survey results 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 (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 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 2010a, 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 who have no opinion, and those who 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 nonlethal 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 toward 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 behavior of some island residents and visitors toward 
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 will be updated when 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

[[Page 50697]]

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 (King 2007, pp. 5-6; Stanford 
2004, p. 4). Further, invasive species and contaminants do not threaten 
the adult Lake Erie watersnake population (Fernie et al. 2008, p. 334; 
Bishop and Rouse 2006, pp. 452, 454, 456; King et al. 2006b, pp. 111-
113) now or in the foreseeable future.
    One new source of potential injury and mortality to Lake Erie 
watersnakes has recently been identified. 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). When 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 now or in the 
foreseeable future.
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 recovered (King and Stanford 2011, p. 17; 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 nine consecutive years (2002-2010) 
(King and Stanford 2011, p. 17). Therefore, we no longer find that low 
population numbers increase the severity of any potential threats.
    The most recent COSEWIC Assessment and Update Status Report on the 
Lake Erie Watersnake in Canada (COSEWIC 2006, pp. 5-6, 12-13) concludes 
that in Canada the subspecies is likely restricted to four Canadian 
islands: East Sister, Hen, Middle, and Pelee. Further, it indicates 
that the population trajectory is declining from historic population 
sizes, but may have stabilized (COSEWIC 2006, p. 18). Population 
estimates have not been calculated systematically for Lake Erie 
watersnakes on Canadian islands as they have in the United States. As 
of the 2006 status assessment, population estimates for all Canadian 
islands combined were ``likely less than 1,000 adults'' (COSEWIC 2006, 
p. 19). Because Lake Erie watersnakes typically show site fidelity 
(King 2003, pp. 4, 11-17) and have only rarely been documented to move 
between islands (King 2002, p. 4), the status of the watersnake 
population on the Canadian islands is not likely to greatly influence 
the status of the watersnake populations on U.S. islands or as a whole.
    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

[[Page 50698]]

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 species.
    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 (hypoxia), 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). Further, goby are susceptible to hypoxic and anoxic events and may 
die when dead-zones form. 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 
subsequently 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. However, Lake Erie 
watersnake numbers have rebounded, and a significant amount of habitat 
has now been protected to support Lake Erie watersnake populations. 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 at 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.

[[Page 50699]]

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 2000s, 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 recolonize historical habitat after an absence of 
many years. Thus, despite any residual threats to individual 
watersnakes, we find that 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.
    Lake Erie watersnakes persist in Canada on 4 islands, though 
population estimates have not been calculated systematically for Lake 
Erie watersnakes on Canadian islands as they have in the United States. 
Protected habitat on Canadian islands totals 325.5 ha (806 ac), and a 
Recovery Team and Draft Recovery Strategy have been established to 
guide recovery in Canada. Once delisted under the ESA, Lake Erie 
watersnakes occurring in Canada will remain protected by SARA and the 
Ontario Endangered Species Act. We have no reason to believe that the 
recovery actions implemented in Canada will be any less effective than 
they have been in the U.S. Further, because Lake Erie watersnakes 
typically show site fidelity (King 2003, pp. 4, 11-17) and have only 
rarely been documented to move between islands (King 2002, p. 4), the 
status of the watersnake population on the Canadian islands is not 
likely to influence the status of the watersnake populations on U.S. 
islands.
    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 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 in the 
foreseeable future, throughout all of its range.

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, 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. We examine whether any 
available information indicates a portion of the species' range may be 
both significant and threatened or endangered. 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 
or pose a threat of extirpation to the species in any portion of its 
range. In addition, we have concluded that while movement between 
islands is rare, it occurs frequently enough that the species has 
demonstrated an ability to

[[Page 50700]]

recolonize historical habitat and its distribution across multiple 
islands provides multiple source populations should one subpopulation 
be eliminated due to a catastrophic event.
    We conclude that the available information does not indicate that 
any portion of the species range is likely to be threatened or 
endangered. If no portion is likely to be threatened or endangered, 
there is no purpose to examining what portions may be significant. 
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.

Effects of the Rule

    This rule revises 50 CFR 17.11(h) to remove the Lake Erie 
watersnake from the List of Endangered and Threatened Wildlife. The 
prohibitions and conservation measures provided by the Act, 
particularly through sections 7 and 9, no longer apply to this species. 
Federal agencies are no longer required to consult with us if any 
action they authorize, fund, or carry out may affect the Lake Erie 
watersnake.

Post-Delisting Monitoring Plan

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 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 post-delisting monitoring (PDM) plan has been developed for the 
Lake Erie watersnake, building upon and continuing the research that 
was conducted during the listing period. Public and peer review 
comments submitted in response to the draft post-delisting monitoring 
plan have been addressed within the body of the plan and summarized in 
an Appendix to the plan. In summary, the plan proposes to: (1) Conduct 
annual adult Lake Erie watersnake population censuses; (2) conduct diet 
composition studies and round goby abundance surveys; (3) monitor all 
areas included as protected habitat; (4) conduct public opinion 
surveys; and (5) monitor implementation of voluntary guidelines.
    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 ([lambda]), the population growth parameter, 
as described in King and Stanford (2009, pp. 5-7). Annual reports 
detailing the population estimates and population growth (if 
applicable) will be submitted to the Service and ODNR upon completion 
of data analysis by the individuals or groups conducting the census.
    The diet of the Lake Erie watersnake underwent a dramatic change 
following the invasion of the North American Great Lakes by the round 
goby with round gobies now constituting more than 90 percent of prey 
consumed, and possibly fueling Lake Erie watersnake population recovery 
(King et al. 2006b, King et al. 2008, Jones et al. 2009). Lake Erie 
watersnake diet composition studies will be conducted during years 
three and four, as will round goby local abundance surveys. The data 
gathered from these studies will be used to evaluate round goby 
availability as a prey item for the snake. Researchers conducting these 
studies will actively look for indications of changing predator-prey 
interactions including potential loss of prey base that may lead to 
watersnake population declines. Results of the diet composition studies 
will be summarized in the annual reports during years 3 and 4. Results 
of the round goby local abundance surveys will be submitted in a final 
report to the Service after the surveys are completed in year 4.
    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 filed in the 
Service's Ohio Field Office (see FOR FURTHER INFORMATION CONTACT).
    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 watersnakes may be changing, and if and to what extent human 
persecution may be impacting the Lake Erie watersnake population post-
delisting.
    During each year of the post-delisting monitoring period, the 
Service will coordinate with local government agencies on Kelleys, 
Middle Bass, and South Bass Islands, to monitor compliance with the 
``Lake Erie Watersnake Management Guidelines for Construction, 
Development, and Land Management Activities'' (Service 2009). 
Documentation of local government responses will be filed in the 
Service's Ohio Field Office (see FOR FURTHER INFORMATION CONTACT). 
Compliance with the voluntary guidelines will be used to assess the 
extent to which mortality of Lake Erie watersnakes due to excavation 
activities during the hibernation period may be affecting the adult 
watersnake population.
    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) 
Realized population growth parameter, lambda ([lambda]), is greater 
than or equal to 1.0 for two out of three periods for which it is 
calculated, including the last period, (b) the adult population 
estimates are greater than or equal to 5,555 overall, and (c) each of 
the four large islands' subpopulation estimates are greater than or 
equal to the goals defined in the recovery plan (Service

[[Page 50701]]

2003a, pp. 28-29): Kelleys Island, 900; South Bass Island, 850; Middle 
Bass, 620; and North Bass, 410 (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 realized population growth parameter, lambda 
([lambda]), is less than 1.0 for two consecutive periods for which it 
is calculated. Should this situation occur, the Service would look 
closely at the results of the dietary study, round goby local 
abundance, public opinion survey, status of protected habitat, and 
implementation of voluntary guidelines to determine if any residual 
threats or concerns may be contributing to population declines. Further 
we will consider if other emerging threats, for example new invasive 
species or communicable diseases, may be impacting the Lake Erie 
watersnake population. 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. If the population growth 
parameter was less than 1 for the first two consecutive periods (Years 
1 and 3, 2011 and 2013), PDM would continue as planned, but population 
growth would be calculated in Year 4 as well. If the population growth 
parameter was less than 1 for the last two consecutive periods (Years 3 
and 5, 2013 and 2015) the Service would extend the PDM period for the 
Lake Erie watersnake for 2 additional years. All relevant data would be 
examined 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 realized population growth parameter, [lambda], is 
less than 1.0 for three consecutive periods for which it is calculated. 
Should this situation occur, the Service would look closely at the 
results of the dietary study, round goby local abundance, public 
opinion survey, status of protected habitat, and implementation of 
voluntary guidelines to determine if any residual threats or concerns 
may be contributing to population declines. Further we will consider if 
other emerging threats, for example new invasive species or 
communicable diseases, may be impacting the Lake Erie watersnake 
population. 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. If listing is not 
warranted, PDM would be extended for 2 additional years to continue to 
monitor Lake Erie watersnake population trends.
    (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 
realized population growth parameter, [lambda], is less than 1.0 for 
two consecutive periods for which it is calculated, and one of the two 
following situations occurs: Range-wide adult Lake Erie watersnake 
population estimate is less than the recovery goal of 5,555 during the 
most recent census, or one or more of the large island subpopulation 
estimates is less than 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 toward maintaining the recovered status 
of the Lake Erie watersnake.
    The final post-delisting monitoring plan is available on the 
Service's Midwest region Web site: http://www.fws.gov/midwest/endangered.

Required Determinations

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    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.
    An agency may not conduct or sponsor and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. This rule does not include any new 
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. We anticipate requesting data 
or other information from 10 or more persons during public opinion 
surveys planned in 2014. Prior to conducting collection of 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).

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 rule.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet

[[Page 50702]]

at http://www.regulations.gov, or upon request from the Field 
Supervisor, Columbus, Ohio Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this document are the staff members of the 
Columbus, 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.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.

Sec.  17.11  [Amended]

0
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: July 27, 2011.
James J. Slack,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-20104 Filed 8-15-11; 8:45 am]
BILLING CODE 4310-55-P