Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59605

required and those services for which

carriers exercise the option to file tariffs.

This schedule must include all effective

and proposed rates and regulations

pertaining to the services offered to and

from the community or communities

served, and must be the same as that on

file with the Commission. This posting

requirement must be satisfied by the

following methods:

* * * * *

[FR Doc. 97–29117 Filed 11–3–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 96–250; RM–8952]

Radio Broadcasting Services; Parris

Island and Hampton, SC

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of Simmons Broadcasting

Company, substitutes Channel 276C3

for Channel 221A at Parris Island, South

Carolina, and modifies Station

WGZO(FM)’s license accordingly. To

accommodate the upgrade, we also

substitute Channel 221A for Channel

276A at Hampton, South Carolina, and

modify Station WBHC–FM’s license

accordingly. See 61 FR 66248, December

17, 1996. Channel 276C3 can be allotted

to Parris Island in compliance with the

Commission’s minimum distance

separation requirements without the

imposition of a site restriction at

petitioner’s requested site. The

coordinates for Channel 276C3 at Parris

Island are North Latitude 32–27–00 and

West Longitude 80–47–30. Additionally,

Channel 221A can be allotted to

Hampton in compliance with the

Commission’s minimum distance

separation requirements at Station

WBHC–FM’s presently licensed site.

The coordinates for Channel 221A at

Hampton are North Latitude 32–50–39

and West Longitude 81–07–28. With

this action, this proceeding is

terminated.

EFFECTIVE DATE: December 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 96–250,

adopted October 15, 1997, and released

October 24, 1997. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy

contractors, International Transcription

Service, Inc., (202) 857–3800, 1231 20th

Street, NW., Washington, DC 20036.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of Title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under South Carolina, is

amended by removing Channel 221A

and adding Channel 276C3 at Parris

Island; and by removing Channel 276A

and adding Channel 221A at Hampton.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–29116 Filed 11–3–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD05

Endangered and Threatened Wildlife

and Plants; Final Rule to List the

Northern Population of the Bog Turtle

as Threatened and the Southern

Population as Threatened Due to

Similarity of Appearance

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) determines threatened

status pursuant to the Endangered

Species Act of 1973, as amended (Act)

for the northern population of the bog

turtle (Clemmys muhlenbergii), which

ranges from New York and

Massachusetts south to Maryland. The

Service also determines the southern

population of the bog turtle, which

occurs in the Appalachian Mountains

from southern Virginia to northern

Georgia, to be threatened due to

similarity of appearance to the northern

population, with a special rule.

The bog turtle is threatened by a

variety of factors including habitat

degradation and fragmentation from

agriculture and development, habitat

succession due to invasive exotic and

native plants, and illegal trade and

collecting. This rule implements Federal

protection and recovery provisions

afforded by the Act.

DATES: Effective November 4, 1997.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment, during normal business

hours at the Pennsylvania Field Office,

U.S. Fish and Wildlife Service, 315

South Allen Street, Suite 322, State

College, Pennsylvania 16801.

FOR FURTHER INFORMATION CONTACT:

Carole Copeyon, Endangered Species

Biologist, at the above address

(telephone 814/234–4090; facsimile

814/234–0748).

SUPPLEMENTARY INFORMATION:

Background

The bog turtle was first described and

named as Muhlenberg’s tortoise

(Testudo muhlenbergii) by Johann David

Schoepff in 1801 based on specimens

received in 1778 from Reverend

Heinreich Muhlenberg of Lancaster

County, Pennsylvania. In 1835, L.J.

Fitzinger transferred the species to the

genus Clemmys, where it remains today

(Barton and Price 1955). In 1917, Dunn

considered bog turtles within the

southern range to be distinct, and

classified the southern population as

Clemmys nuchalis (Amato, Behler,

Tryon, and Herman 1993). This taxon

was subsequently synonymized with

Clemmys muhlenbergii; however,

researchers still question the taxonomic

status of the northern and southern

populations (Amato et al. 1993,

Klemens in press). Initial data from

recent preliminary genetic studies,

based on examination of variability at

the 16S ribosomal gene, suggest that

there may not be significant genetic

differences between the northern and

southern populations. However, due to

the conservative nature of this gene in

other species, any definitive

conclusions concerning genetic

differences between the northern and

southern populations is premature

(Amato et al. 1993).

The bog turtle is sparsely distributed

over a discontinuous geographic range

extending from New England south to

northern Georgia. A 250-mile gap within

the range separates the species into

distinct northern and southern

populations (Klemens in press, Tryon

1990, Tryon and Herman 1990). The
59606 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

northern population extends from

southern New York and western

Massachusetts southward through

western Connecticut, New Jersey and

eastern Pennsylvania, to northern

Delaware and Maryland. Disjunct

populations previously occurred in

western Pennsylvania and in the Lake

George and Finger Lakes regions of New

York. The western Pennsylvania and

Lake George populations have been

extirpated, and only a remnant

population exists at one remaining site

in the Finger Lakes region. The southern

population occurs in the Appalachian

Mountains from southwestern Virginia

southward through western North

Carolina, eastern Tennessee,

northwestern South Carolina, and

northern Georgia. The southern

population also occurs in the upper

piedmont physiographic province of

North Carolina. The species’ disjunct

distribution is thought to be the result

of Pleistocene and post-Pleistocene

climatic changes (Lee and Norden

1996).

The Act defines a species to include

any subspecies of fish or wildlife or

plants, or any distinct population

segment (DPS) of any species of

vertebrate fish or wildlife which

interbreeds when mature. Based on the

disjunct distribution of this species, the

northern population of the bog turtle is

considered a DPS and, therefore, a

separate species under the Act.

The bog turtle is the smallest member

of the genus Clemmys, with the

carapace (upper shell) of adults

measuring 7.5 to 11.4 centimeters (3.0 to

4.5 inches) in length (Bury 1979). The

domed carapace is weakly keeled and

ranges in color from light brown to

ebony. The scutes of the shell often have

lighter-colored centers resembling a

starburst pattern (Herman and George

1986). The plastron (lower shell) is

brownish-black with contrasting yellow

or cream areas, often along the midline.

This species is readily distinguished

from other turtles by the large,

conspicuous bright orange, yellow, or

red blotch found on each side of the

head. The species is sexually

dimorphic. Males have concave

plastrons and long, thick tails, and the

vent of the male is located beyond the

posterior carapace margin. Females have

proportionately higher carapaces, flat

plastrons, and relatively short tails, and

the vent of the female is located beneath

the carapace edge (Bury 1979, Klemens

in press).

Bog turtles are semi-aquatic and are

only active during part of the year

(Barton and Price 1955). In the northern

part of their range, they are active from

April to mid-October (Arndt 1977,

Nemuras 1967). Reported periods of

inactivity in July and August may be an

artifact of collecting bias and the

difficulty of locating turtles at that time

of year (Lovich, Herman, and Fahey

1992). Bog turtles hibernate from

October to April, often just below the

upper surface of frozen mud or ice

(Chase, Dixon, Gates, Jacobs, and Taylor

1989). Their varied diet consists of

beetles, lepidopteran larvae, caddisfly

larvae, snails, nematodes, millipedes,

fleshy pondweed seeds, sedge seeds,

and carrion (Barton and Price 1955,

Nemuras 1967). Where population

estimates are available, bog turtles have

been found at densities ranging from 7

to 213 turtles per hectare (Chase et al.

1989). Chase et al. (1989) found an

average of 44 turtles per site at 9 study

sites in Maryland.

Female bog turtles reach sexual

maturity between 5 and 8 years of age

(Barton and Price 1955, Ernst 1977).

Mating occurs in May and June, and

females deposit from two to six white

eggs in sphagnum moss or sedge

tussocks in May, June, or July (Arndt

1977, Herman 1990, Herman and George

1986, Klemens in press). Unlike most

other semi-aquatic turtles, bog turtles do

not leave their wetland habitat and

travel to dry, upland areas to lay eggs.

‘‘Instead, they select slightly elevated

sites, generally on Carex stricta

tussocks, for nesting within their

marshy habitat. Nesting areas typically

have limited canopy closure, support an

array of moisture tolerant, low

vegetation, and provide ample solar

exposure’’ (Robert Zappalorti,

Herpetological Associates, in litt. 1997).

The eggs hatch after an incubation

period of 42 to 56 days (Arndt 1977,

Herman 1990), and the young emerge in

August or early September (Arndt 1977,

Barton and Price 1955). Infertile eggs are

common (Arndt 1977, Herman 1990,

Tryon 1990), and not all females

produce clutches annually (Tryon

1990). Also, there is no evidence to

suggest that multiple clutches are

deposited in a single season.

Bog turtles inhabit shallow, spring-fed

fens, sphagnum bogs, swamps, marshy

meadows, and pastures which have soft,

muddy bottoms; clear, cool, slowflowing water, often forming a network

of rivulets; and open canopies (Arndt

1977, Barton and Price 1955, Herman

and George 1986, Klemens in press). In

Maryland, Chase et al. (1989) reported

that bog turtles were found in circular

basins with spring-fed pockets of

shallow water, a substrate of soft mud

and rock, dominant vegetation of low

grasses and sedges, and interspersed wet

and dry pockets. In these types of

habitats, bog turtles often utilize the

runways of muskrats and meadow voles

(Barton and Price 1955, Nemuras 1967,

Taylor et al. 1984). Bog turtles have

been found at elevations ranging from

near sea level in the north to 1500

meters (4500 feet) in the south (Herman

and George 1986).

Bog turtles usually occur in small,

discrete populations occupying suitable

wetland habitat dispersed along a

watershed (Collins 1990). These

wetlands are a mosaic of micro-habitats

which include dry pockets, saturated

areas, and areas that are periodically

flooded. They depend upon this diverse

hydrological mosaic, utilizing shallow

water in spring, and returning to deeper

water in winter (Chase et al. 1989).

Unless disrupted by fire, beaver activity,

grazing, or periodic wet years, opencanopy wetlands are slowly invaded by

woody vegetation. They undergo a

transition into closed-canopy, wooded

swamplands that are unsuitable for

habitation by bog turtles (Klemens in

press, Tryon 1990). Historically, bog

turtles probably moved from one opencanopy wetland patch to another, as

succession closed wetland canopies in

some areas, and natural processes (e.g.,

beaver activity or fire) opened canopies

in other areas (Klemens 1989).

Several plant species commonly

associated with bog turtle habitats

include alders (Alnus sp.), willows

(Salix sp.), sedges (Carex sp.),

sphagnum moss (Sphagnum sp.),

jewelweed (Impatiens capensis), rice

cut-grass (Leersia oryzoides), tearthumb

(Polygonum sagittatum), arrow arum

(Peltandra virginica), red maple (Acer

rubrum), skunk cabbage (Symplocarpus

foetidus) and bulrushes (Juncus sp. and

Scirpus sp.) (Arndt 1977; Barton and

Price 1955; Herman and George 1986;

Taylor, Dawson, Beall, and Schaeffer

1984). Pedestal vegetation, such as

tussock sedge (C. stricta) and sphagnum

moss, are utilized for nesting and

basking (Gelvin-Innvaer and Stetzar

1992, Klemens in press).

Currently, many wetlands occupied

by bog turtles in agricultural areas are

subject to livestock grazing. Light to

moderate grazing may function to

impede succession by preventing or

minimizing the encroachment of

invasive native and exotic plant species,

thereby maintaining an intermediate

stage of succession (Smith 1994, Tryon

1990). It has been suggested that in

precolonial times the grazing activities

of large herbivores, such as bison (Bison

bison) and elk (Cervus canadensis), may

have been important in maintaining bog

turtle habitat (Lee and Norden 1996).

The occurrence of bog turtles in

wetlands grazed by livestock is probably

an instance where grazing by livestock
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59607

has either replaced grazing by native

herbivores or replaced one of the other

historical factors that would have acted

to maintain the wetlands in an early

successional stage.

Due to the bog turtle’s rarity, small

size, predator-evasive behavior (i.e.,

tendency to burrow rapidly into the

mud), and habitat preferences (e.g.,

dense herbaceous vegetation), it is

difficult to obtain reliable bog turtle

population demographics. This lack of

data has led to a misconception as to the

number of healthy populations found

throughout the species’ range. For

example, some documented bog turtle

sites support populations consisting

primarily of old individuals. These

populations are slowly disappearing

due to negligible recruitment of

juveniles over a sustained period of time

(Klemens 1989).

A protocol was developed to assess

the capacity of sites to maintain viable

populations of bog turtles. Known as the

‘‘Standardized Bog Turtle Site-quality

Analysis’’ (Michael Klemens, Wildlife

Conservation Society, in litt. 1993), it

groups bog turtle occurrences into sites

based on the likelihood of turtles

moving between documented

occurrence locations and interbreeding.

A site is ranked according to four

factors—(1) habitat size and degree of

fragmentation; (2) the presence of

invasive plants and later successional

species; (3) immediate threats such as

wetland ditching, draining, filling or

excavation; and (4) the type and extent

of land use in the area. Where adequate

data are available, sites are also ranked

according to population size and

evidence of recruitment.

Using this site-quality analysis in

1993 and 1994, the individuals most

familiar with each site (the primary bog

turtle researcher(s) in each State)

assessed and ranked the suitability of

almost every known northern

population site. The ranking process

resulted in each site receiving a

numerical score, and based on these

scores, each site was then ranked as

good, fair, or poor. By incorporating

factors related to habitat quality and

threats, these rankings reflect the

suitability of the sites to maintain viable

bog turtle populations. The

classification system was based on

researchers’ best professional judgments

regarding site suitability. The

classifications based upon these scores

are conservative for several reasons.

Threats from illegal collecting were not

considered in the rankings. Rankings

were often based on interpretation of

old maps (more than 10 years old);

therefore, recent land use changes such

as development were not considered.

Also, at some sites the presence of

turtles had not been confirmed for over

10 years.

Occurrence refers to a documented

specific bog turtle location (a single

wetland or a road-crossing sighting), one

or more of which are included in a site.

Due to widespread wetland habitat

fragmentation throughout the turtle’s

range, most sites are comprised of only

one small extant occurrence, often

isolated from other such occurrences.

Of 191 known extant bog turtle sites

within the northern population in 1996,

33 were classified as good, 67 as fair, 76

as poor, and 15 as unknown status. The

State-by-State summaries given below

present information primarily about the

status and distribution of extant

northern bog turtle populations/sites

within each State.

In Connecticut, bog turtles are found

in the northwestern corner of the State

in Fairfield and Litchfield Counties. All

five remaining populations are found on

private lands; four of these populations

are classified as fair and one as poor

(Julie Victoria, Connecticut Division of

Wildlife, in litt. 1994).

In Delaware, bog turtles were

historically reported from 11 localities

in the piedmont and coastal plain of

New Castle County (Arndt 1977).

Currently, only four sites are known to

support bog turtles, and all of these are

classified as fair. Two of these sites

occur on State lands and two on private

property (Lisa Gelvin-Innvaer, Jay

Greenwood and Bill Zawaki, Delaware

Division of Fish and Wildlife, in litt.

1994).

All three known bog turtle

populations in Massachusetts occur on

private property in southern Berkshire

County. Two of these sites receive some

degree of protection through landowner

conservation agreements. One

population is considered good, one fair,

and one poor.

Maryland’s 65 remaining extant bog

turtle sites occur in the piedmont region

of Baltimore, Carroll, Cecil and Harford

Counties, with approximately 97

percent of the habitat privately owned

and the other 3 percent in State

ownership (Scott Smith, Maryland

Department of Natural Resources, in litt.

1994). Seventeen of these sites are

classified as good, 23 as fair, and 25 as

poor. In 1995 and 1996, five additional

bog turtle sightings were documented

from Harford, Baltimore, and Carroll

Counties. However, most of these

occurrences are components of

previously identified and ranked sites

(Smith, in litt. 1996).

In New Jersey, there are 53 known

extant bog turtle sites in Burlington,

Hunterdon, Monmouth, Morris, Ocean,

Somerset, Sussex, Union, and Warren

counties (James Sciascia, New Jersey

Department of Fish, Game and Wildlife,

and Robert Zappalorti, Herpetological

Associates, Inc., in litt. 1994; Sciascia,

in litt. 1997). Eight of these sites are

classified as good, 21 as fair, 18 as poor,

and 6 are of unknown status.

Approximately 90 percent of the turtle

habitat in New Jersey is privately

owned, while the State and Federal

governments own 5 percent each

(Sciascia and Zappalorti, in litt. 1994).

The New Jersey Endangered and

Nongame Species Program recently

conducted extensive surveys to locate

and document bog turtle habitat. From

1993 to 1995, the habitat suitability of

473 wetlands in Hunterdon, Somerset,

Sussex, and Warren counties was

assessed. Only 77 sites (16 percent)

contained potentially suitable bog turtle

habitat, and bog turtles were found at

only 8 of these wetlands (Sciascia 1996).

In 1996, additional surveys conducted

in Sussex County documented 16 new

bog turtle occurrences, primarily in

calcareous fen habitats. These fens are

restricted to a 40-square-mile area in

central Sussex and northern Warren

counties. The discovery of bog turtles in

calcareous fen habitats is important to

the species’ conservation within this

area of New Jersey and neighboring

Pennsylvania. Fens are primarily shrub

and herb communities formed in lowlying areas where groundwater

percolates over limestone bedrock. This

alkaline seepage water most likely

retards the growth of canopy-closing

trees such as red maple. The persistence

of this type of shrub/herb community

could account for the presence of bog

turtles (James Sciascia, New Jersey

Department of Fish, Game and Wildlife,

in litt. 1996).

The bog turtle’s range in New York is

concentrated primarily in the extreme

southeastern corner of the State.

Disjunct populations historically

occurred in the Lake George area in

eastern New York, in the Finger Lakes

region in western New York, and in

south central New York. The Lake

George and south central populations

have been extirpated, and only one

extant Seneca County site remains in

the Finger Lakes region (Alvin Breisch

and Michael Kallaji, New York

Department of Environmental

Conservation, and Paul Novak, New

York Natural Heritage Program, in litt.

1994; Novak, in litt. 1997). Potentially,

22 sites remain in southeastern New

York; however, only 17 are considered

extant. Of the 18 total remaining extant

sites in New York (Seneca, Columbia,

Dutchess, Putnam, and Orange

counties), 5 are considered good, 6 fair
59608 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

and 7 poor. Nearly all bog turtle habitat

(99 percent) occurs on private lands; the

remaining 1 percent is found on State

lands (Breisch et al., in litt. 1994).

In Pennsylvania, bog turtles are still

found in 13 of the 17 counties from

which the species was previously

reported (Adams, Berks, Bucks, Chester,

Cumberland, Franklin, Lancaster,

Lebanon, Lehigh, Monroe, Montgomery,

Northampton, and York). Of the 34

remaining sites evaluated, 2 sites are

considered good, 8 fair, and 24 poor.

Approximately 85 percent of the bog

turtle habitat is found on private lands,

with the remainder occurring on State

and Federal lands (10 percent and 5

percent, respectively) (Barton, in litt.

1994). In addition, between 1994 and

1996, nine new sightings were reported

from Berks, Chester, and Northampton

counties. These sites have yet to be

evaluated; however, some appear to be

small and marginal in quality.

The extent of the captive bog turtle

population is poorly documented at this

time, with the exception of bog turtles

held by zoological institutions.

According to data from the International

Species Information System (ISIS), 102

bog turtles are currently held by 16 zoos

in the United States; 64 percent of these

turtles are captive born and 24 percent

wild born (Judy Hendrickson, ISIS, in

litt. 1997). Only a few people within the

range of the northern and southern

populations have valid State permits to

possess bog turtles or conduct studies of

wild turtles. Although the full extent of

the illegally-held bog turtle population

is unknown, based on evidence of

collection and trade (see the ‘‘Summary

of Factors’’ section), it is likely to greatly

exceed that of the legally-held

population.

Based on documented losses of bog

turtles and their habitat, the northern

population has declined by at least 50

percent, with most of the decline

occurring over the last 20 years. Habitat

destruction and illegal collecting for the

pet trade are the primary threats to the

species. Widespread alteration of bog

turtle habitat has resulted from the

draining, ditching, dredging, filling, and

flooding of wetlands for residential,

urban, and commercial development;

road construction; agricultural

activities; and pond and reservoir

construction. The proximity of many

remaining bog turtle populations to

rapidly developing areas also poses a

significant threat to the species.

Previous Federal Action

The bog turtle was first recognized as

a Category 2 candidate species by the

Service in the December 30, 1982,

Federal Register notice of review (47 FR

58454). It was later retained as a

Category 2 species in subsequent notices

of review (60 FR 37958, September 18,

1995; 54 FR 554, January 6, 1989; and

56 FR 58804, November 21, 1991).

Reclassification of the bog turtle to

Category 1 was reflected in the

November 15, 1994, animal notice of

review (59 FR 58982). On February 28,

1996 (61 FR 7457), the Service

published a notice of review that no

longer included species formerly

referred to as Category 2 candidate

species. The notice revised the

definition of the term ‘‘candidate’’ as

taxa for which the Service has on file

sufficient information on biological

vulnerability and threats to list them as

endangered or threatened species. The

northern population of the bog turtle

was included as a candidate in this

February 28 notice of review. On

January 29, 1997, the Service published

a proposed rule in the Federal Register

(62 FR 4229) to list the northern

population of the bog turtle as

threatened and the southern population

as threatened due to similarity of

appearance.

The processing of this final rule

conforms with the Service’s listing

priority guidance published in the

Federal Register on December 5, 1996

(61 FR 64475). The guidance clarifies

the order in which the Service will

process rulemakings following two

related events: (1) the lifting, on April

26, 1996, of the moratorium on final

listings imposed on April 10, 1995

(Public Law 104–6), and (2) the

restoration of significant funding for

listing through enactment of the

omnibus budget reconciliation law on

April 26, 1996, following severe funding

constraints imposed by a number of

continuing resolutions between

November 1995 and April 1996. The

guidance calls for giving highest priority

to handling emergency situations (Tier

1) and second highest priority to

resolving the listing status of

outstanding proposed listings (Tier 2). A

lower priority is assigned to resolving

the conservation status of candidate

species and processing administrative

findings on petitions to add species to

the lists or reclassify species from

threatened to endangered (Tier 3). The

lowest priority is given to processing

critical habitat determinations,

delistings, and other reclassifications

(Tier 4). Processing of this final rule is

a Tier 2 action since it resolves the

conservation status of a proposed

species.

In 1975, the bog turtle was added to

Appendix II of the Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

(CITES) in order to monitor trade in the

species. In 1991, the New York

Zoological Society submitted a proposal

to the Service requesting the transfer of

the bog turtle from Appendix II to

Appendix I of CITES (Anon. 1991). In

response to a notice (56 FR 33895; July

24, 1991) calling for changes to the

CITES Appendices, a total of 13

comments were received concerning the

bog turtle proposal. All commenters

recommended transferring the bog turtle

from Appendix II to Appendix I due to

the increased number of bog turtles

being advertised for sale, the increased

price being paid for individuals and

pairs, and illegal trade not being

reported under CITES. In the March 4,

1992, Federal Register notice (57 FR

7722), the Service announced that the

party members to CITES agreed to

transfer the bog turtle from Appendix II

to Appendix I; and on June 11, 1992, the

species was officially added to

Appendix I.

Summary of Comments and

Recommendations

In the January 29, 1997, proposed rule

and associated notifications, all

interested parties were requested to

submit factual reports or information

that might contribute to the

development of a final rule. Appropriate

Federal and State agencies, county

governments, scientific organizations,

and other interested parties were

contacted and requested to comment.

Notices were published in newspapers

across the range of the species inviting

public comment.

On March 14, 1997, the Service

received a written request for a public

hearing from Mr. Gary Hoffman, Chief

Engineer for the Pennsylvania

Department of Transportation

(PennDOT). As a result, on April 3,

1997, the Service published a notice in

the Federal Register (62 FR 15873)

announcing the public hearing. The

Service conducted a public hearing on

April 21, 1997, at the Oley High School

in Oley, Pennsylvania. Testimony was

taken from 7:00 to 9:00 p.m. (Eastern

Standard Time). Thirty-two of the

approximately 200 people attending the

hearing presented testimony. During the

comment period, the Service received

237 comments (letters and oral

testimony) from 15 State agencies; 6

local governments; and 216 individuals,

groups, and organizations. Eight

opposed, 218 supported, and 11 were

neutral on the proposed action.

The Service has reviewed all of the

written and oral comments received

during the comment period. Some

comments dealt with matters of opinion

or issues unrelated to the question of
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59609

listing, and are, therefore, not addressed

as part of this rulemaking. Comments

updating the data presented in the

‘‘Background’’ or ‘‘Summary of Factors

Affecting the Species’’ sections are

incorporated into those sections of this

final rule. Opposing comments and

other substantive comments concerning

the rule have been organized into

specific issues, which may be

paraphrased. Comments of a similar

nature are grouped together by issue.

These issues and the Service’s response

to each are summarized as follows.

Issue 1

Two commenters thought the Service

should consider economic impacts

when listing species. One commenter

further contended that ‘‘all state and

federal actions designed to protect

alleged threatened and/or assumed

endangered species pursuant to the ESA

should demonstrate that the benefits to

humans exceed the costs to humans.’’

Service Response: Under section

4(b)(1)(A) of the Act, a listing

determination must be based solely on

the best scientific and commercial data

available. The legislative history of this

provision clearly states the intent of

Congress to ‘‘ensure’’ that listing

decisions are ‘‘based solely on biological

criteria and to prevent non-biological

criteria from affecting such decisions’’

(H.R. Rep. No. 97–835, 97th Cong., 2d

Sess. 19 (1982)). As further stated in the

congressional report, ‘‘economic

considerations have no relevance to

determinations regarding the status of

species.’’ Because the Service is

specifically precluded from considering

economic impacts in a final decision on

a proposed listing, the Service did not

consider the possible economic

consequences of listing the bog turtle.

Issue 2

Two commenters contended that the

Service did not provide adequate

opportunity for public comment, and

should therefore consider extending the

comment period and holding additional

public hearings.

Service Response: The Service went

through an extensive notification

process to make the public aware of the

proposal, including Federal Register

notification, letters to specific

concerned parties, and notifications to

local newspapers. In order to increase

the opportunity for public comment, the

Service had a 90-day comment period

on the proposed rule, although only a

60-day comment period is required. In

response to a request by the PennDOT,

the Service also held a public hearing

within the core of the bog turtle’s range

in Pennsylvania. These processes were

described at the beginning of this

section.

Issue 3

One commenter requested additional

information regarding the scientific

basis for identifying a species as

federally threatened when the species is

not considered threatened throughout

its entire biological range.

Service Response: The Endangered

Species Act requires the Secretary of the

Interior (or Commerce, depending on

jurisdiction) to determine whether

species are endangered or threatened. A

‘‘species’’ as defined under the Act

includes species, subspecies and ‘‘any

distinct population segment of any

species of vertebrate fish or wildlife

which interbreeds when mature.’’ From

a biological perspective, the Act

supports the goals of conserving genetic

resources, and maintaining natural

systems and biodiversity over a

representative portion of a species’

historical occurrence. In that respect,

the listing of DPS’s may allow the

Service to protect and conserve species

and the ecosystems upon which they

depend before a large-scale decline

occurs that would necessitate listing a

species throughout its entire range. This

may allow protection and recovery of

declining organisms in a more timely

and less costly manner, and on a smaller

scale than the more costly and extensive

efforts that might be needed to recover

an entire species.

Issue 4

One commenter alleged that the

northern population of the bog turtle is

not a DPS as defined by Service policy,

partially due to the lack of documented

genetic differences between the

northern and southern populations.

Service Response: According to the

Service’s policy on Distinct Population

Segments (61 FR 4725), three elements

are considered regarding the potential

recognition of a DPS as endangered or

threatened—(1) discreteness of the

population segment in relation to the

remainder of the species to which it

belongs; (2) the significance of the

population segment to the species to

which it belongs; and (3) the population

segment’s conservation status in relation

to the Act’s standards for listing.

With respect to the bog turtle, the

northern population meets the

‘‘discreteness’’ criterion in that it is

markedly separated from the southern

population by a distance of

approximately 250 miles. Evidence of

such discreteness may include genetic

or morphological differences, but this is

not a requirement. The northern

population of the bog turtle meets the

‘‘significance’’ criterion because loss of

this DPS, which occurs in seven States

and represents over 50 percent of the

species’ range, would result in a

significant void in the range and

distribution of the species. The ‘‘status’’

criterion is met in that the northern

population of the bog turtle, when

evaluated with respect to the Act’s

listing factors (see the ‘‘Summary of

Factors Affecting the Species’’ section),

qualifies for listing as threatened.

Issue 5

With regard to habitat loss, one

commenter questioned whether the

Service had historical data on habitat,

populations, and the species’ range, or

only considered information from the

past 20 years, which may represent an

artificial baseline and an ‘‘unusual

period in the species’ natural history.’’

In considering the species historical

baseline, this commenter questioned

whether bog turtles may have occurred

over a smaller range in the distant past,

but later followed deforestation into

open areas and livestock pastures along

floodplains.

Service Response: In assessing the

status of the bog turtle, the Service

reviewed the best available information

regarding populations, past and present

distribution, and habitat loss.

Information provided by State wildlife

agencies, natural heritage programs,

researchers, and others dated back to the

late 1800’s, and indicated a reduction in

range, and loss of habitat and

populations over this period of time,

with the documented loss dramatically

accelerating over the past 20 years. In

this respect, the past 20 years may

represent an unusual period in the

species’ natural history—a period of

unprecedented decline.

Bog turtles inhabit open canopy

wetlands, a habitat type which was

more common historically than today

because (1) historically, the ecological

factors of fire and beaver activity were

unimpeded in creating and maintaining

these areas, and (2) since the 1800’s,

wetland draining, dredging, and filling

have become a prevalent practice of

land conversion for development,

agriculture, and resource extraction. Bog

turtles are occasionally found in grazed

wet pastures, and it has been suggested

that in precolonial times the grazing

activities of large herbivores, such as

bison and elk, may have been important

in maintaining bog turtle habitat (Lee

and Norden 1996). Thus, the occurrence

of bog turtles in wetlands lightly grazed

by livestock is probably an instance

where grazing by livestock has replaced

grazing by native herbivores, or replaced

one of the other historical factors that
59610 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

would have acted to maintain the

wetlands in an early successional stage.

Issue 6

One commenter suggested that the

decline in bog turtle habitat may be due

to farm pastures evolving into habitat

areas unsuitable for bog turtles.

Service Response: Bog turtles are

occasionally found in grazed wet

pastures, and vegetative succession in

these habitats is a contributing factor,

though not the only factor, to the

species’ decline. Light to moderate

grazing may impede vegetative

succession by preventing or minimizing

the encroachment of invasive native and

exotic plant species, and it appears that

this level of grazing helps to maintain

the intermediate stage of succession

required by the bog turtle (Smith 1994,

Tryon 1990). When grazing is

discontinued the habitat becomes less

suitable (or unsuitable) due to

succession.

Issue 7

Three commenters requested that the

Service delay or not list the bog turtle

due to an insufficient amount of data to

justify listing. One commenter alleged

that a single modeling study (i.e., the

assessment of sites using the

‘‘Standardized Bog Turtle Site-quality

Analysis’’) rather than a sufficient

number of diverse studies were used to

support the listing. This commenter also

contended that the information used to

justify the listing was not adequate

because the Service did not cite any

studies that might question the validity

of the proposal, and that where there are

data gaps, the Service must complete

studies to close those gaps. No data or

studies were provided or cited by these

commenters supporting their assertion

that the information utilized by the

Service was incomplete or incorrect.

Expressing a contrary view, peer

reviewers and several other biologists

familiar with the species stated that the

Service had clearly documented the

species status and threats to its

existence, and concurred that listing

was warranted.

Service Response: The Service

concludes, as detailed in the

‘‘Background’’ and ‘‘Summary of Factors

Affecting the Species’’ sections, that

there are sufficient biological data to

warrant listing of the bog turtle under

the Act. Information, studies, field data,

and site analyses provided by biologists,

law enforcement personnel, and others

familiar with the bog turtle and its

habitat provided adequate information

on the distribution, habitat

requirements, and, most importantly,

threats to the bog turtle to warrant the

present action. The listing process

includes an opportunity for the public

to comment and provide information

that is evaluated and considered by the

Service before making a final decision.

The additional data provided by

respondents during the comment

period, and other appropriate

information available to the Service

have been incorporated into this final

rule; none of these data indicated that

this taxon is not threatened.

Issue 8

Two commenters contended that the

Service has insufficient population data

to justify listing the bog turtle.

Service Response: The Service agrees

that estimates of total population are

lacking for this species; however, the

Service considered several additional

factors that are also important in

developing a biologically accurate

species status assessment. The

biological security of many declining

species is more a function of the number

of healthy local populations than the

total number of individuals in the wild.

In addition to considering the number of

sites and subpopulations comprising the

northern population, the Service also

considered factors such as the size of

existing subpopulations, historical and

current rates of decline, the species’ low

recruitment potential, distribution and

proximity of subpopulations, quantity

and quality of available habitat, genetic

diversity, and imminent and potential

threats to the species and its habitat.

Therefore, although quantitative

sampling has not been completed

throughout the range of the bog turtle,

pertinent and significant information

regarding the other aspects of the

species’ status is available. The

decreasing number of bog turtle sites

and the quality of these remaining sites

throughout the species’ historical and

current distributions are a more accurate

reflection of the turtle’s status than are

rough estimates of the total number of

bog turtles. When all of these factors are

considered for the bog turtle, it is clear

that listing is warranted.

Issue 9

Seven commenters questioned or

criticized the use of a model (i.e., the

‘‘Standardized Bog Turtle Site-quality

Analysis’’) to assess bog turtle sites,

claiming that such evaluations are

qualitative and subjective, and that such

assessments should be based on field

data. One commenter requested

additional information regarding the

methods and data used to characterize

sites.

Service Response: Extensive surveys

of potential wetland habitats have been

conducted for bog turtles within the

range of the northern population. Most

of these surveys were designed to

primarily document bog turtle presence,

not to evaluate habitat quality, threats,

or population demography. Merely

knowing the total number of occupied

bog turtle sites did not allow the Service

to adequately assess the status of this

species, however. Therefore, a

‘‘Standardized Bog Turtle Site-quality

Analysis’’ was developed by Dr.

Michael Klemens in conjunction with

other bog turtle researchers to

qualitatively assess the capacity of sites

to maintain viable populations of bog

turtles. The Service requested that State

wildlife agencies, natural heritage

programs, and researchers evaluate

known bog turtle sites using this site

analysis protocol. The evaluators used

site-specific information on habitat

conditions and threats obtained from

field investigations and maps. Using

these data, each site received a

numerical score ranging from one to five

for each of four factors, including—(1)

habitat size and degree of fragmentation;

(2) percent coverage of invasive plants

and later successional species; (3)

proximity of major threats (e.g., wetland

alteration via ditching, draining, filling,

or excavation); and (4) the type and

extent of land use within a one-mile

radius of the site. When available, data

on population size and recruitment

were also used. Although qualitative in

nature, the Service believes that this

method presented a more objective

approach to assessing the status of the

bog turtle than simply looking at the

total number of sites, without regard to

habitat quality and threats. The methods

and site data are contained within the

administrative file (see ADDRESSES

section).

Issue 10

Two commenters questioned whether

certain factors (i.e., predation, flooding

of habitat by beaver, mortality due to

vehicles and livestock, and pollution)

pose a sufficient threat to justify listing.

Service Response: Although these

factors pose a significant threat to

several known bog turtle sites, none of

them, when considered alone, poses a

sufficient threat to the northern

population to justify listing. When

making a listing determination,

however, the Service assesses the

potential impact of all threats to the

species. Although listing of a species

might not be justified based upon a

single factor, when all factors are

considered collectively, the threat may

be substantial enough to warrant listing.

Such is the case for the bog turtle (see
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59611

the ‘‘Summary of Factors Affecting the

Species’’ section).

Issue 11

One commenter felt that the Service

relied almost exclusively on previous

habitat loss to justify the listing, rather

than focusing on the present or

threatened destruction, modification, or

curtailment of the species’ habitat.

Service Response: The Service

considers a variety of factors in making

a listing determination. Although

historical habitat loss and rates of

decline are considered during the

species’ status assessment, many other

factors, including current rates of

decline, potential and imminent threats,

number and status of populations, and

amount and quality of remaining

habitat, are evaluated as well. Historical

habitat loss and rates of decline are

utilized by the Service to ascertain if a

species is undergoing a precipitous or

gradual decline. The Service considered

the historical trend information in

combination with all other information

to determine whether listing was

warranted.

Issue 12

One commenter questioned whether it

was warranted to list the bog turtle in

the north if most of the trade occurs in

the south, where the species is not

threatened.

Service Response: Trade occurs in the

range of the northern population and

poses a threat to the northern

population, as documented under factor

‘‘B’’ in the ‘‘Summary of Factors

Affecting the Species’’ section. When

considered in conjunction with the

other factors affecting the species,

listing of the northern population is

warranted.

Issue 13

Two commenters questioned the

degree of threat posed by illegal

collecting. Specifically, one commenter

did not believe that over 2000 bog

turtles had been shipped overseas for

trade, thinking the number more likely

to be 20. Another commenter contended

that the Service’s ‘‘inference that

demand for turtles is increasing simply

because the price is increasing is

questionable.’’ Neither commenter

supplied the Service with any data or

further information to substantiate these

assertions.

Service Response: Considering the

number of bog turtles that have been

found in the possession of individual

collectors, the Service has no reason to

discount the overseas trade information.

The Service’s inference about price and

demand for turtles is based on the

Service’s experience with other species

vulnerable to trade. This inference is

also based upon principles of economics

(when supply does not meet demand,

price increases); increasing prices for

bog turtles likely mean that demand is

increasing while the supply of wild bog

turtles is decreasing.

Threats from illegal collection are

real. Because bog turtles are not

uniformly distributed over their range,

collecting is often focused on a known

source or site, thereby threatening the

entire population at the site with

extirpation. Listing pursuant to the Act

will close the loopholes in the various

existing protective laws and make it

easier to prove illegal collecting

activities.

Issue 14

Six commenters questioned the

Service’s assertion that existing

regulations are inadequate to protect the

bog turtle. They argued that Federal

listing is unnecessary and redundant

because the bog turtle is already

protected as a State-listed species. Two

of these commenters argued that

existing wetland regulations are

adequate to protect the bog turtle.

Expressing a contrary position, 38

commenters (including all peer

reviewers) noted that Federal, State, and

local laws have been ineffective in

providing protection for the bog turtle

and its habitat. Several commenters

noted that bog turtle habitat is

particularly vulnerable due to various

provisions of Federal and State wetland

regulations, including agricultural

exemptions, general permits, and

nationwide permits. Referring to

Pennsylvania’s wetland permitting

program, the Monroe County

Conservation District noted that

‘‘tracking of the state’s program

demonstrates that permits are generally

being issued as requested which will

further fragment habitat locally over

time.’’ Another commenter noted that

between 1988 and 1996, 1181 actions

were authorized through general

permits, and none were denied in 3

Pennsylvania counties inhabited by bog

turtles. Several commenters noted that

State endangered species laws are

ineffective in deterring collection and

trade.

Service Response: Based on an

examination of the available

information, the Service has determined

that proposed and on-going damage or

destruction of wetlands due to

development and agriculture throughout

the range of the northern population is

prevalent despite existing Federal, State,

and local regulations, and that existing

levels of protection are not adequate to

assure the survival of the bog turtle. In

addition, although the bog turtle is

State-listed throughout its range, State

laws are not sufficient or able to address

the threats of collection and trade. For

example, some State law penalties are

not as stringent as others, and law

enforcement priorities vary between

States. A more detailed discussion of

the inadequacy of existing regulations

can be found under the ‘‘Summary of

Factors Affecting the Species’’ section.

Listing pursuant to the Act will provide

consistency by providing a uniform

regulation that applies across all States.

Issue 15

Two commenters questioned the

reliability of surveys in concluding that

previously occupied sites were no

longer occupied by bog turtles.

Specifically, one commenter did not

believe that the number of extirpated

populations was as high as reported. He

noted that surveyors are not always

successful in locating bog turtles, even

in wetlands where turtles are known to

occur. Another commenter contended

that some sites may no longer exist, but

this ‘‘may only be due to the bog turtle

populations moving to another site.’’

Service Response: The Service, State

wildlife agencies, and bog turtle

researchers recognize the difficulties

associated with conducting bog turtle

surveys; even under the best conditions,

bog turtles can be difficult to locate. For

those previously documented bog turtle

sites that still bore evidence of

potentially suitable habitat, repeated

surveys were conducted by qualified

surveyors before concluding that bog

turtles were indeed extirpated from the

site.

Although historically bog turtles

probably moved from less suitable

wetlands (e.g., those undergoing

succession) to more suitable wetlands

(e.g., those recently formed, or where

succession was set back by natural

processes), it is much less likely that

such movements would be successful

today. Bog turtle habitats are now highly

fragmented, making successful

immigration and emigration difficult

due to loss of wetland travel corridors,

and the prevalence of roads,

subdivisions, and agricultural land near,

and often encircling, many sites. In

addition, more habitat is becoming

unsuitable, and fewer potentially

suitable wetland sites are becoming

available because those natural

processes that served to maintain and

create bog turtle habitat have been

suppressed or are no longer operative

(see the ‘‘Summary of Factors Affecting

the Species’’ section).
59612 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

Issue 16

One commenter questioned the

thoroughness and geographic extent of

the surveys that had been conducted for

the species range-wide, including the

area between the currently known

northern and southern populations.

Service Response: Prior to preparation

of the proposed rule, the Service

assessed the status of the northern and

southern populations. At that time, the

Service queried State wildlife agencies,

natural heritage programs, and bog

turtle researchers about the adequacy of

surveys conducted to date. Based on

their responses, approximately 10 to 20

percent of the potentially suitable bog

turtle habitat within the northern range

remains to be surveyed. Surveys of

potential bog turtle habitat continue in

most of the northern range States.

Survey coverage is much less complete

in the southern range States,

particularly in North Carolina and

Virginia, where less than 50 percent of

the potentially suitable habitat has been

surveyed. A comprehensive survey of

the southern population is currently

underway, as discussed under Issue 20.

Numerous herpetological surveys have

failed to locate bog turtles between the

northern and southern populations.

Issue 17

The PennDOT proposed that a task

force be established to develop a

candidate conservation agreement for

the bog turtle, rather than list the

species. The PennDOT felt such an

agreement would provide a greater

benefit to the species than listing, while

at the same time minimizing Federal

intervention, and provide regulatory

relief should the species be listed in the

future. The PennDOT also indicated that

they would be precluded from pursuing

proactive efforts to conserve the bog

turtle after listing occurs.

Service Response: Candidate

conservation agreements are formal

agreements between the Service and one

or more parties (i.e., land owners, land

managers, or State fish and wildlife

agencies) to address the conservation

needs of proposed or candidate species.

The participants take on the

responsibility of developing the

agreement, and voluntarily commit to

implementing specific actions that will

remove or reduce the threats to the

subject species, thereby contributing to

stabilizing or restoring the species.

Conservation benefits to the species may

include an increase in habitat

connectivity, restoration or

enhancement of habitats, maintenance

or increase of population numbers or

distribution, and establishment of

buffers for protected areas. The ultimate

goal of any candidate conservation

agreement is to remove threats to the

species thereby eliminating the need for

listing under the Act.

In order to preclude the need for

listing the bog turtle, a sufficient

number of candidate conservation

agreements would have to be developed

and implemented throughout the sevenState range of the northern population

to remove enough threats for the Service

to conclude that the bog turtle is no

longer in need of protection under the

Act. The Service has not been

approached by any property owners,

land managers, or State wildlife

agencies regarding development of

candidate conservation agreements.

Also, although the PennDOT suggested

the development of such an agreement,

they have not proposed a specific plan,

nor would they have control over

implementation of such a plan since

they do not own or manage land

containing any known bog turtle sites.

Most State wildlife agencies within

the range of the northern population

have expressed support for Federal

listing of the bog turtle, often citing the

vulnerability of the species to illegal

collection and the need for Federal

listing to address this threat. Because

candidate conservation agreements

would be unable to address the

significant threats of trade and illegal

collection, their implementation would

not preclude the need to list the bog

turtle under the Act.

Regarding implementation of

proactive efforts to conserve bog turtles,

these efforts would be encouraged, not

precluded, by the Service after listing.

Because the bog turtle occurs primarily

on private property, the Service fully

realizes that recovery of this species will

depend upon the voluntary cooperation

of private landowners, and welcomes

them as partners in the recovery effort.

The Service will work to provide

technical assistance to those property

owners and land managers who wish to

implement conservation measures for

this species.

Issue 18

Forty-one commenters (including two

peer reviewers) recommended that the

Service list the northern population as

endangered rather than threatened.

Although little additional information

was offered by these commenters to

support the change in status, some

argued that the threats (particularly the

inadequacy of existing regulations) were

substantial enough to support such a

listing. Others contended that the

information in the proposed rule

supported an endangered listing, or felt

that the species would receive better

protection if designated as endangered.

The Tortoise and Freshwater Turtle

Specialist Group of the International

Union for the Conservation of Nature

(IUCN) commented that they recently

evaluated the status of the bog turtle and

added it as ‘‘endangered’’ to their 1996

IUCN Red List. Based on the

information in the proposed rule, as

well as their extensive knowledge of the

species and threats to its survival, they

concluded that the northern population

should be federally listed as

endangered.

Service Response: Based on the

available information on the bog turtle’s

status, and a careful assessment of

threats, the Service proposed the bog

turtle for listing as threatened. Although

the northern population of the bog turtle

faces serious ongoing and potential

threats, it is not currently in imminent

danger of extinction. Although some

additional data on threats and the

species’ status were received during the

public comment period, these data did

not justify a change in the proposed

classification of threatened. The Service,

therefore, still believes that a listing of

threatened is appropriate for the

northern population.

Issue 19

One commenter stated that listing of

the southern population must be based

on more than its similar physical

appearance to the northern population.

Service Response: Listing of the

southern population as threatened due

to similarity of appearance is based

upon more than its similar physical

appearance to the northern population,

as detailed in the proposed rule and this

final rule (see ‘‘Similarity of

Appearance’’ section).

Issue 20

The Service received 10 comments

disagreeing with the proposed listing of

the southern population as threatened

due to similarity of appearance. Four

commenters recommended listing the

bog turtle as threatened or endangered

in Georgia, Tennessee, and/or South

Carolina, specifically excluding North

Carolina and Virginia. Six commenters

recommended listing the entire

southern population as threatened or

endangered. In addition, one commenter

stated that the Service has insufficient

data on the southern population to say

that it is not biologically threatened or

endangered at this time.

Service Response: The northern and

southern populations of the bog turtle

can each be considered a DPS under the

Service’s DPS Policy (see discussion

under Issue 4). However, while both
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59613

populations meet the ‘‘discreteness’’

and ‘‘significance’’ criteria under this

policy, the Service only has sufficient

status and threat data on the northern

population to justify its listing.

Prior to proposing the northern

population of the bog turtle for listing,

the Service conducted a status review of

both the northern and southern

populations. Several factors weighed

into the Service’s decision not to

propose the southern population for

listing, including—(1) the recent

discovery of bog turtle sites in the

Piedmont physiographic province of

North Carolina, well outside the species’

previously known Appalachian

Mountains range; (2) limited

information regarding threats; and (3)

inadequate survey coverage within the

southern range. A comprehensive status

survey of the southern population is

currently underway and is anticipated

to be completed by December 1999. The

Service agrees that it is premature to

draw any conclusions regarding the

status of the southern population until

additional survey and threat

information becomes available.

Although the Service could have

delayed action on the northern

population until such time that

additional data became available on the

southern population, such an action

would have been irresponsible

considering the northern population

faces documented and substantial

threats, and forthcoming data on the

southern population may or may not

demonstrate that it qualifies for Federal

listing.

Federal listing of only a portion of the

southern population (e.g., bog turtles

occurring in Georgia, South Carolina,

and Tennessee) is not appropriate

because subpopulations do not qualify

as legitimate listing entities (i.e., DPS’s)

under the Service’s DPS Policy. Also,

boundaries between States are not

considered when determining whether a

population is ‘‘discrete’’ under the DPS

Policy.

Issue 21

Five commenters expressed concerns

that listing of the southern population

as threatened due to similarity of

appearance will result in intentional

destruction of bog turtle habitat by

landowners who fear the potential for

future listing, who don’t understand

what the similarity of appearance listing

means, or who don’t believe that the

southern population will be regulated

differently from the northern

population. Some of these commenters

were also concerned that the special

rule exempting incidental take would

further contribute to loss of bog turtle

habitat in the southern range.

Service Response: The Service

recognizes that it has a responsibility to

conduct outreach activities to ensure

that the public understands the

implications of the similarity of

appearance listing for the southern bog

turtle population. Because bog turtle

collection and trade are already

prohibited acts under State law

throughout the southern range, Federal

listing will have no effect on

landowners within the southern range

unless they are engaged in these already

illegal activities. Wanton destruction of

bog turtle habitat within the southern

range, however, could precipitate the

action that these landowners would

most like to avoid (i.e., Federal listing

of the southern population).

While the special rule for the

southern population does exempt

incidental take, this does not mean that

the Service condones the destruction of

bog turtle habitat in the southern range.

The Service recognizes that the bog

turtle is State-listed in all five southern

range States, and hopes that land

owners, land managers, and Federal,

State and local agencies will take this

into account and give the species the

full consideration it deserves when

planning and implementing projects.

Issue 22

The Connecticut Farm Bureau

Association presented information

which they felt contradicted the

Service’s assertion that deleterious

agricultural practices are affecting the

bog turtle. They stated that ‘‘according

to USDA/NARCS data, between 1982

and 1992, the amount of cropland still

requiring conservation treatment

declined by nearly a quarter. Pasture

and forest acres needing conservation

treatment also declined between 1982

and 1992.’’

Service Response: While the

information presented may reflect

positive national trends in soil

conservation, it also implies that

progress is slow and incomplete (i.e., in

10 years, less than 25 percent of the

land needing conservation treatment

received such treatment). It also does

not contradict available information on

known and potential threats to bog

turtles posed by agricultural activities,

including conversion of wetlands to

farm ponds; heavy grazing; hydrological

alteration of wetlands (e.g., draining,

ditching); and chemical and sediment

input to wetlands.

Issue 23

Seven commenters criticized the

Service’s decision not to designate

critical habitat for the bog turtle. Three

of these commenters felt that the

additional protection and recovery

benefits afforded by such designation

would outweigh the potential risk from

increased collecting. Four commenters

who opposed the listing stated that the

Service’s failure to identify critical

habitat would mean that landowners

could be found in violation of the Act

without knowledge of where the

species’ habitat is located. They also

contended that landowners have a right

to know how the listing will affect use

of their property.

Expressing a contrary view, several

commenters concurred with the

Service’s decision not to designate

critical habitat, citing the threat posed

by illegal collection and the pet trade.

Service Response: The Service

maintains that the risks associated with

designation of critical habitat for the bog

turtle outweigh any benefits of such

designation. Once sites become publicly

known, they can be quickly exploited by

collectors; exploitation of sites by

collectors soon after the sites had

become publicly known has been

documented. Due to the small size of

existing populations and the low

reproductive and recruitment potential

of this species, the removal of even a

few breeding adults can do irrevocable

damage to a population. Therefore, due

primarily to the threat of illegal

collection, the Service concludes that

designation of critical habitat is not

prudent, as discussed in detail in the

‘‘Critical Habitat’’ section of this rule.

The Service appreciates the concern

that landowners have about the

potential implications of having a

federally listed species on their

property. Therefore, in order to increase

awareness of the effect of listing on

proposed and ongoing activities, and

minimize the likelihood of landowners

unknowingly affecting listed species

and their habitat, the Service has

identified those activities that would or

would not constitute a violation of

section 9 of the Act, as detailed in the

‘‘Available Conservation Measures’’

section. Questions regarding whether

specific activities may constitute a

violation of section 9 should be directed

to the appropriate Service Field Office.

In addition, based on information

provided by State wildlife agencies and

natural heritage programs, the Service

notified persons (within the northern

range States) having known bog turtle

habitat on their property about the

proposed rulemaking, and will notify

these landowners about the final listing

as well.
59614 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

Issue 24

One commenter noted that some bog

turtles are legally possessed by

Maryland citizens as grandfathered

animals (i.e., they were in possession

prior to State listing), and questioned

whether it would be a violation of

section 9 to possess these turtles.

Service Response: The Service would

not consider it a violation of section 9

for a person to possess bog turtles, if at

the time of Federal listing, those bog

turtles were legally in their possession

under a permit or other provisions (e.g.,

‘‘grandfathering’’ provisions) of State

law. Documentation (e.g., valid State

permit) is recommended to serve as

proof of legal possession. However, as

with other listed species, a

‘‘grandfathered’’ bog turtle or its

progeny cannot be sold in interstate

commerce.

Issue 25

One commenter noted that the market

value of the bog turtle will increase once

the species is listed, which will likely

lead to increased take from the wild.

They recommended that the Service

address this concern by either

enhancing law enforcement activities, or

allowing for the legal trade of captivelyproduced bog turtles to meet market

demand.

Service Response: Although Federal

listing of the bog turtle may increase its

market value, it is unclear whether this

will result in increased collection

pressure. The Service recognizes that

Federal listing of the bog turtle may

serve as a deterrent to some collectors.

The subsequent smaller market source

for bog turtles would increase the

vulnerability of large-scale illegal

operations to exposure. Fortunately,

public awareness about the plight of this

species has increased dramatically since

the proposed rulemaking. This has

prompted some citizen groups to

establish surveillance at bog turtle sites

to protect the turtles from collection.

The Service applauds the efforts of these

groups, and recognizes that concerned

citizens, landowners, and State law

enforcement personnel have a vital role

to play in protecting this vulnerable

species from collection. The Service

anticipates that its law enforcement

efforts will increase as well in response

to the Federal listing of the bog turtle.

The Service believes that if trade in

captive-produced bog turtles were

allowed, it would pose a significant

threat to wild bog turtles. We have

noted that despite State-listing

throughout its range, and the existence

of some captive breeding stock, bog

turtles are still being collected from the

wild. Also, considering the low

reproductive potential of the species

and the small number of bog turtles

known to be legally in captivity, it is

unlikely that there are enough bog

turtles in captivity to legally supply the

market demand. If trade were legalized

and the demand could not be met by

captive-produced turtles, it is very

likely that turtles would be taken from

the wild for direct sale and for use as

breeders. In addition, it would be

difficult, if not impossible, to devise a

process that would preclude the

possibility of substituting wild-caught

turtles or eggs for those claimed to be

captive-produced. Finally, it would be

extremely difficult to prosecute a case of

illegal take unless the actual taking from

the wild was observed or extensive

circumstantial evidence was available.

Based on these factors, the Service

believes that legalizing trade in bog

turtles would be inconsistent with the

Service’s responsibilities to conserve,

protect, and recover this species under

the Act.

Issue 26

One commenter recommended that

the Service define ‘‘heavy grazing’’ if

violations of section 9 due to heavy

grazing are foreseen. Several other

commenters stressed the importance of

light to moderate grazing in maintaining

bog turtle habitat in an early

successional stage, thereby preventing

canopy closure and minimizing

encroachment of invasive native and

exotic plant species.

Service Response: The Service

recognizes both the risks and the

benefits associated with livestock

grazing of bog turtle habitat. Where light

to moderate grazing serves to maintain

the suitability of bog turtle habitat, the

benefits of grazing are likely to outweigh

the risks (e.g., trampling of bog turtles

or their nests, and nutrient input from

animal excrement). Heavy grazing,

however, is detrimental to bog turtles

and their habitat. At the extreme, it is

recognized by closely cropped

vegetation and exposed soil (e.g.,

denuded, compacted or muddy) due to

trampling and overgrazing. Due to the

damage inflicted upon pasture land,

heavy grazing is probably not a

desirable or sustainable land use

practice.

The Service recognizes that the terms

light, moderate, and heavy grazing are

subjective; however, at this time the

Service is unable to quantify these terms

with respect to potential positive and

negative effects to bog turtles and their

habitat. The Service looks forward to

working cooperatively with the

agricultural community, researchers,

and others to determine what levels of

grazing (e.g., animal densities, seasons,

rotations, etc.) are most beneficial to bog

turtles.

Issue 27

One commenter requested that if the

Service proceeds with listing,

information should be included with

the listing to identify which population

and/or habitat criteria must be met for

the species to be considered no longer

threatened.

Service Response: This type of

information is not included in the

listing; however, it will be included in

the species’ recovery plan. Recovery

plans, which are developed after a

species is listed, identify delisting

criteria and the tasks which must be

implemented to achieve recovery.

Peer Review

In conformance with Service policy

on information standards under the Act

(59 FR 34270; July 1, 1994), the Service

solicited the expert opinions of three

appropriate and independent specialists

(Dr. Michael Klemens; Dr. Joseph

Mitchell; and Dr. C. Kenneth Dodd, Jr.)

regarding issues and assumptions

relating to the biological and ecological

information in the rule, and scientific

data relating to the factors for listing.

Comments received from these

reviewers were supportive of Federal

listing of the northern population.

Dr. Klemens indicated that the

Service had conducted a ‘‘thorough

analysis of the biological, ecological,

and commercial issues that threaten this

turtle,’’ and had accurately depicted the

conservation status and viability of the

northern population. He also thought

that the species had surpassed the

threshold of threatened and should be

listed as endangered (see Issue 18 for

the Service’s response), based on the

Service’s data, his professional opinion,

and ‘‘given the alarming drop in both

suitable habitat and viable

populations.’’ He stated that the

prognosis for the northern population

‘‘is very poor if this species is reliant

upon the varied habitat and take

protection offered by the range States

and the total absence of protection from

commercial exploitation afforded by the

non-range States.’’ He concurred that

designation of critical habitat is not

prudent. With regard to the southern

population, he (1) concurred with its

listing as threatened due to similarity of

appearance; (2) felt that with large areas

of potential habitat unsurveyed, it was

impossible for the Service to draw any

conclusions about the status of the

southern population (see Issue 20 for

the Service’s response); and (3) was
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59615

concerned that incidental take under the

special rule would reduce bog turtle

habitat and populations (see Issue 21 for

the Service’s response).

Dr. Dodd also supported Federal

listing of the bog turtle, concurring that

illegal collection and trade posed a

significant threat which States have

been unable to address. He also agreed

that loss of wetland habitat had reduced

bog turtle populations, particularly

within the northern range.

Dr. Mitchell recommended that the

northern population of the bog turtle be

listed as endangered, and the southern

population be listed as threatened.

Despite the lack of geographic survey

coverage in North Carolina, he felt that

the trends in land use in the south were

similar to those in the north, and that in

the next 20 to 30 years the southern

population would be in the same shape

the northern population is in now (see

Issue 20 for the Service’s response). He

referred to the status of the northern

population as ‘‘dire’’ and stated that

with most of the known bog turtle

populations occurring on private lands,

‘‘remaining habitat will certainly be

reduced in the very near future to a

point where most of them will be unable

to support viable populations.’’ He

questioned whether the Service may

have been politically motivated in

proposing the northern population as

threatened instead of endangered, and

stated that such a decision ‘‘should be

based solely on biological criteria.’’

Dr. Mitchell agreed that the species is

vulnerable to illegal collection and

trade, and noted that bog turtles had

even been stolen from the Atlanta Zoo,

a locked facility. He also noted that a

few days after a newspaper article

appeared in the Richmond TimesDispatch mentioning the proposed

listing, he received ‘‘information that

several people in that area who

collected turtles in the genus Clemmys

for the pet trade were hard at work

scouring topographic maps looking for

potential sites to poach.’’

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, the Service has determined

that the northern population of the bog

turtle should be classified as a

threatened species. Procedures found at

section 4(a)(1) of the Act and regulations

implementing the listing provisions of

the Act (50 CFR part 424) were

followed. A species may be determined

to be an endangered or threatened

species due to one or more of the five

factors described in section 4(a)(1).

These factors and their application to

the bog turtle (Clemmys muhlenbergii)

are as follows:

A. The Present or Threatened

Destruction, Modification, or

Curtailment of its Habitat or Range

Habitat loss is a major factor for the

past and present decline of bog turtles

throughout much of their range.

Wetland habitats have been drained and

filled for development, agriculture, road

construction, and impoundments. These

activities have also severely fragmented

the remaining habitat and have created

physical barriers to movement, thus

isolating existing bog turtle populations

from other such sites.

Even when located in upland areas,

development and agriculture can also

cause indirect hydrological alterations

of adjacent wetland habitats. If these

alterations present a barrier to surface

water or groundwater flow, the wetland

can become wetter or drier, either of

which may render the habitat less

suitable or unsuitable for bog turtles. If

surface water flow is intercepted,

groundwater recharge may be reduced,

potentially reducing water levels in

adjacent wetlands.

The concentration of storm water

runoff, such as discharges from storm

water detention basins associated with

developments, poses a threat to adjacent

bog turtle habitat, as illustrated by a

documented case of habitat destruction.

A New Jersey bog turtle site was

destroyed over the course of 4 years as

water from an upland storm water

detention basin was released into an

adjacent wetland. The storm water

discharge carved a channel through the

wetland; modified the site hydrology by

removing the surface inundation and

many of the spring-fed seeps; and

increased the invasion of woody and

annual plant species which replaced the

sedges and rushes typical of bog turtle

habitat. Bog turtles no longer occur at

this site (Torok 1994).

Development in the vicinity of

wetlands also poses a threat when the

water table is lowered due to the sinking

of wells, or when roads act as barriers

to the normal flow of surface water

(Klemens 1988, 1989). Urban,

commercial, and residential

development contribute to increased

traffic (leading to increased bog turtle

road-kills), surface water pollution, and

accelerated succession by invasive

native and exotic plant species (due to

changes in wetland hydrology, and

suppression of natural factors that

impede succession).

Untimely mowing or burning and the

use of herbicides and pesticides on

adjacent agricultural fields also degrade

bog turtle habitat (Klemens 1988). Many

wetlands occupied by bog turtles are

located in agricultural areas that are

subject to frequent livestock grazing.

Light to moderate grazing impedes plant

succession by minimizing the

encroachment of invasive native and

exotic plant species. However, heavy

grazing destroys bog turtle habitat by

cropping and trampling vegetation that

is necessary for turtle nesting, basking,

foraging, and cover.

Three of Connecticut’s eight known

bog turtle sites have already been

extirpated. A Fairfield County

population was obliterated by industrial

development, and two Litchfield County

populations were destroyed by pond

construction. The five remaining sites

are small, isolated pockets ringed by

development, with ‘‘no opportunity for

turtle movement between locations for

interbreeding or to escape successional

changes’’ (Julie Victoria, Connecticut

Department of Environmental

Protection, in litt. 1997). Residential

development and natural plant

succession have already contributed to

the partial loss of two of these extant

populations in Litchfield and Fairfield

counties (Victoria, in litt. 1994). Also, in

the vicinity of the current populations

are ‘‘remnants of what were at one time

suitable habitats which have been

altered by agricultural practices,

housing development, ponding, etc.’’

(Hank Gruner, Science Center of

Connecticut, in litt. 1997).

Only a small fraction of Delaware’s

freshwater wetlands are potential bog

turtle habitat, and between

approximately 40 and 50 percent of the

State’s freshwater wetlands have already

been lost (Tiner 1985). The four

remaining bog turtle populations are

threatened by invasive exotic plant

species, collecting, and development

(Gelvin-Innvaer and Stetzar 1992); one

of these sites is also threatened by a

proposed reservoir project.

Maryland’s 178 historical bog turtle

occurrence locations (Taylor et al. 1984)

are represented by 90 (population

analysis) sites, 25 of which have been

lost in the last 15 years (Smith, in litt.

1994). Plant succession and exotic plant

invasions have caused the extirpation of

turtles at some of these sites, while

other sites were lost due to wetland

destruction and alteration and stream

channelization. In addition, heavy

grazing has been implicated in the loss

of at least six sites (Smith, in litt. 1994).

Of the remaining 65 sites, 17 are

considered good, 23 fair and 25 poor.

Habitat at 31 of these sites has been

partially destroyed or degraded by pond

construction (6 sites), filling of wetlands

(1 site), heavy grazing (4 sites), and

wetland ditching, draining, tiling and
59616 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

stream channelization (13 sites) (Smith,

in litt. 1994). Succession, exotic plants,

pollution, and beaver activity also pose

a threat to many of the remaining

populations. In addition, at least five

wetlands known or suspected to support

bog turtle populations are threatened by

proposed highway bypass projects and

residential developments (Jeffrey

Trulick, in litt. 1997).

In Massachusetts, the bog turtle has a

limited range, limited available habitat,

and small populations (Thomas French,

Massachusetts Division of Fisheries and

Wildlife, in litt. 1997). There are four

recorded bog turtle sites for the State;

three extant and one historical. The

historical population was lost when the

fen was inundated after dam

construction. One extant site supports a

healthy bog turtle population but faces

encroachment by giant reed, succession

by alders, and the drying of several large

channels feeding the fen (possibly due

to diversion of water for agricultural

purposes). Another site is threatened by

residential development and by

invasion of giant reed and alder

(Klemens 1988). Although there are

conservation agreements in place to

protect the above two sites, they do not

address the threats to habitat quality. In

1986, the fen at the third site was

ditched and most of the water was

diverted for cattle use. The water supply

has subsequently been restored to the

fen and the habitat partially restored.

However, much of the suitable bog

turtle habitat continues to be threatened

by annual burning, severe overgrazing,

and nutrient enrichment (Klemens 1986,

1988).

Bog turtles have been extirpated from

8 of the 17 New Jersey counties in

which they occurred (Bergen, Camden,

Cape May, Gloucester, Mercer,

Middlesex, Passaic, and Salem). Surveys

conducted in 1988 and 1989, revealed

that 44 of the 75 known sites (recent and

historical) had been lost due to natural

succession (17 sites), wetland alteration

(9 sites), and development (18 sites). In

addition, bog turtles were located at

only 12 of the 31 remaining sites

(Zappalorti, in litt. 1997). By 1994, a

total of at least 53 sites had been lost—

33 to urban, commercial, and residential

development and wetland alteration and

the remainder to plant community

succession and the invasion of exotic

plants (Sciascia and Zappalorti 1989;

Sciascia and Zappalorti, in litt. 1994).

Many of the remaining populations are

small, isolated, and threatened by

development, collection, agricultural

pollution, and vegetative succession

(Michael Torocco, in litt. 1997;

Zappalorti, in litt. 1997); these threats

are exacerbated by the proximity of the

sites to urban and suburban areas (e.g.,

Philadelphia, Camden, Trenton, and

New York City). As of 1996, there were

53 known extant bog turtle sites in New

Jersey (Sciascia and Zappalorti, in litt.

1994; Sciascia, in litt. 1997). Eight are

considered good, 21 fair, and 18 poor,

and 6 are of unknown status. Based on

recent surveys, the suitability of three of

these sites declined since they were

originally ranked in 1993 and 1994

(Sciascia, in litt. 1997).

Bog turtles were reported from 17

counties in New York, but have been

eliminated from 12 counties (Albany,

Genessee, Onondaga, Oswego, Otsego,

Rockland, Sullivan, Tompkins, Ulster,

Warren, Wayne, and Westchester)

(Breisch et al., in litt. 1994). Of New

York’s 24 remaining sites, only 18

populations are extant; of the 18

occupied sites, 5 are considered good, 6

fair, and 7 poor. This represents a

significant reduction in range and

reflects the loss of at least 33 of 57 bog

turtle sites.

The bog turtle’s range in New York is

now limited to the Lower Hudson River

and Housatonic River drainages in the

southeastern corner of the State, and to

one site in western New York. In

western New York, six of the seven

historical bog turtle sites have been lost.

Two sites were eliminated due to plant

community succession; one was

destroyed by a sand and gravel mining

operation and dumping of concrete

rubble; and two were eliminated due to

plant succession and hydrological

alteration (due to agricultural activities

at one site and construction of the Erie

Canal at another) (Breisch et al., in litt,

1994; Collins 1990). Loss of the disjunct

population in the Lake George

watershed is attributed to plant

succession, while the loss of the

Susquehanna River drainage population

was caused by the construction of an

interstate highway (Breisch et al., in litt.

1994).

At least 26 known bog turtle sites

have been lost in southeastern New

York due primarily to road construction,

impoundments, plant succession, and

development. In addition, the historical

bog turtle sites on Staten Island were

eliminated by development (Nemuras

1967). In western New York, the

viability of the Seneca County site is

questionable, since it is threatened by

collecting, plant succession and

construction of an interstate highway

through the wetland within 200 feet of

bog turtle habitat (Breisch et al., in litt.

1994).

Of the remaining 24 bog turtle sites in

New York, most are of poor quality. The

presence of bog turtles at six sites is

highly questionable since turtles have

not been reported from these sites for 15

to 25 years, and habitat conditions at

most of these sites have deteriorated.

Most of the known extant sites are

threatened by habitat loss and

degradation due to residential and

commercial development, road

construction, and vegetative succession.

The New York Natural Heritage Program

recently reported that, based on

additional surveys conducted since

1994, ‘‘there are no sites in New York

whose status has improved since the

1994 assessment, whereas several sites

have declined’’ (Novak, in litt. 1997). At

least 99 percent of bog turtle habitat in

New York occurs on private lands and

all but two of the remaining populations

are found in areas of high human

population density. One researcher

noted that even State acquisition does

not necessarily ensure the protection of

bog turtle habitat, as one site acquired

by New York has been negatively

affected by subdivisions, exotic plant

species, and collection (Behler, in litt.

1997).

In Pennsylvania, 28 of the 71 known

bog turtle occurrences are considered

extirpated. Bog turtles have been

extirpated from Mercer, Crawford,

Delaware, and Philadelphia counties.

The reasons for the loss of a disjunct

population, represented by three

historical locations, in the northwestern

counties are unknown. However, much

of the historical bog turtle habitat at

Pymatuning Swamp was destroyed after

a dam was constructed to create

Pymatuning Lake.

In Pennsylvania, most bog turtle

habitat is concentrated in the

southeastern corner of the State, within

portions of the Delaware and

Susquehanna River drainages. Land use

in southeastern Pennsylvania is

primarily urban (several large cities,

including Philadelphia, Harrisburg,

Reading, Lancaster, and York are

located there), residential, and

agricultural. Agricultural areas are

intensively farmed and are facing

increasing threats from residential

development. Development,

urbanization, road construction, and

agriculture are largely responsible for

the loss of bog turtle habitat in

southeastern Pennsylvania, and

continue to pose threats to the species.

Extirpation of bog turtle populations

was noted by Robotham (in Nemuras

1967), who documented the destruction

of two bog turtle sites in the West

Chester-Downington area of Chester

County in the early 1960s. One site was

destroyed after a housing development

company constructed a road through the

center of the marsh and drained the

marsh for development. The other site
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59617

was destroyed by a bypass road,

commercial development, and

excavation for a lake.

Due to prevalent habitat

fragmentation, many remaining extant

sites in Pennsylvania are small, isolated,

and support few bog turtles; these sites

are at great risk from collection,

agricultural pollution, and vegetative

succession (Torocco, in litt. 1997). Some

sites are in the process of being

encircled by residential developments;

these developments often encroach to

the very edge of delineated wetlands,

and it is not unusual for lot boundaries

to extend well into wetlands. Ground

water withdrawal also poses a threat to

some sites; a site in Berks County is

threatened by a proposal to withdraw

over 250,000 gallons of groundwater per

day to market as spring water.

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

The bog turtle is a target for pet

collectors due to its rarity in the wild,

distinctive coloration, and small size.

Take (primarily illegal) both for the

national and international commercial

pet trade industry has occurred for

many years. Collecting is a significant

factor in the species decline and is an

ongoing threat to its continued existence

in the wild (Anon. 1991; Earley 1993;

David Flemming, U.S. Fish and Wildlife

Service, in litt. 1991; Herman 1990;

Klemens in press; Stearns et al. 1990;

Tryon 1990; Tryon and Herman 1990).

During the last 5 to 10 years, an

increasing number of bog turtles have

been advertised for sale, and prices have

increased substantially. The increase in

price most likely reflects the increase in

demand for the turtles; the increase in

demand increases the threats to the wild

populations (Tryon and Herman 1990).

Atlanta Zoo personnel reported that

from 1989 to early 1991, over 1000 bog

turtles were exported to Japan. These

figures differ significantly from CITES

data and represent a significant amount

of unreported illegal trade (Anon. 1991).

The World Wildlife Fund recently listed

bog turtles as among the world’s top 10

‘‘most wanted’’ endangered species

(Earley 1993). According to Alan

Salzburg, President of the American

Turtle and Tortoise Society, the bog

turtle is considered the most prized

turtle in the United States, and when

bog turtle locations become publicly

known, they are exploited by collectors

within 1 year (Laura Hood, Defenders of

Wildlife, in litt. 1997).

Due to the threats facing bog turtle

populations, the Society for the Study of

Amphibians and Reptiles adopted a

resolution calling for the prohibition of

collection from wild populations

(Stearns et al. 1990). Due to the small

size of existing populations, and the low

reproductive and recruitment potential

of this species, the removal of even a

few breeding adults can do irrevocable

damage to a population (Tryon 1990).

Collecting has been a factor in the

reduction or extirpation of several bog

turtle populations in Delaware (Anon.

1991), Maryland (Anon. 1991; Smith, in

litt. 1994), Massachusetts (Anon. 1991),

New Jersey (Farrell and Zappalorti 1989;

Zappalorti, pers. comm. 1994;

Zappalorti, in litt. 1997), New York

(Breisch, in litt. 1993; Breisch et al., in

litt. 1994; Collins 1990; Behler, in litt.

1997), and Pennsylvania (Ralph Pisapia,

U.S. Fish and Wildlife Service, in litt.

1992; Zappalorti, in litt. 1997). Many

sites in these States have suitable

habitat, but have much-reduced bog

turtle populations, probably due to

collecting.

Throughout the bog turtle’s entire

range, States regulate take through

classification of the species as

endangered (in Connecticut, Delaware,

Massachusetts, New Jersey, New York,

Pennsylvania, and Virginia) or

threatened (in Georgia, Maryland, North

Carolina, South Carolina and

Tennessee), yet trade continues.

Illegal trade is difficult to detect due

to the questionable origin of turtles

being offered for sale. Bog turtles are

often ‘‘laundered’’ through States which

either do not have native populations

(e.g., West Virginia, Florida, California),

or through States which have

inadequate protection of their own bog

turtle populations (Charles Bepler, U.S.

Fish and Wildlife Service, in litt. 1993;

Breisch, in litt. 1993; Michael Klemens,

in litt. 1990). For example, in recent

years dealers have claimed West

Virginia as the State of origin for bog

turtles; however, there is no evidence to

support the contention that the bog

turtle occurs in that State (Dennis

Herman, Project Bog Turtle Coordinator,

in litt. 1997; Tom Thorp, North Carolina

Herpetological Society, in litt. 1997).

Hatchling and juvenile turtles marketed

as ‘‘captive-born’’ are usually offspring

from gravid adult females illegally

brought into captivity and held until

they deposit eggs. The eggs are then

hatched in captivity, and the captiveborn (but not captive-bred) offspring are

then marketed or retained (Bepler, in

litt. 1993).

A few specific instances of illegal bog

turtle collecting and trade are reported

below:

(1) An undercover officer purchased

eight bog turtles from a person who had

collected them near Lancaster,

Pennsylvania. Also, two additional bog

turtles were recovered from persons

who had gotten them from friends

allegedly in the New York area (Bepler,

in litt. 1993);

(2) An individual from New Jersey

was arrested for bringing bog turtles

from New Jersey to Florida and selling

them as captive-born. It is suspected

that he collected about six turtles per

year over a period of several years

(Bepler, in litt. 1993);

(3) A reliable source in New York

reported that over 2000 wild-caught bog

turtles were shipped to Japan in a 2-year

period (Murdock, in litt. 1990);

(4) Researchers found several turtle

traps and a much-diminished bog turtle

population at an important bog turtle

site in Pennsylvania (Pisapia, in litt.

1992);

(5) In 1993, a New Jersey resident

purchased 47 bog turtles in Florida, and

since 1984 had also bought 20

additional bog turtles. This individual

supposedly has an active breeding

program for bog turtles (Terry Tarr, U.S.

Fish and Wildlife Service, in litt. 1993);

(6) When confronted in a New York

wetland, an individual claiming to be a

birdwatcher revealed the contents of the

cloth bag he was carrying—a bog turtle

and spotted turtle (Paul Novak, New

York Natural Heritage Program, in litt.

1990);

(7) A reliable source reported seeing

approximately 60 bog turtles at the Ohio

residence of a person who frequents

reptile shows. Based on the physical

appearance of the bog turtles, they were

not captive-bred (Scott Smith, Maryland

Department of Natural Resources, in litt.

1996);

(8) Bog turtles have been available at

the major Herpetological Expo in

Orlando, Florida for the last 2 years

(Herman, in litt. 1997; Thorp, in litt.

1997); and

(9) Bog turtles were observed in

several Florida dealerships in 1996,

although they have not been openly

advertised for sale (Herman, in litt.

1997).

The general consensus among bog

turtle researchers, nongame biologists,

and law enforcement officials is that

illegal collecting is occurring at a much

greater rate than detected or reported

(Anon. 1991; Breisch, in litt. 1993;

Flemming, in litt. 1991). Bog turtles are

already extremely low in numbers

throughout much of their range, and any

additional take could eliminate

marginal populations and hamper

survival and recovery efforts.

Protecting existing sites for bog turtles

can pose a threat when these specific

sites are revealed and publicized. In

addition to the threat of collection for

the pet trade industry, collection of bog
59618 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

turtles for exhibition at nature centers is

also a threat (Anon. 1991).

C. Disease or Predation

Bog turtles (particularly the eggs and

young) are preyed upon by raccoons,

opossums, skunks, foxes, snapping

turtles, water snakes, and large birds

(Herman and George 1986). Predation by

raccoons appears to increase in areas

with high human density, since

raccoons favor fragmented areas

consisting of farmland, forests, and

residential development (Klemens

1989).

In some cases, predation contributes

to population declines by impairing

reproductive recruitment so that the

population age structure is skewed

toward older individuals (Zappalorti

and Rocco 1993). Zappalorti (in litt.

1997) reported that one of his

Pennsylvania study sites has undergone

a dramatic population decline in the

past 25 years. Although 14 different

nests containing 52 eggs were located at

this site, the only non-adults found

during the 3-year study were an empty

shell of a dead juvenile and 3

hatchlings. Also, 93 percent of the

population structure was strongly

skewed towards old adults, in favor of

females. In monitoring the fate of 21

eggs, he documented that 6 hatched, 10

were taken by predators, 2 were broken

by nesting females, and 3 failed to

hatch. Predation of eggs and/or

hatchlings, therefore, may play a

significant role in reducing the size of

the population and skewing its age

structure.

Of additional concern is the recent

discovery of Mycoplasma (the bacterium

that adversely affects the desert tortoise

(Gopherus agassizii)) at a bog turtle site

in New York (Behler, in litt. 1997; Paul

Novak, New York Natural Heritage

Program, in litt. 1997). This disease has

the potential to cause significant

declines in bog turtle populations. The

site where Mycoplasma has been

discovered ‘‘has been identified as one

of the best remaining New York sites

and lies in a valley with additional,

extant sites leading to the possibility of

spread of the disease through a

significant portion of the remaining bog

turtle range in New York State’’ (Novak,

in litt. 1997).

D. The Inadequacy of Existing

Regulatory Mechanisms

Bog turtles receive some degree of

protection through State listings as

endangered or threatened species, and

take from the wild within all range

States requires a valid permit.

In Connecticut, the bog turtle is listed

as endangered and the take of

endangered species is prohibited.

Regulations require that any person

owning or possessing a bog turtle must

register with the Wildlife Bureau of the

Department of Environmental

Protection. There are no special

provisions for the protection of species

of special concern under Connecticut’s

wetland laws and regulations and only

about 10 percent of the wetland permits

issued by townships are checked for

species of special concern (Doug

Cooper, Connecticut Department of

Environmental Protection, pers. comm.

1994).

In Delaware, the bog turtle is listed as

endangered and, except under permit, it

is unlawful to import, transport,

possess, or sell this species. Currently,

there is no regulatory mechanism to

protect wetland habitat, since

Delaware’s wetland laws only address

tidal wetlands.

In Maryland, the bog turtle was listed

as endangered in 1972 when bog turtle

populations were extant at only 5 of the

23 then known historical occurrence

locations. However, it was removed

from the State endangered species list in

1982 after 173 new occurrence locations

were discovered during surveys

conducted between 1976 and 1978

(Smith 1994, Taylor et al. 1984). In 1992

and 1993, the Maryland Department of

Natural Resources conducted follow-up

surveys of the 178 occurrence locations

documented by Taylor et al. (1984) to

support bog turtles. Of the 159

occurrence locations surveyed, bog

turtles were found at 91 occurrence

locations; this represents a 43 percent

reduction of bog turtle occurrence

locations over a 15-year period (Smith

1994). Based on the results of these

surveys, bog turtles are now classified as

threatened in Maryland. Bog turtles also

receive additional protection under the

State’s Reptile and Amphibian

Possession and Permit Regulations

which regulate the possession, breeding,

sale, and trade of certain native reptiles

and amphibians. Under these

regulations, it is illegal to take bog

turtles from the wild or to breed them

in captivity. In addition, the regulations

prohibit the possession, sale, offering for

sale, trade, or barter of any turtle with

a carapace length less than 4 inches

(which applies to most bog turtles due

to their small size).

A portion of bog turtle habitat in

Maryland receives some degree of

protection under the Nontidal Wetlands

Protection Act. Habitat in agricultural

areas receives little or no protection due

to the Act’s exemption of agricultural

activities from permit requirements.

In Massachusetts, the species is

classified as endangered, and it is

unlawful to take or possess bog turtles

without a permit. Currently no person

in the State has a valid permit to possess

bog turtles (Tom French, Massachusetts

Department of Fisheries and Wildlife,

pers. comm. 1994). Its habitat receives

some degree of protection under the

Massachusetts Wetlands Protection Act

which prohibits permitted projects from

having an adverse effect on wetland

habitat that supports endangered and

threatened species or species of special

concern. This law also allows for a 100-

foot buffer zone around such wetlands

when activities in the buffer zone could

result in the alteration of adjacent

wetlands (Melvin and Roble 1990).

In New Jersey, the bog turtle is listed

as endangered. It is unlawful to take,

possess, transport, export, process, sell,

offer for sale, or ship bog turtles without

a permit. Bog turtle habitat receives

some protection under the Exceptional

Resource Value Wetland provision of

New Jersey’s Freshwater Wetland

Protection Act. This law allows for a

150-foot buffer zone around wetlands,

includes a stringent permit review

process, and prohibits activities that

would likely jeopardize or destroy bog

turtles habitat (Torok, pers. comm.,

1994). Many agricultural activities are

exempt from these regulations.

In New York, the bog turtle has been

listed as endangered since 1971, and the

animal and its parts (including eggs) are

protected from unauthorized take,

import, transport, possession, or sale.

Wetlands occupied by an endangered or

threatened species are considered Class

1 Wetlands, which receive some added

protection from filling and excavation.

Certain activities, such as draining of

wetlands for agriculture, are exempted

from permitting requirements as long as

no excavations are required to

accomplish the draining.

In Pennsylvania, the bog turtle is

listed as endangered. It is illegal to

catch, take, kill, possess, import, export,

sell, offer for sale, or purchase any

individual of this species, alive or dead,

or any part thereof, without a special

permit. Bog turtle habitat receives some

degree of protection under State

wetland regulations which categorize

wetlands that serve as habitat for

endangered or threatened flora or fauna

as ‘‘exceptional value wetlands.’’

Issuance of permits to alter such

wetlands is contingent upon meeting

specific requirements.

Section 404 of the Clean Water Act

(33 U.S.C. 1344 et seq.) (CWA) regulates

the discharge of dredged or fill material

into the waters of the United States. The

phrase ‘‘waters of the United States’’

reaches to the farthest extent

permissible under the Commerce Clause
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59619

and includes rivers, lakes, streams,

ponds and wetlands. It does not include

prior converted cropland. The U.S.

Army Corps of Engineers (Corps) and

the U.S. Environmental Protection

Agency (EPA) are responsible for

administering section 404. The Corps is

responsible for program administration;

the EPA has an important oversight role.

Section 404 requires that project

proponents obtain a CWA section 404

permit from the Corps before

undertaking activities in waters of the

United States involving a discharge of

dredged or fill material. These

regulatory agencies are also required to

consult with the Service and State

resource agencies regarding potential

impacts of these projects on fish and

wildlife.

The Corps authorizes projects

involving the discharge of dredged or

fill material into waters of the United

States using either individual permits or

general permits. Individual permits are

carefully evaluated through the Corps’

public interest review and its analysis of

compliance with the EPA’s 404(b)(1)

guidelines. The EPA’s 404(b)(1)

guidelines require a rigorous

examination of the availability of

practicable alternatives, and prohibit the

authorization of any project that would

result in significant adverse impacts,

among other requirements. General

permits are issued for activities which

are similar in nature and which result

in no more than minimal environmental

effects on a single project and

cumulative adverse impact basis.

General permits also take several forms,

including nationwide permits, which

are available for the entire country, and

State Programmatic General Permits,

which are linked to State wetland

regulatory programs, and which attempt

to integrate State and Federal programs

for authorizing minor impact activities.

The purposes of all general permits are

to provide workload relief for the Corps

for projects which should not require a

lot of analysis and to provide some

measure of relief for the public for

activities which are similar in nature

and result in only minor impacts.

The regulatory relief and expedited

permit review associated with general

permit authorization is based on a onetime only determination that the general

permit itself will meet the 404(b)(1)

guidelines and thus would not allow

authorization of projects with more than

minimal impacts. Following adoption of

a general permit, projects which fit the

terms and conditions of the general

permit are authorized with little

scrutiny. Some require that the

applicant notify the Corps before using

the permit; others do not require any

notification as long as they meet the

permit conditions.

The Corps currently utilizes 39

nationwide permits, including

Nationwide Permit 26, which addresses

the discharge of dredged or fill material

for any purpose in isolated waters or

headwaters. Nationwide Permit 26, until

1996, was available for use for projects

up to 10 acres. It has now been modified

for use for fills of up to no more than

3 acres. When the fill activity is larger

than 1⁄3 acre, the permit applicant must

notify the Corps prior to permit use. For

projects less than 1⁄3 acre, the permittee

must submit a report within 30 days to

the Corps providing basic information

about the permit’s use. The Corps plans

to phase out Nationwide Permit 26 as

there is a high likelihood that the permit

has resulted in more than minimal

single project and cumulative adverse

impacts. In its place, however, will be

an additional unknown number of

nationwide permits which will be

designed for activities which are similar

in nature. The potential adverse impacts

of these additional nationwide permits

are unknown at this time.

The Corps can take discretionary

authority and require an applicant to

undergo a full individual permit

process, if the Corps believes that the

resource issues are significant, and if the

Corps believes that the project requires

additional consideration. For workload

management reasons, this authority is

not invoked frequently.

Many of the States in the Northeast

have eliminated many or most of the

nationwide permits and replaced them

with a single programmatic general

permit which combines the State and

Federal programs and sets thresholds

and conditions for its use tailored to the

aquatic resources and threats to those

resources in their areas of jurisdiction.

The bog turtle could potentially be

affected by projects requiring 404

permits, especially projects which

would appear to meet the terms and

conditions of nationwide permits such

as Nationwide Permit 26. The Corps is

planning to initiate a programmatic

consultation on the impacts of

nationwide permits on endangered

species, and it is our expectation that

listed species will receive adequate

consideration following completion of

the consultation process. However,

under the CWA section 404 program,

destruction of bog turtle habitat

continues to be authorized.

Furthermore, the bog turtle is affected

by agricultural practices which are

entirely exempt from regulation under

section 404. Such activities take place

without Corps or EPA oversight or

review. In addition to an agricultural

exemption for maintenance of existing

agricultural drainage systems, other

exempted activities include plowing,

planting and harvesting in existing

cropped wetlands, and construction or

maintenance of farm roads and stock

ponds as long as the activity is part of

an ongoing farming operation.

On July 1, 1975, the bog turtle was

added to Appendix II of the Convention

on International Trade in Endangered

Species of Wild Fauna and Flora

(CITES), and on June 11, 1992 (57 FR

20443), it was transferred from

Appendix II to Appendix I. Both import

and export permits are required from

the importing and exporting countries

before an Appendix I species can be

transported, and an Appendix I species

can not be exported for primarily

commercial purposes. These CITES

permits are not issued if the export will

be detrimental to the survival of the

species or if the specimens were not

legally acquired.

E. Other Natural or Manmade Factors

Affecting its Continued Existence

Plant community succession and the

invasion of wetland systems by exotic

plant species have also contributed to

the decline of the bog turtle (Behler, in

litt. 1997; Zappalorti, in litt. 1997).

Unless set back by fire, beaver activity,

light to moderate grazing, or periodic

wet years, some bog turtle habitats

succeed into wooded swampland and

become unsuitable for the species.

Various human activities, such as fire

suppression, beaver control, fertilizer

and sediment runoff, and wetland

draining, ditching and filling accelerate

both natural succession and the

invasion of exotic plants (GelvinInnvaer and Stetzar 1992, Klemens

1984).

Development and agriculture adjacent

to bog turtle habitat can result in soil

disturbance and increases in the

nutrient and sediment load, thus

allowing for the invasion of exotic

species such as multiflora rose (Rosa

multiflora), purple loosestrife (Lithrum

salicaria), giant reed (Phragmites

australis), and reed canary grass

(Phalaris arundinacea), as well as native

species such as red maple and alder

(Klemens 1984, 1989, and in press).

Beavers pose a threat to those bog

turtle populations that are isolated and/

or occur within the only remaining

suitable habitat within a watershed.

Smith (in litt. 1994) reported that

flooding caused by beavers now poses a

threat to three bog turtle populations in

Maryland.

Thick deposits of iron bacteria,

suggesting possible contamination from

pollutants, have been found at three bog
59620 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

turtle sites in Maryland. Reptile and

amphibian populations at these sites are

much smaller in size than one would

expect based on the habitat

characteristics (Smith, in litt. 1994).

Wetland habitats are also vulnerable to

pollutants (oil and grease) carried by

storm water runoff. Farrell and

Zappalorti (1989) reported that one New

Jersey wetland occupied by bog turtles

was degraded by trash and motor oil

that was carried through a storm drain.

The bog turtle is also vulnerable to

local extirpation and range-wide

reduction due to—(1) the small size of

many populations; (2) the isolation of

existing populations; (3) the delay in

reaching sexual maturity; (4) low

juvenile recruitment rates; and (5)

relatively low mobility and small home

ranges (Arndt 1977, Chase et al. 1989).

Isolation of populations prevents gene

flow which can result in an inbred

population with low fecundity. Further,

isolation and habitat fragmentation

prevent recolonization of existing

habitat or expansion and colonization

into newly created habitats.

Vehicles and livestock pose a direct

threat to bog turtles because they can

kill and injure individuals. Roads near

occupied bog turtle sites contribute

significantly to mortality as is evidenced

by the number of dead turtles found

along roadsides. Roads that are adjacent

to or within wetlands pose the greatest

threat to bog turtles (Arndt 1977).

Because livestock can trample bog

turtles, a large number of livestock

within a wetland can pose a threat to

the turtle population (M. Klemens, pers.

comm. 1994; S. Smith, pers. comm.

1994).

The Tortoise and Freshwater Turtle

Specialist Group of the IUCN recently

evaluated the status of the bog turtle.

Based on the species’ precipitous

decline and threats to its continued

existence, the bog turtle was included as

an endangered species on their 1996

IUCN Red List (Behler, in litt. 1997).

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present and future threats faced by the

species in determining to make this rule

final. Based on this evaluation, the

preferred action is to list the northern

population of the bog turtle as

threatened, and the southern population

as threatened due to similarity of

appearance. In spite of existing State

protective regulations, the northern

population has declined by

approximately 50 percent (primarily

over the past 20 years) and has

experienced a significant decrease in its

known range. Currently, less than 200

extant sites remain in the north, and

only 33 of these sites are likely to be

able to support viable bog turtle

populations over the long term. Most of

the extant sites consist of small

wetlands isolated from one another and

often in close proximity to human

habitation. Although the northern

population of the bog turtle faces

serious ongoing and potential threats, it

is not currently in imminent danger of

extinction. The northern population is,

however, likely to become endangered

throughout all or a significant portion of

its range in the foreseeable future;

therefore, classification of the northern

population of the bog turtle as

threatened is appropriate. Critical

habitat is not being designated for the

reasons described below.

Although final listing determinations

are usually not effective until 30 days

after their publication in the Federal

Register, such a delay would pose an

additional, unacceptable risk to the bog

turtle. Several persons and State

agencies have expressed a concern

about the heightened risk of illegal

collection due to the proposed listing,

and requested that the final listing be

implemented as soon as possible to

reduce this risk. One of the peer

reviewers of the proposed rule noted

that he had ‘‘received reliable reports of

increased interest in the location of bog

turtle sites by well-known collectors.

There is a heightened threat of take right

now as collectors are stockpiling bog

turtles in anticipation of a federal

listing.’’ Therefore, due to the

significant ongoing threats of illegal

collection and trade, the Service has

determined that the bog turtle will

receive full protection under the Act

effective upon publication of this rule in

the Federal Register.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(i) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. Conservation means the use of

all methods and procedures needed to

bring the species to the point at which

listing under the Act is no longer

required.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

determined to be endangered or

threatened. The Service finds that

designation of critical habitat for the bog

turtle is not prudent. Service regulations

(50 CFR 424.12(a)(1)) state that

designation of critical habitat is not

prudent when one or both of the

following situations exist, (1) The

species is threatened by taking or other

human activity, and identification of

critical habitat can be expected to

increase the degree of threat to the

species; or (2) such designation of

critical habitat would not be beneficial

to the species.

Listing of the bog turtle as threatened

elevates the awareness of the rarity of

the species, thereby increasing the

likelihood of take by private and

commercial collectors. The listing could

lead to increased illegal take and the

risk of eggs being accidentally destroyed

by collectors searching for adult turtles.

The publication of precise maps and

descriptions of critical habitat in the

Federal Register would increase the

vulnerability of the bog turtle to the

threats of collection and accidental

destruction of its eggs.

Designation of critical habitat could

also increase the vulnerability of bog

turtle habitat to intentional destruction

by landowners who do not want a

protected species on their property.

Tryon and Herman (1990) report that on

more than one occasion, landowners,

fearing involvement from State or

Federal authorities, have drained

(ditched) bog turtle habitat after

researchers visited the site.

Furthermore, designation of critical

habitat for the bog turtle would provide

little or no benefit to the species or its

habitat. Critical habitat receives

consideration under section 7 of the Act

with regard to actions carried out,

authorized, or funded by a Federal

agency. Critical habitat designation

serves as notification to Federal

agencies of the habitats which are

essential for the conservation of the

species; the Act requires Federal

agencies to ensure that their actions do

not result in destruction or adverse

modification of critical habitat. The

Service believes that notification to

Federal agencies of the habitats which

are essential for the conservation of the

species can be accomplished informally

through periodic coordination meetings,

project-specific meetings, and other

contacts; the Service believes that

notification through these means

ensures that other Federal agencies

receive the most recent and reliable

information concerning habitats
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59621

important for the conservation of the

species. In addition, the Service believes

that, because the ‘‘jeopardy’’ and

‘‘adverse modification’’ standards are

similar, any project which would cause

destruction or adverse modification of

critical habitat would also jeopardize

the continued existence of the species.

In fact, biological opinions that

conclude that a Federal agency action is

likely to adversely modify critical

habitat but not jeopardize the species

are extremely rare.

Because any benefit potentially

provided by designation of critical

habitat for the bog turtle would be

outweighed by the increase in threats to

the species and its habitat from illegal

collecting and vandalism caused by

such designation, the Service has

determined that designation of critical

habitat is not prudent. Protection of bog

turtle habitat will be addressed through

the section 7 consultation process and

through recovery actions.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery action,

requirements for Federal protection, and

prohibitions against certain practices.

Recognition through listing encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the States, and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is listed as endangered or

threatened. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(2) requires Federal

agencies to ensure that activities they

authorize, fund, or carry out are not

likely to jeopardize the continued

existence of any species listed as

endangered or threatened, or destroy or

adversely modify its critical habitat. If a

Federal action could affect a listed

species or its critical habitat, the

responsible Federal agency must enter

into consultation with the Service.

Federal agency actions that may

require consultation as described in the

preceding paragraph include—Corps

involvement in projects such as the

construction of roads and bridges; Corps

permitting of wetland filling and

dredging projects subject to section 404

of the CWA and section 10 of the Rivers

and Harbors Act of 1899 (33 U.S.C. 401

et seq.); Natural Resources Conservation

Service projects; EPA authorization of

discharges under the National Pollutant

Discharge Elimination System; and U.S.

Housing and Urban Development

projects. In addition, Federal

involvement under section 7 would be

expected for management and other

land use activities on Federal lands with

bog turtle populations.

The Act and implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all threatened wildlife. The

prohibitions, codified at 50 CFR 17.21,

in part, make it illegal for any person

subject to the jurisdiction of the United

States to take (includes harass, harm,

pursue, hunt, shoot, wound, kill, trap,

capture, or collect; or to attempt any of

these), import or export, ship in

interstate commerce in the course of

commercial activity, or sell or offer for

sale in interstate or foreign commerce

any listed species. It is also illegal to

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally. Certain exceptions apply

to agents of the Service and State

conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving threatened wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

the course of otherwise lawful activities.

For threatened species, permits also are

available for zoological exhibition,

educational purposes, or special

purposes consistent with the purposes

of the Act.

It is the policy of the Service (59 FR

34272; July 1, 1994) to identify to the

maximum extent practicable at the time

a species is listed those activities that

would or would not constitute a

violation of section 9 of the Act. The

intent of this policy is to increase public

awareness of the effect of the listing on

proposed and ongoing activities within

a species’ range. The Service believes,

based on the best available information,

that the following actions will not result

in a violation of section 9:

(1) Transferring individual turtles

from roads to immediately adjacent

habitat;

(2) Light to moderate livestock grazing

that prevents or minimizes the

encroachment of invasive native and

exotic plant species;

(3) Possession of bog turtles legally

acquired prior to the effective date of

this rule and consistent with 50 CFR

17.4; and

(4) Actions that may affect bog turtles

and are authorized, funded or carried

out by a Federal agency when the action

is conducted in accordance with section

7 of the Act.

With respect to both the northern and

southern populations of the bog turtle,

the following actions would be

considered a violation of section 9:

(1) Take of bog turtles without a

permit (this includes harassing,

harming, pursuing, hunting, shooting,

wounding, killing, trapping, capturing,

or collecting, or attempting any of these

actions). However, with respect solely to

the southern population, incidental take

(see special rule below) would not be

considered a violation of section 9;

(2) Possess, sell, deliver, carry,

transport, or ship illegally taken bog

turtles:

(3) Interstate and foreign commerce

(commerce across State and

international boundaries) and import/

export (as discussed earlier in this

section) without prior obtaining a

threatened species, similarity of

appearance, or CITES permit.

With respect solely to the northern

population, activities that the Service

believes could result in the take of bog

turtles include, but are not limited to:

(1) Destruction or alteration of the

species’ habitat by activities that

include, but are not limited to, draining,

ditching, discharging fill material,

excavation, impoundment, or water

diversion, except as outlined in (4)

above;

(2) Destruction or degradation of

wetland vegetation used by the turtles

for nesting, basking, foraging, or cover;

and

(3) Discharging or dumping of toxic

chemicals or other pollutants into

wetlands occupied by the species.

Questions regarding whether specific

activities may constitute a violation of

section 9 should be directed to the Field

Supervisor of the appropriate Service

Field Office as follows: in Pennsylvania,

the Pennsylvania Field Office, 315 S.

Allen Street, Suite 322, State College,

PA 16801 (814/234–4090); in Maryland

and Delaware, the Chesapeake Bay Field

Office, 177 Admiral Cochrane Drive,

Annapolis, MD 21401 (410/224–2732);

in New York, the New York Field

Office, 3817 Luker Road, Cortland, NY

13045 (607/758–9334); in Massachusetts

and Connecticut, the New England Field

Office, 22 Bridge Street, Concord, NH

03301–4986 (603/225–1411); and, in

New Jersey, the New Jersey Field Office,

927 North Main Street, Building D1,

Pleasantville, NJ 08232 (609/747–0620).

Requests for copies of the regulations
59622 Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations

regarding listed wildlife and inquiries

about prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, 300 Westgate Center Drive,

Hadley, Massachusetts 01035 (telephone

413/253–8200; facsimile 413/253–8482).

Similarity of Appearance

Section 4(e) of the Act authorizes the

treatment of a species (subspecies or

population segment) as endangered or

threatened even though it is not

otherwise listed as endangered or

threatened if—(a) the species so closely

resembles in appearance an endangered

or threatened species that enforcement

personnel would have substantial

difficulty in differentiating between the

listed and unlisted species; (b) the effect

of this substantial difficulty is an

additional threat to an endangered or

threatened species; and (3) such

treatment of an unlisted species will

substantially facilitate the enforcement

and further the policy of the Act.

There are only slight morphological

differences in this species throughout its

range (Amato et al. 1993; Nemuras

1967), making it extremely difficult to

differentiate the location from where

bog turtles are taken. Presently, the

origin and legality of a specimen

(specific wetland, locality, or State)

cannot be determined. This poses a

problem for Federal and State law

enforcement agents trying to stem illegal

trade in the threatened northern

population. The listing of the southern

population as threatened due to

similarity of appearance eliminates the

ability of commercial collectors to

commingle northern bog turtles with

southern ones or to misrepresent them

as southern bog turtles for commercial

purposes. For these reasons, the Service

is listing the southern population

(occurring in the States of Georgia,

North Carolina, South Carolina,

Tennessee and Virginia) as threatened

due to similarity of appearance to the

northern population.

The special rule exempts incidental

take of the southern population of bog

turtles. Incidental take is take that

results from, but is not the purpose of,

carrying out an otherwise lawful

activity. For example, legal application

of pesticides and fertilizers, livestock

grazing and other farming activities,

mowing, burning, water diversion, and

any other legally undertaken actions

that result in the accidental take of a bog

turtle will not be considered a violation

of section 9 of the Act in the States of

Georgia, North Carolina, South Carolina,

Tennessee, and Virginia. The Service

believes that listing the southern

population under the similarity of

appearance provision of the Act,

coupled with the special rule,

minimizes enforcement problems and

helps to conserve the northern

population. It is the intent of the special

rule to treat bog turtles from the

southern population in the same way as

the threatened northern population with

regard to permit requirements for preAct wildlife (50 CFR 17.4).

The Service believes that the

provision to allow incidental take for

the southern population (i.e., for land

alteration activities in Georgia, North

Carolina, South Carolina, Tennessee,

and Virginia) will not pose a threat to

the northern population because—(1)

the two populations are sufficiently

separate that incidental take of southern

specimens will not inadvertently be

applicable to members of the northern

population, and (2) the primary threat to

the northern population from activities

involving the southern population stem

from commingling of specimens in

commercial trade.

National Environmental Policy Act

The Service has determined that

Environmental Assessments and

Environmental Impact Statements, as

defined by the National Environmental

Policy Act of 1969, need not be

prepared in connection with regulations

adopted pursuant to section 4(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited

herein is available upon request from

the U.S. Fish and Wildlife Service,

Pennsylvania Field Office (see

ADDRESSES section).

Author

The primary author of this document

is Carole K. Copeyon (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, the Service amends part

17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations, as set

forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat 3500, unless otherwise noted.

2. Amend section 17.11(h) by adding

the following, in alphabetical order

under ‘‘Reptiles,’’ to the List of

Endangered and Threatened Wildlife:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

REPTILES

* * * * * * *

Turtle, bog

(=Muhlenberg).

Clemmys

muhlenbergii.

U.S.A. (CT, DE, GA,

MD, MA, NC, NJ,

NY, PA, SC, TN,

VA).

Entire, except GA,

NC, SC, TN, VA.

T 626 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (GA, NC, SC,

TN, VA).

T(S/A) .................... NA 17.42(f)

* * * * * * *

3. Amend section 17.42 by adding

paragraph (f) as follows:

§ 17.42 Special rules—reptiles.

* * * * *

(f) Bog turtle (Clemmys muhlenbergii),

southern population—(1) Definitions of
Federal Register / Vol. 62, No. 213 / Tuesday, November 4, 1997 / Rules and Regulations 59623

terms. For the purposes of this

paragraph (f): Bog turtle of the southern

population means any member of the

species Clemmys muhlenbergii, within

Georgia, North Carolina, South Carolina,

Tennessee and Virginia, regardless of

whether in the wild or captivity, and

also applies to the progeny of any such

turtle.

(2) Prohibitions. Except as provided in

paragraph (f)(3) of this section, the

provisions of Sec. 17.31 (a) and (b) of

this part applies to bog turtles of the

southern population (see also 50 CFR

part 23).

(3) Take. Incidental take, that is, take

that results from, but is not the purpose

of, carrying out an otherwise lawful

activity, does not apply to bog turtles of

the southern population.

Dated: October 23, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97–29088 Filed 11–3–97; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 961126334–7025–02; I.D.

102997B]

Fisheries of the Exclusive Economic

Zone Off Alaska; Sablefish in the

Central Regulatory Area of the Gulf of

Alaska

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Closure.

SUMMARY: NMFS is prohibiting retention

of sablefish by vessels using trawl gear

in the Central Regulatory Area in the

Gulf of Alaska (GOA). NMFS is

requiring that catches of sablefish by

vessels using trawl gear in this area be

treated in the same manner as

prohibited species and discarded at sea

with a minimum of injury. This action

is necessary because the allocation of

the sablefish 1997 total allowable catch

(TAC) assigned to trawl gear in the

Central Regulatory Area of the GOA has

been reached.

DATES: Effective 1200 hrs, Alaska local

time (A.l.t.), October 30, 1997, until

2400 hrs, A.l.t., December 31, 1997.

FOR FURTHER INFORMATION CONTACT:

Thomas Pearson, 907–486–6919.

SUPPLEMENTARY INFORMATION: The

groundfish fishery in the GOA exclusive

economic zone is managed by NMFS

according to the Fishery Management

Plan for Groundfish of the Gulf of

Alaska (FMP) prepared by the North

Pacific Fishery Management Council

under authority of the MagnusonStevens Fishery Conservation and

Management Act. Fishing by U.S.

vessels is governed by regulations

implementing the FMP at subpart H of

50 CFR part 600 and 50 CFR part 679.

The allocation of the sablefish TAC

assigned to trawl gear in the Central

Regulatory Area of the GOA was

established by the Final 1997 Harvest

Specifications of Groundfish for the

GOA (62 FR 8179, February 24, 1997) as

1,282 metric tons (mt). (See

§ 679.20(a)(4)(ii)(B).)

In accordance with § 679.20 (d)(2), the

Administrator, Alaska Region, NMFS

(Regional Administrator), has

determined that the allocation of the

sablefish TAC assigned to trawl gear in

the Central Regulatory Area of the GOA

has been reached. Therefore, the

Regional Administrator is requiring that

further catches of sablefish by vessels

using trawl gear in the Central

Regulatory Area be treated as prohibited

species in accordance with § 679.21 (b).

Classification

This action responds to the best

available information from the fishery. It

must be implemented immediately to

prevent overharvesting the 1997 TAC

for sablefish assigned to trawl gear in

the Central Regulatory Area of the GOA.

A delay in the effective date is

impracticable and contrary to public

interest. The trawl fleet will soon take

the assigned TAC for sablefish. Further

delay would only result in overharvest

and disrupt the FMP’s objective of

limiting the harvest of sablefish by

vessels using trawl gear. NMFS finds for

good cause that the implementation of

this action cannot be delayed for 30

days. Accordingly, under 5 U.S.C.

553(d), a delay in the effective date is

hereby waived.

This action is required by 50 CFR

679.20 and is exempt from review under

E.O. 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: October 29, 1997.

Bruce C. Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 97–29158 Filed 10–30–97; 3:36 pm]

BILLING CODE 3510–22–F