Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Proposed Rules 30319 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R3–ES–2010–0039] 

[92220-113-000; ABC Code: C6] 

RIN 1018-AW62 

Endangered and Threatened Wildlife 

and Plants; Proposed Rule to remove 

the Lake Erie Watersnake (Nerodia 

sipedon insularum) from the Federal 

list of Endangered and Threatened 

Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; critical habitat 

prudency determination; notice of 

availability draft post-delisting 

monitoring plan. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

remove the Lake Erie Watersnake 

(Nerodia sipedon insularum) from the 

List of Threatened and Endangered 

Wildlife due to recovery. This action is 

based on a review of the best available 

scientific and commercial data, which 

indicate that the subspecies is no longer 

endangered or threatened with 

extinction, or likely to become so within 

the foreseeable future. Based on our 

determination that the Lake Erie 

Watersnake is no longer endangered or 

threatened with extinction, we have also 

determined that designation of critical 

habitat for the Lake Erie Watersnake is 

not prudent. We seek information, data, 

and comments from the public 

regarding the Lake Erie Watersnake, this 

proposal to delist, and the draft postdelisting monitoring plan. This proposal 

implements the recommendations from 

the 5–year status review initiated on 

April 22, 2008 (73 FR 21643). 

DATES: We will consider comments 

received on or before August 2, 2010. 

We must receive requests for public 

hearings, in writing, at the address 

shown in the FOR FURTHER INFORMATION

CONTACT section by July 16, 2010. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R3- 

ES-2010-0039; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will not accept comments by email or fax. We will post all comments 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more information). 

FOR FURTHER INFORMATION CONTACT: 

Mary Knapp, Field Office Supervisor, or 

Megan Seymour, Wildlife Biologist, U.S. 

Fish and Wildlife Service Ohio Field 

Office, 4625 Morse Road, Suite 104, 

Columbus, OH 43230 (telephone: 614- 

416-8993). Individuals who are hearingimpaired or speech-impaired may call 

the Federal Relay Service at (800) 877- 

8337 for TTY assistance. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposal will be as 

accurate and effective as possible. 

Therefore, we request data, comments, 

new information, or suggestions from 

the public, other concerned 

governmental agencies, the scientific 

community, Tribes, industry, or any 

other interested party on this proposed 

rule. We particularly seek comments 

concerning: 

(1) Biological information concerning 

this subspecies; 

(2) Relevant data concerning any 

current or likely future threats (or lack 

thereof) to this subspecies, including the 

extent and adequacy of Federal and 

State protection and management that 

would be provided to the Lake Erie 

Watersnake as a delisted subspecies; 

(3) Additional information concerning 

the range, distribution, population size, 

and population trends of this 

subspecies; 

(4) Current or planned activities in the 

subject area and their possible impacts 

on this subspecies; 

(5) What regional climate change 

models are available, and whether they 

are reliable and credible to use as step– 

down models for assessing the effect of 

climate change on the species and its 

habitat; and 

(6) Our draft post-delisting monitoring 

plan. 

You may submit your comments and 

materials considering the proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not 

consider comments sent by e-mail or fax 

or to an address not listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. If you submit a 

hardcopy comment that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post hardcopy comments on 

http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

use in preparing this proposed rule, will 

be available for public inspection on 

http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Ohio Field Office (see FOR

FURTHER INFORMATION CONTACT section). 

You may obtain copies of the proposed 

rule on the Internet at http:// 

www.regulations.govat Docket Number 

FWS-R3-2010-0039, or by mail from the 

Ohio Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Public Hearing 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests must be received 

within 45 days after the date of this 

publication in the Federal Register. 

Such requests must be made in writing 

and addressed to the Field Supervisor 

(see FOR FURTHER INFORMATION 

CONTACT section). We will schedule 

public hearings on this proposal, if any 

are requested, and announce the dates, 

times, and places of those hearings at 

least 15 days before the first hearing. 

Background 

The Lake Erie Watersnake is a 

subspecies of the Northern Watersnake 

(N. sipedon sipedon) that occurs 

primarily on the offshore islands of 

western Lake Erie in Ohio and Ontario, 

Canada, but also on a small portion of 

the U.S. mainland on the Catawba and 

Marblehead peninsulas of Ottawa 

County, Ohio (Conant and Clay 1937, p. 

2; King 1986, p. 760). Lake Erie 

Watersnakes are uniformly gray or 

brown, and have either no banding 

pattern, or have blotches or banding that 

are either faded or reduced (Conant and 

Clay 1937, pp. 2-5; Camin and Ehrlich 

1958, p. 504; King 1987, pp. 243-244) . 

Female Lake Erie Watersnakes grow up 

to 1.1 meters (m) (3.5 feet (ft)), long, and 

are larger than males (King 1986, p. 

762). Newborn Lake Erie Watersnakes 

are the size of a pencil, and are born 

during late summer or early fall (King 

1986, p. 764). 

Lake Erie Watersnakes are distinct 

from Northern Watersnakes in their 

reduced or absent banding patterns 

(Conant and Clay 1937, pp. 2-5; Camin 

and Ehrlich 1958, p. 504; King 1987, pp. 

243-244), use of substrates dominated 

by limestone or dolomite (Conant and 

Clay 1937, p. 6; King 1986, p.760) , diet 

composition (Hamilton 1951, p. 64-65), 

larger body size (King 1989, pp. 85-86), 


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lower growth rates (King 1986, p. 770), 

and shorter tails (King 1986, p. 768). 

Lake Erie Watersnake summer habitat 

is composed of rocky shorelines with 

limestone or dolomite shelves, ledges, 

or boulders for sunning and shelter. 

Shelter occurs in the form of loose 

rocks, piled rocks, or shelves and ledges 

with cracks, crevices, and nearby 

vegetation. Rip-rap erosion control, 

armor stone, and docks incorporating a 

stone crib structure often serve as 

summer habitat for the snake. Lake Erie 

Watersnakes typically forage for fish 

and amphibians in Lake Erie, and 

research indicates that more than 90 

percent of their current diet is 

composed of the nonnative, invasive 

fish round goby (Neogobius 

melanostomus) (King et al. 2006b, p. 

110). Jones et al. (2009, p. 441) report 

that the mean foraging distance from 

shore was 85 m (279 ft) and the average 

water depth of the foraging locations 

was 3.32 m (10.9 ft). During the 

summer, 75 percent of Lake Erie 

Watersnakes are found within 13 m 

(42.7 ft) of the water’s edge (King 2003, 

p.4). King (2003, p. 4) identified that 75 

percent of Lake Erie Watersnakes used 

437 m (1433 ft) of shoreline or less as 

a home range. In the winter, Lake Erie 

Watersnakes hibernate below the frost 

level, in cracks or crevices in the 

bedrock, interstitial spaces of rocky 

substrates, tree roots, building 

foundations, and other similar natural 

and human-made structures. Seventyfive percent of Lake Erie Watersnakes 

hibernate within 69 m (226 ft) of the 

water’s edge (King 2003, p. 4). 

Individual snakes often demonstrate site 

fidelity, returning to the same shoreline 

area and the same or nearby hibernacula 

in successive years (King 2003, pp. 4, 

11-17). 

Additional information on the Lake 

Erie Watersnake’s life history and 

biology can be found in the final listing 

rule (64 FR 47126; August 30, 1999) and 

the Lake Erie Watersnake (Nerodia 

sipedon insularum) Recovery Plan 

(Service 2003a, pp. 6-11). 

Previous Federal Actions 

We classified the distinct population 

segment (DPS) of the subspecies, Lake 

Erie watersnake, that occurs on the U.S. 

offshore islands of western Lake Erie as 

a threatened species on August 30, 1999 

(64 FR 47126) under the Endangered 

Species Act of 1973, as amended (Act). 

On September 25, 2003, we announced 

the availability of a final recovery plan 

for the Lake Erie Watersnake (68 FR 

55411). In the recovery plan (Service 

2003a, p. G-19) we describe a revision 

to the common name from ‘‘Lake Erie 

water snake’’ to ‘‘Lake Erie Watersnake’’ 

per the peer-reviewed naming 

convention outlined in ‘‘Scientific and 

Standard English Names of Amphibians 

and Reptiles of North America North of 

Mexico, with Comments Regarding 

Confidence in Our Understanding’’ 

(most recent version, Crother 2008, p. 

58). Subsequently, we refer to the 

subspecies as ‘‘Lake Erie Watersnake’’ in 

this and future documents. On April 27, 

2005 the Service received a ‘‘60-Day 

Notice Letter of Intent to Sue for 

Violation of Section 4 of the Endangered 

Species Act for Failure to Designate 

Critical Habitat for the Lake Erie Water 

Snake’’ (Wall and Fremont v. DOI, 1:05- 

cv-01363-RCL). On May 2, 2006, a 

Settlement Agreement and Order was 

stipulated, which included conditions 

that would prompt the Service to issue 

a new critical habitat prudency 

determination. Briefly, the Settlement 

Agreement stipulated that a new critical 

habitat prudency determination would 

be issued by June 1, 2010, provided the 

Lake Erie Watersnake continues to be a 

listed species under the Act; or within 

90 days of receiving population survey 

results indicating the snake is not 

attaining the delisting population goals 

identified in the recovery plan (Service 

2003a). On April 22, 2008, we 

announced the initiation of a 5–year 

review for the Lake Erie Watersnake (73 

FR 21643). The 5–year review 

recommended that the Lake Erie 

Watersnake be delisted due to recovery. 

Thus, we are submitting this proposal 

for public review and comment. 

Recovery 

Section 4(f) of the Act directs us to 

develop and implement recovery plans 

for listed species unless the Secretary 

determines that such a plan will not 

benefit the conservation of the species. 

The Service completed the final Lake 

Erie Watersnake Recovery Plan in 2003 

(Service 2003a). We used the Recovery 

Plan to provide guidance to the Service, 

State of Ohio, and other partners on 

methods to minimize and reduce the 

threats to the Lake Erie Watersnake, to 

guide and prioritize research on the 

watersnake, and to provide measurable 

criteria that would help determine when 

the threats to the snake had been 

reduced so that it was no longer 

endangered or threatened and could be 

removed from the Federal List of 

Endangered and Threatened Wildlife 

(List). 

Recovery Plans in general are not 

regulatory documents and are instead 

intended to provide a guide on how to 

achieve recovery. There are many paths 

to accomplishing recovery of a species 

in all or a significant portion of its 

range. The main goal is to remove the 

threats to a species, which may occur 

without meeting all recovery criteria 

contained in a recovery plan. For 

example, one or more criteria may have 

been exceeded while other criteria may 

not have been accomplished. In that 

instance, the Service may judge that, 

overall, the threats have been reduced 

sufficiently, and the species is robust 

enough, to reclassify the species from 

endangered to threatened or perhaps to 

delist the species. In other cases, 

recovery opportunities may be 

recognized that were not known at the 

time the recovery plan was finalized. 

Achievement of these opportunities may 

be counted as progress toward recovery 

in lieu of methods identified in the 

recovery plan. Likewise, we may learn 

information about the species that was 

not known at the time the recovery plan 

was finalized. The new information may 

change the extent that criteria need to be 

met for recognizing recovery of the 

species. Overall, recovery of a species is 

a dynamic process requiring adaptive 

management. Judging the degree of 

recovery of a species is also an adaptive 

management process that may, or may 

not, fully follow the guidance provided 

in a recovery plan. 

The Lake Erie Watersnake Recovery 

Plan (Service 2003a, pp. 28-30) outlines 

three recovery criteria, each with two 

parts, to assist in determining when the 

snake has recovered to the point that the 

protections afforded by the Act are no 

longer needed. All three of the criteria 

in the Lake Erie Watersnake Recovery 

Plan have been fully met and, in most 

cases, substantially exceeded. Each 

criterion and its attainment are 

described fully below. 

Criterion 1: Population Persistence 

Criterion 1(a): Estimated population 

size reaches or exceeds 5,555 adult Lake 

Erie Watersnakes on the U.S. islands 

combined (Kelleys, South Bass, Middle 

Bass, North Bass, Rattlesnake, West 

Sister, Sugar, Green, Ballast, and 

Gibraltar) for a period of 6 or more 

consecutive years. 

Researchers at Northern Illinois 

University (NIU) have led intensive 

annual Lake Erie Watersnake censuses 

since 2001 and have collected data to 

generate annual adult population 

estimates as recommended in the Lake 

Erie Watersnake Recovery Plan (Service 

2003a, pp. 39-40). The methodology for 

conducting censuses and calculating the 

adult population estimates based on the 

census data is detailed in King et al. 

(2006a, pp. 88-92). Generally, 

population estimates are generated 

using multiple years of mark-recapture 

data, and applying closed- and openpopulation methods to analyze the data 


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(King et al. 2006a, pp. 88-92). The 

preferred and most accurate method for 

calculating population size, the JollySeber method (Jolly 1965, Seber 1965), 

requires at least three census periods 

and does not provide an estimate for the 

first or last period. Thus, the most 

recent year for which Jolly-Seber 

population estimates were generated is 

2008. To provide population estimates 

for 2009, the Lincoln-Petersen method 

(as modified by Bailey in Caughley 

1977, p.142) or Schumacher’s method 

(Caughley 1977, p. 145) or a relationship 

between population density and capture 

rate was used, depending on the number 

of within-year census events and 

captures at a given sampling location 

(King and Stanford 2010, p.3). As data 

are collected each year, previous years’ 

estimates are refined and current year 

estimates are generated using the above 

methods. 

King and Stanford (2010, p. 11) report 

the results of these annual adult Lake 

Erie Watersnake population estimates 

from the time period encompassing 

2001 through 2009. These population 

estimates indicate that Criterion 1(a) has 

been fully achieved, and in recent years 

substantially exceeded, during the 

period 2001-2009 (see Table 1 below). 

Based on the most recent population 

estimates in King and Stanford (2010), 

this criterion’s population goal of at 

least 5,555 adults was first achieved in 

2002 when there were an estimated 

6,200 adult watersnakes on the U.S. 

islands combined, and has remained 

well above that level for the last 8 years. 

While the adult population estimate for 

2009 seems low compared to other 

recent years, this is simply a factor 

associated with the method used to 

calculate the adult population size for 

the most recent year’s data. As noted 

above, the Jolly-Seber method cannot be 

used to generate current-year population 

estimates, so a different though less 

exact method is used, depending on the 

number of within-year census events 

and capture numbers. It is expected that 

with another year of census data, the 

refined population estimates for each 

island and for the total population for 

2009 will be considerably larger and 

more accurate. 

Even more enlightening than the adult 

population estimates is the calculation 

of realized population growth of adult 

Lake Erie Watersnakes since intensive 

monitoring began in 2001. King and 

Stanford (2009, p. 6) used the program 

MARK (White 2004, Cooch and White 

2008) to model realized population 

growth using annual census data from 

2001through 2008 at eight intensive 

study sites with the most complete 

capture histories. This model 

documented realized population growth 

of approximately 6 percent per year for 

the years 2001-2008, with 95 percent 

confidence limits of 2-10 percent, 

providing strong evidence of a 

minimum of 2 percent population 

growth per year across multiple sites 

(King and Stanford 2009, pp. 6-7). This 

indeed demonstrates that the adult Lake 

Erie Watersnake population has grown 

measurably since the time of listing, and 

validates the population estimates that 

also show increasing trends. Criterion 

1a has been fully achieved. 

TABLE 1. TOTAL ESTIMATED U.S. ADULT LAKE ERIE WATERSNAKE POPULATION SIZE, 2001-2009. ESTIMATES THAT EXCEED ISLAND-SPECIFIC AND OVERALL POPULATION SIZE GOALS SPECIFIED IN THE LAKE ERIE WATERSNAKE RECOVERY

PLAN (SERVICE 2003A) ARE SHOWN IN BOLD. MODIFIED FROM KING AND STANFORD 2010, TABLE 4. 

Year Kelleys South Bass Middle Bass North Bass Small 

Islands* 

Combined 

U.S. Islands 

Recovery Goal 900 850 620 410 Not 

applicable 

5555 

2001 1860 1560 770 160 780 5130 

2002 2160 1410 1300 550 780 6200 

2003 2270 1490 1920 270 780 6730 

2004 2780 1580 1740 480 1220 7800 

2005 2490 1580 3140 770 920 8900 

2006 2820 2790 2960 1440 1430 11440 

2007 2630 2110 3660 1010 890 10300 

2008 3270 2270 2610 970 2280 11400 

2009 2600 2220 1090 550 800 7260 

*See Criterion 1(b) 

Criterion 1(b): Subpopulations on 

each of the five small U.S. islands 

capable of supporting Lake Erie 

Watersnakes year-round (Rattlesnake, 

Sugar, Green, Ballast, and Gibraltar) 

persist during the same 6-or-more-yearperiod as Criterion 1a, and estimated 

population size reaches or exceeds the 

population size stated below for each of 

the four largest islands simultaneously 

during the same 6-or-more-year-period 

as Criterion 1(a): Kelleys Island— 

minimum of 900 adults; South Bass 

Island—minimum of 850 adults;Middle 

Bass Island—minimum of 620 adults; 

and (iv) North Bass Island—minimum of 

410 adults. 

Populations of Lake Erie Watersnakes 

have been confirmed on the following 

small U.S. islands throughout the period 

of 2002-2008: Rattlesnake, Sugar, Green, 

Ballast, and Gibraltar (King and 

Stanford 2009, pp. 6, 16). Populations of 

Lake Erie Watersnakes have persisted on 

the small islands during the same 6– 

year period as Criterion 1(a). 

As identified in Table 1 above, 

estimated population sizes for each of 

the four largest U.S. islands have 

exceeded their population size criteria 

for the 7 consecutive years between 

2002 and 2008. This is the same 

consecutive 7–year period as Criterion 

1(a), with only one exception—North 

Bass Island in 2003 (King 2008, pp. 5, 

16). King (2008, p. 5) describes the 


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circumstances of the sampling on North 

Bass Island that year: ‘‘North Bass Island 

was surveyed just once in 2003 and 

weather conditions were poor (partly 

cloudy and cool) during this survey. As 

a result, capture rates, especially at the 

NE,E,SE Shore site, were low.’’ King 

(2008, p. 5) goes on to say that the Lake 

Erie Watersnake adult population 

estimate for North Bass Island in 2003 

is likely inaccurate because the 

population estimates for the years prior 

to and after the 2003 census 

substantially exceeded the population 

estimate for 2003, and because 

watersnakes require 3 to 4 years to reach 

adulthood. King (2008, p. 5) concludes 

that, ‘‘It is unlikely that these year-toyear differences in estimated population 

size (from 610 to 270 to 440) reflect true 

variation in population numbers. 

Instead, the low estimate for 2003 

appears to reflect inadequate sampling 

in that year.’’ 

Based on the information above, it is 

reasonable to assume that North Bass 

Island has indeed met the population 

size criterion for 7 consecutive years, as 

have the other three largest U.S. islands. 

Therefore, Criterion 1(b) has been fully 

achieved. 

Criterion 2: Habitat Protection and 

Management 

Criterion 2(a): Sufficient summer and 

hibernation habitat protected in 

perpetuity and sustained in a manner 

suitable for the continued persistence of 

the Lake Erie Watersnake. Individual 

parcels will collectively encompass a 

total of 7.4 kilometers (km) (4.6 mi) of 

shoreline, and 0.51 km2 (126 acres (ac)) 

of inland habitat lying within 69 m (226 

ft) of the shoreline on U.S. islands in 

Lake Erie. To be included under this 

criterion, each parcel will have a written 

agreement, which may be represented 

by a conservation easement (such as is 

currently offered by the Ohio 

Department of Natural Resources 

(ODNR) and Lake Erie Islands Chapter 

of the Black Swamp Conservancy (LEICBSC)) or other habitat management plan 

that has been approved by the USFWS 

(such as the ‘‘Lake Erie Watersnake 

Habitat Management Planning’’ 

document for Middle Bass Island State 

Park). Individual parcels may be 

publicly or privately owned. 

Criterion 2(b): Protected shoreline 

habitat and inland habitat within 69 m 

(226 ft) of the shoreline, as described in 

Criterion 2a, will be distributed among 

the four major islands as follows, with 

the remaining protected habitat 

occurring on any of the U.S. islands 

(i) Kelleys Island—minimum 1.2 km 

(0.75 mi) shoreline, 0.083 km2 (20.5 ac) 

inland; 

(ii) South Bass Island—minimum 1.1 

km (0.70 mi) shoreline, 0.078 km2 (19.3 

ac) inland; 

(iii) Middle Bass Island—minimum 

0.82 km (0.51 mi) shoreline, 0.057 km2

(14.1 ac) inland; and 

(iv) North Bass Island—minimum 

0.54 km (0.34 mi) shoreline, 0.037 km2

(9.1 ac) inland. 

By working collaboratively with 

partners, primarily ODNR, LEIC-BSC, 

Western Reserve Land Conservancy 

(WRLC), Put-in-Bay Township Park 

District, and Cleveland Museum of 

Natural History (CMNH), we have 

ensured the permanent protection of 

18.03 km (11.27 mi) of shoreline habitat 

and 0.79 km2 (313.88 ac) of inland 

habitat within 69 m (226 ft) of shore (see 

Table 2 below). The total protected 

habitat indicated in Table 2 is more than 

double the goal established in Criterion 

2 of the Recovery Plan. Further, as 

evidenced in Table 2, the goals for each 

of the four major islands have either 

been met or exceeded. 

TABLE 2. LAKE ERIE WATERSNAKE PROTECTED HABITAT

Island Property 

Land within 69 m of shore Length of shoreline 

Partner 

(ac) (km2) (mi) (km) 

Kelleys Kelleys Island State Park; North Pond State 

Nature Preserve; Kelleys Island Alvar 

36.90 0.149 1.09 1.74 ODNR 

Long Point Preserve 21.40 0.087 0.36 0.57 CMNH 

Schollenberger Easement 0.14 0.001 0.02 0.03 LEIC-BSC 

subtotal 58.44 0.237 1.47 2.34 

South Bass South Bass Island State Park; Oak Point State 

Park 

12.90 0.052 0.50 0.80 ODNR 

Scheef East Point Nature Preserve 6.4 0.026 0.32 0.52 WRLC 

subtotal 19.30 0.078 0.82 1.32 

Middle Bass Middle Bass Island State Park; 

Kuehnle Wildlife Area 

48.70 0.197 1.71 2.74 ODNR 

Petersen Woods 1.55 0.006 0.02 0.03 LEIC-BSC 

Lawrence Evans 0.75 0.003 0 0 LEIC-BSC 

subtotal 51.00 0.206 1.73 2.77 

North Bass North Bass Island State Park; Fox’s Marsh 

Wildlife Area 

168.80 0.683 6.19 9.90 ODNR 

subtotal 168.8 0.683 6.19 9.90 

Green Green Island Wildlife Area 16.34 0.066 1.06 1.70 ODNR 

TOTAL 313.88 1.270 11.27 18.03 


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While the Service’s partners in 

establishing Lake Erie Watersnake 

protected habitat are all generally 

conservation organizations, the Service 

has ensured that some form of 

permanent protection is in place for 

each protected habitat. Each property 

that counts towards Criterion 2 is 

protected by one of the following 

methods, which have been reviewed 

and endorsed by the Service: A 

permanent conservation easement 

which specifically incorporates Lake 

Erie Watersnake habitat management 

and preservation; a Letter of Agreement 

between the landowner and the Service 

indicating that the habitat will be 

maintained in a natural habitat suitable 

for the Lake Erie Watersnake in 

perpetuity; a perpetual management 

plan to protect Lake Erie Watersnake 

habitat; or an Environmental Covenant 

and permanent deed restriction that 

supports conservation of the Lake Erie 

Watersnake and its habitat in 

perpetuity. For example, ODNR’s 

properties compose 90 percent of the 

total protected inland habitat. In 2005, 

ODNR submitted to the Service the 

‘‘Lake Erie Water Snake Habitat 

Management Planning; Lake Erie Island 

Properties Owned or Managed by the 

Ohio Department of Natural Resources’’ 

(ODNR 2005, p. 1) document to qualify 

these properties as recovery habitat for 

the snake. This document identified 

specific management actions that will 

be undertaken on each island property 

to avoid injury and harm to the Lake 

Erie Watersnake during typical land 

management activities such as mowing, 

tree removal, maintenance and repair of 

structures, and vegetation control 

(ODNR 2005, pp. 3-6). Some of these 

management actions include: avoiding 

excavation during the Lake Erie 

Watersnake hibernation season; 

removing only the above-ground portion 

of a tree while maintaining the root 

mass for hibernation habitat; and 

establishing ‘‘no mow buffer zones’’ 

within 21 m (70 ft) of the water’s edge 

between the shoreline and more 

manicured lawn areas to provide 

summer habitat for the Lake Erie 

Watersnakes (ODNR 2005, pp. 3-5). 

Further, the document specifies 

proactive measures ODNR will 

implement to enhance watersnake 

habitat, conduct outreach activities 

regarding the watersnake, and promote 

research on the watersnake (ONDR 

2005, p. 6). Finally, the document 

specifies that ODNR will initiate early 

consultation with the Service prior to 

submitting an application to a Federal 

agency to determine how to avoid and 

minimize impacts to the Lake Erie 

Watersnake (ODNR 2005, p. 2). The 

ODNR plans to continue this early 

coordination, as well as implementing 

all portions of the Lake Erie Watersnake 

habitat management plan, after delisting 

(ODNR 2010, pers. comm.). 

Another example of protected habitat 

is property protected by a conservation 

easement held by the Lake Erie Islands 

Chapter of the Black Swamp 

Conservancy. These easements include 

as their purpose statement, ‘‘The 

purpose of this Conservation Easement 

is to permanently maintain the 

Protected Property as Lake Erie Water 

Snake habitat as a scenic area of the 

Lake Erie Island Region and to prevent 

or remedy any subsequent activity or 

use that significantly impairs or 

interferes with this purpose’’ (Black 

Swamp Conservancy 2003, p. 2). The 

easement includes a number of 

prohibited uses designed to maintain 

the natural habitat of the property for 

the Lake Erie Watersnake (Black Swamp 

Conservancy 2003, pp. 2-3). Finally, the 

easement includes management 

guidelines for allowable activities that 

avoid disturbance of Lake Erie 

Watersnakes and their habitat (Black 

Swamp Conservancy 2003, pp. 13-14). 

Both ODNR’s Habitat Management 

Plan and Black Swamp Conservancy’s 

Conservation Easement program provide 

examples of mechanisms for protecting 

Lake Erie Watersnake habitat, while 

allowing for reasonable actions such as 

vegetation maintenance. All areas that 

qualify as protected habitat for the Lake 

Erie Watersnake have similar 

management plans or similar 

documents, and all of these properties 

are overseen in some way by ODNR or 

another conservation-based 

organization. Based on this information, 

Criteria 2(a) and 2(b) have been fully 

achieved. 

Criterion 3: Reduction of HumanInduced Mortality 

Criterion 3(a): Objective analysis of 

public attitude on the islands indicates 

that intentional human persecution is 

no longer a significant threat to the 

continued existence of the snake. 

As indicated in the final listing rule 

for the Lake Erie Watersnake (64 FR 

47131; August 30, 1999), ‘‘persecution 

by humans is the most significant and 

well documented factor in the decline of 

Lake Erie Watersnakes.’’ Lake Erie 

Watersnake adults are large, readily 

encountered along the shoreline and in 

nearshore waters, and cluster in groups 

during portions of the year. Though not 

venomous, Lake Erie Watersnakes will 

bite and secrete musk if handled, and 

sometimes will not flee when 

approached by humans. These Lake Erie 

Watersnake characteristics, coupled 

with a general fear of snakes among a 

broad sector of the human population, 

may have contributed to an increased 

desire to eliminate them within the 

island environment, compared to other 

areas and other species of snake. 

Therefore the recovery strategy for the 

watersnake focused heavily on public 

outreach and education, in an attempt to 

change the negative perception and 

hostile behavior of some island 

residents and visitors towards the 

watersnake. Public outreach focused on 

several basic messages: Lake Erie 

Watersnakes are not venomous, Lake 

Erie Watersnakes are a natural part of 

the island environment, and Lake Erie 

Watersnakes should not be harmed or 

killed. Several public opinion surveys 

were recently conducted to gauge island 

landowner perception of the Lake Erie 

Watersnake, and past, current, and 

future behavior towards the snake. 

Information on public opinion was 

derived primarily from formal surveys 

conducted by Wayne Wilkinson, 

Northern Illinois University (NIU) 

(Wilkinson 2008) and Andrea Olive 

(Olive 2008). 

The Lake Erie Watersnakes Public 

Opinion Survey (Wilkinson 2008) of 754 

randomly selected island residents 

within the range of the Lake Erie 

Watersnake resulted in 348 responses 

from residents of five U.S. islands, one 

response from one Canadian island 

resident, and one response from one 

non-island resident (Wilkinson 2008, p. 

7). Nineteen questions were asked to 

gauge the general knowledge, 

perceptions, and threat of human 

persecution among island residents. 

Respondents were also given the 

opportunity to provide written 

comments. Several of the survey 

questions were identical to survey 

questions asked of island residents in a 

1999 public opinion survey (Service 

1999), and answers were compared to 

determine changes over time. 

Responses from the 2008 survey 

indicate that 99 percent of respondents 

are aware that the Lake Erie Watersnake 

occurs on the island, and that 94 

percent of respondents are aware that it 

is a protected animal (Wilkinson 2008, 

pp. 1, 5). Eighty-three percent of 

respondents indicate that their 

knowledge of Lake Erie Watersnake has 

increased since listing in 1999 

(Wilkinson 2008, pp. 5). Respondents 

cite a large variety of methods by which 

they have become more familiar with 

the snake, including: the Service and 

ODNR’s biannual newsletter ‘‘LEWS 

News’’; the ‘‘Island Snake Lady’’ (an NIU 

researcher funded by ODNR and the 

Service), and; various media sources 


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(Wilkinson 2008, pp. 2-4). Generally, 

these data indicate that Federal, State, 

and nongovernmental organizations’ 

outreach and education campaigns are 

reaching the vast majority of island 

residents, and are helping to increase 

their access to information about the 

watersnake. 

Additionally, Wilkinson (2008, p. 1) 

reports that 66 percent of respondents 

indicated that their attitude toward the 

watersnake is generally positive or 

neutral, while 34 percent indicate that 

their attitude is generally negative. 

While it is apparent that not all 

residents feel positively toward the 

snake, it is very notable that, despite 

human persecution being the most 

significant factor in the decline of the 

Lake Erie Watersnake, only about 4 

percent of respondents indicated they 

had knowingly killed a watersnake 

since the time of listing, and only about 

14 percent of respondents said they 

would knowingly kill a watersnake if it 

was no longer protected by State or 

Federal laws (Wilkinson 2008, p. 6). We 

interpret these responses to indicate 

that, while the watersnake will still face 

some human persecution, the vast 

majority of islanders would not resort to 

lethal means if they encountered 

watersnakes on their property. 

Similarly, in 2007, Olive (2008, p. 83) 

randomly selected and interviewed 44 

individual property owners from 

Middle Bass Island regarding the 

Endangered Species Act and the Lake 

Erie Watersnake. Of those interviewed, 

7 percent admitted to killing a snake 

and 18 percent admitted they might kill 

a snake while it is listed (Olive 2008, 

pp. 112-113, 153). 

Despite the admitted intentional 

mortality documented by both 

Wilkinson (2008, p. 6) and Olive (2008, 

pp. 112-113, 153) adult Lake Erie 

Watersnake populations have increased 

substantially since the time of listing, 

both across the U.S. range and on each 

large island (King and Stanford 2010, p. 

11; King and Stanford 2009, pp. 6-7). 

This indicates that the adult Lake Erie 

Watersnake population can tolerate 

some degree of intentional mortality of 

individual snakes and still persist at a 

recovery level. 

Wilkinson’s 2008 public opinion 

survey found that 31 percent of 

respondents’ attitudes toward Lake Erie 

Watersnakes have become more 

negative since listing, 30 percent have 

become more positive, and 39 percent 

have not changed (Wilkinson 2008, p1). 

While this survey did not attribute 

reasons to the change in attitude, 69 out 

of 168 (41 percent) of the optional 

comments on Wilkinson’s (2008, pp. 8- 

13) survey response form indicated the 

belief that there are now too many 

snakes, that the snakes are becoming 

nuisances due to their numbers and 

their habits of clustering along the 

shoreline, or that the snakes should no 

longer be protected. 

Public opinion of the Lake Erie 

Watersnake varies widely among those 

who support it, those who have no 

opinion, and those that dislike or fear 

the snake. Outreach efforts have reached 

nearly all island residents, increasing 

access to information about the Lake 

Erie Watersnake, including non-lethal 

ways to address nuisance snakes. 

Opinion surveys seem to indicate that 

most people do not now and will not in 

the future kill Lake Erie Watersnakes, 

however many people indicate that the 

sheer number of snakes along the 

shoreline has become a nuisance, and 

this may contribute to negative feelings 

towards the snake. As Lake Erie 

Watersnake numbers have rebounded, 

and a significant amount of habitat has 

now been permanently protected to 

support Lake Erie Watersnakes, the Lake 

Erie Watersnake population can 

withstand a limited amount of 

intentional mortality. While the threat 

of intentional mortality likely can never 

be completely eliminated, results of 

public opinion surveys indicate that the 

number of mortalities anticipated from 

intentional human persecution on its 

own and with other residual threats is 

not likely to cause the subspecies to 

become threatened or endangered again 

within the foreseeable future. 

Continued outreach regarding the 

Lake Erie Watersnake’s role in the 

island ecosystem is important, and this 

is proposed to continue through various 

partners post-delisting. Proposed ongoing outreach activities are addressed 

in the Summary of Factors Affecting the 

Species - Factor E, below. Public 

opinion will be monitored post-delisting 

to ensure this remnant threat is not 

affecting the Lake Erie Watersnake 

population as a whole. Therefore, 

Criterion 3(a) has been fully achieved. 

Criterion 3(b): Accidental humaninduced mortality, such as occurs from 

roadkill and fishing, has been reduced 

to the maximum extent practicable, and 

no longer represents a significant threat 

to the population. 

Several sources of accidental humaninduced mortality have been examined 

to determine to what degree they may be 

contributing to overall mortality of Lake 

Erie Watersnakes, and if they are a 

significant threat to the population. 

A survey of registered boaters in the 

Lake Erie island region was conducted 

to determine how many members of the 

Lake Erie Island boating and fishing 

community had direct encounters with 

snakes, and to characterize the 

responses from these encounters 

(Stanford 2004). Of 1,437 surveys 

mailed out, 468 were completed and 

returned (Stanford 2004, p. 1). An 

additional 21 surveys were completed 

voluntarily by individuals who picked 

them up at various outreach events that 

occurred in the vicinity of the islands, 

for a total of 489 survey responses 

(Stanford 2004, p. 1). Of the 

respondents, 118 reported having 

encountered a watersnake on their boat, 

and not a single encounter resulted in 

a boater or angler killing a snake 

(Stanford 2004, p. 2). These data suggest 

that encounters between boaters and 

watersnakes typically do not result in 

mortality. Only 13 of the 489 

respondents (less than 3 percent) 

indicated that they have ever caught a 

snake by hook and line while fishing 

with both live and artificial baits, and 

from both boat and shore, though no 

information was provided regarding 

snake mortality during these incidents 

(Stanford 2004, p. 2). It is clear that 

bycatch of Lake Erie Watersnakes due to 

hook and line fishing incidents is very 

rare, and does not pose a significant 

threat to the population. Despite the 

rarity of mortality during fishing and 

boating, approximately 25 percent of 

boaters and anglers near the Lake Erie 

islands may encounter a Lake Erie 

Watersnake (Stanford 2004, p. 2). ODNR 

Division of Wildlife developed 

pamphlets entitled, ‘‘Lake Erie 

Watersnake-Make your Boating 

Experience More Pleasant’’ to aid 

anglers and boaters in deterring Lake 

Erie Watersnakes from entering their 

boats, and to recommend non-lethal 

methods to remove snakes from boats 

(ODNR 2003). These pamphlets are 

available online (http:// 

respectthesnake.com) and at a number 

of state parks, boat launches, and 

marinas in the island region. 

To address the effect roadkill 

mortality may have on the Lake Erie 

Watersnake population a survey of 

roadkill mortality was conducted on the 

four large U.S. islands between June 26 

and July 15, 2005 (King 2007, pp. 5-6). 

This survey found a total of 71 roadkill 

snakes, including 45 roadkill Lake Erie 

Watersnakes (King 2007, p.5). King 

(2007, p. 6) states, ‘‘Among watersnakes, 

38 were neonates, 5 were juveniles, and 

2 were adults. These results suggest that 

adult Lake Erie Watersnake roadkill 

mortality is relatively low (Brown and 

Weatherhead 1999). Available data on 

watersnake mortality suggest that 

survivorship of neonates is low. Thus, 

roadkill mortality of this age-class likely 

has little impact on watersnake 


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population trends.’’ Therefore, the 

number of mortalities anticipated from 

accidental human-induced mortality 

due to roadkill events alone or coupled 

with other residual threats is not likely 

to cause the subspecies to become 

threatened or endangered again within 

the foreseeable future. 

The Lake Erie Watersnake Recovery 

Plan (Service 2003a, pp. 18, 38, 49, 57) 

recommended that additional studies be 

conducted to document the impact that 

invasive species, including the round 

goby, may have on the watersnake. King 

et al. (2006b, p. 110) found that since 

the appearance of round goby in the 

Great Lakes in the early 1990’s, Lake 

Erie Watersnake diets have shifted from 

a diet of native fishes and amphibians 

to a diet composed of more than 90 

percent round goby. This dietary shift 

corresponds to increased watersnake 

growth rates, increased body size, and 

increase in fecundity, with female 

watersnakes producing on average 25 

percent more offspring post-invasion 

(King et al. 2008, pp.155, 158; King et 

al. 2006b, pp.111-113). King et al. (2008, 

p. 159) suggest that, ‘‘resource 

availability may have contributed to 

population declines in Lake Erie 

Watersnakes during the mid- to late1900s...While habitat loss and humancaused mortality are likely contributors 

to past watersnake population declines, 

the possibility exists that a reduction in 

benthic [lake bottom] fish biomass, 

resulting in reduced watersnake 

fecundity, was also a factor. 

Unfortunately, quantitative data on 

long-term temporal trends in benthic 

fish biomass are lacking.’’ If it is correct 

that limited foraging opportunities were 

a cause of the watersnake’s population 

declines, the overabundance of the 

round goby within the island region of 

western Lake Erie will likely provide a 

significant prey source into the 

foreseeable future, negating any threats 

from limited prey availability. 

The Lake Erie Watersnake Recovery 

Plan (Service 2003a, pp. 18-19, 38, 49, 

57) also recommended that additional 

studies be conducted to document the 

impact that contaminants may have on 

the watersnake. In particular, this 

research became a high priority when it 

became apparent that the watersnake’s 

diet switched from native fish and 

amphibians to almost exclusively round 

goby, which prey extensively on zebra 

mussels (Dreissena polymorpha) and 

quagga mussels (Dreissena bugensis). 

Potential biomagnification of 

contaminants through this change in 

food web was thought to be a possible 

threat to the watersnake. 

Polychlorinated biphenyls (PCBs) have 

been documented in Lake Erie 

Watersnakes in fairly high levels (113 

micrograms per gram (μg/g) (Bishop and 

Rouse 2006, pp. 454, 456) and 167 μg/ 

g (Bishop and Rouse 2000, pp. 500- 

501)). Recent research compared the 

levels of contaminants in Lake Erie 

Watersnakes pre- and post-goby 

invasion and found ‘‘a marginal increase 

in hexachlorobenzene levels, and a 

significant decline in dieldrin, 

oxychlordane, and heptachlor epoxide,’’ 

and found that, ‘‘sum PCBs and p,p’- 

DDE remained stable in the watersnakes 

after the invasion of round 

goby...suggesting that although the 

dietary switch to round gobies meant 

consumption of a more contaminated 

diet, their diet remained at the same 

trophic position [place in the food 

chain]’’ (Fernie et al. 2008 p. 344). 

Fernie et al. (2008, pp. 344, 349-350) did 

recommend additional studies to 

determine if these contaminants affect 

reproductive and physiological 

parameters in Lake Erie Watersnakes; 

however, as Bishop and Rouse (2006, 

pp. 452, 454, 456) did not correlate high 

levels of PCBs with embryonic mortality 

or number of embryos produced by 

female watersnakes, no additional 

research on contaminants is deemed 

necessary at this time. 

Research confirms that the dietary 

switch from native fish and amphibians 

to round gobies has not resulted in 

significant increases in contaminant 

loads in Lake Erie Watersnakes. 

Additionally, while relatively high 

levels of PCBs were detected in 

watersnakes in the past, these levels did 

not correspond with embryonic 

survivorship. Lake Erie Watersnake 

population numbers continue to 

increase despite relatively stable 

exposure to contaminants over the past 

18 years of study, and therefore we 

conclude at this time and into the 

foreseeable future that contaminants do 

not pose a significant threat to the Lake 

Erie Watersnake. 

As described further under Summary 

of Factors Affecting the Species - Factor 

A and Factor E below, intensive public 

outreach has occurred to increase 

awareness of island residents and 

visitors of the presence of the Lake Erie 

Watersnake on the Lake Erie islands and 

in nearby waters, and to reduce both 

accidental and intentional mortality of 

Lake Erie Watersnakes. To reduce 

accidental mortality from typical land 

management activities such as lawn 

mowing and tree clearing, and to guide 

residents in an appropriate way to 

address Lake Erie Watersnakes that are 

found in garages, pools, lawns, patios, 

basements, and other similar areas, 

various outreach documents have been 

developed by both the Service and 

ODNR. The Service’s ‘‘Lake Erie 

Watersnake Management Guidelines for 

Construction, Development, and Land 

Management Activities’’ (Service 2009, 

Service 2003b) provide guidance on 

how to avoid take during typical landmanagement activities, while ODNR’s 

‘‘A Lakeshore Property Owner’s Guide to 

Living with Lake Erie Watersnakes’’ 

(ODNR 2006) provides guidance on 

dealing with nuisance snakes in human 

living areas in a non-lethal way. These 

documents are available on the internet 

(http://respectthesnake.com) and at 

various locations on the islands. 

In summary, we have assessed the 

impact of accidental human-induced 

mortality on the adult Lake Erie 

Watersnake population. We have used 

an intensive public outreach campaign 

to increase awareness of residents and 

visitors to the presence and protected 

status of the Lake Erie Watersnake, and 

have provided guidance and tools for 

minimizing human-snake encounters 

and addressing snakes encountered in 

boats, homes, yards, and other humaninhabited areas in a non-lethal way. We 

have determined that accidental humaninduced mortality, such as occurs from 

boating, fishing, and roadkill events, 

does not pose a substantial threat to the 

adult Lake Erie Watersnake population, 

and therefore does not warrant further 

action. Further, invasive species and 

contaminants do not appear to 

significantly threaten the adult Lake 

Erie Watersnake population. We assert 

that Criterion 3(b) has been achieved. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act and its 

implementing regulations (50 CFR part 

424) set forth the procedures for listing 

species, reclassifying species, or 

removing species from listed status. 

‘‘Species’’ is defined by the Act as 

including any species or subspecies of 

fish or wildlife or plants, and any 

distinct vertebrate population segment 

of fish or wildlife that interbreeds when 

mature (16 U.S.C. 1532(16)). Once the 

‘‘species’’ is identified, we then evaluate 

whether that species may be endangered 

or threatened because of one or more of 

the five factors described in section 

4(a)(1) of the Act. We must consider 

these same five factors in delisting a 

species. We may delist a species 

according to 50 CFR 424.11(d) if the best 

available scientific and commercial data 

indicate that the species is neither 

endangered nor threatened because (1) 

The species is extinct, (2) the species 

has recovered and is no longer 

endangered or threatened, or (3) the 

original scientific data used at the time 

the species was classified were in error. 


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A recovered species is one that no 

longer meets the Act’s definition of 

threatened or endangered. The analysis 

for a delisting due to recovery must be 

based on the five factors outlined in 

section 4(a)(1) of the Act. This analysis 

must include an evaluation of threats 

that existed at the time of listing, those 

that currently exist, and those that could 

potentially affect the species once the 

protections of the Act are removed. 

In the context of the Act, the term 

‘‘threatened species’’ means any species 

or subspecies or, for vertebrates, Distinct 

Population Segment (DPS) that is likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. The 

term ‘‘endangered species’’ means any 

species that is in danger of extinction 

throughout all or a significant portion of 

its range. The Act does not define the 

term ‘‘foreseeable future.’’ For the 

purpose of this proposal, we define the 

‘‘foreseeable future’’ to be the extent to 

which, given the amount and substance 

of available data, we can anticipate 

events or effects, or reliably extrapolate 

threat trends, such that we reasonably 

believe that reliable predictions can be 

made concerning the future as it relates 

to the status of the Lake Erie 

Watersnake. 

The following analysis examines all 

five factors currently affecting, or that 

are likely to affect, the Lake Erie 

Watersnake within the foreseeable 

future. 

A.The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

The islands on which the Lake Erie 

Watersnake occurs provide seasonal 

residences and vacation areas to large 

numbers of people during the summer 

months. Further, the western Lake Erie 

basin is widely known for recreational 

and fishing opportunities, and is a 

regional destination area, particularly 

during the summer months. It is 

therefore not surprising that most of the 

islands have faced and continue to face 

development pressure (Seymour 2009, 

pers. comm.). 

Prior to listing, three of the large 

islands (Kelleys, Middle Bass, and 

South Bass) were fairly well developed 

with residences and small-scale 

commercial businesses, with scattered 

natural areas throughout. North Bass 

Island supported a few residences, but 

was primarily agricultural, and 

dedicated to viticulture (vineyards). The 

small islands are mostly privately 

owned, and typically support a few 

residences interspersed with natural 

areas. Development activities on the 

islands since the Lake Erie Watersnake 

was listed in 1999 include the following 

types of projects: residential 

construction on three of the four large 

islands; hotel and motel structures on 

two of the large islands; dock 

construction and rehabilitation on most 

of the islands; shoreline stabilization on 

most of the islands; small and large 

marina construction and rehabilitation 

on several of the islands; utility line 

installation on three of the large islands; 

road rehabilitation projects on two of 

the large islands; wastewater treatment 

facilities on several of the islands; beach 

nourishment projects on several of the 

islands; small-scale commercial 

development on several of the large 

islands; and airport upgrades on several 

of the islands (Seymour 2009, pers. 

comm.). Many of these activities occur 

on or near the shoreline, where Lake 

Erie Watersnakes spend much of their 

time. In some cases, development 

activities can result in habitat loss or 

degradation, for example, when a 

building is constructed along a segment 

of shoreline that previously supported 

natural vegetation, or when a vertical 

wall is constructed along the shoreline 

to protect against erosion. However, 

some types of development actually 

provide suitable Lake Erie Watersnake 

habitat. For example, Lake Erie 

Watersnakes will readily use rip-rap or 

armor stone erosion control structures 

and crib docks that incorporate stone fill 

for summer habitat. 

Destruction or Modification of Summer 

Habitat 

As described in the Background 

section, Lake Erie Watersnake summer 

habitat consists of the rocky and 

vegetated island shorelines and the 

adjacent nearshore waters of Lake Erie. 

Seventy-five percent of adult Lake Erie 

Watersnakes are found within 13 m 

(42.7 ft) of the water’s edge during the 

summer (King 2003, p. 4). Destruction 

or modification of summer habitat 

typically occurs due to residential or, 

less often, commercial development, 

installation or modification of roadways 

and associated utilities, shoreline 

erosion control projects, dock 

construction or modification, and 

dredging activities. These activities may 

result in loss or degradation of rocky 

shorelines, vegetation, and nearshore 

aquatic habitats, which the snakes use 

for basking, resting, cover, mating, and 

foraging. 

Lake Erie Watersnakes are affected by 

summer habitat destruction and 

modification in a variety of ways, 

depending on the method, design, and 

timing of the specific project. Lake Erie 

Watersnakes are resilient to many 

modifications to summer habitat, such 

as installation of rip-rap erosion control 

structures and crib docks. Repeated 

observations over multiple years 

document that individual Lake Erie 

Watersnakes displaced during 

construction activities will return to the 

same area once construction is 

complete, so long as rocky or vegetated 

shoreline habitat is present (Stanford 

2009, pers. comm.). Further, artificial 

habitat such as crib docks and rip-rap 

erosion control are known to support 

large number of Lake Erie Watersnakes 

during the summer season on all of the 

large islands, and may actually provide 

habitat where natural rocky shoreline 

habitat was previously limited. Projects 

that impact summer habitat, but occur 

during the winter season, may have no 

observable impacts on the Lake Erie 

Watersnake, while projects that impact 

summer habitat during the summer may 

cause temporary displacement of Lake 

Erie Watersnakes from all or a portion 

of their shoreline home range. The vast 

majority of the islands’ shorelines are 

either composed of small private lots or 

larger parcels (typically ODNR 

properties) that are protected Lake Erie 

Watersnake habitat. In most cases, 

projects that impact Lake Erie 

Watersnake summer habitat occur on 

small private parcels, and therefore 

impacts will be limited to only a small 

portion of an individual snake’s home 

range. 

There are only a few activities that 

may permanently displace Lake Erie 

Watersnakes from their summer habitat, 

including installation of vertical steel or 

concrete walls along the shoreline or 

over the sides of existing rock-filled crib 

docks. In instances where homes, 

businesses, roads, or other similar 

structures are built close to the 

shoreline, the presence of manicured 

lawns and shorelines may degrade 

summer habitat through loss of cover, 

though Lake Erie Watersnakes are often 

encountered basking in grassy areas 

near the shoreline, despite the presence 

of homes or roads. While Lake Erie 

Watersnakes may use grassy areas near 

shorelines and roads for basking, this 

habitat is not ideal because snakes are 

highly visible and may be more 

susceptible to predation or human 

persecution, and less cover is generally 

available in these areas. Further, 

maintenance activities such as mowing 

may kill or injure snakes that use 

maintained grass areas. Finally, snakes 

basking along road edges may be more 

susceptible to road kill than snakes 

basking near natural shorelines. Threats 

such as roadkill and human persecution 

are addressed under Factor E below. 

Impacts to foraging habitat (Lake Erie) 

are typically limited to fill placement 


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for erosion control, docks, or navigation 

structures, or dredging to facilitate 

navigation. All impacts to foraging 

habitat are regulated by the U.S. Army 

Corps of Engineers (Corps) through 

section 10 of the Rivers and Harbors Act 

and section 404 of the Clean Water Act 

(see Factor D). Projects such as these 

typically cover only a small geographic 

area, and are of limited duration. 

Impacts to the Lake Erie Watersnake 

from these activities may include a 

limited amount of foraging habitat loss 

due to placement of fill within Lake 

Erie, degradation of foraging habitat due 

to short-term turbidity, and temporary 

displacement from foraging areas where 

construction activities are occurring. 

While watersnakes may be temporarily 

displaced from foraging habitat during 

construction, on repeated occasions 

over multiple years, individual Lake 

Erie Watersnakes have been 

documented recolonizing disturbed 

foraging areas shortly after construction 

activities are complete (Stanford 2009, 

pers. comm.). As noted above, the 

primary prey of Lake Erie Watersnakes 

is round goby, and these fish are 

superabundant in the island region 

(King et al. 2006b, p. 110). Foraging 

habitat and prey do not appear to be a 

limiting factor for Lake Erie 

Watersnakes, and therefore limited 

construction activities within foraging 

habitat are not anticipated to have 

significant impacts on Lake Erie 

Watersnakes. 

Prior to listing, summer habitat 

modification included the activities 

described above, but of particular 

concern was the proliferation of sheet 

steel docks and vertical concrete and 

steel shoreline walls. Development of 

homes, businesses, and roads along the 

island shorelines may have degraded 

natural watersnake habitat to some 

degree, but as described above, Lake 

Erie Watersnakes appear to be fairly 

resilient to the presence of these types 

of structures, as long as rocky or 

vegetated shorelines persist once 

construction is complete. 

Since the time of listing, most 

destruction and modification of Lake 

Erie Watersnake summer habitat has 

been subject to consultation under 

section 7 of the Act through the 

issuance of Corps permits under section 

10 of the Rivers and Harbors Act and 

section 404 of the Clean Water Act (see 

Factor D). These laws provide the 

Service the opportunity to review and 

comment on all projects affecting Lake 

Erie Watersnake foraging habitat and 

many projects affecting shoreline 

habitat. Under these authorities, the 

Service has consistently recommended 

installation of rip-rap erosion control 

structures and crib docks in lieu of 

vertical concrete or sheet steel 

structures, seasonal timeframes for 

construction activities if appropriate, 

educational signage, and other 

appropriate avoidance and 

minimization measures. This 

consultation has reduced shoreline 

habitat degradation substantially, and 

has resulted in the creation of artificial 

shoreline habitat for Lake Erie 

Watersnakes on many islands. 

We anticipate that similar projects 

impacting the islands’ shorelines and 

the Lake Erie Watersnake’s summer 

habitat will continue into the 

foreseeable future. As noted above, the 

vast majority of these projects are 

regulated by section 10 of the Rivers and 

Harbors Act and section 404 of the 

Clean Water Act, and as such, the 

Service will still have the opportunity to 

review and comment on these Corps 

projects via the Public Notice process. 

The Service will continue 

recommending rock structures as 

opposed to vertical structures on these 

types of projects, under the authority of 

the Fish and Wildlife Coordination Act, 

as rock structures are beneficial not only 

to snakes, but to fish and other aquatic 

species as well. We anticipate that 

construction of shoreline structures 

beneficial to Lake Erie Watersnakes will 

continue into the foreseeable future. 

The destruction or modification of 

summer habitat may temporarily 

displace individual watersnakes, but 

these impacts do not affect the 

population as a whole. Shoreline habitat 

loss has been minimized while the 

species has been listed and is expected 

to remain minimal within the 

foreseeable future due to coordination 

and consultation with the Corps under 

section 10 of the Rivers and Harbors Act 

and section 404 of the Clean Water Act, 

and use of snake-friendly designs such 

as rip-rap and crib docks. Lake Erie 

Watersnakes have been documented to 

readily use these structures for summer 

habitat. Further, while shoreline 

construction activities may temporarily 

displace Lake Erie Watersnakes from 

portions of summer habitat, they will 

readily recolonize these areas shortly 

after construction activities are 

complete, as long as rocky or vegetated 

shorelines still exist (Stanford 2009, 

pers. comm.). Destruction and 

modification of foraging habitat is 

typically limited in scope and duration, 

and does not appear to be a limiting 

factor for the watersnake. However, the 

Service plans to address potential 

impacts to summer habitat by use of 

voluntary guidelines and by the 

presence of permanently protected 

habitat for the Lake Erie Watersnake, 

both described further below. 

Destruction or Modification of 

Hibernation Habitat 

As described in the Background 

section, during winter (generally midSeptember through mid-April) Lake Erie 

Watersnakes hibernate below the frost 

level, in cracks or crevices in the 

bedrock, interstitial spaces of rocky 

substrates, tree roots, building 

foundations, and other similar natural 

and human-made structures (King 2003, 

pp. 5, 11-18). Seventy-five percent of 

Lake Erie Watersnakes hibernate within 

69 m (226 ft) of the water’s edge (King 

2003, p. 4). Individual snakes often 

demonstrate site fidelity, returning to 

the same shoreline area and the same or 

nearby hibernacula in successive years 

(King 2003, pp. 4, 11-17). 

Destruction or modification of 

hibernation habitat typically occurs due 

to residential or less often, commercial 

development, installation or 

modification of roadways or utilities, 

removal of tree roots, agriculture, and 

other excavation activities in areas 

within approximately 69 m (226 ft) of 

the shoreline. These activities may 

result in excavation, filling, or general 

disturbance of the rock, soil, root or 

other substrates within which Lake Erie 

Watersnakes hibernate. 

Lake Erie Watersnakes are affected by 

hibernation habitat destruction and 

modification in a variety of ways, 

depending on the extent and timing of 

the specific project. Destruction or 

modification of hibernation habitat 

during the winter when Lake Erie 

Watersnakes are hibernating will likely 

result in death of hibernating snakes 

due to exposure, as well as the loss of 

the hibernacula for future generations of 

snakes. Destruction or modification of 

hibernation habitat during the summer 

when Lake Erie Watersnakes are not 

hibernating may result in temporary or 

permanent displacement from the 

hibernation area, and may force the 

snakes to find alternate hibernation 

sites. Though Lake Erie Watersnakes 

often demonstrate hibernacula fidelity, 

individual snakes have survived the 

winter when accidentally relocated to 

areas outside of their home range (King 

and Stanford 2009, p. 8), and when 

documented moving between islands 

(King 2002, p. 4), indicating that they 

are capable of finding new hibernation 

sites when previous sites are 

inaccessible. While this indicates that 

some Lake Erie Watersnakes are able to 

locate suitable alternate hibernacula, it 

is also likely that some Lake Erie 

Watersnakes are unable to locate 

suitable alternate hibernacula and die 


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from exposure or predation. As Lake 

Erie Watersnakes appear to use a variety 

of substrates and materials as 

hibernation habitat, and hibernation 

habitat sufficient to support 

approximately 50 percent of the adult 

Lake Erie Watersnake population is now 

protected, it is unlikely that the 

presence of suitable hibernation habitat 

is a limiting factor for the snake. It is 

more likely that loss of hibernation 

habitat during the winter when 

watersnakes are using it is problematic 

due to the accompanying mortality. 

Prior to the Watersnake’s 1999 listing, 

three of the four large islands were 

subject to substantial residential and 

commercial development. North Bass 

Island, while not subject to substantial 

development, was intensively farmed 

for grapes. Destruction and modification 

of hibernation habitat for development 

and agricultural activities likely 

occurred on a regular basis throughout 

the year. During portions of the 

Watersnake’s hibernation season, the 

lake and ground are frozen and snowcovered, limiting access to construction 

vehicles and likely precluding some, but 

not all, ground-disturbing activities. 

Therefore, it is likely that Lake Erie 

Watersnakes were injured or killed 

during excavation or filling activities 

within hibernation habitat that occurred 

during the hibernation season. It is also 

likely that Lake Erie Watersnakes were 

displaced from their hibernation habitat 

when excavation or filling of 

hibernacula occurred during the 

summer months. 

Since listing, many excavation or 

filling activities within proximity to the 

shoreline have been coordinated with 

the Service to determine if the activity 

would result in take of Lake Erie 

Watersnakes or to determine if 

avoidance or minimization measures 

were warranted. Some projects 

involving small areas of excavation, 

excavation of topsoil only, or excavation 

far inland from the shoreline were 

completed during the summer months 

and were not anticipated to cause direct 

mortality or substantial displacement of 

Lake Erie Watersnakes. Other projects 

that resulted in substantial excavation 

or fill within proximity to the shoreline 

were anticipated to destroy or modify 

hibernacula and cause take of Lake Erie 

Watersnakes, and for these projects, 

formal consultation under section 7 of 

the Act or the issuance of a section 

10(a)(1)(B) permit under the Act 

occurred. During the 11–year period 

during which Lake Erie Watersnakes 

have been listed, only five projects were 

anticipated to cause loss of hibernation 

habitat and take of Lake Erie 

Watersnakes. So while development is 

fairly evenly spread across three of the 

large islands, most projects reviewed 

since the Watersnake’s listing did not 

cause loss of hibernation habitat. 

We anticipate that within the 

foreseeable future, loss of Lake Erie 

Watersnake hibernation habitat will 

likely proceed at approximately the 

same rate as within the past 11 years. 

We anticipate that approximately one 

large-scale development every 2.5 years 

will cause loss of Lake Erie Watersnake 

hibernation habitat (Seymour 2009, 

pers. comm.). The presence of 

hibernation habitat is not likely a 

limiting factor for the subspecies; 

however to limit mortality of 

watersnakes, it is important that largescale excavation or filling activities 

within approximately 69 m (226 ft) of 

the shoreline do not occur during the 

winter hibernation season. Once the 

species is delisted, there will be no 

requirement to consult with the Service 

on activities that may affect hibernation 

habitat, nor is there a separate Federal 

nexus that would trigger Service review 

of the project as is the case with projects 

that may affect summer habitat. The 

Service has addressed this gap in 

hibernation habitat protection and 

management by the presence of 

permanently protected habitat for the 

Lake Erie Watersnake, and by use of 

voluntary guidelines, both described 

further below. 

The destruction or modification of 

hibernation habitat may displace 

individual watersnakes and result in 

minimal mortality, but these impacts do 

not affect the population as a whole. 

Hibernation habitat loss during listing 

was minimal, and within the foreseeable 

future is likely to continue to be 

minimal, based on recent trends 

(Seymour 2009, pers. comm.). Lake Erie 

Watersnakes have recently been 

documented to survive winters despite 

their former hibernacula being 

inaccessible, indicating they are capable 

of finding alternate hibernacula if 

historical hibernacula are lost. The 

potential loss of some hibernation 

habitat due to development postdelisting will be alleviated by the 

presence of permanently protected 

habitat on each of the large islands, 

described further below. 

Protected Habitat 

While it is true that Lake Erie 

Watersnakes are fairly resilient to some 

habitat modifications and persist along 

and within developed areas, the Service 

recognizes that it is important to also 

have portions of habitat that are 

permanently protected and managed to 

benefit the Lake Erie Watersnake, and 

which will provide a substantial amount 

of suitable summer and hibernation 

habitat for the snake in the foreseeable 

future. The Lake Erie Watersnake 

Recovery Plan called for the permanent 

protection and management of summer 

and hibernation habitat sufficient to 

support 20 percent of the recovery 

population goal of 5,555 adult Lake Erie 

Watersnakes (Service 2003a, p.34). This 

habitat must encompass a total of 7.4 

km (4.6 mi) of shoreline, and 0.51 km2

(126 ac) of inland habitat lying within 

69 m (226 ft) of the shoreline on U.S. 

islands in Lake Erie (Service 2003a, p. 

29). Additionally, this habitat must be 

distributed among the large U.S. islands 

as described below to support multiple 

subpopulations throughout the range of 

the subspecies: Kelleys Island—1.2 km 

(0.75 mi) shoreline, 0.083 km2 (20.5 ac) 

inland; South Bass Island—1.1 km (0.70 

mi) shoreline, 0.078 km2 (19.3 ac) 

inland; Middle Bass Island—0.82 km 

(0.51 mi) shoreline, 0.057 km2 (14.1 ac) 

inland; and North Bass Island—0.54 km 

(0.34 mi) shoreline, 0.037 km2 (9.1 ac) 

inland (Service 2003a, p. 29). The 

remaining protected habitat may occur 

on any of the U.S. islands. To be 

included as protected habitat, each 

parcel will have a written agreement, 

which may be represented by a 

conservation easement or other habitat 

management plan that has been 

approved by the USFWS (Service 2003a, 

p. 29) and protects Lake Erie 

Watersnake habitat in perpetuity. 

As discussed in the Recovery section, 

by working collaboratively with 

partners, primarily ODNR, LEIC-BSC, 

Western Reserve Land Conservancy, 

Put-in-Bay Township Park District, and 

Cleveland Museum of Natural History, 

we have ensured the permanent 

protection and management of 18.03 km 

(11.27 mi) of shoreline habitat and 1.270 

km2 (313.88 ac) of inland habitat within 

69 m (226 ft) of shore (see Table 2) in 

perpetuity. The total protected habitat 

indicated in Table 2 above is more than 

double the goal established in Criterion 

2 of the Recovery Plan, and is sufficient 

to support nearly 50 percent of the 

recovery population goal of 5,555 adult 

Lake Erie Watersnakes. Further, as 

evidenced in Table 2, the recovery goals 

for protected habitat on each of the four 

major islands have either been met or 

exceeded. This protected habitat will 

provide a series of permanent refugia 

distributed across the islands and across 

the U.S. range of the subspecies that can 

support a substantial portion of the Lake 

Erie Watersnake population. 

Voluntary Guidelines 

Destruction or modification of 

hibernation habitat during the winter 

months when Lake Erie Watersnakes are 


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using such habitat may result in 

mortality of individual snakes, but will 

not threaten the population as a whole 

once the protection of the Act is 

removed. If snakes are excavated during 

the hibernation season it is unlikely that 

they would be able to search for and 

find alternate hibernacula due to cold 

temperatures and frozen or snowcovered ground, and would not survive 

exposure to winter weather. Once the 

species is delisted, no regulatory 

options will exist to address timing of 

impacts to hibernation habitat. To 

minimize impact to individual 

Watersnakes from this threat, the 

Service will widely distribute a revised 

version of ‘‘Lake Erie Watersnake 

Management Guidelines for 

Construction, Development, and Land 

Management Activities’’ (Service 2009). 

Further, we will recommend to local 

governments that they adopt and 

broadly distribute these voluntary 

guidelines. 

The Service initially developed Lake 

Erie Watersnake Management 

Guidelines for Construction, 

Development, and Land Management 

Activities (Service 2009, Service 2003b) 

when the subspecies was listed. These 

voluntary guidelines were intended to 

substantially reduce the potential for 

take to occur during typical private and 

public land management activities such 

as lawn mowing, tree cutting, and 

excavation activities. The guidelines 

recommend seasonal restriction on 

activities such as excavation and 

mowing, design recommendations for 

shoreline structures that will enhance 

Lake Erie Watersnake summer habitat, 

and suggestions for monitoring snakes 

during construction activities (Service 

2009, p. 1-2; Service 2003b, pp. 2-4). 

Though the guidelines are voluntary, 

they have been added as mandatory 

conditions on Federal permits and as 

Reasonable and Prudent Measures in 

Biological Opinions and Incidental Take 

Statements to avoid and minimize take 

during the completion of projects that 

required section 7 consultation or 

section 10 permits under the Act (for 

example, see Service 2008, p. 5). If the 

subspecies is delisted, these guidelines 

will still be recommended under the 

auspices of the Fish and Wildlife 

Coordination Act, as amended (16 

U.S.C. 661-667e) when reviewing 

Federal activities that are planned 

within Lake Erie Watersnake habitat 

areas. This will aid in avoiding and 

minimizing habitat loss to individual 

watersnakes due to typical land 

management actions on private 

property. However, for any incidental 

take statements or incidental take 

permits that have already been issued 

under sections 7 or 10 of the Act, but 

for which the projects have not yet been 

implemented, Lake Erie Watersnake 

conservation measures will no longer be 

mandatory. 

Range Curtailment 

The historical range of the Lake Erie 

Watersnake includes the offshore 

islands of the western Lake Erie basin in 

the U.S. and Canada and portions of the 

Catawba-Marblehead peninsula on the 

mainland of Ohio, though the 

threatened DPS includes only those 

Lake Erie Watersnakes occurring on U.S. 

islands greater than 1.6 km (1 mi) from 

the Ohio mainland (64 FR 47126). The 

U.S. islands and rock outcrops within 

the historic range include, but are not 

limited to, the islands called Kelleys, 

South Bass, Middle Bass, North Bass, 

Sugar, Rattlesnake, Green, Gibraltar, 

Starve, Gull, Ballast, Lost Ballast, West 

Sister, Mouse, and Johnson. The 

Canadian islands and rock outcrops 

within the historical range include, but 

are not limited to, the islands called 

Pelee, Middle, East Sister, Middle 

Sister, North Harbour, Hen, Chick, Big 

Chicken, and Little Chicken (Figure 1). 

BILLING CODE 4310–55–S 


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BILLING CODE 4310–55–C 

Figure 1. Historical range of Lake Erie 

Watersnake within the western Lake 

Erie basin of Ohio and Canada. Map 

courtesy of Barbara Ball and Department 

of Biological Sciences, Northern Illinois 

University. 

At the time of listing, Lake Erie 

Watersnakes had been extirpated from 

two U.S. islands within the range, Green 

and West Sister, and two Canadian 

islands, Middle Sister and North 

Harbour. Further, population declines 

documented over several decades, along 

with the limited geographic range and 

insular nature of the Lake Erie 

Watersnake population, indicated that 

without the Act’s protection, further 

range contraction was possible. 

Since the time of listing, Lake Erie 

Watersnakes have naturally recolonized 

Green Island, a small island close to 

South Bass Island, and a viable 

population of adult watersnakes has 

persisted there for 6 years after an 

absence of 10 or more years (King and 

Stanford 2009, p. 7; King 2002, p. 4). 

This natural recolonization 

demonstrates the importance of 

maintaining multiple subpopulations of 

the Lake Erie Watersnake on as many 

islands as possible, to provide source 

populations for recolonization, should a 

stochastic event occur that eliminates 

all or a significant portion of the 

population on another island. 

Lake Erie Watersnakes were known 

from West Sister Island based on 

specimens collected there in 1938 and 

1939 but were not collected during 

repeated searches in the 1980s and 

1990s (King et al. 2006a, p. 86). While 

it is not known why Lake Erie 

Watersnakes disappeared from West 

Sister Island, it is the most isolated of 

the U.S. islands, located approximately 

13.7 km (8.5 mi) from the mainland and 

approximately 20.9 km (13.0 mi) from 


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the nearest island. Three intensive 

snake surveys since the time of listing 

have documented two adult female 

watersnakes on West Sister Island, one 

in 2002 and one in 2008, though it is 

unclear if these individuals were 

members of a permanent resident 

population, or transient individuals that 

swam or drifted to the island (King and 

Stanford 2009, p. 9). King and Stanford 

(2009, p. 9) conclude that ‘‘Lake Erie 

Watersnakes remain exceedingly rare or 

absent from West Sister Island.’’ 

A main portion of the 2003 Recovery 

Plan’s strategy was to ensure the 

persistence of multiple subpopulations 

of the Lake Erie Watersnake on each of 

the large islands, as well as the small 

islands on which the watersnake was 

already present. The presence of 

multiple population centers helps to 

protect against stochastic events, such 

as storms, severe winters, or fire. If 

entire subpopulations are lost from a 

catastrophic event, the presence of other 

subpopulations provides the 

opportunity for individuals to 

recolonize the disturbed area. The 

chance that the species will persist over 

time increases with the presence of 

additional subpopulations. Further, the 

maintenance of multiple subpopulations 

ensures that genetic diversity that may 

exist across the range is maintained. The 

Service and our partners have 

demonstrated over the past 8 years that 

Lake Erie Watersnakes have met the 

population persistence criterion in the 

Recovery Plan (Service 2003a, pp. 28- 

29), including the portion of the 

criterion requiring a specific adult Lake 

Erie Watersnake population estimate on 

each of the four large islands, and 

persistence of Lake Erie Watersnakes on 

the small islands (Rattlesnake, Sugar, 

Gibraltar, Ballast, and Green) 

throughout this same period. Further, 

annual surveys have documented range 

expansion of the Lake Erie Watersnake 

within its historical range since the time 

of listing, including the recolonization 

of Green Island. Coupled, these data 

indicate that the population of Lake Erie 

Watersnakes is secure across its range 

and is likely to persist into the 

foreseeable future, even if the 

protections of the Act are removed (see 

Factor D). 

Summary of Factor A: Individuals of 

the Lake Erie Watersnake face a low 

amount of residual threat from habitat 

destruction or modification due to 

development within the Lake Erie 

islands within the foreseeable future, 

though the watersnake population has 

proven resilient to much of the 

development that has occurred since 

listing. Summer and hibernation habitat 

sufficient to support approximately 50 

percent of the adult Lake Erie 

Watersnake recovery population has 

been protected in perpetuity. Impacts to 

summer shoreline and foraging habitat 

will still be regulated by the Corps, and 

the Service will provide comments to 

avoid and minimize impacts to Lake 

Erie Watersnake under the authority of 

the Fish and Wildlife Coordination Act. 

Impacts to hibernation habitat will 

directly affect individual watersnakes if 

the impacts occur during the 

hibernation season, however, existing 

standardized voluntary guidelines to 

limit winter excavation have been and 

will continue to be widely distributed to 

address those impacts. The Lake Erie 

Watersnake has recolonized a portion of 

its historic range, its adult populations 

have shown conclusive growth, and the 

recovery criteria for island-specific and 

overall adult population size have been 

substantially exceeded for the past eight 

years. Therefore, we determine that the 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range, is not currently 

causing, or likely to cause in the 

foreseeable future, the subspecies to be 

threatened or endangered. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Education 

Purposes 

We know of no recreational, 

commercial, or educational 

overutilization of the Lake Erie 

Watersnake. Lake Erie Watersnakes are 

not currently a collected or sought-after 

species, and no recreational or 

commercial collection of this subspecies 

has been documented to date. The 

historical collection of Lake Erie 

Watersnakes for scientific purposes is 

well-documented in the final listing rule 

(64 FR 47126; August 30, 1999). 

However, since 1966, formal research on 

wild animals has been regulated by the 

U.S. Department of Agriculture, Animal 

and Plant Health Inspection Services, 

Animal Care Division, under the Animal 

Welfare Act, as amended (7 U.S.C. 2131- 

2159). Further, institutions conducting 

research using live vertebrate animals 

and receiving funding from the Public 

Health Service require approval of 

research proposals by the Institutional 

Animal Care and Use Committee. This 

oversight will help to ensure that any 

scientific collection will not result in 

overutilization of the species, to the 

point that population-level effects are 

likely to occur. Therefore, we do not 

believe overutilization to be a current 

threat to the species, nor likely to be in 

the foreseeable future. 

C. Disease or Predation 

At the time of listing, neither disease 

nor predation was implicated in the 

decline of Lake Erie Watersnakes. We 

currently have no data indicating that 

disease is a threat to the Lake Erie 

Watersnake. Predators of the Lake Erie 

Watersnake include a number of species 

native to the islands, specifically 

herring gull (Larus argentatus), great 

blue heron (Ardea herodias), robin 

(Turdus migratorius), raccoon (Procyon 

lotor), red fox (Vulpes vulpes), blue 

racer (Coluber constrictor), and mink 

(Mustela vison) (Camin and Ehrlich 

1958, p. 510; Goldman 1971, p. 197; 

King 1986, p 769; King 1987, p. 242, 

250; King 1989. p. 87; Stanford 2009, 

pers. comm.). We anticipate that other 

birds, predatory fish, and mammals 

likely prey on Lake Erie Watersnakes, 

particularly neonate and immature 

snakes. Predation of individual Lake 

Erie Watersnakes clearly is occurring, 

however all of these predators are native 

to the islands and the snake’s 

population has persisted in the face of 

such predation both historically and 

currently. As the Lake Erie Watersnake 

population has shown steady increases 

despite no observed change in predation 

pressure since the time of listing, we 

determine that mortality due to 

predation is not a substantial threat to 

the subspecies now, nor will it be 

within the foreseeable future. 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

The 1999 final listing rule (64 FR 

47126) describes various status 

designations of the Lake Erie 

Watersnake at State, Provincial, and 

Federal Canadian levels , but concluded 

that ‘‘regulatory mechanisms are 

inadequate because of the small number 

of water snakes in preserves and the 

vulnerability from lack of regulatory 

protection outside of preserves.’’ As 

described above in Factor A, a 

substantial amount of Lake Erie 

Watersnake habitat has been protected 

since 1999 by management agreements, 

conservation easements, or deed 

restrictions. Protected habitat includes 

18.03 km (11.27 mi) of summer habitat 

and 1.270 km2 (313.88 ac) of 

hibernation habitat within 69 m (226 ft) 

of shore (Table 2). This amount of 

habitat is sufficient to support 

approximately 50 percent of the 

recovered population goal of 5,555 adult 

Lake Erie Watersnakes, and is 

distributed throughout the U.S. range of 

the subspecies. 

In addition to the protected habitat, 

since the time of listing a substantial 

portion of additional island habitat has 


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been acquired by the Ohio Department 

of Natural Resources. These lands 

include 0.5 km2 (123 ac) of Middle Bass 

Island and 2.4 km2 (593 ac) of North 

Bass Island. The portions of these 

islands within 69 m (226 ft) of shore are 

included as protected habitat, but the 

remainder of these properties may also 

provide habitat for the 25 percent of 

Lake Erie Watersnakes that hibernate 

greater than 69 m (226 ft) inland. 

Middle Bass Island State Park is 

dedicated to boating, camping, and 

recreation, while North Bass Island will 

remain primarily natural (ODNR 2004, 

p.1). 

Further, since the time of listing, the 

Lake Erie Islands Chapter of the Black 

Swamp Conservancy, a non-profit land 

conservancy, was established and is 

acquiring conservation easements on 

island properties. All of their properties 

within 69 m (226 ft) of shore are 

included as protected habitat, however 

an additional 6 acres (0.02 km2) of land 

may also provide habitat for the 25 

percent of Lake Erie Watersnakes that 

hibernate greater than 69 m (226 ft) 

inland. This habitat will remain in a 

natural state for the foreseeable future. 

The Cleveland Museum of Natural 

History maintains multiple preserve 

properties on Kelleys Island. All of their 

properties within 69 m (226 ft) of shore 

are included as protected habitat, 

however an additional 99 acres (0.4 

km2) of land may also provide habitat 

for the 25 percent of Lake Erie 

Watersnakes that hibernate greater than 

69 m (226 ft) inland. This habitat will 

remain in a natural state for the 

foreseeable future. 

As discussed under Factor A above, 

since the Lake Erie Watersnake was 

listed in 1999, destruction and 

modification of watersnake summer 

habitat has been addressed under 

section 7 of the Act through the Corps 

section 10 of the Rivers and Harbors Act 

and section 404 of the Clean Water Act 

authority. These laws provide the 

Service the opportunity to review and 

comment on all projects affecting Lake 

Erie Watersnake foraging habitat, and 

many projects affecting shoreline 

habitat. Under these authorities, the 

Service has consistently recommended 

installation of rip-rap erosion control 

structures and crib docks in lieu of 

vertical concrete or sheet steel. This 

substantially reduced shoreline habitat 

degradation and resulted in the creation 

of artificial shoreline habitat for Lake 

Erie Watersnakes on many islands. We 

anticipate that similar projects 

impacting the islands’ shorelines and 

the Lake Erie Watersnake’s summer 

habitat will continue into the 

foreseeable future. As noted above, the 

vast majority of these projects are 

regulated by section 10 of the Rivers and 

Harbors Act and section 404 of the 

Clean Water Act, and as such, the 

Service will still have the opportunity to 

review and comment on these projects 

via the Corps’ Public Notice process, 

even if the watersnake is delisted. The 

Service plans to continue 

recommending rock structures as 

opposed to vertical structures on these 

types of projects, under the authority of 

the Fish and Wildlife Coordination Act. 

This regulatory mechanism will remain 

in place into the foreseeable future, 

allowing the Service to maintain some 

oversight and input relative to the 

condition of island shorelines for the 

Lake Erie Watersnake. 

Currently, the Lake Erie Watersnake is 

listed as a State endangered species 

under the Ohio Revised Code 1531.25. 

State endangered status is defined as: ‘‘A 

native species or subspecies threatened 

with extirpation from the state. The 

danger may result from one or more 

causes, such as habitat loss, pollution, 

predation, interspecific competition, or 

disease’’ (ODNR 2008, p. 1). 

Coordination with ODNR Division of 

Wildlife indicates that the State is 

supportive of the Service’s proposal to 

delist the Lake Erie Watersnake as they 

believe that ‘‘the snake population 

appears secure and growing throughout 

its range,’’ and, ‘‘[t]he snake warrants 

removal from Federal protection’’ 

(ODNR 2009, p. 1). ODNR Division of 

Wildlife has proposed that, upon 

Federal delisting, the Lake Erie 

Watersnake would be reclassified to 

State threatened status, and is likely to 

remain as such for the foreseeable future 

(ODNR 2009, p.1). State threatened 

status ‘‘affords a heightened perception 

of importance and conservation need by 

the public,’’ and ‘‘provides a mechanism 

for filing criminal charges against 

people who are responsible for direct 

mortality’’ (ODNR 2009, p. 1). Therefore, 

State take prohibitions reducing the 

threat from intentional human 

persecution will still exist if the Lake 

Erie Watersnake is Federally delisted. 

In summary, substantial protected 

habitat and permanently conserved 

natural habitat on the U.S. western Lake 

Erie islands have been established since 

the time of listing. These areas are 

sufficient to support approximately 50 

percent of the recovery population goal 

of 5,555 adult Lake Erie Watersnakes. 

Some jurisdiction over impacts to Lake 

Erie Watersnake summer habitat will be 

maintained post-delisting via the Corps 

section 404 and section 10 authorities. 

Further, the proposed State 

reclassification of the Lake Erie 

Watersnake to a threatened designation 

will maintain the existing prohibition 

on intentional mortality of watersnakes 

and will provide a mechanism for filing 

criminal charges should intentional 

direct mortality occur. We have 

determined that tese regulatory 

mechanisms and cooperative 

agreements are sufficient to ensure the 

persistence of Lake Erie Watersnakes in 

the foreseeable future, and therefore 

Lake Erie Watersnakes will not be 

threatened by the inadequacy of existing 

regulatory mechanisms post-delisting. 

E.Other Natural or Manmade Factors 

Affecting Its Continued Existence 

Human Persecution and Other HumanInduced Mortality 

As indicated in the final listing rule 

for the Lake Erie Watersnake (64 FR 

47131; August 30, 1999), ‘‘persecution 

by humans is the most significant and 

well documented factor in the decline of 

Lake Erie Watersnakes.’’ Therefore, the 

recovery strategy for the watersnake 

focused heavily on public outreach and 

education in an attempt to change the 

negative perception and hostile 

behavior of some island residents and 

visitors towards the watersnake. As 

described in detail in Recovery above, 

public opinion surveys were conducted 

to gauge island landowner perception of 

the Lake Erie Watersnake, and past, 

current, and likely future behavior 

towards the snake (Olive 2008, 

Wilkinson 2008). 

Generally, the survey results indicate 

that Federal, State, and nongovernmental organizations’ outreach 

and education campaigns are reaching 

the vast majority of island residents, and 

are helping to increase their access to 

information about the watersnake 

(Wilkinson 2008, p. 5). While it is 

apparent that not all residents feel 

positively toward the snake, it is very 

notable that, despite human persecution 

being the most significant factor in the 

historical decline of the Lake Erie 

Watersnake, only about 4 percent of 

respondents indicated they had 

knowingly killed a watersnake since the 

time of listing, and only about 14 

percent of respondents said they would 

knowingly kill a watersnake if it was no 

longer protected by State or Federal 

laws (Wilkinson 2008, p. 6). Of those 

Middle Bass Island residents 

interviewed by Olive (2008, pp. 112- 

113, 153), 7 percent admitted to killing 

a snake and 18 percent admitted they 

might kill a snake while it is listed. We 

interpret these responses to indicate 

that, while individual watersnakes still 

face some human persecution, the vast 

majority of islanders would not resort to 


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lethal means if they encountered 

watersnakes on their property. 

Despite the admitted intentional 

mortality documented by both 

Wilkinson (2008, p. 6) and Olive (2008, 

pp. 112-113, 153) adult Lake Erie 

Watersnake populations have increased 

substantially since the time of listing, 

both across the U.S. range and on each 

large island (King and Stanford 2010, p. 

11; King and Stanford 2009, pp. 6-7). 

This indicates that the adult Lake Erie 

Watersnake population can tolerate 

some degree of intentional mortality of 

individual snakes and still persist at a 

recovery level. 

Public opinion of the Lake Erie 

Watersnake varies widely among those 

who support it, those that who have no 

opinion, and those that dislike or fear 

the watersnake specifically, or snakes in 

general. Outreach efforts have reached 

nearly all island residents, increasing 

access to information about the Lake 

Erie Watersnake, including non-lethal 

ways to address nuisance snakes. 

Opinion surveys indicate that most 

people do not now, and will not in the 

future, kill Lake Erie Watersnakes, 

however many people indicate that the 

sheer number of snakes along the 

shoreline has become a nuisance, and 

this may contribute to negative feelings 

towards the snake. As Lake Erie 

Watersnake numbers have rebounded, 

and a significant amount of habitat has 

now been permanently protected to 

support its populations, the Lake Erie 

Watersnake population can withstand a 

limited amount of intentional mortality. 

While the threat of intentional mortality 

likely can never be completely 

eliminated, results of public opinion 

surveys indicate that the amount of 

mortality anticipated from intentional 

human persecution on its own and with 

other residual threats is not likely to 

cause the subspecies to become 

threatened or endangered again within 

the foreseeable future. 

Continued outreach regarding the 

Lake Erie Watersnake after delisting will 

be important in ensuring that island 

landowners and visitors maintain access 

to information about the biology of the 

snake, its conservation status, and its 

role in the ecosystem. Following 

delisting, outreach will continue to 

focus on changing the negative 

perceptions and hostile behavior of 

some island residents and visitors 

towards the watersnake. Outreach 

activities will continue through various 

partners, focusing on establishing 

permanent informational displays at 

specific island locations. For example, 

an Ohio Environmental Education Grant 

was recently awarded to the Lake Erie 

Islands Nature and Wildlife Center and 

Lake Erie Islands Historical Society to 

design interpretive posters and a 

permanent display that specifically 

address the Lake Erie watersnake, its 

current status, and conservation needs 

(Stanford 2009, pers. comm.). The 

display will be housed at the Lake Erie 

Islands Nature and Wildlife Center on 

South Bass Island while the posters will 

be made available to local organizations 

and school teachers and will promote 

consistent education among a variety of 

audiences and locations (Stanford 2009, 

pers. comm.). The permanent display at 

the Lake Erie Islands Nature and 

Wildlife Center will provide education 

for the entire island community, as well 

as the estimated 5,000-10,000 visitors 

anticipated per year (Stanford 2009, 

pers. comm.). This display will explain 

the current Lake Erie Watersnake legal 

status and the protective guidelines, 

which can be updated as needed if the 

snake is delisted (Stanford 2009, pers. 

comm.). Similarly, a permanent display 

on the Lake Erie Watersnake is currently 

being developed at ODNR’s Aquatic 

Visitor’s Center on South Bass Island. 

Additional signage or displays about the 

Lake Erie Watersnake are planned for 

ODNR’s Middle Bass Island State Park 

(Service 2008, p. 5) and the Scheef East 

Point Nature Preserve on South Bass 

Island (ODNR 2007, pp. 6, 9). 

In addition to intentional human 

persecution, several sources of 

accidental human-induced mortality 

were examined to determine to what 

degree they contribute to overall 

mortality of Lake Erie Watersnakes, and 

if they are a threat to the population. 

These include mortality from hook and 

line fishing, roadkill mortality, 

contaminants, and the interaction 

between Lake Erie Watersnakes and 

invasive species. These potential threats 

are discussed in detail under Recovery, 

above. Based on recent research, 

accidental human-induced mortality 

occurring from boating, fishing, and 

roadkill events does not pose a threat to 

the adult Lake Erie Watersnake 

population (Brown and Weatherhead 

1999, Stanford 2004, King 2007). 

Further, invasive species and 

contaminants do not threaten the adult 

Lake Erie Watersnake population 

(Bishop and Rouse 2006, King et al. 

2006b, Fernie et al. 2008) now or in the 

foreseeable future. 

However, one new potential threat to 

Lake Erie Watersnakes has emerged. In 

May 2008 erosion control blankets were 

placed over an excavated area on 

Gibraltar Island, a small Lake Erie 

island. Within three days, 25 adult Lake 

Erie Watersnakes became entangled in 

the erosion control blankets that were 

placed over approximately 1347 m2

(0.33 ac) (Stanford 2008, pers. comm.). 

The erosion control blankets were single 

net, filled with straw, and 

photodegradable within 45 days 

(Stanford 2008, pers. comm.). 

Entanglement occurred on the first 

warm days of the summer and we 

assume that many snakes were emerging 

to bask, forage, and mate. When the 

entangled snakes were discovered, they 

were cut from the blankets; however 14 

adult male Lake Erie Watersnakes died 

(Stanford 2008, pers. comm.). Mortality 

was thought to be due to suffocation or 

sun exposure, though necropsies were 

not conducted. Upon discovery of the 

snakes, all of the erosion mesh was 

immediately removed (Stanford 2008, 

pers. comm.). Since this event, when 

consulting on projects on the islands, 

the Service has requested that erosion 

control blankets not be used (for 

example, see Service 2008, p. 2). If this 

proposal is finalized and the species is 

delisted, we will continue to include 

this recommendation under the 

authority of the Fish and Wildlife 

Coordination Act when reviewing 

Federal activities on the islands. 

Additionally, we have incorporated this 

recommendation into the revised Lake 

Erie Watersnake Management 

Guidelines for Construction, 

Development, and Land Management 

Activities (Service 2009, p. 2), which 

will be widely distributed, as described 

under Factor A above. We believe that 

through these mechanisms, 

entanglement in erosion control 

blankets or similar materials will not 

pose a substantial threat to the Lake Erie 

Watersnake population. 

Small Population Size 

As noted in the listing document (64 

FR 47126; August 30, 1999), all of the 

known threats were exacerbated by the 

small population size and the insular 

distribution of Lake Erie Watersnakes. 

According to the listing document, ‘‘the 

current low population densities and 

insular distribution of Lake Erie 

Watersnake make them vulnerable to 

extinction or extirpation from 

catastrophic events, demographic 

variation, negative genetic effects, and 

environmental stresses such as habitat 

destruction and extermination’’ (64 FR 

47126; August 30, 1999). Since the time 

of listing, the adult Lake Erie 

Watersnake population has increased 

substantially. Annual adult Lake Erie 

Watersnake population censuses and 

estimates indicate that the population is 

growing by approximately 6 percent per 

year, and that the current snake 

population far outnumbers the goal of 

5,555 adult Lake Erie Watersnakes 

required for the population to be 


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recovered (King and Stanford 2009, pp. 

6-7; Service 2003a, pp. 28-29, 33). 

King and Stanford (2009, pp. 5-8) 

recently analyzed Lake Erie Watersnake 

survey data from the period 1996-2008, 

and used Program MARK to model adult 

survival, and used Jolly-Seber 

population estimates to estimate sex 

ratios in adult Lake Erie Watersnakes. 

The generated estimates for adult sex 

ratio (1.6 male: 1 female) and adult 

survival (0.70) proved to be different 

than the sex ratio and adult survival 

rates used in setting the overall 

Population Persistence criterion of the 

2003 Lake Erie Watersnake Recovery 

Plan at 5,555 adult Lake Erie 

Watersnakes. Incorporating the new 

adult sex ratio and adult survival 

estimates into the formula used in the 

Recovery Plan to generate the adult Lake 

Erie Watersnake population goal 

(Service 2003a, p. 31) yielded a revised 

population goal of 6,100 adult Lake Erie 

Watersnakes (King and Stanford 2009, 

p. 8). King and Stanford (2009, p. 8) 

note that, ‘‘the estimated adult Lake Erie 

Watersnake population size exceeds this 

value [6,100] for all years from 2002- 

2008.’’ Further, King and Stanford (2009, 

p.8) caution that the adult population 

goals ‘‘are based on a series of 

approximations...As a consequence, 

such estimates are best viewed as 

‘‘educated guesses’’ that may change as 

more information is obtained.’’ 

Irrespective of which adult population 

goal is used, 5,555 as outlined in the 

Recovery Plan (Service 2003a, p. 28) or 

6,100 as recently recalculated using 

more current information (King and 

Stanford 2009, p. 8), the adult Lake Erie 

Watersnake population has met and 

exceeded both of these goals for seven 

consecutive years (2002-2008) (King and 

Stanford 2009, p. 22). Therefore we no 

longer find that low population 

numbers increase the severity of any 

potential threats. 

Further, the presence of multiple 

subpopulations distributed throughout 

the range of the subspecies provides 

assurance that genetic diversity is being 

maintained, and provides multiple 

source populations should one 

subpopulation be eliminated due to a 

catastrophic event. Because Lake Erie 

Watersnakes are an island-dwelling 

subspecies, and their range is naturally 

restricted to a series of relatively small 

islands in western Lake Erie, it is likely 

that they will always have a population 

size that may be considered small 

relative to species with a much larger 

range. However, analysis of Lake Erie 

Watersnake population size, as 

described in the Recovery Plan (Service 

2003a) indicates that a census 

population size of 5,555 adult 

watersnakes constitutes a viable, 

persistent population. Therefore, we no 

longer find that the insular distribution 

of the Lake Erie Watersnake increases 

the severity of any potential threats. 

Climate Change 

Global climate change due to trapping 

of greenhouse gases, particularly carbon 

dioxide, within the atmosphere is 

widely predicted by scientists all over 

the world (IPCC 2007, p. 9). Within the 

Great Lakes region and Ohio 

specifically, climate change is expected 

to bring increased temperatures, 

increased but altered distribution 

patterns of precipitation, and greater 

intensity of extreme weather events 

including drought, storms, floods, and 

heat waves (Karl et al. 2009, p. 117; 

Kling et al. 2003, pp. 17-18). Winters 

will be of shorter duration and warmer 

temperatures and snow melt will occur 

earlier (Kling et al. 2003, pp. 17-18). 

These projected changes in seasonal 

temperature patterns may cause Lake 

Erie Watersnakes to hibernate for 

shorter periods of time, to seek cover 

more frequently during the active 

season to escape extreme weather 

events, and to forage more frequently 

than they do now to compensate for an 

extended active season. It is unlikely 

that these potential behavioral changes 

brought on by warmer temperatures 

would constitute a threat to the 

population. 

Warmer temperatures and decreased 

ice cover across the Great Lakes region 

predicted by multiple models could 

result in warmer water temperatures 

and water levels between 0.3-0.6 m (1- 

2 ft) below current levels in Lake Erie 

(Karl et al. 2009, pp. 119, 122; Kling et 

al. 2003, pp. 23-24). Decreases in Lake 

Erie water levels, which define the 

boundaries of the western Lake Erie 

islands, can lead to increases in the area 

of the island exposed, expansion or loss 

of coastal wetland habitat (depending 

on elevation and topography), changes 

in extent or composition of island 

shoreline habitat, and changes in 

erosion and accretion patterns. Over all, 

lower water levels will likely create 

additional linear footage of island 

shorelines within the western Lake Erie 

basin, potentially expanding Lake Erie 

Watersnake summer terrestrial habitat 

areas. Portions of former foraging habitat 

may dry, requiring watersnakes to seek 

out additional foraging territories. Water 

depth decreases of 0.3 to 0.6 m (1 to 2 

ft) are unlikely to disturb large portions 

of Lake Erie Watersnake foraging 

habitat. As noted previously, Lake Erie 

Watersnakes’ diets are composed 

primarily of round goby, which are 

plentiful in the warm waters of the 

western Lake Erie island region, and 

would likely remain plentiful despite 

potential effects from climate change. It 

is unlikely that lower water levels 

would significantly change Lake Erie 

Watersnake behavior, or represent a 

threat to the population. 

Climate change projections for Lake 

Erie indicate that increases in water 

temperature during the summer may 

result in lower dissolved oxygen, and 

prolonged stratification of lake water, 

resulting in an increase in the potential 

for dead-zones to occur or expand 

across time and space (Karl et al. 2009, 

p. 122; Kling et al. 2003, p. 22). 

However, the western Lake Erie basin is 

generally shallow, with an average 

depth of 7.4 m (24 ft), and stratification 

is rare here, and brief when it does 

occur (USEPA and Environment Canada 

2008, p. 18), and therefore we do not 

anticipate a threat to the population 

from this projected change. However, 

low dissolved oxygen could also result 

in more easily mobilized mercury and 

other contaminants that exist in Lake 

Erie sediments, and introduction of 

increased contaminant loads into the 

food chain (Karl et al. 2009, p. 122). It 

is possible that additional contaminant 

loads could result in physiological or 

reproductive impacts to Lake Erie 

Watersnakes, but what the effective 

concentrations of these contaminants 

are is unknown. As discussed above, 

contaminants have been detected in 

Lake Erie Watersnakes in relatively high 

levels, but have not been documented to 

cause adverse effects; therefore we do 

not anticipate that a potential increase 

in contaminant mobilization within the 

waters of Lake Erie due to warming 

water temperatures poses a threat to 

Lake Erie Watersnakes. 

Warmer lake waters are anticipated to 

result in coldwater habitat being 

eliminated or shifting north in some 

areas, potentially changing the fish 

communities in these areas (Karl et al. 

2009, p. 122; Kling et al. 2003, pp. 53- 

54). However, the western basin of Lake 

Erie is composed of warm water habitat 

already (USEPA and Environment 

Canada 2008, p. 18) and is too shallow 

to support coldwater habitat, therefore 

we do not anticipate shifts in fish 

species composition within the western 

Lake Erie basin due to climate change, 

and therefore no threat to the Lake Erie 

Watersnake is anticipated. 

At this time, we do not have sufficient 

information to document that climate 

change poses a significant threat to the 

continued existence of the Lake Erie 

Watersnake. 

Summary of Factor E: Intentional 

human-induced mortality is a residual 

threat to the Lake Erie Watersnake, 


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however Lake Erie Watersnake numbers 

have rebounded and a significant 

amount of habitat has now been 

permanently protected to support Lake 

Erie Watersnake populations, and the 

Service believes that the Lake Erie 

Watersnake population can withstand a 

limited amount of intentional mortality 

and still maintain recovery-level 

population size. While the threat of 

intentional mortality likely can never be 

completely eliminated, results of public 

opinion surveys indicate that the 

amount of mortality anticipated from 

intentional human persecution on its 

own and with other residual threats is 

not likely to cause the subspecies to 

become threatened or endangered again 

within the foreseeable future. 

Unintentional human-induced 

mortality, such as occurs from road-kill, 

hook and line fishing, contaminants, 

and impacts of invasive species, has 

been researched throughout the 

recovery period and has not been 

documented to cause take in levels 

sufficient to impact the adult Lake Erie 

Watersnake population. Unintentional 

mortality through entanglement in 

erosion control fabrics, though rare, will 

be addressed through continued 

outreach and through coordination with 

the Corps on projects that impact Lake 

Erie Watersnake summer habitat. Lake 

Erie Watersnake persistence is no longer 

threatened by small population size or 

limited distribution, as they have 

substantially increased in number and 

expanded in range since the time of 

listing, and protected habitat sufficient 

to support 50 percent of the recovery 

population is distributed across all of 

the large islands. Finally, we have 

assessed the potential for climate 

change to impact the Lake Erie 

Watersnake based on projected habitat 

changes in Great Lakes-regional and 

Ohio models, and have determined that 

we do not have sufficient information to 

document that climate change poses a 

significant threat to the continued 

existence of the Lake Erie Watersnake. 

Therefore, we find that other natural or 

man-made factors, coupled with any 

other residual threats are not likely to 

cause the subspecies to become 

threatened or endangered again within 

the foreseeable future. 

Summary of Threats 

As demonstrated in our Summary of 

Factors Affecting the Species, threats to 

the Lake Erie Watersnake have been 

abated or sufficiently minimized over 

the U.S. range of the subspecies. 

Recovery actions and a reduction or 

abatement of threats have lead to 

demonstrated population growth at 

multiple sites, increasing population 

estimates, range expansion within the 

historical range, proof of resiliency of 

the Lake Erie Watersnake to some 

habitat modification, and protection of a 

significant amount of summer and 

hibernation habitat throughout the 

range. 

The biological principles under which 

we evaluate the rangewide population 

status of the Lake Erie Watersnake 

relative to its long-term conservation are 

representation, redundancy, and 

resiliency (Groves, et al. 2003, pp. 30- 

32). At the time of listing, the Lake Erie 

Watersnake population had declined 

substantially from historical numbers 

and its range had contracted due to 

extirpation from several U.S. and 

Canadian islands. Since listing, 

population numbers have rebounded, 

real population growth at multiple sites 

has been documented, and the range has 

expanded to include multiple stable or 

increasing subpopulations across most 

of its historical range (West Sister Island 

is the only U.S. exception, as discussed 

in Factor A above) (King and Stanford 

2009, pp. 6-9). Thus, there is adequate 

representation (occupancy of 

representative habitats formerly 

occupied by the Lake Erie Watersnake 

across its range) and redundancy 

(distribution of populations in a pattern 

that offsets unforeseen losses across a 

portion of the range) to support the 

long-term persistence of the Lake Erie 

Watersnake. 

The Lake Erie Watersnake has 

demonstrated resilience and behavioral 

plasticity to both ecological and humaninduced changes in its environment in 

the recent past. As described above, the 

Lake Erie Watersnake has made a nearly 

complete dietary shift since the invasion 

of the round goby in the early 2000’s, 

indicating flexibility in prey selection 

(King et al. 2006b, p. 110). We now 

know that crib docks and armored 

shorelines provide valuable Lake Erie 

Watersnake summer habitat and that the 

Lake Erie Watersnake can persist in 

stable numbers in human-dominated 

island landscapes, as long as rocky or 

vegetated shorelines are present. 

Further, we have documented multiple 

situations where Lake Erie Watersnakes 

have been able to identify and 

successfully use new hibernation sites 

when historical hibernation sites are 

destroyed or unavailable, indicating that 

the Lake Erie Watersnake is more 

resilient to certain types of habitat 

modification than was previously 

known. The Lake Erie Watersnake has 

also demonstrated its ability to naturally 

re-colonize historical habitat after an 

absence of many years. Thus, despite 

any residual threats to individual 

watersnakes, we find the Lake Erie 

Watersnake has sufficient resiliency to 

persist within the foreseeable future. 

Intensive adult Lake Erie Watersnake 

censuses and subsequent analysis of the 

census data over the past 10 years have 

demonstrated a growing population, 

range expansion, and successful 

reproduction over multiple generations 

(King and Stanford 2009, pp. 6-7, 9). 

There is no evidence of recent 

extirpations of subpopulations, nor of a 

population sink. As previously 

described, habitat destruction and 

modification are not thought to be 

significant threats to the population 

now or within the foreseeable future 

(see Factor A above). 

Recovery efforts have provided 

increased attention and focus on the 

Lake Erie Watersnake and the habitat 

upon which it depends. Numerous 

conservation actions have been 

implemented by government agencies, 

universities, and conservation groups. 

Most notably, these include intensive 

research and population monitoring of 

Lake Erie Watersnakes by NIU and other 

partners, and land purchase and 

conservation on many islands within 

the range of the subspecies by ODNR, 

LEIC-BSC, Western Reserve Land 

Conservancy, and Put-in-Bay Township 

Park District. 

In summary, all of the past, existing, 

or potential future threats to the Lake 

Erie Watersnake, either alone or in 

combination, have either been 

eliminated or largely abated throughout 

all of its range. The major factors in 

listing the Lake Erie Watersnake were 

human persecution and habitat 

destruction and modification. These 

threats have largely been abated as 

evidenced by the substantial recovery of 

the snake. Therefore, we have 

determined that the Lake Erie 

Watersnake is no longer in danger of 

extinction or likely to become so 

throughout all of its range in the 

foreseeable future. 

Significant Portion of the Range 

Analysis 

Having determined that the Lake Erie 

Watersnake is not in danger of 

extinction or likely to become so in the 

foreseeable future throughout all of its 

range, we must next consider whether 

the subspecies is in danger of extinction 

or is likely to become so in any 

significant portion of its range. 

A portion of a species’ range is 

significant if it is part of the current 

range of the species (species used here 

is as defined in the Act, to include 

species, subspecies, or DPS) and if it is 

important to the conservation of the 

species because it contributes 

meaningfully to the representation, 


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resiliency, or redundancy of the species. 

The contribution must be at a level such 

that its loss would result in a decrease 

in the ability to conserve the species. 

Applying the definition described 

above for determining whether a species 

is endangered or threatened in a 

significant portion of its range, we first 

addressed whether any portions of the 

range of the Lake Erie Watersnake 

warranted further consideration. As 

described in Factor A and Factor E 

above, some threats to the species will 

remain post-delisting, primarily loss of 

hibernation habitat during the winter 

hibernation season and intentional 

human persecution. These threats exist 

across the range of the species, and are 

not concentrated in any one area. We 

concluded, however, that these threats 

were not substantial enough to pose a 

threat to the viability of the subspecies 

within the DPS. Therefore, based on the 

discussion of the threats above, we do 

not foresee the loss or destruction of any 

portions of the subspecies’ range such 

that our ability to conserve the 

subspecies would be decreased. 

Therefore, we find that the Lake Erie 

Watersnake is not in danger of 

extinction and is not likely to become 

endangered in the foreseeable future 

throughout all or a significant portion of 

its range. 

Summary 

The Service has considered the status 

of the Lake Erie Watersnake relative to 

the recovery criteria, which looked in 

general at population trends and status, 

and we have completed the five-factor 

analysis, and on all counts we have 

determined that this subspecies no 

longer meets the definition of 

threatened or endangered throughout all 

or any significant portion of its range. 

Thus, we propose to remove the Lake 

Erie Watersnake from the List due to 

recovery. 

Effects of the Proposed Rule 

If made final, this rule would revise 

50 CFR 17.11 (h) to remove the Lake 

Erie Watersnake from the List. The 

prohibitions and conservation measures 

provided by the Act, particularly 

through sections 7 and 9, would no 

longer apply to this species. Federal 

agencies would no longer be required to 

consult with us if any action they 

authorize, fund, or carry out may affect 

the Lake Erie Watersnake. 

Critical Habitat Prudency 

Determination 

In this proposed rule to delist the 

Lake Erie Watersnake, we have 

determined that it is no longer in danger 

of extinction or likely to become so 

throughout all or a significant portion of 

its range. The major factors for listing 

the Lake Erie Watersnake were human 

persecution and habitat and range 

destruction, modification or curtailment 

and these threats have been abated. In 

particular, as discussed above in 

‘‘Summary of Factors Affecting the 

Species’’, we have determined that the 

Lake Erie Watersnake is more adaptable 

to changes in its habitat, able to use 

more types of habitat than previously 

thought and will recolonize habitat after 

a substantial amount of time. Therefore, 

based on a review of the best available 

data, we have determined that the 

present or future habitat destruction, 

modification or curtailment is no longer 

a factor leading to threatened or 

endangered status for the Lake Erie 

Watersnake. For these reasons, the 

designation of critical habitat and 

subsequent regulatory protections of 

designated critical habitat through 

section 7 of the Act would not be 

beneficial to the species. Therefore, we 

have determined that designation of 

critical habitat is not prudent. In the 

event that during the public review and 

comment period of this proposed rule to 

delist we receive information that 

would lead us to determine that the 

Lake Erie Watersnake should be listed 

as endangered or threatened, we will 

reconsider this critical habitat prudency 

determination. 

Post-Delisting Monitoring 

Section 4(g)(1) of the Act requires us, 

in cooperation with the States, to 

implement a monitoring program for not 

less than five years for all species that 

have been recovered and delisted. The 

purpose of this requirement is to 

develop a program that detects the 

failure of any delisted species to sustain 

itself without the protective measures 

provided by the Act. If, at any time 

during the monitoring period, data 

indicate that protective status under the 

Act should be reinstated, we can initiate 

listing procedures, including, if 

appropriate, emergency listing. 

A draft post-delisting monitoring plan 

has been developed for the Lake Erie 

Watersnake, building upon and 

continuing the research that was 

conducted during the listing period. In 

summary, the plan proposes to conduct 

annual adult Lake Erie Watersnake 

population censuses, as have occurred 

throughout the listing period, for a 

period of 5 years post-delisting. The 

data collected will be used to generate 

annual adult Lake Erie Watersnake 

population estimates for the population 

as a whole, and for each of the four large 

islands, using the same methods as used 

previously (King et al. 2006a, pp. 88- 

91). During years one, three, and five, 

the collective data will be used to 

calculate lambda, the population growth 

rate, as described in King and Stanford 

(2009, pp. 5-7). Annual reports detailing 

the population estimates and population 

growth rates (if applicable) will be 

submitted to the Service and ODNR 

upon completion of data analysis by the 

individuals or groups conducting the 

census. 

Additionally, all areas included as 

protected habitat will be monitored 

once per year, in collaboration with 

partners that manage the protected 

habitat (for example, ODNR, LEIC-BSC). 

The monitoring will ensure that the 

management plans, conservation 

easements, or other documents are being 

implemented as agreed, and that Lake 

Erie Watersnakes or suitable habitat 

persists on the site. Written 

documentation of the protected habitat 

monitoring will be filled in the Service’s 

Ohio Field Office (see FOR FURTHER 

INFORMATION section). 

Public opinion surveys will be 

conducted during year four of the postdelisting monitoring. These surveys will 

follow the same protocol and ask similar 

questions as the survey conducted in 

2008, and responses will be compared 

to determine if and how public opinion 

of Lake Erie Watersnake may be 

changing, and if and to what extent 

human persecution may be impacting 

the Lake Erie Watersnake population 

post-delisting. 

The post-delisting monitoring plan 

identifies measurable management 

thresholds and responses for detecting 

and reacting to significant changes in 

Lake Erie Watersnake protected habitat, 

distribution, and persistence. If declines 

are detected equaling or exceeding these 

thresholds, described below, the Service 

in combination with other post-delisting 

monitoring participants will investigate 

causes of these declines, including 

considerations of habitat changes, 

substantial human persecution, 

stochastic events, or any other 

significant evidence. The result of the 

investigation will be to determine if the 

Lake Erie Watersnake warrants 

expanded monitoring, additional 

research, additional habitat protection, 

or resumption of Federal protection 

under the Act. 

The management thresholds for 

determining how the Service will 

respond to various monitoring outcomes 

are as follows: 

(1) Post-delisting monitoring indicates 

that the species remains secure without 

the Act’s protections if all the following 

are met: (a) The calculated population 

growth rate is greater than or equal to 

1.0 for two out of three sampling 


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Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Proposed Rules 30337 

periods, including the last sampling 

period, (b) the adult population 

estimates are greater than 5,555 overall, 

and (c) each of the four large islands 

maintains the population goals as 

defined in the recovery plan (Service 

2003a, pp. 28-29). Under these 

circumstances there would be no reason 

to relist the species, or continue PDM. 

(2) Post-delisting monitoring indicates 

that the species may be less secure than 

anticipated at the time of delisting, but 

information does not indicate that the 

species meets the definition of 

threatened or endangered if the 

calculated population growth rate is less 

than 1.0 for two consecutive sampling 

periods. Should this situation occur, the 

Service would look closely at the results 

of the dietary study, public opinion 

survey, and implementation of 

voluntary guidelines to determine if any 

residual threats or concerns may be 

contributing to population declines. 

Variable courses of action may be 

considered to address any residual or 

emerging threats. The Service will also 

consider whether the population may be 

reaching carrying capacity and these 

population declines are a result of 

normalization around carrying capacity. 

Further, the Service would consider 

extending the PDM period for the Lake 

Erie Watersnake to ensure that the 

population does not meet the definition 

of threatened or endangered. 

(3) Post-delisting monitoring yields 

substantial information indicating 

threats are causing a decline in the 

species’ status since delisting, such that 

listing the species as threatened or 

endangered may be warranted if the 

calculated population growth rate is less 

than 1.0 for three consecutive sampling 

periods. Should this situation occur the 

Service would look closely at the results 

of the dietary study, public opinion 

survey, and implementation of 

voluntary guidelines to determine if any 

residual threats or concerns may be 

contributing to population declines. 

Variable courses of action may be 

considered to address any residual or 

emerging threats. The Service will also 

consider whether the population may be 

reaching carrying capacity and these 

population declines are a result of 

normalization around carrying capacity. 

Further, the Service would consider 

whether listing the Lake Erie 

Watersnake as threatened or endangered 

is warranted. 

(4) Post-delisting monitoring 

documents a decline in the species’ 

probability of persistence, such that the 

species once again meets the definition 

of a threatened or endangered species 

under the Act if the calculated 

population growth rate is less than 1 for 

two consecutive sampling periods and 

one of the two following situations 

occurs: The estimated population falls 

below the recovery goal of 5,555 adult 

Lake Erie Watersnakes, or one or more 

of the large island subpopulations fall 

below the population recovery goal 

specified in the recovery plan (Service 

2003a pp. 28-29), when using the JollySeber method of population estimation 

(Jolly 1965, Seber 1965). 

The Service will complete a final 

report at the end of the 5–year postdelisting monitoring period, assessing 

the current status of the Lake Erie 

Watersnake population. It is the intent 

of the Service to work with all of our 

partners towards maintaining the 

recovered status of the Lake Erie 

Watersnake. 

The draft post-delisting monitoring 

plan is available at 

www.regulations.govwith this proposed 

rule OR on the Service’s Midwest region 

web site: http://www.fws.gov/midwest/ 

endangered. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our proposed rule is based on 

scientifically sound data, assumptions, 

and analyses. We will send peer 

reviewers copies of this proposed rule 

immediately following publication in 

the Federal Register and will invite 

them to comment, during the public 

comment period, on the specific 

assumptions and conclusions regarding 

the proposal to delist the Lake Erie 

Watersnake. We will consider all 

comments and information received 

during the comment period on this 

proposed rule during preparation of a 

final rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Paperwork Reduction Act of 1995 

Office of Management and Budget 

(OMB) regulations at 5 CFR 1320 

implement provisions of the Paperwork 

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

The OMB regulations at 5 CFR 1320.3(c) 

define a collection of information as the 

obtaining of information by or for an 

agency by means of identical questions 

posed to, or identical reporting, 

recordkeeping, or disclosure 

requirements imposed on, 10 or more 

persons. Furthermore, 5 CFR 

1320.3(c)(4) specifies that ‘‘ten or more 

persons’’ refers to the persons to whom 

a collection of information is addressed 

by the agency within any 12-month 

period. For purposes of this definition, 

employees of the Federal government 

are not included. 

This proposed rule and draft postdelisting monitoring plan do not 

include any new collections of 

information that require approval by 

OMB under the Paperwork Reduction 

Act. 

This proposed rule does not include 

any collections of information that 

require approval by OMB under the 

Paperwork Reduction Act. We do not 

anticipate a need to request data or 

other information from 10 or more 

persons during any 12–month period to 

satisfy monitoring information needs. If 

it becomes necessary to collect 

standardized information from 10 or 

more non-Federal individuals, groups, 

or organizations per year, we will first 

obtain information collection approval 

from OMB. 

National Environmental Policy Act 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.), need not 

be prepared in connection with 

regulations adopted under section 4(a) 

of the Act. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 


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30338 Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Proposed Rules 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands affected by this proposal. 

References Cited 

A complete list of all references cited 

in this rule is available on the Internet 

at http://www.regulations.gov, or upon 

request from the Field Supervisor, Ohio 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Author(s) 

The primary authors of this document 

are the staff members of the Ohio Field 

Office, U.S. Fish and Wildlife Service 

(see FOR FURTHER INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as follows: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

2. Amend §17.11 (h) by removing the 

entry ‘‘Snake, Lake Erie water’’ under 

‘‘REPTILES’’ from the List of Endangered 

and Threatened Wildlife. 

Dated: May 17, 2010 

Gregory E. Siekaniec 

Acting Director, Fish and Wildlife Service 

[FR Doc. 2010–12910 Filed 5–28–10; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS-R6-ES-2008-0053] 

[MO 92210-0-0008-B2] 

Endangered and Threatened Wildlife 

and Plants; 12–month Finding on a 

Petition to List the White-tailed Prairie 

Dog as Endangered or Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of a 12–month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service announce a 12–month 

finding on a petition to list the whitetailed prairie dog (Cynomys leucurus) as 

endangered or threatened under the 

Endangered Species Act of 1973, as 

amended. After a review of all available 

scientific and commercial information, 

we find that listing the white-tailed 

prairie dog is not warranted at this time. 

However, we ask the public to submit to 

us any new information that becomes 

available concerning the threats to the 

white-tailed prairie dog or its habitat at 

any time. 

DATES: The finding announced in this 

document was made on June 1, 2010. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov at Docket Number 

FWS-R6-ES-2008-0053. Supporting 

documentation we used in preparing 

this finding is available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, Utah Field Office, 

2369 West Orton Circle, Suite 50, West 

Valley City, UT 84119. Please submit 

any new information, materials, 

comments, or questions concerning this 

finding to the above street address. 

FOR FURTHER INFORMATION CONTACT: 

Larry Crist, Field Supervisor, Utah Field 

Office (see ADDRESSES); by telephone at 

801-975-3330; or by facsimile at 801- 

975-3331. If you use a 

telecommunications device for the deaf 

(TDD), please call the Federal 

Information Relay Service (FIRS) at 800- 

877-8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(B) of the Endangered 

Species Act of 1973, as amended (Act) 

(16 U.S.C. 1531 et seq.), requires that, 

for any petition to revise the Federal 

Lists of Endangered and Threatened 

Wildlife and Plants that contains 

substantial scientific or commercial 

information that listing the species may 

be warranted, we make a finding within 

12 months of the date of receipt of the 

petition. In this finding, we will 

determine that the petitioned action is: 

(1) Not warranted, (2) warranted, or (3) 

warranted, but the immediate proposal 

of a regulation implementing the 

petitioned action is precluded by other 

pending proposals to determine whether 

species are endangered or threatened, 

and expeditious progress is being made 

to add or remove qualified species from 

the Federal Lists of Endangered and 

Threatened Wildlife and Plants. Section 

4(b)(3)(C) of the Act requires that we 

treat a petition for which the requested 

action is found to be warranted but 

precluded as though resubmitted on the 

date of such finding, that is, requiring a 

subsequent finding to be made within 

12 months. We must publish these 12– 

month findings in the Federal Register. 

Previous Federal Action 

On July 15, 2002, we received a 

petition dated July 11, 2002, from the 

Center for Native Ecosystems, Forest 

Guardians, Biodiversity Conservation 

Alliance, and Terry Tempest Williams, 

requesting that the white-tailed prairie 

dog (Cynomys leucurus) be listed as 

endangered or threatened across its 

entire range. We acknowledged the 

receipt of the petition in a letter to the 

petitioners, dated August 27, 2002. In 

that letter we also stated that higher 

priority actions precluded addressing 

the petition immediately, but it would 

be addressed when funding allowed. 

Section 4(b)(3)(B) of the Act requires 

that for any petition to revise the Lists 

of Threatened and Endangered Wildlife 

and Plants, to the maximum extent 

practicable, within 90 days after 

receiving the petition, we make a 

finding as to whether the petition 

presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

On November 9, 2004, we announced 

our 90–day finding (69 FR 64889) that 

the petition did not present substantial 

scientific or commercial information 

indicating that listing may be warranted. 

On July 12, 2007, in a Director’s 

memorandum, the U.S. Fish and 

Wildlife Service (Service) announced 

that we would review the November 9, 

2004, finding after questions were raised 

about the integrity of scientific 

information used and whether the 

decision was consistent with the 

appropriate legal standards. We 

received notice of a lawsuit from the 

Center for Native Ecosystems, and three 

other entities, on November 27, 2007, 

regarding our not-substantial 90–day 

finding. We agreed in a stipulated 


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