PROPOSED RULEMAKING
[58 PA. CODE CH. 75]
Endangered Species
[29 Pa.B. 1087] The Fish and Boat Commission (Commission) proposes to amend Chapter 75 (relating to endangered species). The Commission is publishing these amendments as a notice of proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The proposed amendments relate to fishing.
A. Effective Date
These proposed amendments will, if approved on final rulemaking, go into effect upon publication of an order adopting the regulations.
B. Contact Person
For further information on the proposed changes, contact Andrew L. Shiels, Nongame and Endangered Species Management, (814) 359-5113, 450 Robinson Lane, Bellefonte, PA 16823, or Laurie E. Shepler, Assistant Counsel, (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This proposal is available electronically through the Commission's Web site (http://www.fish.state.pa.us).
C. Statutory Authority
These proposed amendments are published under the statutory authority of sections 2102 and 2305 of the code (relating to rules and regulations; and threatened and endangered species).
D. Purpose and Background
The proposed amendments are designed to update, modify and improve Commission regulations pertaining to endangered, threatened and candidate fish species. The specific purpose of the proposed amendments is described in more detail under the summary of proposal. This notice of proposed rulemaking supplements the notice of proposed rulemaking published at 28 Pa.B. 3591 (August 1, 1998).
E. Summary of Proposal
The Commission maintains a list of fishes, reptiles, amphibians and aquatic organisms that have declined in distribution and abundance to levels resulting in their determination as endangered, threatened or candidate species in this Commonwealth. These lists have been developed over the years with the help and judgment of recognized experts on Pennsylvania species, such as the Fishes Advisory Committee (Committee). This staff/outside expert committee makes recommendations to the Commission staff, and ultimately, the Commissioners, regarding species lists.
A multiyear cooperative study involving staff and faculty from Penn State University and the Commission by means of funding from the Wild Resource Conservation Fund has resulted in a method of objectively classifying fish species as to their distribution and abundance within this Commonwealth. The number of locations where a species has been found is combined with the number of individuals of that species found at each location to develop a standardized method of ranking the level of endangerment for all species of fish known to occur in this Commonwealth. This work combines the more than 11,000 fish records from the Commission's fisheries management database with those of retired Penn State professor Dr. Edwin Cooper, the Penn State Fish Museum, University of Michigan Museum of Zoology, Cornell University, National Museum of Natural History, Environmental Protection Agency and the Academy of Natural Sciences in Philadelphia. All records were entered into a computer database and converted to Geographic Information System (GIS) data coverages. A ranking system was created to determine the relative rarity of each species of fish found in this Commonwealth.
The results indicated that changes to the current endangered, threatened and candidate lists were necessary. Presently, 46 fish species are listed. On August 1, 1998, the Commission published a notice of proposed rulemaking, containing changes to the list, at 28 Pa.B. 3591. In the notice of proposed rulemaking, the Commission proposed to amend the list to include 33 fish species as endangered, 16 as threatened and 12 as candidate for a total of 61 fish species. Four species were taken off the current list either because they were more common than previously believed or because they are believed to be extirpated.
After the notice of proposed rulemaking was published, the Committee met and further refined the list due to additional species location information received. This proposed rulemaking describes the recommended changes to the proposed rulemaking for which additional public comment is being sought. Specifically, the bridle shiner (notropis bifrenatus) is currently listed as a candidate species in § 75.3(b) (relating to candidate species), and this species kept this status in the pending proposed rulemaking. Based on additional information, however, the Commission is seeking public comment to list this fish as an endangered species under § 75.1(b) (relating to endangered species). The longhead darter is currently listed as an endangered species. The pending notice of proposed rulemaking proposed to move this species to the candidate list. This proposed rulemaking seeks public comment on including this fish on the threatened species list (§ 75.2(b) (relating to threatened species)). Finally, this proposed rulemaking deals with four species (silver lamprey, Potomac sculpin, spoonhead sculpin and deepwater sculpin) that were listed as candidate species on both the existing list and the list contained in the August 1998 proposed rulemaking. Based on additional information, it is proposed to remove these four species from the candidate list because the species are either extirpated in this Commonwealth or do not warrant listing.
As the result of the additional input from the Committee and consistent with the recommendations of the Commission's staff, the Commission approved the publication of a separate notice of proposed rulemaking, containing the revisions to the list. A review of the lists contained in 28 Pa. B. 3591 and in this proposed rulemaking shows that, if both are adopted as proposed, approximately 34% of Pennsylvania native fish species will be listed as endangered, threatened or candidate.
F. Paperwork
The proposed amendments will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The proposed amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed amendments will impose no new direct costs on the private sector or the general public. It is noted that the direct regulatory significance of designation of a species of fish as an endangered or threatened fish is limited to prohibiting persons from taking, catching, killing or possessing these fish in this Commonwealth. Since none of the species listed have any commercial or recreational significance because of their rarety, there are no direct fiscal impacts from providing these protections. The private sector, regulated community has asserted that designation of certain fish as endangered or threatened may have fiscal impacts because of impacts on permitting decisions by the Department of Environmental Protection and other agencies. If an endangered or threatened species is found in an area slated for development, applicants for permits may be required to conduct additional studies or adjust the project to avoid impacts. These are fiscal impacts resulting from regulatory and statutory authorities other than those under the aegis of the Commission. In addition, this proposed rulemaking has extremely limited indirect fiscal impacts. One species (the bridle shiner found only in the Marshalls Creek watershed) is proposed to move from candidate status to endangered status, one from endangered status to threatened status (longnose darter) and four from candidate status to unlisted status.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed amendments to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically at ''regulations@fish.state.pa.us.'' A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
PETER A. COLANGELO,
Executive Director(Editor's Note: A proposal to amend §§ 75.1--75.3 remains outstanding at 28 Pa.B. 3591 (August 1, 1998).)
Fiscal Note: 48A-93. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 75. ENDANGERED SPECIES § 75.1. Endangered species.
* * * * * (b) Fish. The following species are endangered:
* * * * * [(9) Longhead Darter, Percina macrocephala.]
* * * * * (36) Bridle shiner, Notropis bifrenatus.
* * * * * § 75.2. Threatened species.
* * * * * (b) Fish. The following species are threatened:
* * * * * (10) Longhead darter, Percina macrocephala.
* * * * * § 75.3. Candidate species.
* * * * * (b) Fishes.
(1) [Silver Lamprey, Ichthyomyzon unicuspis.]
[(2)] * * *
[(3)] (2) * * *
[(4)] (3) * * *
[(5)] (4) * * *
[(6)] (5) * * *
[(7)] (6) * * *
[(8)] (7) * * *
[(9)] (8) * * *
[(10)] (9) * * *
[(11) Brindle Shiner, Notropis bifrenatus.]
[(12)] (10) * * *
[(13)] (11) * * *
[(14)] (12) * * *
[(15)] (13) * * *
[(16)] (14) * * *
[(17)] (15) * * *
[(18)] (16) * * *
[(19)] (17) * * *
[(20)] (18) * * *
[(21)] (19) * * *
[(22)] (20) * * *
[(23)] (21) * * *
[(24)] (22) * * *
[(25)] (23) * * *
[(26) Potomac Sculpin, Cottus girardi.
(27) Spoonhead Sculpin, Cottus ricei.
(28) Deepwater Sculpin, Myoxocephalus thompsoni.]
* * * * *
[Pa.B. Doc. No. 99-305. Filed for public inspection February 26, 1999, 9:00 a.m.]
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