RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 75]
Fishing; Endangered Species
[35 Pa.B. 5010] The Fish and Boat Commission (Commission) amends Chapter 75 (relating to endangered species). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The final-form rulemaking adds the eastern spadefoot toad and eastern pearlshell to the list of endangered species, moves the rough green snake from the list of threatened species to the list of endangered species and updates the scientific names of certain listed species.
A. Effective Date
The final-form rulemaking will go into effect immediately upon publication in the Pennsylvania Bulletin.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Chief Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available on the Commission's website at www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 75.1, 75.2 and 75.3 (relating to endangered species; threatened species; and candidate species) are published under the statutory authority of section 2305 of the code (relating to threatened and endangered species).
D. Purpose and Background
The final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to endangered, threatened and candidate species. The specific purpose of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
(1) Eastern Spadefoot Toad (Scaphiopus holbrookii). The eastern spadefoot toad is an inhabitant of sandy soils along the floodplains of streams and rivers and in temporary depressions in agricultural fields. Reproduction occurs within one or two nights during and after heavy rain events, concentrated in vernal pools, rain-filled depressions in farm fields and along streams.
Two extant breeding populations of eastern spadefoot toads are currently reported in this Commonwealth in Northumberland and Berks Counties. Several years of herpetological inventory in this Commonwealth have failed to turn up additional records of the toads. Reports of occasional encounters in Franklin County remain unconfirmed. According to Hulse (2003), there were historical unvouchered reports of spadefoot toads in the Delaware Valley from Philadelphia to Monroe County, but these areas have since been heavily developed and industrialized.
The species ranges from southern New England to the Florida Keys and west to eastern Louisiana, but this Commonwealth forms a break between the New England populations and Maryland. The status of the spadefoot toad in the states surrounding this Commonwealth is as follows: it is listed as endangered in Ohio, considered a species of concern in New York, ''declining'' in New Jersey, rare in West Virginia, threatened in Massachusetts and endangered in Connecticut.
Given that spadefoot toads occur in floodplains and valleys, they are threatened by habitat destruction from residential and industrial development, as well as habitat alteration and changes in water chemistry from agricultural practices. The water in which they breed can be temporary pools, which are not necessarily delineated wetlands. Thus, wetland regulations cannot be relied upon to provide sufficient protection for this species.
The Pennsylvania Biological Survey (PABS) Amphibian and Reptile Technical Committee recommended the eastern spadefoot toad be listed as a State endangered species in 2002. Because there are only two known occurrences of this species in this Commonwealth and current survey efforts have failed to find additional occurrences, the Commission has added the eastern spadefoot toad to the Pennsylvania list of endangered species.
(2) Eastern Pearlshell (Margaritifera margaritifera). The eastern pearlshell is a freshwater mussel found in cold water trout streams and small rivers in softwater (acidic) conditions that have low levels of calcium. This is the only species of Pennsylvania mussel that is distributed beyond the North American continent. It occurs in the northeast from this Commonwealth north to Canada, as well as northern Europe.
Historically in the early 1900s, the eastern pearlshell occurred in several tributaries of the Little Schuylkill River, including Locust Creek, Panther Creek, Indian Run and Cold Run. However, impacts to water quality from coal mining in the Little Schuylkill drainage have eradicated the eastern pearshell from all but Locust Creek, based on Statewide surveys from 1991 to 1995. While the population in Locust Creek is locally abundant, based on a 2003 survey, two dams on the creek restrict the pearlshell to 7 miles of stream with little likelihood of dispersal.
Two large eastern pearlshell mussels were collected in the Delaware River in recent years as part of extensive mussel surveys in the Upper Delaware. This species is documented to live over 100 years, and these specimens were determined to be extremely old. Based on the failure to find additional specimens during the ongoing collection efforts in the Upper Delaware or its tributaries, these specimens appear to represent a remnant population that is no longer reproducing.
The eastern pearlshell is listed as a species of concern in New York, Rhode Island and Connecticut, while it is threatened in Vermont. Additionally, the International Union for Conservation of Nature and Natural Resources has given it endangered status primarily due to threats to the European populations. Primary threats to the persistence of the eastern pearshell are degradation of water quality, alteration of pH, eutrophication and temperature increases in the streams.
The PABS Bivalve Subcommittee of the Invertebrate Technical Committee recommended the eastern pearlshell be listed as a State endangered species in 2003. The restriction of a reproducing population of the eastern pearlshell mussel to only one small stream in this Commonwealth makes it very vulnerable to extirpation from activities that could adversely impact Locust Creek. Therefore, the Commission has added the eastern pearlshell to the Pennsylvania list of endangered species.
(3) Rough Green Snake (Opheodrys aestivus). The rough green snake is an arboreal species most often associated with wetland and riparian areas. The rough green snake is common in southern states from Texas to Florida, with this Commonwealth being the northern limit of its range. It has been known from only two isolated locations in this Commonwealth: Greene and Chester Counties. Thus, the Commission listed the rough green snake as a threatened species in 1979.
Several historic specimens or reports of this species are known from other counties. However, the only known locality of this species that has been confirmed as a reproducing population since 1939 is one in Chester County. The Greene County occurrence has not been seen since 1924 and is presumed extirpated. One additional sighting has been recorded from Lancaster County near the Maryland line, but the identification was not confirmed and no evidence of a population was documented. A Statewide Herpetological Atlas project failed to find any additional populations.
The rough green snake is a species of concern in Ohio and is rare in Delaware and West Virginia. This snake species is threatened primarily by habitat alteration from residential and industrial development.
The PABS Amphibian and Reptile Technical Committee recommended the rough green snake be listed as a state endangered species in 2002. Because there is only one known occurrence of this species in this Commonwealth and current survey efforts have failed to find additional occurrences, the Commission has moved the rough green snake from the list of Pennsylvania threatened species to the list of endangered species.
(4) Updating Scientific Names. The Commission has amended § 75.1 to change the name of Clemmys muhlenbergii (bog turtle) to Glyptemys muhlenbergii. Recent molecular data and genetic studies have resulted in a split in the genus Clemmys. Based on morphological data, Holman and Fritz (2001) split Clemmys as follows: Clemmys guttata was retained as the only member of the genus; Clemmys insculpta and C. muhlenbergii were placed in the genus Glyptemys. An independent analysis by Feldman and Parham (2002) supported this conclusion. Therefore, the species formerly named Clemmys muhlenbergii is now assigned to Glyptemys muhlenbergii. The name change has been adopted by NatureServe, an international biological conservation group that tracks rare and endangered species, as well as the Center for North American Herpetology (CNAH), the National herpetological group that tracks name changes.
The Commission also has amended § 75.3 to change the name of Emydoidea blandingii (Blandings Turtle) to Emys blandingii. Recent molecular and genetic studies (Feldman and Parham, 2002) have resulted in a rearrangement of several turtle groups, including the grouping of Emydoidea blandingii with Emys orbicularis in the genus Emys. The name change has been adopted by NatureServe and the CNAH.
The Commission further has amended § 75.1 to change the name of Rana utricularia (Coastal Plain Leopard Frog) to Rana sphenocephala. Literature referring to this species from 1974 to 1992 used the old name Rana utricularia based on a morphological study by Pace (1974). However, in 1992 the International Commission on Zoological Nomenclature ruled that the name of this frog would return to Rana sphenocephala, which it had been given in more recent references.
On final-form rulemaking, the Commission adopted all of the amendments as set forth in the notice of proposed rulemaking.
F. Paperwork
The final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will have no direct adverse fiscal impacts on the Commonwealth or its political subdivisions. The final-form rulemaking will impose no new direct costs on the private sector or the general public. It is noted that the direct regulatory significance of designating a species as an endangered or threatened species is limited to prohibiting persons from taking, catching, killing or possessing these species in this Commonwealth. Since none of the species listed have any commercial or recreational significance because of their rarity, there are no direct fiscal impacts from providing these protections.
The private sector and regulated community have asserted that the designation of the eastern spadefoot toad as endangered will have indirect fiscal impacts on the Commonwealth because the Commission will incur additional costs to survey and investigate all areas where the toad may be located. The Commission does not routinely survey for endangered species. However, to the extent that the Commission would conduct biological surveys for this species, the surveys would be geographically based on known locations. As stated in the notice of proposed rulemaking, there currently are only two known breeding locations for the eastern spadefoot toad. Thus, the Commission's surveying costs would be nominal.
The private sector and regulated community also have asserted that the designation of the eastern spadefoot toad as endangered may have indirect fiscal impacts to them and political subdivisions because of the 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 their projects to avoid adverse impacts to this species and its habitat. It has been asserted that as a result, development may be restricted or completely halted, thus resulting in less tax revenue for political subdivisions. These fiscal impacts, however, result from regulatory and statutory authorities under the aegis of agencies other than the Commission.
H. Public Involvement
Notice of proposed rulemaking containing the proposed amendments was published at 35 Pa.B. 2398 (April 23, 2005). Before the formal public comment period, the Commission received five public comments regarding the proposed rulemaking. Two of the five generally supported the proposed listings; two specifically supported the listings of the eastern spadefoot toad and the rough green snake; and one specifically supported the listing of the eastern pearlshell mussel. During the formal public comment period, the Commission received six public comments. One supported the listing of the eastern pearlshell mussel; two supported the listings of the eastern spadefoot toad and the rough green snake; one supported the listing of the eastern spadefoot toad; and two raised concerns over the listing of the eastern spadefoot toad. After the formal public comment period, the Commission received a letter from the Department of Transportation requesting additional information from the Commission. Copies of all public comments were provided to the Commissioners.
After the conclusion of the public comment period, it was brought to Commission staff's attention that there was an error in the preamble of the notice of proposed rulemaking. The notice of proposed rulemaking erroneously stated that two extant breeding populations of eastern spadefoot toads are currently reported in this Commonwealth in Northumberland and Bucks Counties. The correct counties are Northumberland and Berks Counties. In light of this error, a correction was published at 35 Pa.B. 3425 (June 18, 2005) seeking public comments for an additional 30-day period. Following publication of the correction, the Commission received 21 public comments supporting the addition of the spadefoot toad to the endangered species list. Copies of those public comments were provided to the Commissioners as well.
The Commission did not receive any public comments regarding the proposal to update the scientific names of the Bog Turtle, Coastal Plain Leopard Frog and Blandings Turtle.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided, and the comments that were received were considered.
(3) The adoption of the amendments of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 75, are amended by amending §§ 75.1, 75.2 and 75.3 to read as set forth at 35 Pa.B. 2398.
(b) The Executive Director will submit this order and 35 Pa.B. 2398 to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order and 35 Pa.B. 2398 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: Fiscal Note 48A-174 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 05-1675. Filed for public inspection September 9, 2005, 9:00 a.m.]
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