PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[ 58 PA. CODE CH. 75 ]
Fishing
[38 Pa.B. 5035]
[Saturday, September 13, 2008]The Fish and Boat Commission (Commission) proposes to amend Chapter 75 (relating to endangered species). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code).
A. Effective Date
The proposed rulemaking, if approved on final-form rulemaking, will go into effect immediately upon publication in the Pennsylvania Bulletin.
B. Contact Person
For further information on the proposed rulemaking, contact Jason E. Oyler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This proposed rulemaking is available on the Commission's web site at www.fish. state.pa.us.
C. Statutory Authority
The proposed amendments to §§ 75.2 and 75.3 (relating to 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 proposed rulemaking is designed to improve, update and modify the Commission's threatened and candidate species lists. The specific purposes of the proposed amendments are described in more detail under the summary of proposal.
E. Summary of Proposal
Commission staff have recently reevaluated the listing/delisting process for endangered, threatened and candidate species. Commission staff have reviewed recent fish survey data, especially data collected by means of benthic trawling, which is a relatively new method used in this Commonwealth's rivers. Accordingly, the Commission proposes five fish species for delisting from the existing threatened or candidate species lists. The Fishes Technical Committee of Pennsylvania Biological Survey (PABS) has reviewed the species proposed to be delisted and concurs with the proposed delisting.
(1) Smallmouth Buffalo (Ictiobus bubalus): The smallmouth buffalo is a large, deep-bodied sucker of the Ohio Basin that inhabits deeper sections of large rivers. It occurs in the Lake Michigan drainage and Mississippi River basin from Pennsylvania and Michigan to Montana and south to the Gulf of Mexico. It is secure or common across its range. In this Commonwealth, it inhabits the Ohio River, Monongahela River and lock and dam section of the Allegheny River.
The smallmouth buffalo has recently become common in the Ohio River and can be collected with regularity in the Monongahela and lower Allegheny Rivers. R. Criswell (personal communication) collected in excess of 100 individuals during a single night of electrofishing on the Ohio River in 2003 and Ohio River Sanitation Commission (ORSANCO) personnel collected 49 during a survey in 1992. California University of Pennsylvania personnel collected 17 specimens on an electrofishing run on the Monongahela River in 2003, and 16 were collected by Commission staff in Pool 8 of the Allegheny River in July 2004. Argent and Kimmel (2003) considered the smallmouth buffalo common in several pools they sampled in the Allegheny and Ohio Rivers. Field surveys conducted throughout the historic Pennsylvania range since 1990 have documented a significant expansion in range and population size compared to pre-1990 information. The smallmouth buffalo is absent from the majority of 20th century collection literature; however, recent electrofishing and gill netting surveys have documented a continuous distribution throughout the Ohio River and lower reaches of the Monongahela and Allegheny Rivers in the Commonwealth.
This species was run through the Commission's fish species documentation and objective listing/delisting criteria and met Criteria A.1. (Population reduction) that the population is increasing, Criteria B.3. (Distribution & Trends) that the distribution is greater than 150 miles of river/stream, and Criteria B.4. (Summed Proportion of Watersheds Occupied), which compares all fish species documented occurrences and shows that this species is no longer rare in this Commonwealth. The Fishes Technical Committee of the PABS reviewed the Heritage rank of the smallmouth buffalo and recommended it be changed to ''apparently secure'' (S4) status--uncommon but not rare, and usually widespread in the State. The PABS Committee additionally recommended ''delisting'' status based on the aforementioned data and apparent commonality of the species in this Commonwealth. Enough information is available to determine that it is secure in the State at present and to justify the removal of smallmouth buffalo from the Commonwealth's list of threatened fishes. Therefore, the Commission proposes that smallmouth buffalo be removed from the list of threatened species in this Commonwealth.
(2) Longhead Darter (Percina macrocephala): The longhead darter is a small fish species that prefers warm rivers and large streams and occupies a wide array of habitats, including riffles and runs over substrates of clean gravel, cobble, rubble and boulders, especially at the interface areas between strong current and backwash. It also occurs in pools with both clean bottoms of gravel and rubble and those covered with silt or detritus, or both. The longhead darter occurs in the Ohio River drainage from New York to North Carolina, and west to Kentucky and Tennessee, but it is rare and highly localized in these locations. In this Commonwealth, it occurs throughout French Creek and the Allegheny River, including the lowermost sections of a number of tributaries in Crawford, Erie, Forest, McKean and Warren Counties. It formerly occurred in the Monongahela River drainage.
The longhead darter has increased its range considerably during the past 25 years. Although Cooper (1985) did not report this taxon in this Commonwealth upriver of Allegheny Reservoir, it has been collected with frequency in the upper Allegheny River as far as Roulette, Potter County, and in Cole Creek and Potato Creek in McKean County (R. Criswell and J. Stauffer, unpublished data). It was also collected with regularity in the middle Allegheny River between the Allegheny Reservoir and the influence of the lock and dam system near East Brady, Clarion County, and in French Creek during the period 1990 to present (Criswell 1992, R. Criswell and J. Stauffer, unpublished data). The first recent records in the lower Allegheny River are those of single specimens from Armstrong County in 1986 and 1987. Argent and Kimmel (2003) reported the longhead darter from Allegheny County and it was collected by Commission staff in Pool 8 of the Allegheny River in 2004 and during benthic trawl trials in 2005 in Pools 6, 7 and 8 (R. Spear, unpublished data).
Field surveys conducted throughout the historic Pennsylvania range since 1985 have documented a significant expansion in range and population size compared to pre-1985 information. Although historically represented by limited, widely scattered collections consisting of only a single or few individuals, recent research has documented continuous distribution throughout French Creek from the New York State line in Erie County to its mouth in Venango County, and the Allegheny River from Potter County downstream to Allegheny County, as well as in the lower sections of a number of larger tributaries to both. Observations of more than 100 individuals at a single station have been reported on at least three occasions, and this taxon is now locally common to abundant in both waterways.
This species was run through the Commission's fish species documentation and objective listing/delisting criteria and met Criteria A.1. (Population reduction) that the population is increasing. The Fishes Technical Committee of PABS reviewed the Heritage rank of the longhead darter and recommended it be changed to ''apparently secure'' (S4) status-uncommon but not rare, and usually widespread in the State. The PABS Committee additionally recommended ''delisting'' status based on the aforementioned data and apparent commonality of the species in this Commonwealth. Enough information is available to make the determination that it is secure in the State at present and to justify the removal of longhead darter from the Commonwealth's list of threatened fishes. Therefore, the Commission proposes that the longhead darter be removed from the list of threatened species in this Commonwealth.
(3) Channel Darter (Percina copelandi): Channel darters are small fish that occur primarily in clear rivers and large streams over substrates of sand and gravel. They occupy a variety of habitats, including riffles, runs, and pools, lakeshores, and sluggish pools with lightly silted bottoms in the Allegheny River. During a study in the Allegheny River, Stauffer et al. (1996) found channel darters in significantly deeper habitats than other darter (Etheostoma) species. The channel darter occurs in the Great Lakes/St. Lawrence and Ohio River drainages from southern Quebec and Vermont to Michigan, and south to Kentucky and Tennessee. A disjunct population exists in the Arkansas, Ouchita and Red River drainages in the southern Midwest, and additional isolated populations occur in Mississippi/Louisiana and Alabama. In this Commonwealth, they are distributed throughout most of the Allegheny and Ohio rivers. Also a few records exist from the Lake Erie drainage.
The channel darter is locally common in sections of the Allegheny River where clean gravel substrate occurs. Recent benthic trawl surveys of the ''Three Rivers'' area (Argent, Stauffer et al., and R. Criswell unpublished data) indicate that the channel darter is the most common darter species within samples. Abundance in the wadeable Upper Allegheny River and tributaries appears to be low, and abundance is uncertain in the Lake Erie drainage. The channel darter is absent from the majority of 20th century collection literature; however, recent electrofishing and benthic trawl surveys have documented a mostly continuous distribution throughout the Ohio and Allegheny Rivers within this Commonwealth.
This species was run through the Commission's fish species documentation and objective listing/delisting criteria and met Criteria B.3. (Distribution & Trends) that the distribution is greater than 150 miles of river/stream. The Fishes Technical Committee of PABS reviewed the Heritage rank of the channel darter and recommended it be changed to ''apparently secure'' (S4) status--uncommon but not rare, and usually widespread in this Commonwealth. The PABS Committee additionally recommended ''delisting'' status based on the aforementioned data and apparent commonality of the species in this Commonwealth. Enough information is available to determine that it is secure in the State at present and to justify the removal of channel darter from the Commonwealth's list of threatened fishes. Therefore, the Commission proposes that channel darter be removed from the Pennsylvania list of threatened species in this Commonwealth.
(4) River Redhorse (Moxostoma carinatum): The river redhorse is a large sucker that inhabits rivers and large creeks. It prefers clearer waters and gravelly or rocky substrates in flowing pools and runs. The river redhorse's enlarged pharyngeal arches and molariform teeth make it well suited for crushing the shells of mollusks, an important component of its diet. The river redhorse occurs in the St. Lawrence, Great Lakes and Mississippi River drainages from southern Quebec to central Minnesota and western Iowa, south to northern Alabama and eastern Oklahoma, and on the Gulf Slope from Florida to Louisiana and Mississippi. In this Commonwealth, it occurs in the Ohio River drainage, including the Allegheny, Beaver, Monongahela, Ohio, Shenango and Youghiogheny Rivers.
Although never abundant, the river redhorse can now be collected regularly in the Allegheny and Ohio Rivers and to a lesser extent in the Monongahela River. It was collected recently in the Shenango River (Criswell et al., 2002) as well. This is the first record there since 1933. Its former and present scarcity may be attributed in part to the difficulty in sampling its large river habitat. Field surveys conducted throughout the historic Pennsylvania range since 1990 have documented a significant expansion in range and population size compared to pre-1990 information. The river redhorse is absent from the majority of 20th century collection literature; however, recent electrofishing and gill netting surveys have documented a continuous distribution throughout the Ohio River and lower reaches of the Monongahela and Allegheny Rivers and in Lake Erie within this Commonwealth.
This species was run through the Commission's fish species documentation and objective listing/delisting criteria and met Criteria A.1. (Population reduction) that the population is increasing and Criteria B.3. (Distribution & Trends) that the distribution is greater than 150 miles of river/stream. The Fishes Technical Committee of PABS reviewed the Heritage rank of the river redhorse and recommended it be changed to ''apparently secure'' (S4) status--uncommon but not rare, and usually widespread in the State. The PABS Committee additionally recommended ''delisting'' status based on the aforementioned data and apparent commonality of the species in this Commonwealth. Enough information is available to determine that it is secure in the State at present and to justify the removal of river redhorse from the Commonwealth's list of candidate fish species. Therefore, the Commission proposes that river redhorse be removed from the list of candidate species in this Commonwealth.
(5) Longnose Gar (Lepisteous osseus): The longnose gar is a large pelagic fish species with an elongate body, long snout with numerous sharp, needle-like teeth. It prefers medium-sized, low-gradient rivers and large streams, lakes, impoundments, oxbows and backwaters over a wide variety of substrates. The longnose gar occurs in the Atlantic Slope drainages from New Jersey and Pennsylvania to Florida, the St. Lawrence River, Quebec through Great Lakes (except Lake Superior), and the Mississippi River basin to the Gulf Coast. It also occurs in the Gulf Slope drainages from Florida to Texas. In this Commonwealth, it was historically widespread in the Ohio River drainage, including the Allegheny, Conemaugh, Monon- gahela and Ohio rivers and Conneaut Lake. It also occurs at Presque Isle-Lake Erie, lower Susquehanna River and Delaware River to Monroe County. It has not been taken recently in the Conemaugh or Susquehanna Rivers, and is now considered extirpated from the Delaware River (Horwitz 1986).
The longnose gar has become fairly common in the Ohio River and is taken regularly in the Monongahela River and lower section of the Allegheny River (Argent and Kimmel 2003, unpublished data). Criswell and Stauffer (2003) captured approximately 25 specimens in a single gill net during a sampling effort on the Ohio River. Although it has been taken recently in Conneaut Lake, its population status there is not known. The Lake Erie population is considered stable, and longnose gar can be collected regularly in near shore areas and around the mouths of tributaries (Roger Kenyon, personal communication--w/ R. Criswell).
Field surveys conducted throughout the historic Pennsylvania range since 1990 have documented a significant expansion in range and population size compared to pre-1990 information. Recent electrofishing and gill netting surveys have documented continuous distribution throughout the Ohio River and lower reaches of the Monongahela and Allegheny rivers and in Lake Erie within this Commonwealth.
This species was run through the Commission's fish species documentation and objective listing/delisting criteria and met Criteria A.1. (Population reduction) that the population is increasing and Criteria B.3. (Distribution & Trends) that the distribution is greater than 150 miles of river/stream. The Fishes Technical Committee of PABS reviewed the Heritage rank of the longnose gar and recommended it be changed to ''apparently secure'' (S4) status--uncommon but not rare, and usually widespread in the State. The PABS Committee additionally recommended ''delisting'' status based on the aforementioned data and apparent commonality of the species in this Commonwealth. Enough information is available to determine that it is secure in this Commonwealth at present and to justify removal of longnose gar from the Commonwealth's list of candidate fishes. Therefore, the Commission proposes that longnose gar be removed from the list of candidate species in this Commonwealth.
The Commission proposes that §§ 75.2 and 75.3 be amended to read as set forth in Annex A.
F. Paperwork
The proposed rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no new costs on the private sector or the general public.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed rulemaking 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 by completing the form at www.fishandboat.com/reg comments. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt. Electronic comments submitted in any other manner will not be accepted.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: 48A-207. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 75. ENDANGERED SPECIES § 75.2. Threatened species.
* * * * * (b) Fish. The following species are threatened:
* * * * * (7) [Smallmouth buffalo, Ictiobus bubalus.
(8)] Spotted sucker, Minytrema meleanops.
[(9)] (8) Brindled madtom, Noturus miurus.
[(10)] (9) Bluebreast darter, Etheostoma camurum.
[(11)] (10) Spotted darter, Etheostoma maculatum.
[(12)] (11) Tippecanoe darter, Etheostoma tippecanoe.
[(13) Channel darter, Percina copelandi.
(14)] (12) Gilt darter, Percina evides.
[(15) Longhead darter, Percina macrocephala.]
* * * * * § 75.3. Candidate species.
* * * * * (b) Fishes.
* * * * * (4) [Longnose gar, Lepisosteus osseus.
(5)] Bowfin, Amia calva.
[(6)] (5) Central mudminnow, Unbra limi.
[(7)] (6) Eastern mudiminnow, Unbra pygmaea.
[(8)] (7) Hornyhead chub, Nocomis biguttatus.
[(9) River redhorse, Moxostoma carinatum.
(10)] (8) Brook silverside, Labidesthes sicculus.
[(11)] (9) Brook stickleback, Culaea inconstons.
* * * * *
[Pa.B. Doc. No. 08-1663. Filed for public inspection September 12, 2008, 9:00 a.m.]
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