RULES AND REGULATIONS
Title 58—RECREATION
FISH AND BOAT COMMISSION
[ 58 PA. CODE CHS. 65 AND 75 ]
Fishing; Special Fishing Regulations and Endangered Species
[42 Pa.B. 7684]
[Saturday, December 22, 2012]The Fish and Boat Commission (Commission) amends Chapters 65 and 75 (relating to special fishing regulations; and 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 amendments modify and update the Commission's fishing regulations.
A. Effective Date
The amendments to §§ 65.5, 65.6 and 65.14 (relating to catch and release areas; delayed harvest artificial lures only areas; and catch and release fly-fishing only areas) will go into effect on January 1, 2013. The amendments to §§ 75.1—75.3 (relating to endangered species; threatened species; and candidate species) will go into effect upon publication of this order in the Pennsylvania Bulletin.
B. Contact Person
For further information on the final-form rulemaking, contact Wayne Melnick, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's web site at www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 65.5, 65.6, 65.14 and 75.3 are published under the statutory authority of section 2102 of the code (relating to rules and regulations). The amendments to §§ 75.1 and 75.2 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 improve, enhance and update the Commission's fishing regulations. The specific purpose of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
(1) Currently fishing is not permitted from 1 hour after sunset to 1 hour before sunrise on special regulations areas managed under §§ 65.5, 65.6 and 65.14. None of the other special regulations programs that apply to angling in this Commonwealth carry any type of hourly angling restriction and clear biological rationale does not exist for placing fishing hours restrictions on waters managed under these three programs. Hourly fishing restrictions limit angling opportunity by denying angler access to fishing for part of the day.
For the purpose of simplifying the regulations and to encourage more angling opportunity, the fishing hours restrictions that currently apply to waters managed under these programs should be removed in favor of permitting angling on a 24-hour basis. The Commission therefore amends these sections to read as set forth in the notice of proposed rulemaking published at 42 Pa.B. 3449 (June 16, 2012).
(2) Eastern Mud Turtle (Kinosternon subrubrum subrubrum) is a small (3-4 inches) semiaquatic turtle. It has olive to brown colored shell and mottled skin with a domed carapace and two hinges on a reduced plastron. This small turtle is known to live in shallow wetlands and associated uplands that have still-water or slow-water habitats, such as marshes, swamps, seasonal forest pools, shallow ponds, creeks and ditches, all with soft substrates. In states surrounding this Commonwealth, K. subrubrum is listed as critically imperiled (S1) in New York, secure (S5) in Delaware and Maryland and not ranked/under review (SNR/SU) in New Jersey (NatureServe, 2008). White and White (2002) considered K. subrubrum to be common in Delmarva's Atlantic Coastal Plain but rare within the Maryland Piedmont (Cecil County). The historical range of K. subrubrum in this Commonwealth most likely included the entirety of the Atlantic Coastal Plain. As a result of intensive urbanization throughout the greater Philadelphia landscape, the current distribution in this Commonwealth is restricted to 350 hectares (865 acres) at two sites in Bucks County. These two known sites are located where there are already occurrences of other threatened or endangered species.
The Eastern Mud Turtle was rediscovered in this Commonwealth during the spring of 2008. This signified the first observation of this species in this Commonwealth in 45 years. The Commission engaged a 2-year study for this species which was concluded in 2011. The Eastern Mud Turtle was encountered at only two sites in the entirety of this Commonwealth. These isolated sites are separated by a distance of 5 airline miles, account for an area of only 865 acres (350 hectares) or 1.4 miles2 (3.6 km2) and are completely surrounded by the major urban center of the Philadelphia region. The extent of occurrence for K. subrubrum in this Commonwealth is 1.4 miles2, under the maximum allotment of 40 miles2 found in the Commission's Listing Criterion B.1. The area of occupancy for K. subrubrum in this Commonwealth is only 1.4 miles2, under the maximum allotment of 4 miles2 found in the Commission's Listing Criterion B.2, and severely fragmented (Listing Criterion B.2.a). Additionally, declines are projected in the area of occupancy, area/extent/and or quality of habitat, number of locations or subpopulations and number of mature individuals (Listing Criterion B.2.b). Recent studies by the Commission and East Stroudsburg University (Ruhe and LaDuke, 2011) found only 11 total Eastern Mud Turtles in this Commonwealth, meeting the requirements for listing under Listing Criterion C.1 (under 250 mature individuals in this Commonwealth). Due to the low number of individuals found in this Commonwealth, a population decline observed during the recent study and the severe fragmentation of the Atlantic Coastal Plain Province in this Commonwealth, the species also meets Listing Criteria C.1.b.1 and D.1 (severe fragmentation, a decline of any rate and all subpopulations under 50 individuals; and population is characterized by an acute restriction in the area of occupancy (less than 40 square miles) or in number of locations (less than 5)). As the species meets Listing Criteria B.1., B.2., B.2.a., B.2.b, C.1., C.1.b.1 and D.1, the Amphibian and Reptile Technical Committee of the Pennsylvania Biological Survey (PABS) recommended the status of the Eastern Mud Turtle (Kinosternon subrubrum subrubrum) be elevated to ''endangered'' status in this Commonwealth.
Enough information is available to make the determination that this species is critically imperiled in this Commonwealth at present and to justify adding it to the Commonwealth's list of endangered species. Therefore, the Commission adds the Eastern Mud Turtle to the Commonwealth's list of endangered species.
(3) Round Hickorynut (Obovaria subrotunda) is a freshwater mussel species distinguished by its almost perfectly round shape. The shell is thick and solid and dark-brown with a lighter band along the posterior-dorsal surface. It occurs in medium to larger rivers. The physical habitat of the Round Hickorynut has been generally described as consisting of sandy substrates with gravel or clay. The Round Hickorynut is distributed throughout the Ohio River basin (including the Cumberland and Tennessee Rivers) and parts of the Mississippi River basin, ranging from eastern Illinois to western Pennsylvania to Mississippi (Parmalee and Bogan, 1998). This species is also known from western Lake Erie and Lake St. Clair basins.
Historically, this species was reported from nine streams in this Commonwealth including the Ohio River, Beaver River (Mahoning River, Shenango River, Little Shenango River and Pymatuning Creek), Monongahela River and the Allegheny River (Crooked Creek) (Ortmann, 1909a, 1913, 1919; Strayer et al., 1991). Although historical records have been reported from Lake Erie in neighboring Ohio (for example, Shelford and Boesel, 1942), this species has not been reported from this Commonwealth's portion of Lake Erie. Besides Ortmann's efforts (1909a, 1919), few historical mussel surveys of this Commonwealth's freshwater mussel fauna were conducted (see Dennis, 1971 (western Pennsylvania) and Taylor, 1980 (Ohio River mainstem)). The Round Hickorynut may have occurred in other streams of this Commonwealth but was not reported.
Recent surveys, including predredging surveys, within the species' historical range within this Commonwealth (Crooked Creek, Allegheny River, Ohio River, Monongahela River, Beaver River, Mahoning River, Pymatuning Creek and Little Shenango River) did not detect live individuals of the Round Hickorynut. Live individuals of this species were recently detected in the Shenango River between the Pymatuning Reservoir and Shenango River Lake (Bursey, 1987; Nelson and Villella, 2010; C. Bier, personal communication). Nelson and Villella's 2010 surveys did not detect Round Hickorynut downstream of Shenango River Lake. The Round Hickorynut is only found in the Shenango River and co-occurs with other State and Federal listed mussel species.
The Round Hickorynut was previously identified by PABS as a State rare species, warranting an S1 ranking (Critically Imperiled in Pennsylvania). It currently meets the following criteria for endangered status: A.2.c. Population reduction suspected to be met within next three generations; B.3. Extent of occupancy less than 50 miles; B.4.a. Severely fragmented or known to exist at fewer than 6 location(s); B.4.b.1. Continuing decline inferred for extent of occurrence; B.4.b.3. Continuing decline inferred in area, extent and/or quality of habitat; and B.4.b.4. Continuing decline inferred in number of locations or subpopulations. Of this Commonwealth's ten historical subpopulations, only the Shenango River subpopulation remains. Based upon the extent of occurrence, number of locations within this Commonwealth and threats to this species, the PABS Mollusk Subcommittee recommended that the Commission list the Round Hickorynut as an endangered species in this Commonwealth.
Enough information is available to make the determination that this species is critically imperiled in this Commonwealth at present and to justify adding it to the Commonwealth's list of endangered species. Therefore, the Commission adds the Round Hickorynut to the Commonwealth's list of endangered species.
(4) Pistolgrip (Quadrula verrucosa) is a freshwater mussel that has a posterior ridge that is very pronounced and constriction in the shell at the midpoint and the posterior slope of the shell is pleated. It occurs in a variety of habitats and conditions, ranging from riffles, runs and pools with variable substrates including mud, sand or coarse and fine gravel (Ortmann, 1919; Williams et al., 2008; Parmalee and Bogan, 1998).
The Pistolgrip is widely distributed throughout the Mississippi River basin including the Ohio, Cumberland and Tennessee River basins and ranges from western Pennsylvania to western Minnesota south to Texas and Mississippi (Parmalee and Bogan, 1998; Williams et al., 2008). The Pistolgrip is also native to the Mobile River basin (Alabama, Georgia, Mississippi and Tennessee) and may occur in other rivers draining into the western Gulf of Mexico (Williams et al., 2008).
Historically, this species was reported from eight streams in this Commonwealth, including the Ohio River, Beaver River (Mahoning River, Shenango River and Pymatuning Creek), Monongahela River (Dunkard Creek) and the Allegheny River (Ortmann, 1913, 1919).
Live individuals of this species were recently detected in the Shenango River between the Pymatuning Reservoir and Shenango River Lake (Bursey, 1987; Nelson and Villella, 2010; C. Bier, personal communication) and downstream of Shenango River Lake (Nelson and Villella, 2010). The Pistolgrip is only found in the Shenango River and co-occurs with other State and Federal listed mussel species.
The Pistolgrip was previously identified by PABS as a State rare species, warranting an S1 ranking (Critically Imperiled in Pennsylvania). The Pistolgrip meets the following endangered species listing criteria: B.3. Extent of occupancy less than 50 miles; B.4.a. Severely fragmented or known to exist at fewer than 6 location(s); B.4.b.1. Continuing decline inferred for extent of occurrence; B.4.b.3. Continuing decline inferred in area, extent and/or quality of habitat; and B.4.b.4. Continuing decline inferred in number of locations or subpopulations. Of this Commonwealth's eight historical subpopulations, only the Shenango River subpopulation remains. Based upon the extent of occurrence, number of locations within the Commonwealth and threats to this species, the PABS Mollusk Subcommittee recommended that the Commission list the Pistolgrip as an endangered species in this Commonwealth.
Enough information is available to make the determination that this species is critically imperiled in this Commonwealth at present and to justify adding it to the Commonwealth's list of endangered species. Therefore, the Commission adds the Pistolgrip to the Commonwealth's list of endangered species.
(5) Rayed Bean (Villosa fabalis). On February 14, 2012, the United States Department of the Interior, Fish and Wildlife Service (FWS), designated Villosa fabalis (Rayed Bean) and Snuffbox (Epioblasma triquetra) as Federally endangered throughout their entire ranges. The Snuffbox was previously listed by the Commission at 39 Pa.B. 3442 (July 11, 2009). The Rayed Bean is a freshwater mussel species known to occur in Illinois, Indiana, Kentucky, Michigan, New York, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and Ontario, Canada. The Rayed Bean still occurs in the following streams and rivers in this Commonwealth: Allegheny River, French Creek, LeBoeuf Creek, Muddy Creek and Cussewago Creek. The Rayed Bean co-occurs with other State and Federal listed mussel species and is not known from within the permitted sand and gravel dredging area of the Allegheny River.
Section 102 of the code (relating to definitions) defines endangered species as ''All species and subspecies of fish which: (1) have been declared by the Secretary of the United States Department of the Interior to be threatened with extinction and appear on the Endangered Species List or the Native Endangered Species List published in the Federal Register; or (2) have been declared by the executive director to be threatened with extinction and appear on the Pennsylvania Endangered Species List published in the Pennsylvania Bulletin.'' Because Rayed Bean has been designated as Federally endangered throughout its range, which includes this Commonwealth, the Commission adds the Rayed Bean to the Commonwealth's list of endangered species.
(6) Chesapeake Logperch (Percina bimaculata) is a small to medium size fish (up to 7 inches) in the perch family. Little is known about this species and its habits, but it occurs primarily in larger waterways and lowermost sections of tributaries.
Its National range includes the Chesapeake Bay watershed in the District of Columbia (formerly), Maryland, Pennsylvania and Virginia (formerly), limited to lower sections of the Potomac (now extirpated) and Susque-hanna Rivers and tributaries, and a few direct tributaries to the Chesapeake Bay (Haldeman, 1842; Smith and Bean, 1899; Jenkins and Burkhead, 1994).
In this Commonwealth, it occurs only in the Piedmont Province of the lower Susquehanna River drainage. Currently, it is restricted to the Susquehanna River and the lowermost section of four tributaries within the Conowingo Pool (Fishing Creek, Muddy Creek, Peters Creek and Michael Run) located in Lancaster and York Counties. It is also found in the Octoraro Creek watershed in Chester and Lancaster Counties.
The Chesapeake logperch Percina bimaculata was recently removed from taxonomic synonymy with the logperch Percina caprodes and recognized as a distinct and valid species with a limited global distribution restricted to the Chesapeake Bay watershed (Near, 2008). It meets fish listing criteria B3 and B4 for threatened status. To meet criterion B3, the extent of occupancy must be less than 50 miles in lotic waters (less than 10 miles would qualify for endangered status). The Chesapeake logperch only occurs in approximately 30 combined stream and river miles within this Commonwealth. It also meets criterion B4 which compares distributions using HUC 12 watersheds (within GIS software) to characterize their relative rarity within this Commonwealth. The Chesapeake logperch occupies only 7 of the 641 HUC 12 watersheds (~1%) within the Susquehanna Basin. Also, it is likely extirpated from at least two HUC 12 watersheds, those covering Lake Clarke and Lake Aldred on the Susquehanna River.
The Chesapeake logperch is classified as endangered by the American Fisheries Society Endangered Species Committee (Jelks et al., 2008, Fisheries 33(8): 372—407). It is classified as a threatened species in Maryland, the only other state where it has recently been documented. It is also listed in the 2010 update of Threatened Fishes of the World (Ashton and Near, 2010). The Chesapeake logperch's limited global distribution, extirpation from a significant portion of its historic range and extant threats make it a responsibility species for this Commonwealth and provide justification for listing it as a threatened species in this Commonwealth.
Enough information is available to make the determination that this species is threatened in this Commonwealth at present and to justify adding it to the Commonwealth's list of threatened species. Therefore, the Commission adds the Chesapeake Logperch to the Commonwealth's list of endangered species.
(7) American Brook Lamprey (Lampetra appendix) is one of the nonparasitic lampreys in this Commonwealth. It inhabits small to medium size creeks and, less-frequently, large streams and small rivers. Adults generally prefer sandy and gravelly riffles and runs for spawning, while ammocoetes prefer deposits of silt, sand, mud and detritus (Jenkins and Burkhead, 1993).
Its National range includes the Atlantic, Great Lakes and Mississippi River basins from St. Lawrence River, Quebec, west to Minnesota, south to Roanoke River system, Virginia, Tennessee River system, northern Alabama, and St. Francis and White river systems, Missouri and Arkansas; Martin River (Arctic basin), Northwest Territories, to Ugashik and Chatanika River (Pacific basin), Alaska. Populations tend to be uncommon (Page and Burr, 1991) and disjunctive across North America.
In this Commonwealth, it is restricted to the northwest and southeast corners of the State. It is known from the following drainages: Upper Allegheny River and tributaries, middle Allegheny River tributaries, Lake Erie tributaries, upper Genesee River and tributaries and Lower Delaware River tributary (White Clay Creek). It has been collected from Chester, Clarion, Crawford, Elk, Erie, Forest, McKean, Potter, Venango and Warren Counties.
Cooper (1983) shows the main distribution of the American brook lamprey to cover the northwest corner of this Commonwealth, including Lake Erie tributaries, portions of the middle and upper Allegheny River basin and the Genesee River headwaters. Cooper (1983) also cites a small population in White Clay Creek, Chester County. Additional historic data are known to fall within this same general distribution. We have found 9 ''104,'' 6 HUC 8 and 48 HUC 12 watersheds occupied based on historic data at the ''104'' and HUC 8 level. All historically occupied watersheds had occurrences from both pre-1971 and 1971—1990 periods.
The distribution of recent American brook lamprey collections closely mirrors that of the historic distribution presented by Cooper (1983). Recent data (1991—2011) characterize it as relatively common in numerous waterways within northwest Pennsylvania (Fish and Boat Commission, Pennsylvania State University, R. Criswell and FWS, unpublished data). The FWS's Sea Lamprey Control Program has conducted distributional surveys for lampreys within the Erie Basin (Erie and Crawford Counties) using larval lamprey specific electrofishing gear since the mid-1980s. As a result, excellent lamprey information is available for those streams. Information available for other waterways tends to be less focused and more incidental due to brook lamprey ammocoete habitat preferences, relatively poor ammocoete recruitment to conventional electrofishing gear and short adult life span. In southeastern Pennsylvania (Chester County), the American brook lamprey is found in a relatively small area consisting of a single subbasin. Horowitz et al. (2008) reported American brook lamprey occurrences in four streams from the Mid-Atlantic Piedmont based on a previous study (Sweeney et al., 2004). Populations are also known from New Jersey to the east and from the Delmarva Peninsula to the south (Lee et al., 1980).
The Fishes Technical Committee of PABS reviewed the Heritage rank of the American Brook Lamprey and recommended it be changed from ''vulnerable'' (S3) to ''apparently secure'' (S4) status (State Rank Definitions, 1996). The Fishes Technical Committee additionally recommended ''delisting'' status based on the aforementioned data and apparent commonality of the species in this Commonwealth (PABS definition of ''delisted species''—species which were once listed but now cited for delisting (PABS Suggested Status Definitions, 2005)).
The American brook lamprey was listed in 1999 as a Pennsylvania candidate based on a limited distribution and apparent low numbers. Argent et al. (2000) provided the methodology and rationale for listing the American brook lamprey as a Pennsylvania candidate. Currently available data indicate little if any range reduction has occurred when historic and recent records are compared throughout the four occupied basins (Allegheny, Delaware, Erie and Genesee). Extreme fragmentation, fluctuation or decline of populations has not been documented or suspected. The American brook lamprey in this Commonwealth exceeds minimum requirements for multiple listing criteria. A significant reduction in range within this Commonwealth cannot be seen when historic and recent data were compared (Criteria A1 and A2). The extent of occupancy in streams and rivers is greater than the maximum of 150 miles for candidate status (Criterion B3). The attention paid to this species since being listed is likely responsible for subsequent efforts to survey historic sites and unassessed waters. The American brook lamprey currently appears secure within this Commonwealth, thereby justifying removal from the Commonwealth's list of candidate species. Therefore, the Commission removes the American brook lamprey from the Commonwealth's list of candidate species.
The Commission amends §§ 65.5, 65.6, 65.14, 75.1, 75.2 and 75.3 to read as set forth in the notice of proposed rulemaking.
F. Paperwork
The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The amendments to Chapter 65 will not have adverse fiscal impact on the Commonwealth or its political subdivisions and will not impose new costs on the private sector or the general public. The amendments to Chapter 75 will not have direct adverse fiscal impact on this Commonwealth or its political subdivisions. The amendments to Chapter 75 will not impose new direct costs on the private sector or the general public. The direct regulatory significance of designating a species as endangered or threatened is limited to prohibiting persons from taking, catching, killing or possessing these species in this Commonwealth. Because none of the species listed have commercial or recreational significance because of their rarity, there are not direct fiscal impacts from providing these protections.
It has been asserted that that the designation of species as endangered or threatened has fiscal impacts on the private sector and the Commonwealth. However, these impacts are indirect in that they flow from the application by other agencies, including the Department of Environmental Protection (Department), of their statutory and regulatory authorities and not from the listings themselves. Therefore, the Commission will continue to rely on the Department and other agencies to examine their programs and determine the fiscal impacts that flow from their responsibilities, including the responsibility to protect rare species in accordance with their own authorities.
In addition, one of the species proposed for State endangered status, the Rayed Bean Mussel, was designated by the FWS as Federally endangered throughout its entire range on February 14, 2012. This species accordingly would have received protection regardless of the Commission's action. Also, three of the five proposed additions to the list (Pistolgrip Mussel, Round Hickorynut Mussel and Eastern Mud Turtle) co-occur with other listed species within the same waterway or wetland. Therefore, there would be little additional burden placed on projects in those areas.
H. Public Involvement
Notice of proposed rulemaking was published at 42 Pa.B. 3449. The Commission did not receive public comments concerning the proposed amendments to §§ 65.5, 65.6 and 65.14. After the formal comment period, the Commission received one comment from the Department requesting the Commission to delay consideration of its final action on the proposed amendments to §§ 75.1—75.3. A copy of this comment was provided to the Commissioners. As a result of the Department's comment, the Commission deferred consideration of the agenda item to allow its Executive Director to respond to the Department's letter. The Commission's Executive Director responded to the letter and the Commission subsequently adopted the amendments to §§ 75.1—75.3.
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 public comment received was 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 Chapters 65 and 75, are amended by amending §§ 65.5, 65.6, 65.14 and 75.1—75.3 to read as set forth at 42 Pa.B. 3449.
(b) The Executive Director will submit this order and 42 Pa.B. 3449 to the Office of Attorney General for approval as to legality and form as required by law.
(c) The Executive Director shall certify this order and 42 Pa.B. 3449 and deposit them with the Legislative Reference Bureau as required by law.
(d) The amendments to §§ 65.5, 65.6 and 65.14 take effect on January 1, 2013. The amendments to §§ 75.1—75.3 take effect upon publication in the Pennsylvania Bulletin.
JOHN A. ARWAY,
Executive DirectorFiscal Note: Fiscal Note 48A-237 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 12-2470. Filed for public inspection December 21, 2012, 9:00 a.m.]
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