RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[ 58 PA. CODE CH. 75 ]
Fishing; Endangered Species
[45 Pa.B. 3841]
[Saturday, July 18, 2015]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 Fish and Boat Code) (code).
A. Effective Date
The final-form rulemaking will go into effect upon publication 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 § 75.2 (relating to threatened species) are published under the statutory authority of section 2305 of the code (relating to threatened and endangered species).
D. Purpose and Background
The specific purpose of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
(1) Bluebreast Darter (Etheostoma camurum): The Bluebreast Darter is a small species that inhabits rivers and large streams, preferring fast, clean riffles and runs having large gravel, rubble and boulder substrate. It occurs in the Ohio River basin from western New York to eastern Illinois, and south to the Tennessee River in Tennessee and Alabama. It is locally common but absent from large portions of its range. In this Commonwealth, it occurs throughout French Creek, the middle and lower sections of the Allegheny River and the Ohio River as well as additional tributaries to these waterways. It formerly occurred in the Shenango River as well but is now considered extirpated there.
The Bluebreast Darter has experienced a considerable range expansion since it was listed as threatened in 1999. At that time it was spottily distributed in French Creek and the middle Allegheny River. It is now known to occur throughout French Creek, from near the Erie County/New York border to its mouth in Venango County (88 river miles). It occurs in the Allegheny River from Warren to its mouth in Pittsburgh, including the lock-and-dam section (189 river miles), and has been documented in the Ohio River (40 river miles) as far downriver as the tailrace of Montgomery Lock and Dam, Beaver County. It also occurs in much of the following areas: Tionesta Creek and a tributary; Big Sandy Creek, Venango County; Redbank Creek, Clarion County; Mahoning Creek, Armstrong County; Kiskiminetas River, Armstrong and Westmoreland Counties; and Bull Creek, Deer Creek and Pine Creek, Allegheny County. In addition, it has experienced a similar expansion in Ohio, where it has been collected as far downriver as the Cincinnati area and was delisted in 2012 (Zimmerman, 2014). It has also been collected in Oswayo Creek, Cattaraugus County, New York.
The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. It exceeds criterion A.1 (Population Reduction) in that its population is significantly increasing. Since the Bluebreast Darter now occupies more than 200 river miles of waterway, it also significantly exceeds Criterion B.3 (Extent of Occupancy). In addition, it was evaluated with NatureServe's Conservation Status Assessments Rank Calculator (Criswell, 2014) and received a State Conservation Rank of S4S5, meaning it is apparently secure to secure in this Commonwealth with a fairly low to very low risk of extirpation due to its extensive range and/or many populations or occurrences. The Fishes Technical Committee of the Pennsylvania Biological Survey (PABS) reviewed this documentation and rank assignment and recommended that the Bluebreast Darter be delisted. Enough information is available to make the determination that it is secure in this Commonwealth at present and to justify its removal from the Commonwealth's list of threatened fishes. Therefore, the Commission removes the Bluebreast Darter from the Commonwealth's list of threatened species.
(2) Gilt Darter (Percina evides): The Gilt Darter is a small species that inhabits clear rivers and large streams, where it prefers deeper riffles and runs with moderate to swift current over silt-free sand, gravel, cobble and rubble. It occurs in the Mississippi River basin from New York to Minnesota and south to northern Alabama and northern Arkansas. It also occurs in the Maumee River system of the Lake Erie drainage in Ohio and Indiana. In this Commonwealth, it occurs throughout French Creek, the middle and lower sections of the Allegheny River, and the Ohio River.
The Gilt Darter has experienced a considerable range expansion since it was listed as threatened in 1999. At that time it was spottily distributed in French Creek and the middle Allegheny River. It is now known to occur throughout French Creek, from Erie County to its mouth in Venango County (88 river miles). It occurs in the Allegheny River from Warren to its mouth in Pittsburgh, including the lock-and-dam section (189 river miles), and has been documented in the Ohio River as far downriver as the tailrace of Dashields Lock and Dam, Allegheny County.
It is now common in French Creek and abundant in sections of the Allegheny River. At least 7 benthic trawl events from the latter have resulted in the collection of more than 100 individuals, and 2 of those trawls included nearly 200 specimens.
The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. It exceeds criterion A.1 (Population Reduction) in that its population is significantly increasing. Since the Gilt Darter now occupies more than 150 river miles of waterway, it also significantly exceeds Criterion B.3 (Extent of Occupancy). In addition, it was evaluated with NatureServe's Conservation Status Assessments Rank Calculator (Criswell, 2014) and received a State Conservation Rank of S4, meaning it is apparently secure in this Commonwealth with a fairly low to very low risk of extirpation due to its extensive range and/or many populations or occurrences. The Fishes Technical Committee of PABS reviewed this documentation and rank assignment and recommended that the Gilt Darter be delisted. Enough information is available to make the determination that it is secure in this Commonwealth at present and to justify its removal from the Commonwealth's list of threatened fishes. Therefore, the Commission removes the Gilt Darter from the Commonwealth's list of threatened species.
(3) Spotted Darter (Etheostoma maculatum): The Spotted Darter is a small species that inhabits large streams and rivers, where it prefers the faster, deeper portions of riffles possessing gravel and rubble substrates. It occurs in the Ohio River basin from western New York and Pennsylvania to northern Indiana and south to West Virginia and Kentucky. It is extremely localized and uncommon in much of its range. In this Commonwealth, it occurs in French Creek, the Allegheny River and the Ohio River.
The Spotted Darter has experienced a considerable range expansion since it was listed as threatened in 1999. At that time it was spottily distributed in French Creek and the middle Allegheny River. It is now known to occur throughout French Creek, including its West Branch, from near the Erie County/New York border to its mouth in Venango County (88 river miles). It occurs in the Allegheny River from Warren to its mouth in Pittsburgh, including the lock-and-dam section (189 river miles), and has been documented in the Ohio River as far downriver as the tailrace of Dashields Lock and Dam, Allegheny County. It also occurs in Oil Creek and South Sandy Creek.
Benthic trawls in the Allegheny River included yields of as many as 89 and 202 individuals. It is well distributed and relatively common, although not necessarily abundant, through its Pennsylvania range. The Spotted Darter was recently considered for Federal protection under the Endangered Species Act of 1973 (16 U.S.C.A. §§ 1531—1544) but a review published in 2011 concluded that ''threats to spotted darter are not of sufficient imminence, intensity, or magnitude that would cause substantial losses of population distribution or viability.''
The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. It exceeds criterion A.1 (Population Reduction) in that its population is significantly increasing. Since the Spotted Darter now occupies more than 200 river miles of waterway, it also significantly exceeds Criterion B.3 (Extent of Occupancy). In addition, it was evaluated with NatureServe's Conservation Status Assessments Rank Calculator (Criswell, 2014) and received a State Conservation Rank of S4, meaning it is apparently secure in this Commonwealth with a fairly low to very low risk of extirpation due to its extensive range and/or many populations or occurrences. The Fishes Technical Committee of PABS reviewed this documentation and rank assignment and recommended that the Spotted Darter be delisted. Enough information is available to make the determination that it is secure in this Commonwealth at present and to justify its removal from the Commonwealth's list of threatened fishes. Therefore, the Commission removes the Spotted Darter from the Commonwealth's list of threatened species.
(4) Tippecanoe Darter (Etheostoma tippecanoe): The Tippecanoe Darter is a small species that inhabits rivers and large streams, where it requires clean gravel or sand/gravel substrates. It occurs in the Ohio River basin from western Pennsylvania to Indiana, and south to the Cumberland River drainage in Tennessee. It is extremely localized but locally common. In this Commonwealth, it occurs throughout French Creek, the middle and lower sections of the Allegheny River, the Ohio River and additional tributaries to these waterways.
The Tippecanoe Darter has experienced a considerable range expansion since it was listed as threatened in 1999. At that time it was spottily distributed in French Creek and the middle Allegheny River. It is now known to occur throughout French Creek, from near the Erie County/New York border to its mouth in Venango County (88 river miles). It occurs in the Allegheny River from Warren to its mouth in Pittsburgh, including the lock-and-dam section (189 river miles), and has been documented in the Ohio River as far downriver as the tailrace of Montgomery Lock and Dam, Beaver County. It also occurs in the following areas: Oil Creek, Venango County; Kiskiminetas River, Armstrong and Westmoreland Counties; and Bull Creek, Deer Creek and Pine Creek, Allegheny County.
Hundreds of Tippecanoe Darters were easily captured in a riffle below Lock and Dam 3 on the Allegheny River (Koryak et al., 2009), and at least 17 stations have produced 20 or more individuals. It is locally common at many locations within its Pennsylvania range.
The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. It exceeds criterion A1 (Population Reduction) in that its population is significantly increasing. Since the Tippecanoe Darter now occupies more than 150 river miles of waterway, it also significantly exceeds Criterion B3 (Extent of Occupancy). In addition, it was evaluated with NatureServe's Conservation Status Assessments Rank Calculator (Criswell, 2014) and received a State Conservation Rank of S4, meaning it is apparently secure in this Commonwealth with a fairly low risk of extirpation due to its extensive range and/or many populations or occurrences. The Fishes Technical Committee of PABS reviewed this documentation and rank assignment and recommended that the Tippecanoe Darter be delisted. Enough information is available to make the determination that it is secure in this Commonwealth at present and to justify its removal from the Commonwealth's list of threatened fishes. Therefore, the Commission removes the Tippecanoe Darter from the Commonwealth's list of threatened species.
The Commission amends § 75.2 to read as set forth at 44 Pa.B. 7876 (December 20, 2014).
F. Paperwork
The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will not impose new costs on the private sector or the general public.
H. Public Involvement
Notice of proposed rulemaking was published at 44 Pa.B. 7876. The Commission did not receive public comments concerning the proposed amendments.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the amendment 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 no public comments were received.
(3) The adoption of the amendment of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statute.
Order
The Commission, acting under the authorizing statute, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 75, are amended by amending § 75.2 to read as set forth at 44 Pa.B. 7876.
(b) The Executive Director will submit this order and 44 Pa.B. 7876 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 44 Pa.B. 7876 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
JOHN A. ARWAY,
Executive DirectorFiscal Note: Fiscal Note 48A-261 remains valid for the final adoption of the subject regulation.
[Pa.B. Doc. No. 15-1319. Filed for public inspection July 17, 2015, 9:00 a.m.]
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