RULES AND REGULATIONS
Title 58—RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 75]
Fishing; Endangered Species
[54 Pa.B. 1054]
[Saturday, March 2, 2024]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). The final-form amendment would update and further clarify language in §§ 75.1—75.3 (relating to endangered species; threatened species; and candidate species). Commission staff recommends deleting the least brook lamprey and brook stickleback.
A. Effective Date
This final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.
B. Contact Person
For further information on this final-form rulemaking, contact Renae Kluk Kiehl, 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.fishandboat.com.
C. Statutory Authority
The amendments to §§ 75.1—75.3 are published under the statutory authority of section 2305(b) of the code (relating to threatened and endangered species).
D. Purpose and Background
The specific purpose and background of the final-form amendment is described in more detail under the summary of changes.
E. Summary of Changes
The digger crayfish Creaserinus fodiens is a primary burrowing crayfish that spends the majority of its time underground in burrows. Burrowing crayfish, including Creaserinus fodiens, usually occur within or adjacent to forested ephemeral (vernal) pools, bottomland forested floodplains, roadside ditches, small streams, seeps, reservoir shores, wet meadows and prairies, forested swamps and ponds, agricultural ditches and other wet areas where they dig burrows through moist soils to reach the underlying ground water.
Burrowing crayfish are important components of the ecosystems where they reside. They are ecosystem engineers that mix and disturb large volumes of soil, which is important in maintaining plant diversity. Burrowing crayfish provide critical habitat for the eastern massasauga rattlesnake Sistrurus catenatus and Kirtland's snake Clonophis kirtlandii, both endangered in this Commonwealth. These two species brumate (that is, hibernate) in crayfish burrows. Studies in locations elsewhere indicate that crayfish burrows also provide critical habitat for rare and endangered odonates (that is, dragonflies and damselflies), especially during summer when surface conditions are dry.
The digger crayfish is a highly variable species with a distribution covering substantial portions of the eastern United States, including Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia and West Virginia, as well as Ontario, Canada. In 2014, the digger crayfish was first discovered in northwest Pennsylvania (Crawford County). Additional intensive sampling conducted in 2020 at numerous locations in northwestern Pennsylvania also detected the species in southern Erie County.
The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. The range of the species (extent of occurrence) in this Commonwealth is small (7.7 square miles) and well under the less than 40 square mile criterion (B1) for endangered status in this Commonwealth. Within this range, which includes unsuitable, unoccupied habitats, the digger crayfish only occurs in a 3.5 square mile area (area of occupancy), which is under the less than 4 square mile criterion (B2) for endangered status in this Commonwealth. The digger crayfish is only known to occur in nine locations in this Commonwealth. Two of the locations are disconnected from the other seven, and all locations are disconnected from populations in other states, limiting dispersal and gene flow, which will likely negatively impact the species over the long term.
In addition, the digger crayfish was evaluated with NatureServe's Conservation Status Assessments Rank Calculator and received a State Conservation Rank of S1, meaning it is critically imperiled in this Commonwealth with a high risk of extirpation due to its restricted range and/or populations or occurrences. The Invertebrate Technical Committee of the Pennsylvania Biological Survey (PABS) concurred with this documentation and rank assignment. Enough information is available to make the determination that it is endangered within this Commonwealth at present. Therefore, based on extent of occurrence and area of occupancy, Commission staff propose that the digger crayfish be added to this Commonwealth's list of endangered species.
The black bullhead Ameiurus melas is a small catfish, reaching 6.5 to 9 inches in length as an adult. It can be distinguished from similar bullhead species by the presence of black pigmented membranes on its fins. It inhabits backwaters, oxbows, impoundments, lakes, ponds and sluggish streams. Large populations are known to occur in turbid and silty waterways.
The black bullhead was listed as a Commonwealth endangered species in 1999. It is native from southern Canada and Montana, south to northern Mexico and east to the Saint Lawrence River, the Appalachian Mountains and Alabama. It has been introduced elsewhere. In this Commonwealth, there are historic records from the Kiskiminetas River and the Lake Erie basin as well as from Lawrence, Mercer and Westmoreland Counties. There have been no verified reports or collections of this species since 1985. From approximately the year 2000 to the present, the rivers of the Ohio River drainage in western Pennsylvania have been intensively surveyed with electrofishing and trawling gears at hundreds of sites. Efforts have also specifically targeted the black bullhead at historic collection localities in Erie, Lawrence, Mercer and Westmoreland Counties. Despite these efforts, no black bullheads have been detected.
Since the black bullhead has not been detected in this Commonwealth in 38 years, the Commission's objective listing/delisting process could not be applied. It was, however, evaluated with NatureServe's Conservation Status Assessments Rank Calculator and received a State Conservation Rank of SX, meaning it is considered extirpated in this Commonwealth. The Fishes Technical Committee of the PABS concurred with this documentation and rank assignment. As such, Commission staff recommend that it be deleted from the list of endangered species.
The threespine stickleback Gasterosteus aculeatus is a small fish with three distinct dorsal spines. The fourspine stickleback Apeltes quadracus also occurs within the same general historic range but can be distinguished by the additional dorsal spine and the distance between the spines. Adults are usually 1.5 to 3 inches in length.
The threespine stickleback inhabits shallow, vegetated areas of tidal pools, creeks, marshes, estuaries and inshore waters, usually in or near marine or brackish waters. It occurs widely in the Arctic and Atlantic drainages south to the Chesapeake Bay. In the Pacific drainages, it occurs from Alaska to Baja, California, and it has been widely introduced elsewhere. In this Commonwealth, it is confined to the tidal Delaware River and a few tributaries.
The threespine stickleback was listed as a Commonwealth endangered species in 1999. There are very few records for this species in Pennsylvania, and it has not been collected or verified in this Commonwealth since 1997. Despite repeated surveys during the past 15 to 20 years of waterways where this species has previously been documented, and surveys of other tidal tributaries to the Delaware River, no threespine sticklebacks have been detected. In addition, there have been no reports of this species from the Pennsylvania Scientific Collectors Permit reporting system during this period.
Due to a lack of recent records, the Commission's objective listing/delisting process could not be applied. Commission staff concluded that the threespine stickleback no longer regularly occurs in this Commonwealth. Based on Commission surveys and the historical record, Commission staff concluded that this species is an estuarine form in this Commonwealth that utilizes our inland waters on an irregular, occasional basis. As such, practically no efforts can be advanced to enhance its status in this Commonwealth. As such, Commission staff recommends that it be deleted from the list of endangered species.
The longsolid Fusconaia subrotunda is a freshwater mussel species currently known to occur in Alabama, Kentucky, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. It is considered extirpated from Georgia, Indiana and Illinois. Historically, longsolid have been reported from the following Commonwealth streams and rivers: French Creek, Muddy Creek, Pymatuning Creek, Slippery Rock Creek, Allegheny River, Beaver River, Cheat River, Mahoning River, Monongahela River, Ohio River and Shenango River. The longsolid still occurs in the following Commonwealth streams and rivers: French Creek, Muddy Creek, Allegheny River and Shenango River. Generally, the longsolid co-occurs with other Federal-listed and State-listed mussel species.
On March 9, 2023, the United States Department of the Interior, Fish and Wildlife Service, designated longsolid as Federally threatened throughout its entire ranges.
Section 102 of the code (relating to definitions) defines ''endangered species'' as ''[a]ll 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 longsolid has been designated as Federally threatened throughout its range, which includes this Commonwealth, Commission staff proposed that it be added to the Commonwealth's list of threatened species.
The least brook lamprey Lampetra aepyptera is a small, nonparasitic lamprey. Adults are usually 3.5 to 6 inches in length. A similar species, the American brook lamprey Lethenteron appendix, also occurs in western Pennsylvania, but these two species have never been collected from the same stream.
The least brook lamprey inhabits generally clean, clear streams and brooks of moderate gradient. It is often found in stocked trout waters. Larvae, known as ammocoetes, generally prefer sluggish areas with deposits of mud, muck, silt, sand, detritus and coarse woody debris. This species occurs on Atlantic Slope from southeastern Pennsylvania to North Carolina, and the Mississippi River basin from western Pennsylvania to Missouri and Arkansas and south to Mississippi. It is also found in Gulf Coast drainages from Georgia to Mississippi. In western Pennsylvania, this lamprey has been reported from Allegheny, Armstrong, Beaver, Butler, Fayette, Indiana and Westmoreland Counties. It also occurs in a small area of the Susquehanna River drainage in southern Chester County.
The least brook lamprey was listed as a candidate species in 1999. Lamprey-specific field work conducted during 1996 and 2002 to 2009 confirmed that nearly all historic (pre-1995) waterways remained occupied, and additional populations were reported. The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. It exceeds criterion A.2 (population reduction) in that there has been no reduction in historic distribution. Since the least brook lamprey occupies more than 150 linear miles of waterway and occurs at more than 20 locations with no known decline, it exceeds Criteria B.3 (area of occupation) and B.5 (distribution and trends). In addition, it was evaluated with NatureServe's Conservation Status Assessments Rank Calculator and received a State Conservation Rank of S4, meaning it is secure in this Commonwealth with a very low risk of extirpation due to its extensive range or many populations or occurrences. The Fishes Technical Committee of the PABS concurred with this documentation and rank assignment. Enough information exists to determine that this species is currently secure in this Commonwealth and to justify its removal from the Commonwealth's list of threatened fishes. Therefore, the Commission proposes that the least brook lamprey be deleted from the Commonwealth's list of candidate species.
The brook stickleback Culaea inconstans is a small fish with 4 to 6 dorsal spines. Adults are generally 1.5 to 2.5 inches long. No other stickleback is known to occur within its native range in this Commonwealth. It inhabits cool, calm waters of lakes, ponds, sluggish streams, wetlands and bogs. It prefers areas of heavy vegetation or woody debris over muck, detritus and sand. It occurs in the Arctic and Atlantic drainages in Canada, and in the Great Lakes and Mississippi drainages from Montana to New York and Pennsylvania. It occurs in the Lake Erie and Ohio River drainages in northwestern Pennsylvania, roughly from Lawrence and Butler Counties to Potter County, as well as a few locations elsewhere in the Ohio River basin. It has been introduced into the Susquehanna River drainage.
The brook stickleback was listed as a Commonwealth candidate species in 1999. From 1990 to the present, it was determined to be rather widely distributed in northwestern Pennsylvania. It is currently known to occur in Cambria, Clarion, Crawford, Elk, Erie, McKean, Mercer, Potter, Venango and Warren Counties.
The status of this species was reviewed using the Commission's documentation and objective listing/delisting process. It exceeds criteria B.3 (extent of occupancy) and B.5 (distribution and trends) and is known to occur in excess of 20 locations. In addition, it was evaluated with NatureServe's Conservation Status Assessments Rank Calculator and received a State Conservation Rank of S4, meaning it is secure in this Commonwealth with a very low risk of extirpation due to its extensive range or many populations or occurrences. The Fishes Technical Committee of the PABS concurred with this documentation and rank assignment. Enough information exists to determine that it is currently secure in this Commonwealth. Therefore, Commission staff proposes that the brook stickleback be deleted from the Commonwealth's list of candidate species. The Commission proposes that §§ 75.1—75.3 be amended to read as set forth at 53 Pa.B. 7601 (December 9, 2023).
F. Paperwork
This final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions.
H. Public Comments
A notice of proposed rulemaking was published at 53 Pa.B. 7601. The Commission received no comments for this proposal.
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), referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided and no public comments were received for the proposal.
(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 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—75.3 to read as set forth at 53 Pa.B. 7601, with ellipses referring to the existing text of the regulations.
(B) The Executive Director will submit this order and 53 Pa.B. 7601 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 53 Pa.B. 7601 and deposit them with the Legislative Reference Bureau as required by law.
(D) This order shall take effect upon publication in the Pennsylvania Bulletin.
TIMOTHY D. SCHAEFFER,
Executive DirectorFiscal Note: Fiscal Note 48A-352 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 24-263. Filed for public inspection March 1, 2024, 9:00 a.m.]
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