Preamble

The Fish and Boat Commission (Commission) proposes to amend 58 Pa. Code 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). The proposed amendments add the eastern spadefoot toad and eastern pearlshell to the list of endangered species, move the rough green snake from the list of threatened species to the list of endangered species and update the scientific names of certain listed species.

A. Effective Date

The proposed rulemaking, if approved on final-form, will go into effect immediately upon publication of an order in the Pennsylvania Bulletin.

B. Contact Person

For further information on the proposed rulemaking, contact Laurie E. Shepler, Esq., P.O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This proposal is available electronically through the Commission's Web site (http://www.fish.state.pa.us).

C. Statutory Authority

The proposed 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 proposed rulemaking is designed to update, modify and improve the Commission’s regulations pertaining to endangered, threatened and candidate species. The specific purpose of the proposed amendments is described in more detail under the summary of proposals.

E. Summary of Proposals

(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 the Commonwealth in Northumberland and Bucks Counties. Several years of herpetological inventory in the state 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 Pennsylvania forms a break between the New England populations and Maryland. The status of the spadefoot toad in the states surrounding the 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 the Commonwealth and current survey efforts have failed to find additional occurrences, the Commission proposes that the eastern spadefoot toad be added 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 the 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 seven 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 a hundred 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 the Commonwealth makes it very vulnerable to extirpation from activities that could adversely impact Locust Creek. Therefore, the Commission proposes that the eastern pearlshell be added 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 the Commonwealth being the northern limit of its range. It has been known from only two isolated locations in the Commonwealth: in 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 the Commonwealth and current survey efforts have failed to find additional occurrences, the Commission proposes that the rough green snake be moved from the list of Pennsylvania threatened species to the list of endangered species.

(4) Update Scientific Names: The Commission proposes that §75.1 be amended 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 proposes that §75.3 be amended 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 as well as the CNAH.

The Commission further proposes that §75.1 be amended 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.

The Commission proposes that §§75.1, 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 create no 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, Pennsylvania 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

http://www.state.pa.us/Fish/regcomments. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.

For the Pennsylvania Fish and Boat Commission

Douglas J. Austen, Ph.D

Executive Director

Annex A

Regulation No. 48A-167

Title 58. Recreation

Part II. Fish and Boat Commission

Subpart B. Fishing

CHAPTER 75. ENDANGERED SPECIES

§75.1. Endangered species.

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(b) Fish. The following species are endangered:

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(32) Eastern pearlshell mussel, Margaritifera margaritifera.

(1) Bog Turtle, [Clemmys] Glyptemys muhlenbergii.

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(3) Coastal Plain Leopard Frog, Rana [utricularia] sphenocephala.

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(7) Eastern Spadefoot Toad, Scaphiopus holbrookii.

(8) Rough Green Snake, Opheodrys aestivus.

§ 75.2. Threatened species.

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[(3) Rough Green Snake, Opheodrys aestivus.]

§ 75.3. Candidate species.

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(1) Blandings Turtle, [Emydoidea] Emys blandingii.

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