[Federal Register Volume 63, Number 240 (Tuesday, December 15, 1998)]
[Rules and Regulations]
[Pages 69008-69021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33100]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE42


Endangered and Threatened Wildlife and Plants; Final Rule To List 
the Topeka Shiner as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service determines the Topeka 
shiner (Notropis topeka) to be an endangered species under the 
authority of the Endangered Species Act of 1973 (Act), as amended (16 
U.S.C. 1531 et seq.). The Topeka shiner is a small fish presently known 
from small tributary streams in the Kansas and Cottonwood river basins 
in Kansas; the Missouri, Grand, Lamine, Chariton, and Des Moines river 
basins in Missouri; the North Raccoon and Rock river basins in Iowa; 
the James, Big Sioux and Vermillion river watersheds in South Dakota; 
and, the Rock and Big Sioux river watersheds in Minnesota. The Topeka 
shiner is threatened by habitat destruction, degradation, modification, 
and fragmentation resulting from siltation (the build up of silt), 
reduced water quality, tributary impoundment, stream channelization, 
and stream dewatering. The species also is impacted by introduced 
predaceous fishes. This determination implements Federal protection 
provided by the Act for Notropis topeka. We further determine that 
designation of critical habitat is neither beneficial nor prudent.

EFFECTIVE DATE: January 14, 1999.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Kansas Ecological Services Field Office, 315 Houston 
Street, Suite E, Manhattan, Kansas 66502.

FOR FURTHER INFORMATION CONTACT: William H. Gill, Field Supervisor, or 
Vernon M. Tabor, Fish and Wildlife Biologist, at the above address 
(913/539-3474).

SUPPLEMENTARY INFORMATION:

Background

    The Topeka shiner was first described by C.H. Gilbert in 1884, 
using specimens captured from Shunganunga Creek, Shawnee County, Kansas 
(Gilbert 1884). The Topeka shiner is a small, stout minnow, not 
exceeding 75 millimeters (mm) (3 inches (in)) in total length. The head 
is short with a small, moderately oblique (slanted or sloping) mouth. 
The eye diameter is equal to or slightly longer than the snout. The 
dorsal (back) fin is large, with the height more than one half the 
predorsal length of the fish, originating over the leading edge of the 
pectoral (chest) fins. Dorsal and pelvic fins each contain 8 rays 
(boney spines supporting the membrane of a fin). The anal and pectoral 
fins contain 7 and 13 rays respectively, and there are 32 to 37 lateral 
line scales. Dorsally the body is olivaceous (olive-green), with a 
distinct dark stripe preceding the dorsal fin. A dusky stripe is 
exhibited along the entire longitudinal length of the lateral line. The 
scales above this line are darkly outlined with pigment, appearing 
cross-hatched. Below the lateral line the body lacks pigment, appearing 
silvery-white. A distinct chevron-like spot exists at the base of the 
caudal (tail) fin (Cross 1967; Pflieger 1975; Service 1993).
    The Topeka shiner is characteristic of small, low order 
(headwater), prairie streams with good water quality and cool 
temperatures. These streams generally exhibit perennial (year round) 
flow, however, some approach intermittency (periodic flow) during 
summer. At times when surface flow ceases, pool levels and cool water 
temperatures are maintained by percolation (seepage) through the 
streambed, spring flow and/or groundwater seepage. The predominant 
substrate (surface) types within these streams are clean gravel, cobble 
and sand. However, bedrock and clay hardpan (layer of hard soil) 
overlain by a thin layer of silt are not uncommon (Minckley and Cross 
1959). Topeka shiners most often occur in pool and run areas of 
streams, seldom being found in riffles (choppy water). They are pelagic 
(living in open water) in nature, occurring in mid-water and surface 
areas, and are primarily considered a schooling fish. Occasionally, 
individuals of this species have been found in larger streams, 
downstream of known populations, presumably as waifs (strays) (Cross 
1967; Pflieger 1975; Tabor in litt. 1992a).
    Data regarding the food habits and reproduction of Topeka shiners 
are limited and detailed reports have not been published. However, 
Pflieger (Missouri Department of Conservation, in litt. 1992) reports 
the species as a nektonic (swimming independently of currents) 
insectivore (insect eater). In a graduate research report, Kerns 
(University of Kansas, in litt. 1983) states that the species is 
primarily a diurnal (daytime) feeder on insects, with chironomids 
(midges), other dipterans (true flies), and ephemeropterans (mayflies), 
making up the bulk of the diet. However, the microcrustaceans cladocera 
and copapoda (zooplanktons) also contribute significantly to the 
species' diet. The Topeka shiner is reported to spawn in pool habitats, 
over green sunfish (Lepomis cyanellus) and orangespotted sunfish 
(Lepomis humilis) nests, from late May through July in Missouri and 
Kansas (Pflieger 1975; Kerns in litt. 1983). Males of the species are 
reported to establish small territories near these nests. Pflieger (in 
litt. 1992) states that the Topeka shiner is an obligate (essential) 
spawner on silt-free sunfish nests, while Cross (University of Kansas, 
pers. comm. 1992) states that it is unlikely that the species is solely 
reproductively dependent on sunfish, and suggests that the species also 
utilizes other silt-free substrates as spawning sites. Data concerning 
exact spawning behavior, larval stages, and subsequent development is 
lacking. Maximum known longevity for the Topeka shiner is 3 years, 
however, only a very small percentage of each year class attains the 
third summer. Young-of-the-year attain total lengths of 20 mm to 40 mm 
(.78 to 1.6 in), age 1 fish 35 mm to 55 mm (1.4 to 2.2 in), and age 2 
fish 47 mm to 65 mm (1.8 to 2.5 in) (Cross and Collins 1975; Pflieger 
1975).

[[Page 69009]]

    Historically, the Topeka shiner was widespread and abundant 
throughout low order tributary streams of the central prairie regions 
of the United States. The Topeka shiner's historic range includes 
portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South 
Dakota. Stream basins within the range historically occupied by Topeka 
shiners include the Des Moines, Raccoon, Boone, Missouri, Big Sioux, 
Cedar, Shell Rock, Rock, and Iowa basins in Iowa; the Arkansas, Kansas, 
Big Blue, Saline, Solomon, Republican, Smoky Hill, Wakarusa, 
Cottonwood, and Blue basins in Kansas; the Des Moines, Cedar, and Rock 
basins in Minnesota; the Missouri, Grand, Lamine, Chariton, Des Moines, 
Loutre, Middle, Hundred and Two, and Blue basins in Missouri; the Big 
Blue, Elkhorn, Missouri, and lower Loup basins in Nebraska; and the Big 
Sioux, Vermillion, and James basins in South Dakota. The number of 
known occurrences of Topeka shiner populations has been reduced by 
approximately 80 percent, with approximately 50 percent of this decline 
occurring within the last 25 years. The species now primarily exists as 
isolated and fragmented populations.
    Recent fish surveys were conducted across the Topeka shiner's 
range. In Missouri, 42 of the 72 sites historically supporting Topeka 
shiners were resurveyed in 1992. The species was collected at 8 of the 
42 surveyed locales (Pflieger, in litt. 1992). In 1995, the remaining 
30 historical sites not surveyed in 1992 and an additional 64 locales, 
thought to have potential to support the species, were sampled. Topeka 
shiners were found at 6 of the 30 remaining historical locations and at 
6 of the 64 additional sites sampled. In total, recent sampling in 
Missouri identified Topeka shiners at 14 of 72 (19 percent) historic 
localities, and at 20 of 136 (15 percent) total sites sampled (Gelwicks 
and Bruenderman 1996). Gelwicks and Bruenderman (1996) also note that 
the species has apparently experienced substantial declines in 
abundance in the remaining extant (existing) populations in Missouri, 
with the exception of Moniteau Creek.
    In Iowa, 24 locales within 4 drainages were sampled in 1994 at or 
near sites from which the species was reported extant during surveys 
conducted between 1975 and 1985. The Topeka shiner was captured at 3 of 
24 sites, with these 3 captures occurring in the North Raccoon River 
basin (Tabor, U.S. Fish and Wildlife Service, in litt. 1994). Menzel 
(in litt. 1996) reports 6 collections of the species in 1994 and 1995, 
also from the same drainage. In 1997, surveys in Iowa found the species 
at 1 site in the North Raccoon basin, and at a new locality in the 
Little Rock drainage in Oscelola County. Less than 5 individual Topeka 
shiners were identified in 1997.
    In Kansas, 128 sites at or near historic collection localities for 
the Topeka shiner were sampled in 1991 and 1992. The species was 
collected at 22 of 128 (17 percent) sites sampled (Tabor, in litt. 
1992a; Tabor, in litt. 1992b). Extensive stream surveys completed from 
1995 through 1997 identified 10 new localities for Topeka shiners and 
reconfirmed the species in a historic locale where it was previously 
believed extirpated (removed) (Mammoliti, in litt. 1996).
    In South Dakota in the early 1990s, the species was captured from 
one stream in the James River basin and four streams in the Vermillion 
River basin. (Braaten, South Dakota State University, in litt. 1991; 
Schumacher, South Dakota State University, in litt. 1991). In 1997, 
stream surveys were conducted in the Big Sioux and James river 
watersheds. No Topeka shiners were captured from the Big Sioux basin 
during these surveys. However, collections made in the Big Sioux basin 
by South Dakota State University students in 1997 identified several 
specimens from two streams in Brookings County, South Dakota. In the 
James River basin, 3 new localities for the species were identified, 
and the species was reconfirmed from a historic locality. Two of the 
new locations were in Beadle County, where 29 and 4 individual Topeka 
shiners were captured. The other new location was in Hutchinson County, 
where 1 Topeka shiner was captured. The reconfirmed historic locale was 
in Davison County, where 1 Topeka shiner was captured.
    In Minnesota, 14 streams in the range of the Topeka shiner were 
surveyed between 1985 and 1995. The species was collected from 5 of 9 
(56 percent) streams with historic occurrences, and was not found in 
the 5 streams with no historic occurrences. These locales were in the 
Rock River drainage (Baker, in litt. 1996). In 1997, additional surveys 
were completed with the species being captured at 15 sites in 8 
streams, including a stream in the Big Sioux River basin (Baker, in 
litt. 1997). These surveys are continuing.
    In Nebraska, the species was assumed extirpated (absent) from all 
historic locales. However, in 1989 the species was discovered in the 
upper Loup River drainage, where two specimens were collected (Michl 
and Peters 1993). In 1996, a single specimen was collected from a 
stream in the Elkhorn River basin (Nebraska Game and Parks Commission, 
in litt. 1997). In Nebraska, these were the first collections of Topeka 
shiners since 1940. It is presently considered extant (in existence) at 
these two localities (Cunningham, University of Nebraska--Omaha, pers. 
comm. 1996).
    The Topeka shiner began to decline throughout the central and 
western portions of the Kansas River basin in the early 1900's. Cross 
and Moss (1987) report the species present at sites in the Smoky Hill 
and Solomon River watersheds in 1887, but by the next documented fish 
surveys in 1935, the Topeka shiner was absent. The Topeka shiner was 
extirpated (extinct) from the Wakarusa River watershed during the 
1970's (Cross, University of Kansas, pers. comm. 1995). The species 
disappeared from the Big Blue River watershed (Kansas River basin) in 
Nebraska after 1940 (Clausen, Nebraska Game and Parks Commission, in 
litt. 1992). The last record of the Topeka shiner from the Arkansas 
River basin, excluding the Cottonwood River watershed, was in 1891 near 
Wichita, Kansas (Cross and Moss 1987). In Iowa, the species was 
extirpated from all Missouri River tributaries except the Rock River 
watershed prior to 1945. It also was eliminated from the Cedar and 
Shell Rock River watersheds prior to 1945. Since 1945, the Topeka 
shiner has subsequently been extirpated from the Boone, Iowa, and Des 
Moines drainages, with the exception of the North Raccoon River 
watershed (Harlan and Speaker 1951; Harlan and Speaker 1987; Menzel, 
Iowa State University, in litt. 1980; Dowell, University of Northern 
Iowa, in litt. 1980; Tabor in litt. 1994). In Missouri, the species has 
been apparently extirpated since 1940 from many of the tributaries to 
the Missouri River where it formerly occurred, including Perche Creek, 
Petite Saline Creek, Tavern Creek, Auxvasse Creek, Middle River, Moreau 
River, Splice Creek, Slate Creek, Crooked River, Fishing River, Shoal 
Creek, Hundred and Two River, and Blue River watersheds.

Previous Federal Action

    The Topeka shiner first received listing consideration when the 
species was included in the Animal Candidate Review for Listing as 
Endangered or Threatened Species, as a category 2 candidate species, 
published in the Federal Register (56 FR 58816) on November 21, 1991. 
Category 2 candidate species were those species for which information 
in the possession of the Service indicated that a proposal to list the 
species as endangered or threatened was possibly appropriate,

[[Page 69010]]

but sufficient data on biological vulnerability and threats were not 
currently available to support proposed rules. In 1991, our Kansas 
Field Office began a status review of the Topeka shiner, including 
information gathered from stream sampling, and by request from 
knowledgeable individuals and agencies. Included were State fish and 
wildlife conservation agencies, State health and pollution control 
agencies, colleges and universities, and other Service offices. A 
status report, dated February 16, 1993 (Service 1993), was subsequently 
prepared on this species. In the November 15, 1994, Animal Candidate 
Review for Listing as Endangered or Threatened Species, published in 
the Federal Register (59 FR 58999), the Topeka shiner was reclassified 
as a category 1 candidate species. Category 1 candidates comprised taxa 
for which we had substantial information on biological vulnerability 
and threats to support proposals to list the taxa as endangered or 
threatened. We have since discontinued the category designations for 
candidates and have established a new policy defining candidate 
species. Candidate species are currently defined as those species for 
which the Service has sufficient information on file detailing 
biological vulnerability and threats to support issuance of a proposed 
rule, but issuance of the proposed rule is precluded by other listing 
actions. In the February 28, 1996, Review of Plant and Animal Taxa That 
Are Candidates for Listing as Endangered or Threatened Species, 
published in the Federal Register (61 FR 7596), the Topeka shiner was 
reclassified as a candidate species. A proposed rule to list the Topeka 
shiner as endangered with no critical habitat was published in the 
Federal Register on October 24, 1997 (62 FR 55381).
    Processing of this proposed rule conforms with the Service's 
Listing Priority Guidance for Fiscal Years 1998 and 1999, published on 
May 8, 1998 (63 FR 25502). The guidance clarifies the order in which 
the Service will process rulemakings giving highest priority (Tier 1) 
to processing emergency rules to add species to the Lists of Endangered 
and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to 
processing final determinations on proposals to add species to the 
Lists, processing administrative findings on petitions (to add species 
to the Lists, delist species, or reclassify listed species), and 
processing a limited number of proposed or final rules to delist or 
reclassify species; and third priority (Tier 3) to processing proposed 
or final rules designating critical habitat. Processing of this Final 
rule is a Tier 2 action.

Summary of Comments and Recommendations

    In the October 24, 1997, proposed rule (62 FR 55381), the December 
24, 1997, notice of public hearings and reopening of comment period (62 
FR 67324), and other associated notifications, all interested parties 
were requested to submit comments or information that might bear on 
whether to list the Topeka shiner. The first comment period was open 
from October 24, 1997, to December 23, 1997. The second comment period, 
to accommodate the public hearings, was opened January 12, 1998, to 
February 9, 1998. Appropriate State agencies, county governments, 
Federal agencies, scientific organizations, and other interested 
parties were contacted and requested to comment. Newspaper notices 
inviting public comment were published in the following newspapers: In 
Iowa, Des Moines Register, Greene County Bee Herald, Calhoun County 
Advocate, and Oscelola County Tribune; in Kansas, Emporia Gazette, 
Manhattan Mercury, and Topeka Capital-Journal; in Minnesota, 
Minneapolis Star-Tribune and Pipestone County Star; in Missouri, Kansas 
City Star, Columbia Daily Tribune, Grundy County Republican Times, 
Bethany Republican-Clipper, Galatin North Missourian, and Clark County 
Kahoka Weekly; in Nebraska, Omaha World Herald and Norfolk News; and in 
South Dakota, Sioux Falls Argus-Leader and Huron Plainsman. In these 
newspapers, notices announcing the proposal, opening of the first 
comment period, and the request for public hearings were published 
between October 24, 1997, and November 12, 1997. Notices announcing the 
public hearing schedule and the reopening of the comment period were 
published in these same newspapers between January 4, 1998, and January 
17, 1998.
    We received 12 requests for hearings in four states. Locations and 
times of hearings were published in the December 24, 1997, Federal 
Register notice (62 FR 67324), and the above listed newspapers. We held 
4 public hearings from January 26--29, 1998, in Manhattan, Kansas; 
Bethany, Missouri; Fort Dodge, Iowa; and Sioux Falls, South Dakota. 
Attendance at the hearings was 104, 86, 17, and 54 persons, 
respectively. Transcripts from the hearings are available for 
inspection (see ADDRESSES).
    A total of 184 written comments were received at our Kansas Field 
Office: 92 supported the proposed listing; 80 opposed the proposed 
listing; and 12 expressed neither support nor opposition.
    Oral or written comments were received from 60 parties at the 
hearings: 21 supported the proposed listing; 33 opposed the proposed 
listing; and 6 expressed neither support nor opposition, but provided 
additional information to the proposed listing.
    In total, oral or written comments were received from 23 Federal 
and State agencies or officials, 24 local agencies or officials, and 
197 private organizations, companies, and individuals. All comments 
received during the comment period are addressed in the following 
summary. Comments of a similar nature are grouped into a number of 
general issues.
    Issue 1: The Service did not have sufficient status information to 
make a determination that the species should be listed, and the quality 
of the data that the Service is using to make its determination is 
questionable. Section 4 of the Act requires that you use the ``best 
scientific and commercial data available,'' to make the determination. 
Additional recent surveys in Kansas produced the discovery of new 
populations. Could additional survey work produce similar results in 
other states?
    Service Response: Our determination is based on accurate and 
thorough data for the Topeka shiner. The large number of historic 
records of occurrence in concert with general fish surveys and recent 
intensive surveys for the species, throughout its range, provide a 
factual picture of a species undergoing serious decline. Population 
losses estimated for the Topeka shiner are based on total number of 
known localities of occurrence, in ratio to the present number of 
locations where the species is known to exist. Since 1989, over one 
thousand stream fish samples have been collected throughout the 
historic range of the species. This sampling was conducted at or near 
present and historic localities for the species, as well as in other 
stream sites within the historic range. These surveys were completed by 
biologists from various State natural resource and environmental 
agencies, universities, and the Service. These surveys, whether for 
general fish fauna information, fishery research, or water quality; 
and/or specifically for the Topeka shiner, in reference to the known 
historic range of the species, constitute a very sound data base for 
the determination of the present status of the species. Additional 
surveys throughout the range of the species continue to refine current 
understanding of the distribution and

[[Page 69011]]

abundance of the species; with a few new populations found, and many 
other populations determined to be lost or in decline. However, we 
believe that current data adequately support our listing proposal. 
Additional Topeka shiner surveys are in progress in Minnesota. 
Preliminary results suggest the species may be more abundant than 
previously reported in the Rock River system of Minnesota, especially 
in streams surrounded by pasture land, as opposed to crop land. The 
Rock River of Minnesota makes up only a small portion of the range of 
the species. Even if the Rock River population is found to be 
relatively abundant, the range-wide status of the species remains 
unchanged. These surveys are continuing, and their results will be 
incorporated into recovery planning for the species, and may play an 
important role in identifying recovery populations and establishing 
delisting goals for the species. Survey efforts for the species have 
been greatly increased during the last few years; therefore, it is 
expected that a few new locations will continue to be discovered. The 
significance of the results of these intensive survey efforts is that 
very few additional sites have been discovered. Further, very low 
numbers of individual Topeka shiners have been found at new sites 
during recent surveys, indicating that population densities at these 
sites also is very low. This leads us to conclude that our current 
understanding of the species' range and its historical contraction is 
accurate.
    Issue 2: The Service has not demonstrated that the species meets 
any of the 5 listing criteria specified under the Act.
    Service Response: There are 5 criteria for listing under the Act, 
of which 1 or more must be met to consider a species for listing. Data 
indicates that criterion A, ``The present or threatened destruction, 
modification, or curtailment of its [Topeka shiner] habitat or range,'' 
is clearly met, and is the major factor leading to the species listing. 
Criteria C, ``Disease or predation,'' D, ``The inadequacy of existing 
regulatory mechanisms,'' and E, ``Other natural or manmade factors 
affecting its continued existence,'' are also factors considered in 
this listing determination, as discussed under the subheading, 
``Summary of Factors Affecting the Species.''
    Issue 3: The Service has failed to provide data that sustains a 
determination of endangered. During a public hearing it was stated that 
several populations in Kansas would not go extinct even if the species 
is not listed.
    Service Response: The Act defines an endangered species as, ``any 
species which is in danger of extinction throughout all or a 
significant portion of its range.'' In determining a status of 
endangered we considered the following factors and threats: (1) 
continued implementation of the small watershed flood control programs 
in portions of the species' range that threatens the continued 
existence of the most viable populations and population complexes 
remaining; (2) numerous recent extirpations, and dramatic reductions in 
abundance of the Topeka shiner in Missouri streams; (3) the nearly 
complete extirpation of the species from Iowa in recent years, once a 
major portion of the species' range; (4) data solicited and received 
from various State agencies, universities, and knowledgeable 
individuals, and findings from stream fish surveys across the remaining 
portion of the species' range that indicates an overall, and often 
critical, decline in numbers of populations, and abundance within these 
populations over the recent past. These factors and threats were 
considered in respect to the widespread, chronic degradation of Topeka 
shiner habitat, the characteristic isolated nature of most of the 
persisting populations, and the potential viability of these 
populations in relation to population trends and required habitat 
conditions range-wide.
    Since publication of the proposed rule, an additional serious 
threat to South Dakota's Vermillion River basin population has 
developed. Multiple reservoir construction is now planned on streams 
occupied by the Topeka shiner in this basin, further threatening the 
species.
    The statement that several populations in Kansas would not go 
extinct even if the species is not listed has been misinterpreted. 
There are indeed a number of populations in Kansas that are quite 
viable, inhabiting very high quality streams. Unfortunately, the 
continued existence of these populations is now severely threatened by 
tributary dam development. Several populations that inhabited this 
area, previously considered some of the best remaining, are now gone.
    Issue 4: There is no recent scientific survey work in areas 
inhabited by the species in South Dakota, and Federal and State 
officials admittedly do not know where the Topeka shiner exists within 
the State, thus they are unable to determine the species' status. Data 
for South Dakota populations of Topeka shiners are very limited.
    Service Response: In July and September, 1997, 36 sites on 20 
streams in the James and Big Sioux river basins of South Dakota were 
surveyed for Topeka shiners. All sites sampled were at or near previous 
collection locations for the species with the exception of 3 sites in 
the Big Sioux drainage which were upstream from previously recorded 
sites. Topeka shiners were collected from 4 of the 36 sites sampled 
(Cunningham and Hickey 1997). In 1991 and 1992, 66 fish collections 
were completed in the Vermillion River basin. Topeka shiners were 
collected from 11 sites in 4 streams (Braaten 1993; SD Natural Heritage 
data in litt. 1997). In 1989, multiple fish collections were made in 
the James River basin. Topeka shiners were collected at 1 site 
(Schumacher in litt. 1991). Although the data used by the Service to 
determine the status of the species in South Dakota are not as 
extensive as that available for other States within the species' range, 
these data do provide both an accurate assessment of the present and 
historic extent, and population trends for the species in South Dakota.
    Issue 5: Most populations of Topeka shiners occur on private land. 
Both the interests of the Topeka shiner and the landowner would be 
better served through voluntary landowner agreements and cooperative 
conservation methods in lieu of listing. In Kansas, watershed districts 
have entered into conservation agreements with the Kansas Department of 
Wildlife and Parks, and the Service for the protection of the Topeka 
shiner. These agreements are an example of what can happen when all 
parties work together.
    Service Response: We recognize that there are many potential 
benefits to the Topeka shiner from the development and implementation 
of conservation agreements. At present one conservation agreement 
affecting the species, with the Mill Creek Watershed District (in 
Wabaunsee County, Kansas), the Kansas Department of Wildlife and Parks, 
and the Service, has been developed and signed. Development of this 
agreement began in 1995 and was signed by the involved parties in 
August, 1997. We recognize the Mill Creek agreement as a good example 
of Federal-State-private cooperation; however, this agreement is yet to 
be fully implemented and has not resulted in the expected on-the-ground 
conservation benefits to the species. In entering this agreement the 
Mill Creek watershed board of directors was aware that this agreement 
by itself would not prevent the listing of the Topeka shiner. We are 
hopeful that this agreement will eventually become fully implemented. 
However, similar agreements must be

[[Page 69012]]

achieved for a large percentage of private properties, throughout the 
entire range of the species, to halt or reverse the species' declining 
trend. Cooperation with private landowners is very important in 
conserving this species, and will be critical in its recovery, but the 
species is in trouble now and the criteria for listing has been 
substantially met. We also believe that listing the Topeka shiner does 
not preclude or discourage the development of additional cooperative 
agreements.
    We are cooperating with private landowners in several important 
other ways. Specifically, the Habitat Conservation Planning (HCP) 
program under section 10(a)(1)(B) of the Act provides for species 
protection and habitat conservation within the context of non-Federal 
development and land-use activities. It provides a tool that promotes 
negotiated solutions that reconcile species conservation with economic 
activities. The purpose of the habitat conservation planning process 
and subsequent issuance of incidental take permits is to authorize the 
incidental take of threatened or endangered species. The incidental 
take permit and associated HCP must ensure that the effects of the 
authorized incidental take will not appreciably reduce the likelihood 
of the survival and recovery of the species in the wild. Additionally, 
the impacts to the covered species must be adequately minimized and 
mitigated to the maximum extent practicable through the development and 
implementation of a HCP. The incidental take permit allows the 
permittee to engage in otherwise lawful activities that result in 
incidental take of covered species without violating section 9 of the 
ESA.
    Safe Harbor agreements are voluntary, cooperative ventures between 
a landowner and us that can provide benefits to both the landowner and 
listed species. Under these agreements, a landowner would be encouraged 
to maintain or enhance existing populations of listed species, to 
create, restore, or maintain habitats, and/or to manage their lands in 
a manner that will benefit listed species. In return, we would provide 
assurances that future landowner activities would not be subject to ESA 
restrictions above those applicable to the property at the time of 
enrollment in the program.
    Issue 6: Private landowners and drainage districts in Iowa are 
being told that they will not be able to clean and maintain drainage 
ditches without section 7 consultation with the Service if the species 
is listed. This is the case even though Topeka shiners are not known to 
inhabit drainage ditches. A blanket exemption for drainage ditches 
should be given for all maintenance activities on ditches to avoid this 
burdensome regulation.
    Service Response: Section 9 of the Act prohibits the taking of 
listed species. ``Take'' is further defined to include a number of 
activities, including those that result in ``harm'' or ``harassment'' 
to the species, prohibiting actions which impair normal breeding, 
feeding, or sheltering activities. Blanket exemptions from the section 
9 prohibition against ``take'' of an endangered species are not 
available under the Endangered Species Act. However, the issue of 
drainage ditch maintenance can be handled in one of two ways.
    (1) Section 404 Permit Stipulations--Private landowners and 
drainage districts are required to obtain a permit from the U.S. Army 
Corps of Engineers for dredge and fill activities in waters of the 
United States under section 404 of the Clean Water Act. The Clean Water 
Act also provides for an exemption from this permit requirement for the 
maintenance (but not construction) of drainage ditches associated with 
normal farming, silviculture, and ranching practices (40 CFR 232.3 
(c)(1)(ii)(B)(3)). In this regard, some discrepancies may exist in 
defining the differences between ``drainage ditches'' and ``channelized 
streams.'' We defer to the Corps of Engineers, on a case-by-case basis, 
as to the classification of these conveyance structures and whether the 
exemption from 404 applies to them. However, there is still some 
potential for downstream impact to the Topeka shiner and its habitat 
from activities which are otherwise exempt from 404 permitting.
    In cases where in-stream activities and ditch maintenance 
activities exceed original ditch dimensions and thus are determined to 
be non-exempt from section 404 permitting requirements, and such 
activities may affect the Topeka shiner, formal consultation under 
section 7 of the Endangered Species Act, would be required. The Corps 
of Engineers, as the permitting agency, would initiate consultation 
with us. The Incidental Take Statement resulting from this section 7 
consultation could address the taking of a certain number of Topeka 
shiners or the disturbance of a certain area of habitat resulting from 
ditching activities. In cases where no Topeka shiners are present in 
watersheds where in-stream maintenance is needed, there will be no need 
for section 7 consultation. Although channelized streams and drainage 
ditches are not considered suitable permanent habitat for Topeka 
shiners, if Topeka shiners are present downstream of ongoing 
maintenance activities, potential impacts to the species could be 
possible (i.e., releases of habitat-damaging sediment to downstream 
reaches). However, technology exists, and is frequently used (i.e., 
sediment screens or curtains), to reduce or eliminate this type of 
impact. The use of such methods can be stipulated in the conditions of 
permits (if required) to allow the necessary protection of Topeka 
shiner habitat and the required channel maintenance.
    (2) Habitat Conservation Plans and Incidental Take Permits--In 
cases where an activity is exempt from the permitting requirements of 
section 404, and the activity is determined to have a potential for 
take of Topeka shiner, an option is available for drainage districts 
and other non-federal entities to complete a Habitat Conservation Plan 
for their actions and apply for an incidental take permit under section 
10 of the Endangered Species Act. Such a plan would outline the 
proposed activities, the potential nature of the adverse impact on the 
listed species, and the steps the applicant plans to take to avoid or 
minimize the impact, and to provide mitigation for habitat which may be 
lost. Upon approval by the Director of the Service, the incidental take 
permit would authorize maintenance of the ditches and specify the level 
of habitat disturbance or species take that would not be considered 
excessive and that would be allowed under the Act. In all cases, even 
where 404 permits are not required, drainage districts will still have 
responsibilities to avoid unpermitted ``take'' of the Topeka shiner as 
outlined under section 9 of the Endangered Species Act and codified at 
CFR 50 17.21.
    Issue 7: In the last several years, severe flooding has affected 
many streams within the Topeka shiner's range. This flooding quite 
likely shifted populations, and the Service does not take into account 
the possibility that populations might have moved to other locations.
    Service Response: It has been established that flood flows can 
increase the level of dispersion in some stream fishes, particularly in 
channelized and manipulated streams (Simpson et al. 1982). However, in 
natural systems flood flows do not displace entire populations of 
native stream fishes (Minckley and Mefee 1987). Bank overflow areas, 
debris piles, and other stream structures provide refuge areas for 
fishes during flood flows. This is certainly true for Topeka shiners. 
Capture of Topeka shiners from areas

[[Page 69013]]

with marginal or temporary habitat suitability may occur in years 
immediately following large flood flows, presumably as a function of 
some level of dispersion (Cross, pers. comm. 1998; Tabor, pers. comm. 
1998). However, those individuals will not survive and develop into new 
viable populations unless they have dispersed into suitable habitat. 
While it is true that the species can occupy different microhabitats 
temporally (i.e. areas near flowing water margins during summer, and 
slack water near overhanging vegetation and debris in winter), the 
species as a whole does not disperse from suitable habitat.
    Issue 8: The proposed rule maintains, and the Service has similarly 
stated in public hearings, that there will be little, if any, impacts 
to private citizens or agricultural producers resulting from a listing 
of the Topeka shiner. However, in 3 of the 4 actions addressed in the 
proposed rule that you believe would not result in a violation of 
section 9, you caveat each of the actions with the phrase, `` . . . 
except where the Service has determined that such an activity would 
negatively impact the species.'' This caveat leads the average 
landowner to believe you may force reductions in the number of cattle 
grazed, require trees to be planted along all streams, and restrict 
annual burning within the range. What does ``long-term management of 
the range or prairie ecosystem,'' really mean? The costs to bring all 
farm land into the description of number 2 of the actions identified 
will run in the billions of dollars. The landowner cannot afford this 
expense.
    Service Response: Many current farming and ranching practices are 
consistent with the long-term conservation of the local land and water 
resources, and thus will not negatively impact the species. However, 
without knowing precisely what changes may take place on the 
agricultural landscape in the future, we are unable to make a blanket 
statement that each of the referenced practices will never result in a 
violation of section 9 of the Act. We have neither the authority nor 
the desire to force landowners to plant trees, manipulate cattle 
numbers, or implement specific burning regimes. While we are willing to 
cooperate whenever possible with landowners who desire technical and 
financial assistance to implement habitat improvements on their 
property, forcing such actions is beyond the scope of the Act. However, 
where a landuse is resulting in degradation of Topeka shiner habitat 
that could lead to take of the species, responsible persons will be 
notified of the problems caused by such use, and duly advised of the 
potential for violations of the Act posed by the continuation of such 
use.
    Issue 9: It is irresponsible for the Federal government to list an 
endangered species found primarily in public waters adjacent to private 
lands without identifying specific mechanisms for the conservation and 
recovery of the species.
    Service Response: We are directed under the Act to develop and 
implement recovery plans for the survival and conservation of a listed 
species, unless it is determined that such a plan would not promote the 
conservation of the species. However, recovery plan development is not 
a concurrent activity with the listing process. It would not be prudent 
to utilize resources on recovery planning during the listing phase, 
when additional information and comments, which may impact the listing 
decision, are still being solicited. It is our intent on publication of 
this final rule, to begin the recovery process with the formation of a 
recovery team. A recovery team is usually composed of a number of 
individuals with expertise regarding the species. Also, stakeholder 
groups interested in, or potentially affected by, recovery actions may 
be involved in recovery team activities and development of recovery 
plans.
    Issue 10: Listing the Topeka shiner as an endangered species will 
cause State, county, and township road, bridge, and culvert maintenance 
and construction projects to be delayed or eliminated due to required 
extra measures such as, erosion control, fish surveys, and utilization 
of the individual 404 permitting process instead of the nationwide 404. 
This additional process will require added manpower and expense for 
compliance. It also will be detrimental in areas where governmental 
entities utilize gravel from local streams, because of likely bans on 
dredging of stream gravel.
    Service Response: In section 7 consultation involving 404 permits, 
individual 404 permits will only be required when the proposed activity 
may adversely affect the Topeka shiner. The nationwide 404 will still 
be the appropriate permitting tool in the vast majority of road and 
bridge projects occurring throughout the range of the Topeka shiner. 
However, individual permits will be required in some cases. In most 
instances, it is already known whether the Topeka shiner occurs within 
a particular stream system, eliminating the need for extensive extra 
surveys. It should be realized however, that the occurrence of the 
species and its direct taking at a specific construction site is not 
the only consideration for a permittee. Potential adverse affects for 
the Topeka shiner, as well as other aquatic species, may extend 
considerably downstream from construction sites. This is the case with 
project-associated erosion and resulting downstream sedimentation. 
However, such projects should not require extra erosion control 
measures because, if the permittee is in compliance with their permit, 
even in the case of a nationwide permit, these control measures should 
already be in place. A nationwide permit does not allow for 
uncontrolled release of sediment into stream waters.
    We have not stated that bans on gravel removal from streams will 
occur; and we would only be involved in such regulation, through 
section 7 review and the Corps' 404 permitting process, if the gravel 
removal activity was proposed in or near Topeka shiner habitat. Through 
this review, permit stipulations that allow for gravel excavation while 
still maintaining viable Topeka shiner habitat can most likely be 
developed. This is the case for another listed species, Niangua darter, 
in central Missouri (Corps of Engineers, in litt. 1995).
    Issue 11: The Service held public hearings only to fulfill a legal 
obligation and will not pay attention to the public comments.
    Service Response: We disagree with this characterization of the 
role of public hearing and the fairness of the notice and comment 
administrative process to listing determinations. Section 553 of the 
Administrative Procedure Act (APA) requires agencies to give the public 
notice and an opportunity to comment on a proposed rule and to discuss 
in the final rule the significant issues raised in the comments. The 
validity of an agency action is subject to judicial review under the 
APA. Because of these requirements, all comments are carefully 
evaluated before we make a determination on whether to proceed with a 
final rule. The purpose of the public hearings and comment periods is 
to allow the public to present additional data that may or may not 
support the listing, and to hear the concerns the public has regarding 
the proposed listing. In this case our analysis of the information 
provided by the public comments in light of the best available 
scientific information supports an endangered finding. The concerns 
expressed during the hearings and comment period are also very 
important in that they provide a focal point for inclusion of the 
public in the development of the recovery plan, and in working with the 
concerned groups

[[Page 69014]]

and landowners during the recovery process.
    Issue 12: The public was not adequately notified of the listing 
proposal or that public hearings were to be held.
    Service Response: We made substantial efforts to notify the public 
of the listing proposal, public comment periods, request for public 
hearings, and schedule of public hearings throughout the present range 
of the Topeka shiner. Contacts include congressional delegations, 
Federal and State agencies, county governments, and a variety of 
interested groups and individuals. Immediately following publication of 
the proposed rule in the Federal Register on October 24, 1997, we 
published public notices in newspapers in and near areas where the 
species occurs. These notices announced the proposal to list the Topeka 
shiner, and announced the opening of 45 day and 90 day periods for 
request for public hearings, and request for public comments, 
respectively. Following the request for public hearings, we published a 
Federal Register notice on December 24, 1997, announcing the hearing 
locations and times, and reopening the public comment period. During 
the second week of January, 1998, we again published public notices in 
these same newspapers announcing hearing locations and times, and the 
reopening of the public comment period. In addition, we twice issued 
general press releases concerning the Topeka shiner from our 
Minneapolis, Minnesota and Denver, Colorado Regional Offices.
    We also provided information on the listing proposal, comment 
period, and public hearings on the World Wide Web at two different 
Service web sites:

http://www.fws.gov/r3pao/eco__serv/endangrd/fishes/fishindx.html#Topek 
ashiner and
http://www.r6.fws.gov/endspp/shiner/index.htm.

    Issue 13: Listing is not necessary because of existing protections 
afforded under various State laws, including State threatened and 
endangered species legislation, and the new Kansas Non-game and 
Endangered Species Task Force legislation (HB 2361); section 404 of the 
Clean Water Act; Fish and Wildlife Coordination Act; and, National 
Environmental Policy Act. Any activity that could affect the habitat of 
the species would have to undergo these reviews, and such work could 
not be done with impunity.
    Service Response: To date, the species has declined even with these 
regulations in place. These regulations do not ensure that habitat for 
the Topeka shiner will be protected. We believe the protection 
mechanisms of the Act are necessary to prevent the species' extinction. 
See factors considered in this listing determination, as discussed 
under the subheading, ``Summary of Factors Affecting the Species.''
    Issue 14: The agriculture industry as a whole, has recently taken a 
very pro-active stance on environmental issues involving the management 
and use of pesticides and fertilizers. Certification requirements for 
applicators, technology in application, and general field practices, 
such as minimum tillage and no-till, has resulted in very minimal 
runoff and very efficient utilization of pesticides and fertilizers in 
crop fields. These factors, in combination with the increased planting 
of filter strips and grass waterways, have minimized agricultural 
chemical impact to water quality and should be a factor in the 
withdrawl of the listing proposal.
    Service Response: The use of pesticides, consistent with approved 
labeling and application protocol, and the use of fertilizer consistent 
with sound, scientifically based application rates, in combination with 
stable riparian vegetation buffers serving as filtering mechanisms to 
reduce non-point source runoff, will not be considered to be a 
violation of section 9 of the Act. However, many agricultural chemicals 
have yet to undergo section 7 consultation and the subsequent 
Environmental Protection Agency implementation of reasonable and 
prudent measures to minimize incidental take of listed species. 
Evaluation of all chemicals for their impacts on Topeka shiners has yet 
to be completed. In the future, we anticipate working with the 
Environmental Protection Agency to identify alternative chemicals and 
methods to reduce any impacts which are identified to this species. In 
many areas dispersed throughout the range of the Topeka shiner, filter 
strips and riparian areas do not exist, with rowcropping extending to 
the stream channel. Pesticide and fertilizer applications in these non-
protected stream areas have the potential to impact the species, 
particularly through runoff following heavy precipitation events where 
these buffer mechanisms are not in place. Although it is recognized 
that increasingly filter strips, grass waterways, and other riparian 
protections are being established, there are presently numerous areas 
along streams without buffers that may impact the species.
    Issue 15: Livestock grazing does not impact the Topeka shiner. The 
Topeka shiner evolved with varying degrees of grazing pressure by 
historically occurring animals; including, bison, deer, and elk. The 
Service will make all landowners fence their streams to exclude cattle 
from water sources and natural cover.
    Service Response: Many grazing regimes are consistent with the 
conservation of the Topeka shiner. The extent to which grazing will 
result in degradation of Topeka shiner habitat will vary with differing 
riparian ecosystems, type of livestock, seasonality of use, and other 
factors. In some instances, livestock management can impact stream 
habitat and water quality. The primary example of this activity is 
livestock feeding and wintering activities concentrated in small 
confinements within perennial or ephemeral stream channels. This 
practice leads to chronic and/or acute inputs of sediment, feces, 
nutrients, and other organic material directly into streams, which 
impacts stream habitat and water quality. Although prairie ecosystems 
evolved with native grazing ungulates, domestic livestock do not, and 
most often cannot (i.e. due to fencing) forage, herd, or move in the 
same manner as native species. We have neither the authority nor the 
desire to require the fencing of streams for the exclusion of 
livestock. However, in cases where existing management could impact the 
Topeka shiner, livestock exclusion can provide benefit.
    Issue 16: The Service is remiss in its obligation to designate 
critical habitat. Listing critical habitat is prudent and determinable. 
If the Service does not designate critical habitat, affected landowners 
will not be informed and they will forfeit their right to demonstrate 
economic impacts to their land. The Service states, ``* * * 
conservation and recovery actions could be significantly impaired by 
public apprehension or misunderstanding of a critical habitat 
designation.'' This is a poor reason not to list critical habitat. The 
Service also states, ``* * * intentional taking of the Topeka shiner is 
not known to be a problem * * *'', then states that designation, ``* * 
* would reasonably be expected to increase the degree of threat to the 
species * * *.'' If intentional taking is not a known problem, then it 
is not reasonable to expect designation to result in increased threat. 
Also, designation of critical habitat would benefit the species because 
it would allow the public to be better informed of Federal projects/
actions through inclusion in public notices; it would be

[[Page 69015]]

useful in delineating areas to avoid for pesticide spraying; and, 
better clarify the importance of certain stream reaches in providing 
for the long term survival of the species.
    Service Response: Federal regulations (50 CFR 424.12(a)(1)) state 
that a designation of critical habitat is not prudent when one or both 
of the following situations exist: (1) the species is threatened by 
taking or other human activity, and identification of critical habitat 
can be expected to increase the degree of threat to the species, or (2) 
such designation of critical habitat would not be beneficial to the 
species. In the notice proposing to designate the Topeka shiner as 
endangered, published in the Federal Register on October 24, 1997, we 
indicated our determination that designation of critical habitat was 
not prudent at this time. The reasons for this determination were 
outlined in that publication, and still apply today.
    Although the comments are accurate that intentional taking is not 
known to be a significant problem, designation of critical habitat 
could exacerbate whatever threat may exist. A notable example of this 
occurred recently where an individual at one of the public hearings 
concerning the proposed listing indicated a willingness to ``take care 
of the problem'' of having a federally-protected species on their 
property, indicating a potential for intentional taking of this 
species. Whether such threats are serious is uncertain, however, they 
must be considered when weighing the positive and negative aspects of 
critical habitat for this species. Even if specific threats against the 
species are never carried out, a negative perception among landowners 
could be fostered by critical habitat designation. Some individuals are 
wary of a federal designation on their property, and such an action 
would likely cause some landowners to be more reluctant to cooperate 
with our efforts to enact voluntary conservation measures on private 
property. In this instance, designation of critical habitat could 
result in an actual adverse effect on conservation of the species.
    It is also our position that designation of critical habitat would 
provide no additional benefit to the species above that afforded by 
endangered species designation. Because the Topeka shiner is so closely 
tied to its specific perennial stream habitats, and is a year-round 
resident rather than a seasonal migrant, impacts to the species and to 
its habitat are generally considered one and the same. Therefore, 
prohibitions against taking specified under section 9, and consultation 
with federal action agencies who provide permit authority for stream 
modification and for water quality modification specified under section 
7, should adequately address the potential for adverse impacts to the 
species once it becomes listed as endangered, precluding any additional 
benefits from designation of critical habitat.
    There is no requirement to evaluate the economic effect on 
surrounding property due to a species listing whether or not critical 
habitat is being designated. If critical habitat is being designated 
for a species, the Act specifies that the additional economic impact 
that may result from such designation be assessed and identified in the 
designation rule. However, the Act specifically prohibits us from 
considering economic impacts when making listing decisions. When 
deciding whether to list a species, we are required to rely solely on 
the best scientific and commercial data available regarding the 
species' status, without regard to any other factors.
    Issue 17: A determination of critical habitat will place undue 
restrictions and bureaucratic process in areas where Topeka shiner 
habitat is in good shape and the species is not threatened. Critical 
habitat will impact private property rights.
    Service Response: As indicated in our response to Issue 16, impacts 
to Topeka shiner habitat are virtually indistinguishable from impacts 
to the species itself. However, as also indicated in the previous 
response, designation of critical habitat may carry with it negative 
connotations for landowners on whose property such designation is made, 
thereby increasing the level of anxiety surrounding the listing 
process, resulting in a decreased willingness to participate in 
voluntary conservation measures to benefit the species. For these and 
other reasons, we have determined that it is not prudent to designate 
critical habitat for the Topeka shiner.
    Issue 18: In this area of the Topeka shiner's range, people are 
doing good things for soil and water conservation, many of which will 
benefit the species. If other States have problems with Topeka shiner 
habitat then list it in those States, but not where we are improving 
habitat.
    Service Response: The Act does have provisions for the listing of 
``distinct population segments'' (DPS), as defined by the joint Fish 
and Wildlife Service and National Marine Fisheries Service, Final 
Vertebrate Population Policy (61 FR 4721). However, a DPS cannot be 
defined by State boundaries, and must be based on biological and 
geographic factors. In areas where habitat improvements are occurring, 
the effect on in-stream activities of listing the Topeka shiner would 
be lessened. This is because activities to conserve the fish are 
already being undertaken, therefore little change in activities 
affecting streams would be needed compared to areas where streams 
remain in a degraded condition.
    Issue 19: Grade stabilization structures and small impoundments, 
such as stock ponds, are being planned and constructed on normally dry 
gullies, ravines, and streambeds in several portions of the Topeka 
shiner's range. Most of these structures are designed not only to 
control erosion and provide livestock water, but are stocked with 
largemouth bass, bluegill, and catfish to provide additional 
recreational benefits. Will the threat of escapement of bass prevent 
fish stocking and/or establishment of permanent pools in these 
impoundments?
    Service Response: Predation by introduced or stocked fishes can 
impact localized populations of Topeka shiners. However, this is mainly 
the case where impoundments are created on perennial (recurrent) 
streams. Many small perennial streams contain habitat that allows 
introduced predatory fishes to persist, both upstream and downstream 
from the dam for varying periods of time, often in addition to existing 
levels of naturally occurring predators. In the case of stock ponds and 
grade stabilization structures located on drainages that flow only 
following significant precipitation events, the likelihood and degree 
of escapement and survivability of individual predators is 
significantly less. This is primarily due to lack of established 
aquatic habitat in these normally dry drainages. Upstream movement of 
predators out of these impoundments into normally dry channels during 
periods of runoff is inconsequential to populations of Topeka shiners 
downstream of such structures. In cases where large numbers of 
structures planned are concentrated on normally dry drainages, in 
proximity to downstream Topeka shiner populations, and thus the 
potential numbers of ``washed out'' predators increases, plans for 
locations and number of structures stocked or having permanent pools 
may need to be altered to avoid possible negative affects to the 
species. However, it is anticipated that project changes will not be 
required in the vast majority of cases involving dam construction on 
normally dry streambeds. The section 7 process and development of 
conservation agreements can provide an

[[Page 69016]]

avenue for examining and mitigating these impacts.
    Issue 20: The Topeka shiner has been recently found in a creek 
within our watershed that was severely polluted with animal wastes and 
turbidity and at another location immediately below an impoundment. 
These findings run counter to the Service's claim of the Topeka shiner 
being dependent on good water quality, thus invalidating them.
    Service Response: Our position on water quality and habitat 
requirements is based on many years of study and observation of the 
species by several highly professional scientists. The Topeka shiner 
has the ability to persist in varying degrees in acutely and 
chronically reduced water quality and habitat situations. Although the 
Topeka shiner can tolerate some degree of short-term degradations 
(Cross, pers. comm. 1998; Tabor, pers. obs. 1998), long-term 
degradations are undoubtedly detrimental to the species.
    At two isolated sites degraded by heavy sediment accumulation and 
nutrient enrichment, where Topeka shiners persist, there is inflow from 
seeps and springs which may have a bearing on their continued existence 
in these areas (Cunningham, pers. comm. 1998; Tabor, pers. obs.). This 
is in contrast to other streams exhibiting the same degradations within 
the same general areas, without spring and seep inflow, from which the 
species is absent. We believe that these populations are likely to 
disappear during the next period when these springs and seeps cease 
flowing. Situations that allow severe pollution from animal wastes in 
streams are not just a threat to the Topeka shiner and the aquatic 
community in general, but likely a threat to human health as well.
    Impacts from watershed dams in basins with Topeka shiners are 
generally chronic impacts to the species. The development of a dam on a 
single stream in a basin with several occupied streams would likely 
impact the single stream. This would allow Topeka shiners to still move 
from the other occupied, undammed streams into the dammed stream, 
dependent on the level of stream impacts from the dam. However, when 
most or all streams are dammed within a basin, hydrology, habitat, and 
aquatic systems and communities are altered. The dams further serve as 
barriers to fish passage, all contributing to the decline and 
extirpation of the species within the basin.
    Issue 21: This watershed district has proposed construction of a 
dam utilizing an altered design to meet flood control purposes and the 
preservation of a population of Topeka shiners. This proposal was made 
at a joint meeting with our district, the State, and the Service, but 
this has now been ostensibly delayed because of the Service's listing 
proposal.
    Service Response: We encourage and recognize all proposals 
involving the conservation of the Topeka shiner. The listing proposal 
in no way diminishes, discourages, or delays the ability of a watershed 
district, or any other entity, to propose conservation activities for 
the species, including plans for construction of structures that allow 
fish passage and provide flood control benefits.
    Issue 22: Sportfishing is big business throughout many portions of 
the Topeka shiner's range and Federal dollars are spent to enhance and 
restore these sportfisheries. The proposed rule includes sportfishes, 
such as northern pike and largemouth bass, as being threats to the 
Topeka Shiner. It does not seem logical to spend Federal dollars to 
stock these sportfishes and spend Federal dollars to list the Topeka 
shiner.
    Service Response: In many cases, Federal funds are appropriated to 
enhance and stock sportfishes in large reservoir, lake, and river 
systems. Typically these habitat types are not used by Topeka shiners, 
and thus would not present significant impacts. However, in certain 
cases where enhancement is occurring in proximity to populations of 
Topeka shiners and Federal funds are being utilized, we, as the 
administrators of Federal Aid in Sportfishing funds, must consider the 
possible impacts to Topeka shiners resulting from such activity. This 
would most likely be completed through intra-agency consultation, and 
communication with the various State fish and wildlife agencies who 
administer these actions on the ground. A ``Policy for Conserving 
Species Listed or Proposed for Listing Under the Endangered Species Act 
While Providing and Enhancing Recreational Fisheries Opportunities'' 
(61 FR 27978), was developed to meet the requirements set forth in 
section 4 of Executive Order 12962, Recreational Fisheries. This policy 
identifies measures to ensure consistency in the administration of the 
Act, promote collaboration with other Federal, State, and Tribal 
fisheries managers, and improve and increase efforts to inform 
nonfederal entities of the requirements of the Act while enhancing 
recreational fisheries. We believe that there will be minimal impact to 
sportfishing enhancement activities resulting from the listing of the 
Topeka shiner.

Peer Review

    In accordance with the policy promulgated July 1, 1994 (59 FR 
34270), we have solicited the expert opinions of independent 
specialists regarding the proposed rule. The purpose of such review is 
to ensure listing decisions are based on scientifically sound data, 
assumptions, and analyses, including input of appropriate experts and 
specialists. Peer reviewers were mailed copies of the proposed rule to 
list the Topeka shiner as an endangered species immediately following 
publication in the Federal Register on October 24, 1997 (62 FR 55381). 
The reviewers were invited to comment during the public comment period 
upon the specific assumptions and conclusions regarding the proposed 
listing. These comments were considered in the preparation of the final 
rule as appropriate. In conjunction with the proposed rule the comments 
of three independent experts and/or conservation biologists were 
solicited. One response was received, which supported the proposal to 
list the Topeka shiner as an endangered species. The respondent's 
comments have been considered in the development of this final rule and 
incorporated where applicable.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all available 
information, we have determined that the Topeka shiner should be 
classified as an endangered species. Procedures found at section 
4(a)(1) of the Act and regulations implementing the listing provisions 
of the Act (50 CFR part 424) were followed. A species may be determined 
to be an endangered or threatened species due to one or more of the 
five factors described in Section 4(a)(1). These factors and their 
application to the Topeka shiner (Notropis topeka) throughout the 
species' range are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range.

    Once abundant and widely distributed throughout the central Great 
Plains and western tallgrass prairie regions, the Topeka shiner now 
inhabits less than 10 percent of its original geographic range. The 
action most likely impacting the species to the greatest degree in the 
past is sedimentation and eutrophication (increase of minerals and 
organic nutrients within a body of water resulting in the decrease of 
dissolved oxygen) resulting from intensive agricultural development. 
Most

[[Page 69017]]

populations of Topeka shiners occurring west of the Flint Hills region 
of Kansas are believed to have been extirpated prior to 1935 (Cross and 
Moss 1987). Minckley and Cross (1959) report that watersheds with high 
levels of cultivation, and subsequent siltation and domestic pollution, 
are unsuitable for the species. These streams often cease to flow and 
become warm and muddy during the summer months. Cross (1970) indicates 
that some of the areas where depletion of the species has occurred also 
coincide with areas having poor aquifers resulting from historical 
changes in drainage patterns affecting the quantity of water. Pflieger 
(1975) reports that increased siltation as a result of intensive 
cultivation may have reduced the amount of Topeka shiner habitat in 
Missouri. Pflieger (in litt. 1991) also reports that a known population 
of the species in Boone County, Missouri was extirpated between 1970 
and 1976, presumably due to increased turbidity and nutrient enrichment 
resulting from urbanization and highway construction. Feedlot 
operations on or near streams are also known to impact prairie fishes 
due to organic input resulting in eutrophication (Cross and Braasch 
1968).
    The species was historically known from open pools of small prairie 
streams with cool, clear water. Many streams of this nature reportedly 
existed throughout the geographic range of the Topeka shiner ``prior to 
the plowing of the prairie sod'' (Cross 1967). These conditions 
continue to exist in many of the streams in the Flint Hills region of 
Kansas, primarily due to shallow, rocky soils with numerous limestone 
exposures which prevent cultivation. This is in contrast to the 
perturbation of the natural fish faunas and their associated habitats 
in prairie areas more suitable to intensive rowcrop agriculture, which 
is characteristic of the vast majority of the natural range of the 
species (Menzel et al. 1984). Menzel et al. (1984) also notes 
accelerated rates of soil erosion and instream deposition of fluvium 
(deposits caused by the action of flowing water) throughout many 
modified prairie streams in Iowa, encompassed by the former range of 
the species. Today, outside the Flint Hills region of Kansas, only a 
few, small isolated areas not severely impacted, or impacted to an 
extent within the tolerance of the species, continue to exist.
    Mainstem reservoir development, tributary impoundment, and 
channelization also have impacted the species in many areas. 
Populations located within small tributary streams upstream from both 
mainstem and tributary impoundments attempt to utilize these water 
bodies as refuges from drying streams during periods of drought. During 
this time, the populations are subject to predation by larger predatory 
fish inhabiting the impounded water bodies. In unaltered systems, fish 
move downstream during drought to find suitable habitat. Deacon (1961) 
reports fishes characteristic of the small and mid-sized tributaries of 
the Neosho and Marais des Cygnes rivers' watersheds occurred in the 
mainstems following several years of protracted drought in the mid-
1950's. Tributary dams also serve to block migration of fishes upstream 
following drought, prohibiting recolonization of upstream reaches.
    Several recently extant populations have been extirpated from 
tributaries to Tuttle Creek and Clinton reservoirs, both mainstem 
impoundments in the Kansas River basin of eastern Kansas. The species 
continues to exist in two tributaries to Tuttle Creek Reservoir. 
However, during sampling on one of these streams in 1994 only a single 
Topeka shiner was captured. All populations within the Wakarusa River 
watershed (Clinton Reservoir) are believed extirpated. Clinton 
Reservoir's completion coincided with large scale development of 
tributary impoundments throughout the Wakarusa's upper basin which may 
have compounded impacts to the species. Layher (1993) reports the 
extirpation of Topeka shiners from a stream following construction of a 
single tributary impoundment in Chase County, Kansas. Layher reported 
that the species had disappeared both upstream and downstream of the 
dam site, and noted significant habitat changes below the impoundment. 
Pflieger (in litt. 1992) reports that an abundant population of the 
species in Missouri was extirpated following construction of an 
impoundment. This population, located downstream from the dam site, was 
not present when revisited several years after construction. The 
habitat had changed from clear rocky pools, to pools filled with 
gravel, layered over by silt and choked with filamentous (threadlike) 
algae. Pflieger further reports that ``the SCS (Soil Conservation 
Service) reservoir has profoundly altered the hydrology and biota of 
this stream by eliminating the scouring floods that formerly created 
pool habitat and maintained the rocky, silt-free substrate.'' During 
1994 sampling efforts in southeast Iowa, a stream with recent records 
of the species had been undoubtedly impacted by the construction of 
multiple impoundments throughout its upper reaches and tributaries, as 
no Topeka shiners were captured (Tabor in litt. 1994). Impoundment of 
prairie streams has also resulted in the documented extirpation of 
other prairie stream minnow species (Winston et al. 1991), the speckled 
chub (Macrhybopsis aestivalis) and the chub shiner (Notropis potteri).
    In Kansas, substantial tributary impoundment is occurring 
throughout the Flint Hills region, endangering the viability of Topeka 
shiner populations at these locales. As of 1993, 46 tributary 
impoundments had been completed in or near habitat for the Topeka 
shiner in the Cottonwood River basin, with an additional 115 planned 
for construction (Service in litt. 1993). Presently in the Mill Creek 
watershed, which contains the largest remaining complex of habitat for 
the species, 16 dams have been constructed with additional structures 
planned (Hund, Mill Creek Watershed District, pers. comm. 1997; State 
Conservation Commission of Kansas, in litt. 1992). However, the Mill 
Creek watershed district board has entered into a conservation 
agreement with us and Kansas Department of Wildlife and Parks to 
conserve the species. This conservation agreement allows for continued 
dam development in portions of the basin without Topeka shiners or 
where there are less viable populations, and eliminates development in 
``critical use'' areas with stable, self-sustaining populations. The 
agreement also requires habitat improvement and enhancement throughout 
the occupied portion of the basin. However, this agreement can be 
terminated by any signatory during the included 5-year review. Also, 
the agreement would be ineffective if not implemented. In South Dakota, 
a major flood control project is planned in the Vermillion watershed, 
involving the construction of numerous structures. The Vermillion River 
basin contains the largest complex of Topeka shiner populations in 
South Dakota. Dam construction also is a threat to the species 
throughout the rest of its range, but to a lower degree due to less 
immediate and intensive development.
    Stream channelization also has occurred throughout much of the 
Topeka shiner's range. Channelization negatively impacts many aquatic 
species, including the Topeka shiner, by eliminating and degrading 
instream habitat types, altering the natural hydrography (physical 
characteristics of surface waters), and by changing water quality 
(Simpson et al. 1982). Intensive channelization of low order streams

[[Page 69018]]

throughout the species' Iowa range is suspect in the species' drastic 
decline in this State (Bulkley et al. 1976). Menzel (in litt. 1980) 
reports the extirpation of Topeka shiners from previous collection 
sites following stream channelization projects in Iowa. During 1994 
status surveys across this portion of the range, most streams were 
found to have been severely altered (Tabor in litt. 1994). Changes 
included elimination of pool habitats, instream debris, and woody 
riparian vegetation. Water velocities were consistently high throughout 
the channel and deep silt was the dominant substrate. It is suspected 
that the Topeka shiner is an obligate or at least a facultative 
(adaptive) spawner on sunfish (Lepomis spp.) nests (Pflieger in litt. 
1992) or other silt-free substrates, but no sunfish were captured, nor 
suitable sunfish spawning habitat observed in these channelized 
streams. At Iowa sites where Topeka shiners were captured, streams were 
not as intensively channelized and many natural conditions persist. 
While channelized streams and drainage ditches do not provide suitable 
permanent habitat for Topeka shiners, maintainence of previously 
altered stream systems, such as periodic sediment dredging, could 
potentially impact the species downstream in more-natural type stream 
habitat.
    Intensive land-use practices, maintainence of altered waterways, 
dewatering of streams, and continuing tributary impoundment and 
channelization represent the greatest existing threats to the Topeka 
shiner. Over-grazing of riparian zones (banks of a natural course of 
water) and the removal of riparian vegetation to increase tillable 
acreage greatly diminish a watershed's ability to filter sediments, 
organic wastes and other impurities from the stream system (Manci 
1989). Irrigation draw-down of groundwater levels affects surface and 
subsurface flows which can impact the species. At present, both Federal 
and State planning for development of watershed impoundments and 
channelization and/or its maintainence continue in areas with 
populations of Topeka shiners. Several impoundments are planned for 
construction on streams with abundant numbers of the species. Portions 
of these stream reaches will be inundated by the permanent pools of the 
reservoirs, imperiling the species' future existence in these 
localities. Prior to the planning of the impoundments, these 
populations of Topeka shiners were considered to be the most stable 
range-wide, due to their occurrence in watersheds dominated by high 
quality prairie with generally very good grazing management and land 
stewardship.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Some collecting of Topeka shiners by individuals for use as bait 
fish and display in home aquaria does occur. However, overutilization 
is not thought to currently contribute to the decline of the Topeka 
shiner.

C. Disease or Predation

    There have been no studies conducted on the impacts of disease or 
predation upon the Topeka shiner, so the significance of such threats 
to the species is presently unknown. Disease is not likely to be a 
significant threat except under certain habitat conditions, such as 
crowding during periods of reduced flows, or episodes of poor water 
quality, such as low dissolved oxygen or elevated nutrient levels. 
During these events, stress reduces resistance to pathogens and disease 
outbreaks may occur. Parasites, bacteria, and viral agents are 
generally the most common causes of mortality. Lesions caused by 
injuries, bacterial infections, and parasites often become the sites of 
secondary fungal infections. However, Topeka shiners captured from a 
Missouri stream in 1996 were discovered to be afflicted with scoliosis, 
a condition of deformity affecting the vertebrae. Scoliosis can result 
from contact with environmental contaminants, or severely reduced 
genetic variability resulting from geographic isolation. No causal 
factor for this occurrence has been identified.
    The green sunfish (Lepomis cyanellus) is the most common predator 
typical of Topeka shiner habitat throughout its range. The spotted bass 
(Micropterus punctulatus) and largemouth bass (M. salmoides) are also 
naturally occurring predators of the Topeka shiner in portions of its 
range but to a much lower degree due to minimal habitat overlap. These 
bass species typically occur in only the downstream extremes of Topeka 
shiner habitat. The construction of impoundments on streams with Topeka 
shiners and the subsequent introduction of piscivorous (fish eating) 
fish species not typically found in headwater habitats, such as 
largemouth bass, crappie (Pomoxis spp.), white bass (Morone chrysops), 
northern pike (Esox lucius), and channel catfish (Ictalurus punctatus), 
may affect the species during drought or periods of low flows when 
Topeka shiners seek refuge in the impoundments or permanent stream 
pools now occupied by these introduced fishes. The most common fishes 
captured in streams directly upstream and downstream of tributary 
impoundments in Kansas are largemouth bass, crappie, and bluegill 
(Lepomis macrochirus), and these species are often captured to the 
exclusion of cyprinids, including Topeka shiner (Mammoliti, Kansas 
Department of Wildlife and Parks, pers. comm., 1997). Tabor (in litt. 
1994) captured only largemouth bass from a stream segmented by numerous 
dams in Iowa. A cooperative report completed by the Soil Conservation 
Service and Kansas Department of Health and Environment (1981) on the 
effects of watershed impoundments on Kansas streams states that 
predacious game fishes increased in abundance, and several minnow 
species, including the Topeka shiner, decreased in abundance upstream 
and downstream from dam sites following impoundment. While the extent 
of predation is undocumented, known populations have apparently been 
extirpated in the time period immediately following impoundment of 
several low order streams (Layher 1993; Pflieger, in litt. 1992; Tabor, 
in litt. 1992b). Topeka shiners were also reportedly extirpated from a 
small impoundment previously lacking largemouth bass, following 
stocking of largemouth bass (Prophet et al. 1981). Extirpation of the 
Topeka shiner from small, direct tributary streams to large mainstem 
impoundments has also been documented. These extirpations presumably 
occurred in part due to predation by introduced piscivorous fishes 
during drought and low flow periods when Topeka shiners seek refuge in 
permanent water downstream from their typical headwater habitats 
(Service 1993).

D. The Inadequacy of Existing Regulatory Mechanisms

    In Kansas, the Topeka shiner is listed as ``species in need of 
conservation,'' under the Kansas Nongame and Endangered Species 
Conservation Act of 1975. This status prohibits the direct taking of 
specimens but does not protect habitat or give opportunity to review 
actions or projects which may affect the species in Kansas. Under 
Missouri law, the species is listed as endangered. This status 
prohibits direct taking of specimens and provides a limited review 
process to suggest remediation for actions potentially impacting the 
species' habitat. Minnesota, Nebraska, and South Dakota consider it a 
species of concern, with no legal protection. In Iowa, the species has 
no legal status.
    No significant protections exist for Topeka shiner habitat 
throughout its range. Listing under the Act would

[[Page 69019]]

provide significant protection against taking of the species, ensure 
coordinated review of Federal actions which may affect its habitat, and 
encourage proactive management throughout its range. As discussed 
previously, section 404 of the Clean Water Act regulates certain 
activities in streams and wetlands, and through the section 7 
consultation process we are provided the opportunity to review actions 
proposed for permitting under this section. Listing of the Topeka 
shiner would require a review of potential section 404 actions which 
may impact the species, which is not a requirement as long as the 
species remains unlisted and unprotected by Federal law.

E. Other Natural and Manmade Factors Affecting Its Continued Existence

    In the species' Missouri range, possible interspecific (arising 
between species) competition between the Topeka shiner and the 
introduced blackstripe topminnow (Fundulus notatus) has been suggested 
(Pflieger, in litt. 1992). The absence of the Topeka shiner from 
suitable habitat, where blackstripe topminnow is present, also has been 
observed in Kansas (Mammoliti, pers. comm. 1997). Both species are 
nektonic insectivores utilizing similar pool habitat. At present, the 
extent of possible competition between these species is undocumented. 
In degraded or suboptimal habitat conditions where Topeka shiners 
persist, competition by species more tolerant to these conditions, such 
as red shiner (Cyprinella lutrensis), may negatively affect the 
species. In portions of the species' Kansas range, interspecific 
competition may exist to some extent between the Topeka shiner, the 
southern redbelly dace (Phoxinus erythrogaster), and the cardinal 
shiner (Luxilus cardinalis) (Tabor pers. obs.).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species in determining to make this rule final. Based on 
this evaluation, the preferred action is to list the Topeka shiner as 
endangered. Endangered status, which means that the species is in 
danger of extinction throughout all or a significant portion of its 
range, is appropriate for the Topeka shiner. We believe the species' 
recent significant reduction in range and the extirpation of the 
species throughout most of its historic range, within the context of 
the continuing and expected impacts from present and planned projects 
and activities, support the determination of endangered status. 
Threatened status is not appropriate considering the extent of the 
species' population decline and the vulnerability of the remaining 
populations.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection and; (ii) specific areas outside the geographic areas 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that a designation of critical 
habitat is not prudent when one or both of the following situations 
exist--(1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species. We find that 
designation of critical habitat is not prudent for the Topeka shiner at 
this time for the following reasons.
    Section 7 of the Act requires that Federal agencies refrain from 
contributing to the destruction or adverse modification of critical 
habitat in any action authorized, funded or carried out by such agency 
(agency action). This requirement is in addition to the section 7 
prohibition against jeopardizing the continued existence of a listed 
species, and it is the only mandatory legal consequence of a critical 
habitat designation. Implementing regulations (50 CFR part 402) define 
``jeopardize the continuing existence of'' and ``destruction or adverse 
modification of'' in very similar terms. To jeopardize the continuing 
existence of a species means to engage in an action ``that reasonably 
would be expected to reduce appreciably the likelihood of both the 
survival and recovery of a listed species.'' Destruction or adverse 
modification of habitat means an ``alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species.'' Common to both definitions is an 
appreciable detrimental effect to both the survival and the recovery of 
a listed species. In the case of adverse modification of critical 
habitat, the survival and recovery of the species has been 
significantly diminished by reducing the value of the species' 
designated critical habitat. Thus, actions satisfying the standard for 
adverse modification also jeopardize the continued existence of the 
species concerned.
    Many activities that pose threats to the continued existence of the 
Topeka shiner are funded, permitted, or carried out by Federal agencies 
(e.g., channelization, impoundment, dredge and fill, and other stream 
and wetland modification projects). Programs that result in these 
activities in Topeka shiner habitat are most often regulated by the 
U.S. Army Corps of Engineers and the U.S. Department of Agriculture, 
Natural Resources Conservation Service, under a variety of authorities, 
and are thus subject to section 7 consultation under the Act.
    Other State or private actions resulting in ``take'' of Topeka 
shiners would be prohibited by section 9 of the Act, and remediation of 
those potential threats would not be significantly advanced by 
designation of critical habitat.
    Recovery activities to assist landowners in maintaining or 
improving the habitat quality of their streams or otherwise addressing 
known threats to Topeka shiners would not benefit from a designation of 
critical habitat. However, such conservation and recovery actions could 
be significantly impaired by public apprehension or misunderstanding of 
a critical habitat designation.
    Intentional taking of the Topeka shiner is not presently known to 
be a problem. However, the Topeka shiner is found in very specialized, 
easily accessible and identifiable habitat characterized by small 
volumes of flow. Local populations are thus highly vulnerable and can 
be intentionally targeted for elimination, as suggested at a recent 
public hearing. The listing of Topeka shiner as an endangered species 
also publicizes the present vulnerability of this species. Publication 
of maps providing precise locations and descriptions of critical 
habitat, as required for the designation of critical habitat, would 
reasonably be expected to increase the degree of threat of vandalism or 
the intentional destruction of the species' habitat, increase the

[[Page 69020]]

difficulties of enforcement, and could further contribute to the 
decline of the Topeka shiner.
    In light of the above, we conclude that designation of critical 
habitat would not be beneficial to the species and would increase the 
degree of threat to the species from taking. We have, therefore, 
determined that the designation of critical habitat for the Topeka 
shiner is neither beneficial nor prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. Our ``Partners for Fish 
and Wildlife'' program can also provide a means to help share the cost 
of conservation measures such as constructing fencing to keep cattle 
out of streams and providing alternative water source, if necessary. 
The protection required of Federal agencies and the prohibitions 
against taking and harm are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer on any action that 
is likely to jeopardize the continued existence of a species proposed 
for listing or result in destruction or adverse modification of 
proposed critical habitat. If a species is listed subsequently, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or destroy or adversely modify its 
critical habitat. If a Federal action may affect a listed species or 
its critical habitat, the responsible Federal agency is required to 
enter into formal consultation.
    A number of Federal agencies have jurisdiction and responsibilities 
potentially affecting the Topeka shiner, and section 7 consultation may 
be required in a number of instances. Federal involvement is expected 
to include the Corps of Engineers (Corps) throughout the species' range 
pursuant to the Corps administration of Section 404 of the Clean Water 
Act. The U.S. Environmental Protection Agency will need to consider the 
Topeka shiner in the registration of pesticides, adoption of water 
quality criteria, and other pollution control programs. The U.S. 
Department of Transportation, Federal Highway Administration, will need 
to consider the effects of bridge and road construction at locations 
where known habitat may be impacted. The U.S. Department of 
Agriculture, Natural Resources Conservation Service and Farm Service 
Agency, will need to consider the effects of structures and 
channelization projects installed under the Watershed Protection and 
Flood Prevention Act, (16 U.S.C. 1001-1009, Chapter 18; Pub.L. 83-566, 
August 4, 1954, c 656, Sec. 1, 68 Stat. 666; as amended), ``Farm Bill'' 
programs, and other activities which may impact water quality, 
quantity, or timing of flows. The Federal Energy Regulatory Commission 
will need to consider potential impacts to the Topeka shiner and its 
habitat resulting from gas pipeline construction over streams and from 
hydroelectric development.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions, codified at 50 CFR 17.21, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
or collect; or to attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any species that has been taken illegally. Certain exceptions apply to 
entities having an agency relationship with us (agents) and to State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and/or for incidental take in 
connection with otherwise lawful activities.
    Requests for copies of the regulations regarding listed wildlife 
and inquiries about prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, 
Denver, Colorado 80225 (303/236-8189) or facsimile (303/236-0027).
    It is our policy to identify (59 FR 34272), to the extent known at 
the time a species is listed, specified activities that will and will 
not be considered likely to result in violation of section 9 of the 
Act. The intent of this policy is to increase public awareness of the 
effect of the listing on ongoing and likely activities within a 
species' range. We believe the following actions would not likely 
result in a violation of section 9:
    (1) Actions that may affect Topeka shiner that are authorized, 
funded or carried out by a Federal agency when the action is conducted 
in accordance with an incidental take statement issued by the Service 
pursuant to section 7 of the Act;
    (2) Actions that may result in take of Topeka shiner when the 
action is conducted in accordance with a permit under section 10 of the 
Act; and
    (3) Private actions which avoid ``take'' under section 9, that are 
not federally funded or permitted, undertaken within or near habitat 
occupied by Topeka shiners, and not be subject to the regulations as 
stated above in section 7 of the Act. Private actions not subject to 
section 7 consultation include, but are not limited to: farming and 
ranching practices, construction of private stock watering ponds on 
normally dry channels, and fuelwood harvest.
    We believe that the actions listed below may result in a violation 
of section 9; however, possible violations are not limited to these 
actions alone:
    (1) Actions that take Topeka shiner that are not authorized by 
either a permit under section 10 of the Act, or an incidental take 
permit under section 7 of the Act; the term ``take'' includes 
harassing, harming, pursuing, hunting, shooting, wounding, killing, 
trapping, capturing, or collecting, or attempting any of these actions;
    (2) Possess, sell, deliver, carry, transport, or ship illegally 
taken Topeka shiner;
    (3) Interstate and foreign commerce (commerce across State and 
international boundaries) without the appropriate permits under section 
10(a)(1)(a)and 50 CFR 17.32.
    (4) Unauthorized collecting or handling of the species;
    (5) Destruction or alteration of the species' habitat (i.e., 
actions that change water quality, quantity, and/or timing of flows; 
dredging or other physical modifications that impact instream habitat, 
including trampling of stream habitat by livestock and allowing animal 
wastes from feedlots or waste lagoons to

[[Page 69021]]

enter streams) such that it would result in take of the species;
    (6) The intentional introduction of nonnative fish species that 
result in direct competition with or predation on the Topeka shiner at 
known locations of occupied habitat;
    (7) Use of fertilizers or pesticides inconsistent with approved 
labeling and application procedures; and
    (8) Contamination of soil, streams, or groundwater by illegal 
spills, discharges, or dumping of chemicals, silt, or other pollutants.
    Questions regarding whether a specified activity will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
our Manhattan, Kansas Field office (see ADDRESSES section).

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the reasons for 
this determination was published in the Federal Register on October 25, 
1983 (48 FR 49244).

Required Determination

    This rule does not contain any information collection requirements 
for which the Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. is required. An 
information collection related to the rule pertaining to permits for 
endangered and threatened species has OMB approval and is assigned 
clearance number 1018-0094. This rule does not alter that information 
collection requirement. For additional information concerning permits 
and associated requirements for threatened species, see 50 CFR 17.32.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Manhattan, Kansas Field Office (See 
ADDRESSES section).

Author

    The primary author of this document is Vernon M. Tabor, U.S. Fish 
and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under FISHES, to the List of Endangered and 
Threatened Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common Name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Fishes
 
 
                   *                  *                  *                  *                  *                  *                  *
Shiner, Topeka...................  Notropis topeka       KS, IA, MN, MO, NE,  Entire.............  E                       654           NA           NA
                                    (=Notropis tristis).  SD.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: November 25, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-33100 Filed 12-14-98; 8:45 am]
BILLING CODE 4310-55-P