[Federal Register Volume 66, Number 65 (Wednesday, April 4, 2001)]
[Rules and Regulations]
[Pages 18002-18034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8082]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Designation of 
Critical Habitat for the Arkansas River Basin Population of the 
Arkansas River Shiner; Final Rule

  Federal Register / Vol. 66, No. 65 / Wednesday, April 4, 2001 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG12


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for the Arkansas River Basin Population of the 
Arkansas River Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the Arkansas River Basin population of the Arkansas 
River shiner (Notropis girardi). This designation is made in response 
to a court settlement in Center for Biological Diversity v. Bruce 
Babbitt, et al. C99-3202 SC, directing us to submit for publication in 
the Federal Register a proposal to withdraw the existing ``not 
prudent'' critical habitat determination together with a new proposed 
critical habitat determination for the Arkansas River Basin population 
of the Arkansas River shiner by June 23, 2000, and final rule by March 
15, 2001 (subsequently extended until March 28, 2001). We are 
designating as critical habitat a total of approximately 1,846 
kilometers (1,148 miles) of rivers and 91.4 meters (300 feet) of their 
adjacent riparian zones. Critical habitat includes portions of the 
Arkansas River in Kansas, the Cimarron River in Kansas and Oklahoma, 
the Beaver/North Canadian River in Oklahoma, and the Canadian/South 
Canadian River in New Mexico, Texas, and Oklahoma. Section 7 of the Act 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to adversely modify designated critical 
habitat. As required by section 4 of the Act, we considered economic 
and other relevant impacts prior to making a final decision on what 
areas to designate as critical habitat.
    This final critical habitat designation is being completed pursuant 
to a settlement agreement of a law suit executed on February 16, 2000, 
and, accordingly, must be published at this time without further review 
or delay. However, the Department of the Interior's initial review of 
this final critical habitat rule has raised concerns that are worthy of 
further attention. Accordingly, we will continue to solicit additional 
public comments on the effects of this final designation and ways that 
it may be improved. As soon as practicable hereafter, the Department of 
the Interior intends to propose the review of the present rule and 
thereafter, if appropriate, the proposal of a new approach to this 
critical habitat designation after consideration of these further 
comments, as part of the recovery planning process.

DATES: This final rule is effective May 4, 2001.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, Oklahoma Ecological Services 
Office, 222 S. Houston, Suite A, Tulsa, Oklahoma 74127-8909. You may 
view the complete file for this rule, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Ken Collins, Oklahoma Ecological 
Services Office, at the above address; telephone 918/581-7458, 
facsimile 918/581-7467.

SUPPLEMENTARY INFORMATION:

Background

    The Arkansas River shiner is a small, robust minnow with a small, 
dorsally flattened head, rounded snout, and small subterminal mouth 
(located near the head end of the body but not at the extreme end) 
(Miller and Robison 1973, Robison and Buchanan 1988). Dorsal (back) 
coloration tends to be light tan, with silvery sides gradually grading 
to white on the belly. Adults attain a maximum length of 51 millimeters 
(2 inches). Dorsal, anal, and pelvic fins all have eight rays, and 
there is a small, black chevron usually present at the base of the 
caudal fin.
    The Arkansas River shiner was first described based on a fish 
collection in 1926 from the Cimarron River northwest of Kenton, 
Cimarron County, Oklahoma (Hubbs and Ortenburger 1929). Historically, 
the Arkansas River shiner was widespread and abundant throughout the 
western portion of the Arkansas River basin in Kansas (KS), New Mexico 
(NM), Oklahoma (OK), and Texas (TX). This species has disappeared from 
more than 80 percent of its historical range and is now almost entirely 
restricted to about 820 kilometers (km) (508 miles (mi)) of the 
Canadian River in OK, TX, and NM (Larson et al. 1991; Pigg 1991). An 
extremely small population may still persist in the Cimarron River in 
OK and KS, based on the collection of only nine individuals since 1985. 
A remnant population also may persist in the Beaver/North Canadian 
River of OK, based on collection of only four individuals since 1990 
(Larson et al. 1991; Jimmie Pigg, Oklahoma Department of Environmental 
Quality, pers. comm., 1993). An accurate assessment of Arkansas River 
shiner populations in the Arkansas, Cimarron, and Beaver/North Canadian 
rivers is difficult because the populations may be so small that 
individuals may escape detection during routine surveys. The small size 
of Arkansas River shiner aggregations in these three rivers 
significantly reduces the likelihood that these populations will 
persist over evolutionarily significant timescales in the absence of 
intensive conservation efforts.
    In 1999, six Arkansas River shiners were reportedly collected from 
the Arkansas River in Wichita, KS, at two locations--four from near the 
47th Street South bridge and two near the Kansas State Highway 96 
crossing (Vernon Tabor, U.S. Fish and Wildlife Service, Manhattan, KS, 
pers. comm., 2000). Prior to this collection, the Arkansas River shiner 
was believed to be extirpated from the Arkansas River. Further 
examination of these specimens by Dr. Frank Cross revealed that these 
individuals were actually sand shiners (Notropis stramineus), a species 
which superficially resembles the Arkansas River shiner.
    The decline of this species throughout its historical range is 
primarily the result of modification of the duration and timing of 
stream flows and inundation by impoundments, channel desiccation by 
water diversion and groundwater mining, stream channelization, and 
introduction of nonindigenous species. Additional information on the 
biology and status of this species can be found in the November 23, 
1998, final listing determination (63 FR 64772). Biological factors 
relevant to the species' habitat needs are discussed in the ``Primary 
Constituent Elements'' section of this final rule.

Previous Federal Action

    We included the Arkansas River shiner in our September 18, 1985, 
Review of Vertebrate Wildlife (50 FR 37958) as a category 2 candidate 
for listing. Category 2 included those taxa for which information 
indicated that a proposal to list as endangered or threatened was 
possibly appropriate, but for which conclusive data on biological 
vulnerability and threats were not currently available to support a 
proposed rule. Our January 6, 1989, revised Animal Notice of Review (54 
FR 554) retained this status for the Arkansas River shiner.
    We first received detailed information on the status of the species 
in 1989 (Pigg 1989). A partial status survey by Larson

[[Page 18003]]

et al. (1990) was a source of additional information. We subsequently 
prepared a status report on this species (U.S. Fish and Wildlife 
Service 1990). Following this report, Larson et al. (1991) and Pigg 
(1991) provided comprehensive status survey information. In our 
November 21, 1991, Animal Candidate Review for Listing as Endangered or 
Threatened Species (56 FR 58804), we reclassified the Arkansas River 
shiner as a category 1 candidate. At that time, category 1 (now 
referred to as candidates) included those taxa for which we had 
substantial information on biological vulnerability and threats to 
support proposals to list the taxa as endangered or threatened.
    We published a proposed rule to list the Arkansas River basin 
population of the Arkansas River shiner as endangered and invited 
public comment on August 3, 1994 (59 FR 39532). A nonnative population 
of the Arkansas River shiner that has become established in the Pecos 
River was not included in that proposal. We reopened the comment period 
from January 6, 1995, to February 3, 1995, (60 FR 2070) to accommodate 
three public hearings. Following lifting of a moratorium on issuing 
final listings or critical habitat designations on April 26, 1996, we 
again reopened the comment period on the proposal on December 5, 1997 
(62 FR 64337). We published the final rule listing the Arkansas River 
basin population of the Arkansas River shiner as a threatened species 
on November 23, 1998 (63 FR 64772).
    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate critical habitat at the time a 
species is determined to be endangered or threatened. Our regulations 
(50 CFR 424.12(a)(1)) state that critical habitat is not prudent if one 
or both of the following situations exist--(i) the species is 
threatened by taking or other human activity and identification of 
critical habitat can be expected to increase the degree of this threat, 
or (ii) designation of critical habitat would not be beneficial to the 
species. In the final rule listing the Arkansas River Basin population 
of the Arkansas River shiner (63 FR 64772), we found that designation 
of critical habitat was not prudent because we believed critical 
habitat would not provide any additional benefit beyond that provided 
through listing as threatened.
    In the last few years, a series of court decisions have overturned 
several of our determinations made for different species that 
designation of critical habitat would not be prudent (for example, 
Natural Resources Defense Council v. U.S. Department of the Interior 
113 F.3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. 
Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards 
applied in those judicial opinions, we reexamined the question of 
whether designation of critical habitat for the Arkansas River Basin 
population of the Arkansas River shiner is prudent.
    As part of a settlement order of February 16, 2000, in Center for 
Biological Diversity v. Bruce Babbitt, et al. C99-3202 SC, we agreed to 
reconsider the question of whether critical habitat would be prudent; 
and, if designation of critical habitat is prudent, we agreed to 
subsequently propose designation of critical habitat for the Arkansas 
River Basin population of the Arkansas River shiner by June 23, 2000. 
Our proposed designation of critical habitat for the Arkansas River 
shiner was published in the Federal Register on June 30, 2000 (65 FR 
40576). We held three public hearings on the proposed rule in Amarillo, 
TX, on August 7, 2000, Oklahoma City, OK, on August 9, 2000, and in 
Pratt, KS, on August 11, 2000. On August 15, 2000 (65 FR 49781), we 
published a notice in the Federal Register extending the comment period 
on the proposed rule and draft environmental assessment and announcing 
the availability of the draft economic analysis for comment. The final 
comment period was open until October 16, 2000.

Summary of Comments and Recommendations

    In the June 30, 2000, proposed rule, we requested all interested 
parties to submit comments or information that might bear on the 
designation of critical habitat for the Arkansas River shiner (65 FR 
40576). The first comment period was scheduled to close on August 29, 
2000. We extended this comment period until October 16, 2000, to 
continue to solicit comments on the proposed rule and draft 
environmental assessment and to accept comments on the draft economic 
analysis (August 15, 2000; 65 FR 49781). We contacted all appropriate 
State and Federal agencies, Tribes, county governments, scientific 
organizations, and other interested parties and invited them to 
comment. In addition, we published newspaper notices inviting public 
comment and announcing the public hearings in the following newspapers 
in New Mexico: Quay County Sun; Kansas: Dodge City Globe, Hutchinson 
News Herald, and Wichita Eagle Beacon; Oklahoma: Woodward News, The 
Daily Oklahoman, and Tulsa World; Texas: Amarillo Globe News, and 
Lubbock Avalanche Journal. We held three public hearings on the 
proposed rule: Amarillo, TX (August 7, 2000); Oklahoma City, OK (August 
9, 2000); Pratt, KS (August 11, 2000). Transcripts of these hearings 
are available for inspection (see ADDRESSES section).
    We solicited nine independent expert opinions of persons who are 
familiar with this species to peer review the proposed critical habitat 
designation. However, none of the peer reviewers submitted comments. We 
received a total of 212 comments (148 written and 64 oral) from 
individuals, agencies, and organizations. Of these comments, 18 
supported critical habitat designation, 146 were opposed to 
designation, and 48 were neutral but provided information. We reviewed 
all comments received for substantive issues and new data regarding 
critical habitat and the Arkansas River shiner. We address all comments 
received during the comment periods and public hearing testimony in the 
following summary of issues. Comments of a similar nature are grouped 
into issues.

Issue 1: Procedural Issues and Legal Compliance

    (1) Comment: Critical habitat designation is not a required or 
necessary action under the Endangered Species Act. In the final rule 
listing the Arkansas River Basin population of the Arkansas River 
shiner, the Fish and Wildlife Service determined that designation of 
critical habitat was not prudent because no benefit to the species 
would result. Why did the Service reverse its opinion? Why were the 
parties affected by the designation not represented or involved in the 
litigation that led to the settlement agreement?
    Our Response: The Act (4(a)(3)) requires that critical habitat be 
designated for species listed as threatened or endangered unless such 
designation would not be prudent. In the final rule listing the 
Arkansas River Basin population of the Arkansas River shiner as 
threatened, we determined that designation of critical habitat would 
not be prudent because such designation would provide little benefit to 
the species. However, as stated in the proposed rule to designate 
critical habitat, a series of court decisions have overturned several 
of our determinations made for different species that designation of 
critical habitat would not be prudent (for example, Natural Resources 
Defense Council v. U.S. Department of the Interior 113 F.3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 
1280 (D. Hawaii 1998)).

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    As part of a settlement order of February 16, 2000, in Center for 
Biological Diversity v. Bruce Babbitt, et al. C99-3202 SC, we agreed to 
reconsider the question of whether critical habitat would be prudent; 
and, if we found that designation of critical habitat is prudent, we 
agreed to subsequently propose designation of critical habitat for the 
Arkansas River Basin population of the Arkansas River shiner. 
Individuals that are not party to a lawsuit do not participate in 
negotiations to resolve that litigation. However, we solicited advice 
and comments from all interested individuals during the public comment 
periods established for the EA (Environmental Assessment) process and 
the proposed rule.
    Upon further consideration, we believe designation of critical 
habitat for the Arkansas River shiner may be of some benefit and is 
thus considered prudent. A critical habitat designation benefits 
species conservation primarily by identifying important areas and by 
describing the features within those areas that are essential to 
conservation of the species, alerting public and private entities to 
the areas' importance. Although the designation of critical habitat 
does not, in and of itself, restrict human activities within an area or 
mandate any specific management or recovery actions, it does help focus 
Federal, tribal, State, and private conservation and management efforts 
in such areas. Designating critical habitat may also provide some 
educational or informational benefits.
    (2) Comment: The shiner is already protected under sections 4, 7, 
and 9 of the Act. Why is additional protection necessary?
    Our Response: Section 4 of the Act governs listing of species, 
designation of critical habitat, and recovery planning. Neither the 
listing provisions nor recovery planning process provide protective 
mechanisms per se. Rather, once a species is listed under the 
provisions of section 4, the recovery process begins, and the 
protections afforded listed species under sections 7 and 9 are then in 
effect.
    We agree that protections afforded listed species under sections 7 
and 9 are substantial, and that critical habitat designation usually 
adds only marginal protections above those already afforded listed 
species. Under section 7, Federal agencies are required to utilize 
their authorities to further the conservation of species and the 
ecosystems upon which they depend. Federal agencies are prohibited from 
implementing actions likely to jeopardize the continued existence of a 
species or to destroy or adversely modify a listed species' designated 
critical habitat. Regulations implementing the requirements of section 
7 (50 CFR 402.02) define ``jeopardize the continued existence'' (of a 
species) and ``destruction or adverse modification'' (of critical 
habitat) so similarly that the two prohibitions are nearly identical, 
thus resulting in little additional protection through critical habitat 
designation.
    Section 9 of the Act also provides substantial protection to listed 
species by prohibiting any person (as opposed to section 7 which 
involves only Federal agencies) from such activities as taking listed 
species without proper permits, as well as controlling transportation, 
selling, and importing or exporting listed species. Critical habitat is 
not protected under section 9, so no effect on strictly non-Federal 
activities are added through critical habitat designation.
    Despite the little additional benefit critical habitat may provide 
listed species, its designation is required under the Act if any 
benefits would accrue to the species at hand. As described above, there 
may be some benefit to the Arkansas River shiner through designation of 
its critical habitat.
    (3) Comment: The court did not require that the Service designate 
critical habitat for the shiner. Rather, it required only that critical 
habitat be proposed and considered. Now that critical habitat has been 
proposed, the Service should withdraw the proposal and return to its 
original ``not prudent'' determination.
    Our Response: As explained above, we believe that designation of 
critical habitat provides some benefit to shiner conservation and that 
recent court interpretations on prudency of critical habitat would not 
lend support in this case to a ``not prudent'' determination. The court 
cases that reversed our not-prudent determinations have used similar 
rationales for their decisions.
    (4) Comment: The Service did not use the best scientific and 
commercial information available in this designation. No credible 
information exists as to the threats faced by the species. The Service 
admits that its contention that a single catastrophic event could 
eliminate the species is hypothetical and untenable.
    Our Response: The best scientific and commercial information 
available shows that the Arkansas River shiner has been extirpated from 
around 80 percent of its historical range, and that its decline 
continues in many of the areas in which it remains. As with most 
species, the factors causing the shiner's decline are complex, 
interactive, and difficult to identify with certainty. However, such 
trends as declining flows, elimination and degradation of riparian 
areas, and impoundment of previously flowing water can be reasonably 
cited as reasons for the species' historic and present decline. All of 
those examples are threats to the species' habitat, so designation of 
critical habitat is prudent under the Act. In addition, while it is 
unlikely that a single catastrophic event would, in itself, result in 
the immediate extinction of the species, the precarious nature of the 
population and its restricted distribution leave it vulnerable to 
significant extirpations which could lead to its eventual extinction.
    (5) Comment: The Service was involved in preparing a Memorandum of 
Understanding (MOU) among, the involved States, the Service, and other 
parties interested in a cooperative and voluntary approach to Arkansas 
River shiner conservation. However, the MOU approach was abandoned. 
Critical habitat designation was not a part of the MOU, and will 
jeopardize the opportunity to fully explore the effectiveness of the 
MOU approach.
    Our Response: The commenter is correct that an attempt to develop 
and sign a MOU was never completed. However, we do not agree that the 
designation of critical habitat in any way precludes a cooperative 
approach to conserving the Arkansas River shiner. As elaborated upon 
below, we believe that a recovery planning process involving the 
cooperation of numerous stakeholders remains the best approach to 
shiner conservation and will have a significant influence on how 
critical habitat is managed, rather than the critical habitat 
designation driving management decisions.
    (6) Comment: Designating critical habitat prior to development of a 
recovery plan for the Arkansas River shiner is inappropriate. This 
``cart before the horse'' approach is irresponsible toward the affected 
public. The public should be allowed to participate in developing a 
recovery plan for the species, which would be far more effective than 
designating critical habitat.
    Our Response: We agree that, in an ideal situation, we would have a 
recovery plan in place for any species prior to designating its 
critical habitat. In that way, the public would have input into the 
recovery process, and enough would be known about the species to help 
determine what areas are essential to its recovery. However, the Act 
requires that critical habitat be designated concurrently with a 
species'

[[Page 18005]]

listing or, in some circumstances, within 1 year of a final listing 
determination. Unfortunately, the Act does not allow for a delay in 
critical habitat designation until after a recovery plan is in place.
    It is important to note that the recovery planning process, which 
will allow the involvement of affected individuals; local, state, and 
tribal governments; and others interested in conservation of the 
Arkansas River shiner, will result in development of specific recovery 
actions to be implemented on behalf of the species' conservation. 
Although recovery plan implementation is not mandatory, the plan does 
usually provide a ``blueprint'' for achieving recovery and 
substantially influence how the species is managed under the Act. Thus, 
although critical habitat is usually designated prior to recovery plan 
development, its on-the-ground recovery implementation can be 
influenced by a final recovery plan. It is the consideration of 
critical habitat during the section 7 process, rather than its mere 
designation, that actually determines how a species' habitat is 
managed.
    (7) Comment: Critical habitat should be designated only in areas 
where the species is present.
    Our Response: The definition of critical habitat under section 3(5) 
of the Act includes areas outside the geographic areas occupied by the 
species at the time it was listed, upon a determination that such areas 
are essential to the conservation of the species. The term 
``conservation'' is defined under section 3(3) of the Act as the 
measures necessary to bring a species to the point that its protection 
under the Act is no longer necessary, i.e., the species is recovered. 
We do not believe that the Arkansas River shiner's current distribution 
and numbers are adequate to achieve its recovery. Thus, we determined 
that areas outside its current geographic range are necessary to reach 
that goal.
    (8) Comment: All landowners within the area affected by the 
designation should have been notified. The Service is attempting to 
implement critical habitat without giving landowners adequate time to 
review the information. (Numerous commenters expressed concerns about 
the length of the comment period, particularly with regard to the 
amount of time allowed for review of the draft EA and draft economic 
analysis.)
    Our Response: Given the wide-ranging nature of this designation, 
the thousands of landowners involved, and the amount of time available 
to complete the designation, contacting each individual landowner 
within the proposed area would have been nearly impossible. However, we 
went well beyond the general notification requirements of the Act and 
the Administrative Procedure Act. This included notification of all 
State, local, and tribal governments; mailings to over 1,100 interested 
parties; publication of notices in 9 newspapers; issuance of a press 
release and other informational materials; and announcement of all 
public hearings. We regret any instances where interested parties may 
have been unaware of the proposed designation.
    The public comment period on this action was open for 60 days and 
extended for an additional 48 days, for a total of 108 days of public 
comment. The Act requires that a minimum of 60 days be allowed for 
comment on a critical habitat proposal. Thus, we exceeded the statutory 
requirement. In addition, the court order limited the amount of time we 
could allow for public review of the information.
    The public comment period was initially open for 60 days following 
publication of the proposed rule on June 30, 2000. The initial 60-day 
comment period met the requirement under regulations at 50 CFR 
424.16(c)(2). The draft EA was also available for public review at that 
time. During the 60-day review period on the proposed rule and draft 
EA, we announced the availability of the draft economic analysis (65 FR 
49781; August 15, 2000) and extended the close of the public comment 
period 48 days beyond the initial 60 days, to allow for a full review 
and comment period upon the draft economic analysis. Thus, the public 
had 108 days to review and comment upon the proposed rule and draft EA, 
and 63 days on the draft economic analysis.
    (9) Comment: Numerous commenters felt that there were too few 
public hearings held, and that the ones that were held should have been 
delayed until after the public had the opportunity to review the draft 
economic analysis. Some were concerned that the public hearings were 
held in the busy summer season and should have been held in winter. 
Some questioned the geographic distribution of the hearing sites, and 
some were concerned that the hearings were poorly publicized.
    Our Response: The Act requires that at least one public hearing be 
held on a proposed designation of critical habitat if requested within 
45 days of publication of a proposed rule. In anticipation of the 
public's interest in the proposed designation, we announced in the 
proposal that we would hold three public hearings beginning on August 
7, 2000. Thus, the public was given 38 days notice of the dates and 
locations of the public hearings, exceeding the 15-day notification 
requirement in the regulations (50 CFR 424.16(c)(3). In addition, we 
mailed the proposed rule and other information to over 1,100 interested 
parties on our mailing list, issued a press release announcing the 
proposal and the public hearings, and published legal notices in 9 
newspapers covering the entire geographic area affected by the proposed 
designation We believe we provided the public adequate notification of 
the public hearings.
    We held public hearings in Amarillo, TX, Oklahoma City, OK, and 
Pratt, KS. Although we exceeded the statutory requirement of one public 
hearing, we agree that more public hearings on the proposal would have 
been desirable, particularly in rural areas. However, workforce, 
budgetary, and time constraints did not allow us to hold the number of 
public hearings we would have liked, and forced us to centralize the 
hearing sites. Further, the court-ordered deadline for making a final 
determination on the proposal (March 14, 2001) did not allow us to 
delay the public hearings until after the draft economic analysis 
became available, nor did it allow us to hold hearings in the winter. 
Nonetheless, the public had ample opportunity to review and comment on 
the economic analysis, and many persons did so.
    (10) Comment: Federal designation of critical habitat is 
duplicative and intrusive upon States' rights.
    Our Response: Since the designation of critical habitat does not, 
in itself, prescribe specific management actions or restrictions, we do 
not see how a designation is duplicative of State management efforts. 
As stated above, the manner in which consideration of critical habitat 
during the section 7 process is implemented, will be strongly 
influenced by the recovery planning process which will, in turn, 
involve the States in which Arkansas River shiner recovery will occur. 
It is our intent that States will be closely involved in, and therefore 
influential upon, recovery plan development.
    (11) Comment: The proposed rule, draft economic analysis, and draft 
EA did not indicate that any coordination took place with any State or 
local governments nor any private organizations.
    Our Response: While the documents listed above did not describe in 
detail the coordination that has taken place during this designation 
process, we have coordinated extensively with all involved States, as 
well as many water

[[Page 18006]]

conservation districts and other local governments, throughout the 
listing of the species and its designation of critical habitat. On 
April 14, 2000, we requested information on areas to include or exclude 
from a proposed designation and requested biological and economic 
information germane to the potential proposal from 5 Native American 
Nations, 34 State agencies, 31 State and local elected officials, 57 
county governments, 22 knowledgeable individuals, and 124 
organizations, local units of government, water conservation districts, 
and similar entities. We also contacted numerous Federal agencies and 
elected officials by letter.
    (12) Comment: A copy of the settlement agreement leading to the 
critical habitat designation should be made available to the public. 
The amount of funds paid to the Center for Biological Diversity as part 
of the settlement agreement should be part of the public record.
    Our Response: As stated in the proposed and final rules, all 
supporting information for this designation is available for public 
inspection at the Oklahoma Ecological Services Field Office (see 
ADDRESSES section). In addition, persons may request copies of any 
documents associated with this designation, subject to the provisions 
of the Freedom of Information Act, by writing to the Field Supervisor 
at that office. The settlement agreement is part of the public record 
in the United States District Court for the Northern District of 
California, San Francisco Division, Center for Biological Diversity v. 
Bruce Babbitt, et al., Civil No. C99-3202 SC. The Stipulated Settlement 
Agreement and the Order entering that agreement were filed by the Court 
clerk on February 16, 2000. The Agreement does not specify attorney's 
fees but establishes that the Federal defendant ``agrees to pay 
Plaintiff's reasonable attorneys' fees and costs, such amount to be 
negotiated by the parties upon Defendant's receipt of Plaintiff's fee 
request.''
    (13) Comment: The 300-foot ``buffer zone'' is excessive and 
unnecessary.
    Our Response: Critical habitat includes the area of bankfull width 
plus 300 feet on either side of the banks. This is not for the purpose 
of creating a ``buffer zone.'' Rather, it defines the lateral extent of 
those areas we believe are essential to the species' conservation. 
Although the shiner cannot be found in the areas when they are dry, the 
areas are sometimes flooded and provide habitat during high-water 
periods. In addition, the riparian vegetation within these lateral 
areas provide seeds and insects eaten by shiners, and thus contains a 
primary constituent element of critical habitat.
    (14) Comment: The designation of critical habitat for the Arkansas 
River shiner is arbitrary.
    Our Response: We used the best scientific and commercial data 
available in developing this designation. Considerations that went into 
this mapping effort are described in the ``Methods'' section of this 
final rule.
    (15) Comment: The phrase ``federally funded actions on private 
lands'' ``and private actions that require a Federal permit or 
authorization'' should be clarified. Does this mean all actions that 
receive Federal funds such as participation in U.S. Department of 
Agriculture programs, technical assistance from the Natural Resource 
Conservation Service, transition payments, government loans, loan 
deficiency payments, conservation plan compliance, etc.?
    Our Response: It is up to Federal agencies to determine whether 
their actions may affect a listed species or critical habitat and thus 
be subject to the consultation requirements under section 7 of the Act. 
An ``action'' is defined in section 7 regulations (50 CFR 402.02) as 
``* * * all activities or programs of any kind authorized, funded, or 
carried out, in whole or in part, by Federal agencies * * * Examples 
include but are not limited to * * * the granting of licenses, 
contracts, leases, easements, rights-of-way, permits, or grants-in-aid 
* * * or actions directly or indirectly causing modifications to the 
land, water, or air.''
    (16) Comment: Critical habitat is unnecessary because the Service 
does not have the authority to regulate water quality or quantity and 
use--only the states and Environmental Protection Agency (EPA) do. The 
State of Kansas has been working with the EPA to enhance water quality.
    Our Response: We agree that we do not have the authority to 
regulate water use, and have no intention of attempting to do so. 
However, any Federal agency whose actions influence water quality or 
quantity in a way that may affect critical habitat must enter into 
section 7 consultation. Those consultations cannot result in 
restrictions that are outside the action agencies' authorities to 
implement.
    (17) Comment: Critical habitat is unnecessary because the Kansas 
Department of Wildlife and Parks has designated critical habitat and 
has ongoing plans to help conserve habitat for the shiner.
    Our Response: The designation of critical habitat under Kansas 
State law only applies to State-sponsored activities and does not apply 
to Federally-sponsored activities as does a designation of critical 
habitat under the Act. Additionally, the State designation does not 
fully overlap this Federal designation. We may exclude areas from 
critical habitat upon determining that an area is not in need of 
special management considerations or protection. However, the commenter 
didn't provide sufficient information to enable us to conduct such an 
evaluation.
    (18) Comment: What is to stop the Service from enlarging the 
critical habitat designation in the future?
    Our Response: Our future revision of this critical habitat 
determination would likely be a result of the recovery planning 
process, in which we intend to promote full citizen involvement. Should 
the recovery planning process identify additional areas necessary for 
critical habitat designation, or if other public comment indicates the 
need for revisions to this designation, we would go through the 
complete rulemaking process, including public participation, before 
finalizing a revised designation. We do not anticipate increasing this 
designation.

Issue 2: National Environmental Policy Act (NEPA) Compliance

    (19) Comment: The Service did not adequately comply with the 
requirements of the National Environmental Policy Act (NEPA). An 
Environmental Assessment (EA) is not adequate for an action of this 
magnitude; an Environmental Impact Statement (EIS) is required. Council 
on Environmental Quality regulatory requirements for the content of an 
EIS were not met, and the public was not provided adequate information.
    Our Response: The commenters did not provide sufficient rationale 
for their belief that an EIS is required. An EIS is required only if we 
find that the proposed action is expected to have a significant impact 
on the human environment. To make that determination we prepared an EA, 
which analyzed the probable effects of the designation as well as 
several alternatives to the proposed action. The EA was made available 
for public review and comment on June 30, 2000. In addition, we 
conducted a draft economic analysis. The economic analysis was made 
available for public review and comment on August 15, 2000. Based on 
those analyses and comments received from the public, we prepared a 
final EA and made a Finding of No Significant Impact (FONSI), negating 
the need for preparing an EIS.

[[Page 18007]]

The final EA, final economic analysis, and FONSI provide our rationale 
for determining that critical habitat designation would not have a 
significant effect on the human environment. Those documents are 
available for public review (see ADDRESSES section).
    (20) Comment: Neither the EA nor the economic analysis used 
information from landowners or the Oklahoma Farm Bureau.
    Our Response: We considered all information submitted during the 
comment periods.
    (21) Comment: The draft EA failed to include information on 
coordination with State and other Federal agencies.
    Our Response: A discussion of our extensive pre-proposal 
coordination is included in the final EA and available through the 
Oklahoma Field Office (see ADDRESSES section). See the ``National 
Environmental Policy Act'' section below for a discussion of the 10th 
Circuit Court precedent on critical habitat and NEPA.
    (22) Comment: The purpose of the NEPA action should be clearly 
stated as a court settlement in Center for Biological Diversity v. 
Babbitt et al.
    Our Response: The primary purpose of the proposed designation is to 
aid in the conservation of the Arkansas River shiner, as stated in the 
draft EA. However, we clearly state in the final EA that a secondary 
purpose of the action is to comply with the settlement agreement.
    (23) Comment: The cover sheet of the draft EA does not indicate the 
lead agency, list the cooperating agencies, provide the name, address, 
and phone number of the contact person, or denote the suspense date for 
submitting comments.
    Our Response: The lead agency and contact information were provided 
in the cover letter transmitting the draft EA to interested persons. We 
have added that information to the cover sheet in the final EA. There 
are no formally-recognized cooperating agencies in this action.
    (24) Comment: The draft EA fails to clearly define the major issues 
in accordance with CEQ regulations paragraph 1502.14. Major issues 
which should be discussed in greater detail include--whether the 
benefit of the action justifies the cost; effect on private property; 
plus all other issues identified by State and local governments, 
concerned citizens, and organizations.
    Our Response: The major issues are defined in the Purpose and Need 
portion of the draft EA. The regulation cited by the commenter speaks 
to alternatives rather than the Purpose and Need section. We believe we 
identified and discussed in sufficient detail the major issues we were 
aware of when we prepared the draft EA. We have addressed all other 
issues brought to our attention during the comment period in the final 
EA and/or related documents.
    (25) Comment: The draft EA fails to discuss the environmental 
impacts of each alternative, including the proposed action. Such 
discussion should include--adverse environmental impacts that cannot be 
avoided; the relationship between short-term use of the environment and 
maintenance/enhancement of long-term productivity; and any irreversible 
or irretrievable commitments of resources (CEQ regulations paragraph 
1502.16).
    Our Response: We disagree with the commenter. We considered a no-
action alternative and several action alternatives and discussed the 
adverse and beneficial environmental impacts of each. We determined 
through the EA that the environmental effects of the critical habitat 
designation are insignificant above the effects from the listing. We 
believe our EA was consistent with the spirit and intent of NEPA.
    (26) Comment: The draft EA did not provide names and qualifications 
of persons who prepared the document (CEQ regulations paragraph 
1502.17), and the mailing list for those provided copies of the draft 
EA was not included (CEQ regulations paragraph 1502.19).
    Our Response: The regulations cited by the commenter pertain to 
preparation of an EIS, not an EA.

Issue 3: Biological Concerns

    The following comments and responses involve issues related to the 
biological basis for the designation and status of the Arkansas River 
shiner.
    (27) Comment: The Arkansas River shiner population is stable, has 
readapted to other areas, has not declined in TX or otherwise does not 
require the protection of the Act. Status information was missing from 
the proposed rule. How does the Service obtain status information on 
the species?
    Our Response: The Arkansas River Basin population of the Arkansas 
River shiner was listed as threatened in 1998. Additional information 
on the biology and status of this species and our rationale for the 
listing can be found in the November 23, 1998, final listing 
determination (63 FR 64772). Overall, the range of the Arkansas River 
shiner has declined by approximately 80 percent. As stated in the final 
rule, an analysis of the amount of occupied habitat demonstrates that 
the range of the ARS has been reduced in Texas. Historically, the 
Arkansas River shiner occupied 370 km (230.0 mi) of the Canadian River 
in Texas. At present, the ARS occupies 265 river-km (164.5 river-mi). 
This represents a loss of 28.5 percent of the historically occupied 
habitat in Texas. With the exception of those aggregations inhabiting 
the reach between Ute Dam, NM, and the upper reaches of Lake Meredith, 
TX, the Arkansas River shiner continues to decline.
    We used survey data from a variety of sources including the Texas 
Parks and Wildlife Department, Bureau of Reclamation, University of New 
Mexico, Oklahoma State University, University of Kansas, University of 
Oklahoma, University of Michigan, Westark Community College, Texas Tech 
University, and the Oklahoma Department of Environmental Quality in 
assessing the current status of the Arkansas River shiner. Some of this 
information was funded by contract with us, and we were active 
participants in some of these studies. Fish and habitat data were 
collected in each study using standard survey techniques.
    (28) Comment: The population in the Pecos River is no different 
than that in the Arkansas River Basin, and no critical habitat was 
proposed for the Pecos River system.
    Our Response: While the origin of the founding stock for the Pecos 
River population undoubtedly came from the Arkansas River Basin, we 
consider these two populations to be different. The Arkansas River 
basin population is discrete and separate, based on natural, geographic 
isolation, from the nonnative, introduced population in the Pecos 
River, likely the result of intentional or unintentional release of 
bait fish by anglers. The Arkansas River basin population represents 
the only surviving natural occurrence of the taxon. The Pecos River 
population is not significant because it is an introduced population 
located outside of the species' historic range and, as stated in the 
final listing determination (63 FR 64772), is not essential for 
recovery of the species within its historic range. We do not believe 
listing or active conservation of the introduced Pecos River population 
is appropriate nor is such conservation required by the Act.
    (29) Comment: The Arkansas River shiner population in NM is 
healthy.
    Our Response: Surveys and collection records establish that the 
Arkansas River shiner historically inhabited the Canadian River from 
the TX-NM State line as far upstream as the Sabinoso area in central 
San Miguel County, NM (Sublette et al. 1990), a distance of over 193 
river-km (120 river-mi). The

[[Page 18008]]

Arkansas River shiner also occurred in Ute and Revuelto creeks and the 
Conchas River. Present aggregations of Arkansas River shiners are 
limited to roughly 52 river-km (32 river-mi) of the Canadian River and 
a short segment of Revuelto Creek. Although the Arkansas River shiner 
population in the Canadian River of NM appears to be stable, the range 
of the species has declined by over 73 percent.
    (30) Comment: When was the most recent occurrence of the Arkansas 
River shiner in the Cimarron River in Kansas near the Kansas State 
Highway 23 crossing.
    Our Response: The most recent collection was in May of 1992. The 
specimen is catalogued in the natural history museum at the University 
of Kansas, catalogue number KU 23070. This specimen was collected in 
Harper County, Oklahoma, near the U.S. Route 283 crossing about 6.5 km 
(4 mi) south of Englewood, KS. To our knowledge, no intensive fish 
surveys have occurred in this segment of the Cimarron River since that 
time.
    (31) Comment: A few comments requested clarification of the 
identification of the fish collected within the City of Wichita in 
1999, or informed us that these specimens were, in fact, not Arkansas 
River shiners and that the species has been extirpated from the 
Arkansas River in Kansas. Another questioned whether the occurrence of 
the species in the Arkansas River was a miraculous recovery or an 
indication that more study was needed.
    Our Response: In 1999, six fish were collected from two locations 
in the Arkansas River within the Wichita, KS, metropolitan area. At 
that time, the specimens were believed to be Arkansas River shiners. 
However, the specimens were in poor condition and subsequent re-
examination of the specimens by Dr. Frank Cross led him to conclude 
that these fish were not Arkansas River shiners. The minnow family, 
Cyprinidae, is the largest and most widely distrubuted family of fishes 
with over 280 known species occurring in North America alone (Robison 
and Buchanan 1988). Identification of individual species, particularly 
within the genus Notropis is difficult due to the large number of 
species, their small size, and overall similar appearance. Even within 
a species, individuals can vary considerably in size and appearance. In 
preparing the proposed rule, we used the best information available to 
us at the time. At present the Arkansas River shiner is believed to be 
extirpated from the entire Arkansas River.
    (32) Comment: The Arkansas River shiner is used for bait or is 
sought by commercial bait dealers.
    Our Response: We have no information which indicates that the 
Arkansas River shiner is used as bait or is a species selectively 
harvested by the commercial bait industry. Arkansas River shiners may 
occasionally be captured incidental to harvest of commercial bait 
fishes. There also are records of the existence or capture of Arkansas 
River shiners outside of their historic range, such as the Pecos River 
population, that are likely the result of intentional or unintentional 
release of bait fish by anglers. Prior to listing, the Arkansas River 
shiner also may have occasionally been collected for personal use as 
bait by individual anglers. All four of the States within the historic 
range of the species allow the harvest of fish for personal use as 
bait. However, at the time of listing in 1998, the Arkansas River 
shiner was already listed as threatened or endangered in the States of 
KS, NM, and OK and collection or possession was prohibited without a 
valid state permit. Following listing under the Act in 1998, it was 
prohibited to take (includes harass, harm, pursue, hunt, shoot, wound, 
kill, trap, or collect, or to attempt any of these), import or export, 
shipping in interstate commerce in the course of commercial activity, 
or selling or offering for sale in interstate or foreign commerce any 
Arkansas River shiner except without prior obtainment of a Federal 
section 10(a)(1)(A) or 10(a)(1)(B) recovery or incidental take permit, 
respectively.
    (33) Comment: What is the effect of commercial bait harvest on the 
Arkansas River shiner and have such effects been documented.
    Our Response: As previously discussed, there is some evidence that, 
at least occasionally, Arkansas River shiners were collected and used 
as bait prior to Federal listing as threatened. The rarity of this fish 
outside of the Canadian\South Canadian River would indicate that this 
fish is not likely to occur in the retail trade or to be collected for 
personal use very frequently. As stated in the final rule, Larson et 
al. (1991) reported that there is no evidence that the species has been 
adversely affected by the commercial harvest of bait fish. They 
suggested that slender-bodied fishes such as the Arkansas River shiner 
would constitute only a small percentage of the commercial harvest, 
assuming the commercial bait industry used large-mesh seines as the 
major mode of capture. We suspect that the Arkansas River shiner, while 
perhaps not a highly sought commercial species, may be inadvertently 
collected by the commercial bait industry or was occasionally being 
harvested for personal use as bait. We do not believe that the 
abundance of the Arkansas River shiner has been or is likely to be 
seriously impacted by commercial harvest of bait fish. However, there 
is no conclusive evidence to confirm or refute this position and we 
believe the effect of this factor warrants further investigation. As 
previously stated, the section 9 prohibitions against take will likely 
minimize any effects to the species from the inadvertent collection of 
the species during commercial bait harvest. As stated in the final 
listing determination (63 FR 64772), we believe the most significant 
threat to the ARS from the commercial bait industry or bait collection 
for personal use is the potential for introduction of non-indigenous 
fishes into occupied Arkansas River shiner habitat.
    (34) Comment: Does the Arkansas River shiner spawn in tributaries?
    Our Response: Spawning regularly occurs in the Canadian\South 
Canadian River and historically occurred in all of the other major 
Arkansas River tributaries such as the Cimarron and Beaver\North 
Canadian Rivers. The only small tributary that currently supports a 
resident population of the Arkansas River shiner is Revuelto Creek in 
NM. Recent studies (Wilde et al. 2000) did not document spawning in 
Revuelto Creek. Historically, other small tributaries may have 
contained spawning sites but few supported permanent, resident 
populations. Other than Moore (1944) and Wilde et al. (2000), very 
little published information on reproduction by the Arkansas River 
shiner exists.
    (35) Comment: Rainfall events exceeding 5-6 inches are required to 
cause flooding and only one major flood event has occurred on the 
Cimarron River since 1983; under such conditions habitat for the 
Arkansas River shiner does not exist. Others questioned the wisdom of 
designating critical habitat in streams that do not sustain reliable 
stream flows or that are restricted to pools during certain times of 
the year. Both the Arkansas and Cimarron Rivers were historically dry 
rivers and Arkansas River shiners cannot exist in a dry river. One 
individual noted that minnows disappear during the dry months and then 
return with the spring rains and wanted an explanation of this 
phenomenon. Rivers which dry up every 3 or 4 years were not suitable 
habitat for the Arkansas River shiner. The Arkansas River shiner is 
hardy and if it can find suitable habitat to survive during periods of 
drought or low flow

[[Page 18009]]

conditions, protection under the Act is not necessary because they are 
not likely to become extinct. Another sought identification of refugia 
during periods of drought or reduced stream flow, in particular, if 
tributaries were important.
    Our Response: We know of no specific studies which investigated the 
response of Arkansas River shiners to drought and very few studies that 
document how the species responds during periods of low or no flow. 
Generally, during periods of low or no flow, plains fishes seek refugia 
in isolated pools or adjoining tributaries. Here they strive to survive 
until suitable flow conditions return. This pattern of retraction and 
recolonization of occupied areas in response to flow and other habitat 
conditions is typical of fishes who endure harsh conditions of plains 
rivers and streams. Localized extirpations are not typically of concern 
where sufficient numbers of the species survive and can recolonize 
these areas when conditions improve. However, Arkansas River shiners 
and other plains fishes cannot survive when conditions lead to 
permanent drying of river systems. Such conditions are in part 
responsible for the current status of the species. Although the 
Arkansas River shiner is a fairly hardy species, conditions have 
degraded to the point where it can no longer persist in certain 
reaches. Conservation of the core habitats is essential to survival and 
recovery of the species. However, conservation of sufficient reaches to 
allow expansion when suitable flow conditions return or under 
conditions of overall improving habitat conditions and population 
expansion also is crucial to survival and recovery of the species. The 
absence of the Arkansas River shiner from an area during certain 
periods or under certain conditions does not necessarily mean the reach 
is unoccupied. Please also see our response to Comment (64) under Issue 
5.
    (36) Comment: Current soil conservation practices keep runoff from 
entering the river and such measures would likely preclude existence of 
Arkansas River shiner habitat.
    Our Response: Some soil conservation practices, such as terracing, 
are very effective at reducing run-off and may contribute to overall 
declines in peak discharge during rainfall events. However many 
conservation practices, such as construction of terraces, shelterbelts, 
grassed waterways, and certain vegetative plantings, are specifically 
designed to minimize soil erosion and control sedimentation. Without 
these practices in place, soil erosion and ensuing increased siltation 
would likely occur in rivers and streams of the Arkansas River basin. 
We do not believe that construction of terraces, shelterbelts, grassed 
waterways, and other vegetative plantings for conservation are likely 
to significantly impact habitat or threaten survival of the Arkansas 
River shiner.
    (37) Comment: Designation of critical habitat would result in the 
creation of an artificial environment for the Arkansas River shiner and 
we should not proceed with the designation.
    Our Response: Designation of critical habitat does not result in 
the creation of an artificial environment. In order to be included in a 
critical habitat designation, the habitat must first be ``essential to 
the conservation of the species.'' Critical habitat designations 
identify, to the extent known using the best scientific and commercial 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)). These physical and 
biological features, as outlined in 50 CFR 424.12, include, but are not 
limited to, the following: space for individual and population growth, 
and for normal behavior; food, water, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distributions of a species. In some cases, restoration 
of one or more of the constituent elements may be needed before efforts 
to reintroduce a species to an area where it is no longer extant would 
be successful. Recovery efforts often focus on habitat restoration to 
obtain more natural conditions and may involve the removal or 
corrective restoration of any artificial, detrimental habitat traits.
    (38) Comment: Several species of wildlife occur within the riparian 
corridor and livestock could not have a greater impact on Arkansas 
River shiner habitat than these animals.
    Our Response: As stated in the final listing determination (63 FR 
64772), we believe well-managed, free-range livestock grazing is 
compatible with viable Arkansas River shiner populations and will not 
cause significant degradation of the riparian zone. In fact, low to 
moderate grazing and seasonal or rotational grazing practices are 
compatible with many natural resource objectives.
    Although many species of wildlife inhabit lowland and riparian 
areas, they are a natural component of the ecosystem and the overall 
impacts of these species are generally less than that of livestock at 
higher stocking rates. White-tailed deer (Odocoileus virginianus) are 
the only large-bodied, native ungulate that regularly occur in riparian 
zones. Deer do not forage, herd, or move in the same manner as 
livestock. Deer in the southern United States do not tend to 
concentrate in large herds and do not remain in riparian areas for 
extended periods of time as do cattle. Deer typically do not trample 
vegetation and streambanks to the same extent as cattle. Where cattle 
have access to streamside zones, they generally reduce the suitability 
of the riparian zone for deer, either by consumption of forage or by 
trampling vegetation (Menzel 1984). Restriction of livestock grazing is 
one of the principal management tools used for white-tailed deer on 
public lands. Additionally, the dietary preferences of deer and 
livestock generally do not overlap to a significant extent. Deer are 
opportunistic feeders, consuming a wide variety of plant species 
(Jackson (1961) as cited in Menzel (1984)), and cattle forage almost 
exclusively on grasses and forbs. Consequently, we do not believe that 
wildlife exert the same influence on the riparian zone as do cattle and 
likely will not degrade Arkansas River shiner habitat.
    (39) Comment: The Arkansas River shiner has no lasting value and is 
not an indicator of the health of ecosystems. The species should be 
allowed to become extinct.
    Our Response: Congress, in section 2 of the Act (Findings, 
Purposes, and Policy), found that numerous species of fish, wildlife, 
and plants had become extinct or were in danger of, or, threatened 
with, extinction due to a lack of concern for their conservation. 
Furthermore, Congress found that these species of fish, wildlife and 
plants are intrinsically valuable to the nation and its people for 
reasons of aesthetic, ecological, educational, historical, 
recreational, and scientific value (section 2(a)(3)). These findings 
are the basis of the Act.
    A variety of opinions likely exist as to a particular species' 
contribution to society. We believe that conserving all species of 
wildlife has a positive effect on society. Society, like the Arkansas 
River shiner, depends upon reliable supplies of clean water. Conserving 
water resources will help to provide a necessary resource for future 
generations of people and maintain a healthy aquatic ecosystem for fish 
and wildlife. As the health of ecosystems declines, the number of 
species inhabiting those systems decline. In general, the presence of 
rare and

[[Page 18010]]

declining species is very often a good indicator of failing ecosystem 
health. It would be contrary to the Act and our mission to allow the 
Arkansas River shiner to become extinct without taking all reasonable 
preventative actions.
    (40) Comment: Animals are only to be utilized to serve the needs of 
human kind and interfering with the natural process of extinction is 
frivolous, futile, and unnecessary.
    Our Response: As stated in the final listing determination (63 FR 
64772), we agree that extinction and the dynamic processes of natural 
selection, fitness, and evolution are natural, ecological phenomena. 
Numerous natural, including catastrophic, events over geologic time 
have resulted in the extinction of many species. However, evolutionary 
changes rarely occur at rates comparable to those induced by human 
environmental alteration. Congress clearly recognized human-caused 
increases in the rate of species extinctions and passed the Act in an 
attempt to decrease the rate at which human-caused extinctions occur. 
Allowing a species to become extinct simply because it has not adapted 
to rapid habitat changes caused by human development is not permissible 
under the Act.
    (41) Comment: Several factors, such as climate change, greenhouse 
gases, and other natural phenomena, are responsible for the declining 
status of the Arkansas River shiner, not just the few mentioned by the 
Service.
    Our Response: This issue is not relevant to the designation of 
critical habitat and was addressed in the final listing determination 
(63 FR 64772), under factor E in the ``Summary of Factors Affecting the 
Species'' section.
    (42) Comment: Wildlife species, such as least terns, whooping 
cranes, and other water birds, racoons, fish, and coyotes feed on 
Arkansas River shiners and decimate shiner populations during those 
periods when the river is confined to pools. In many instances this 
predation operates as a natural population control mechanism.
    Our Response: This issue is not relevant to the designation of 
critical habitat and was addressed in the final listing determination 
(63 FR 64772), under factor C in the ``Summary of Factors Affecting the 
Species'' section.
    (43) Comment: Very little new status or biological information was 
included in the proposed rule and the information used was dated.
    Our Response: Most of the information on the habitat requirements, 
food habits, and reproductive needs of the Arkansas River shiner was 
obtained within the last three years.
    (44) Comment: The Arkansas River shiner had not been reported from 
the South Canadian River in over 50 years and the species no longer 
occurs there.
    Our Response: Data available to us and contained in our files 
demonstrates that the Arkansas River shiner persists in the majority of 
the South Canadian River. The most recent data available for Texas was 
published in 2000, and for Oklahoma in 1997. This information is 
included in the administrative record and is available for review by 
the public by appointment, during normal business hours, at the 
Oklahoma Field Office. Appointments can be made by contacting the Field 
Supervisor (see ADDRESSES section).
    (45) Comment: What is the effect of the Red River shiner (Notropis 
bairdi) on Arkansas River shiner populations, have these effects been 
taken into consideration, and how would improving stream flow 
conditions compensate for the competitive effect of the Red River 
shiner.
    Our Response: Competition with the non-indigenous Red River shiner 
contributed to diminished distribution and abundance of the Arkansas 
River shiner in the Cimarron River. The morphological characteristics, 
population size, and ecological preferences exhibited by the Red River 
shiner suggest that it competes with the Arkansas River shiner for food 
and other essential life requisites in the Cimarron River (Cross et al. 
1983, Felley and Cothran 1981). The accidental or intentional 
introduction of the Red River shiner into other stream systems 
represents a potentially serious threat; however, we do not believe 
introductions of the Red River shiner have presently had a detrimental 
effect on any stream system in the Arkansas River Basin other than the 
Cimarron River. Accidental or intentional releases of the Red River 
shiner within stream segments occupied by the Arkansas River shiner 
have occurred on several instances but no populations have become 
established outside of that in the Cimarron River (Luttrell et al. 
1995). A recent record of another Red River endemic, the Red River 
pupfish (Cyprinodon rubrofluviatilis), from the Salt Fork of the 
Arkansas River (Pigg et al. 1997) indicates that releases of fish from 
the Red River continue to occur. Certainly, the risk of extinction for 
the entire Arkansas River basin population would increase if Red River 
shiners became established in the Canadian/South Canadian River 
downstream of Lake Meredith.
    The Cimarron River presently provides all of the primary 
constituent elements needed by the Arkansas River shiner, with the 
exception of the occurrence of the Red River shiner. If eradication of 
the Red River shiner from the Cimarron River is feasible, restoration 
of the Arkansas River shiner here would likely be successful. 
Techniques to reduce or eliminate Red River shiners could include 
netting, trapping, electrofishing, habitat modification, or use of fish 
toxicants. Stream flow restoration would not likely compensate for the 
effect of the Red River shiner. The most effective approach is to 
eliminate or minimize the possibility of establishment of this fish 
into other Arkansas River tributaries. We intend to fully address the 
threat from introduction of non-native fishes during the recovery 
planning process for the Arkansas River shiner.
    (46) Comment: Recovery efforts intended to eradicate Red River 
shiners would also impact other imperiled Arkansas River basin fishes 
such as the peppered chub (Macryhybopsis tetranema) and the Arkansas 
darter (Etheostoma cragini) and controlling the Red River shiner or 
attempting restoration of the Arkansas River shiner in light of the 
potential for introduction of this non-native species is not wise and 
would be unsuccessful even if critical habitat was designated.
    Our Response: As previously stated, we intend to address the threat 
from introduction of the Red River shiner or other non-native fishes 
during the recovery process. The needs of other organisms will be fully 
considered at that time.
    (47) Comment: The Arkansas River shiner was not reported from the 
Canadian River in TX until 1954 and was not an indigenous species until 
that time.
    Our Response: We agree, in part. The Arkansas River shiner was 
first reported captured from TX in 1954 by Cross et al. (1955) and 
Lewis and Dalquest (1955). However records exist from upstream reaches 
of the Canadian River in NM prior to 1950 (Sublette et al. 1990). 
Consequently, we believe that the Arkansas River shiner is native/
indigenous to the entire Canadian/South Canadian River.
    (48) Comment: There is no reason to save the Arkansas River shiner 
in Kansas, instead we should concentrate conservation efforts, such as 
land acquisition, in Texas where the species occurs.
    Our Response: Conservation (recovery) of listed species is the 
ultimate purpose of the Act. Kansas includes a significant portion of 
the historic range and recovery of the Arkansas River shiner will 
ultimately

[[Page 18011]]

involve restoration of self-sustaining populations in portions of its 
historic range, including Kansas. The recovery process was initiated 
upon listing of the species in 1998 and is not dependent upon 
designation of critical habitat. Please also see our response to 
Comment (81) under Issue 8.
    Land acquisition can be an important tool in the conservation of 
federally listed species. Recovery planning for the species may include 
recommendations for land acquisition or easements involving private 
landowners. However, these efforts would only be undertaken with the 
cooperation of the landowner. Recovery actions such as land acquisition 
will be fully evaluated during the recovery phase.
    (49) Comment: The species experts disagree on habitat requirements 
for the Arkansas River shiner. Cross (1967) claimed that shiners are 
rarely found in quiet pools or backwaters and Wilde et al. (2000) found 
that the shiner exhibited no obvious selection or avoidance of any 
particular habitat type.
    Our Response: Cross's work primarily described the preferred 
habitat of adult fish during the period from 1940's through late 1960's 
when Arkansas River shiner habitat in KS was more intact than it is at 
present. The work by Wilde et al. (2000) included both adults and 
juveniles from the Canadian River in TX after this system had already 
been degraded by the construction of several impoundments. Adult fish 
may use slightly different habitats than sub-adults and fish in the 
Canadian River likely exploit available habitat when preferred habitat 
is unavailable. Additionally, plains rivers are highly variable 
environments and plains river fishes are adapted to utilize the entire 
spectrum of habitat available in these systems. Consequently, the 
microhabitat features utilized by Arkansas River shiners, as reported 
by the experts, will vary according to conditions which existed at the 
time of the study. Both studies provide information that is important 
in describing the habitat utilized by the Arkansas River shiner.
    (50) Comment: Arkansas River shiners and peppered chubs have 
similar habitat requirements and actions taken to conserve the shiner 
would also benefit the chub.
    Our Response: Generally we agree with this comment. Protection of 
the habitat of one species will often result in at least partial or 
total protection for the other species in the same area. However, life 
history and habitat requirements of the two species do not overlap 
completely (Wilde et al. 2000). The current range of the chub and the 
Arkansas River shiner only overlap within the section of the Canadian 
River between Ute Reservoir, NM, and Lake Meredith, TX. This also would 
imply that habitat requirements of these species are somewhat 
different. The purpose of the Act is protection of ecosystems and where 
possible, we intend to consider habitat requirements of the chub as we 
undertake recovery for the Arkansas River shiner. We also will 
encourage management based on ecosystem principles which will ensure 
benefits to all species in the area.
    (51) Comment: The Service has no evidence to support the assumption 
that groundwater withdrawals from the High Plains aquifer has affected 
flows in the Canadian River or habitat for the Arkansas River shiner.
    Our Response: As explained in the final listing determination (63 
FR 64772), we agree that the extreme southern portion of the High 
Plains aquifer does not influence streamflows in the Canadian River. We 
also agree that the influence of the High Plains Aquifer on streamflows 
in the Canadian River upstream of Lake Meredith is relatively minor. 
However, downstream of the Hutchinson-Roberts County line in TX, the 
Canadian River is confined within the sediments of the Ogallala 
formation and groundwater discharge contributes to surface flows. 
Groundwater depletion continues within much of the Central Regional 
Subdivision of the High Plains aquifer. Kromm and White (1992) state 
that streamflow has been dramatically reduced by groundwater 
withdrawals in western Kansas and has eliminated aquatic ecosystems in 
many areas of the High Plains. Additionally, Luckey and Becker 1998 
also found that discharge from the High Plains aquifer is important to 
streamflow in sections of the western portions of the Arkansas River 
basin.
    (52) Comment: Has the Service specifically studied flows in the 
Canadian River; there is currently much more water flowing in the South 
Canadian River than occurred 50 years ago.
    Our Response: We have not conducted specific studies related to 
streamflow in the Canadian/South Canadian River. Instead, we rely 
heavily upon streamflow information collected by the U.S. Geological 
Survey (USGS) at numerous streamflow gaging stations location within 
the Arkansas River Basin. These data demonstrate that streamflow in the 
South Canadian River is not considerably greater than flows which 
occurred some 50 years earlier. For example, at the gaging station at 
Bridgeport, OK, stream flows for the years from 1944 to 1964 averaged 
13.2 cubic meters per second (cubic m/s) (469 cubic feet per second 
(cfs)). Streamflows at this gage for the years 1970 to 1999 now average 
9.0 cubic 
m/s (320 cfs). At the gaging station near Calvin, OK, some 272 river-km 
(169 river-mi) downstream, stream flows for the years from 1905 to 1965 
averaged 51 cubic m/s (1,804 cfs). Average streamflows at this gage 
over the entire period of record (1906 to 1999) is 52 cubic m/s (1836 
cfs).

Issue 4: Economic Concerns

    (53) Comment: Many commenters believed that we underestimated the 
potential economic effects associated with critical habitat 
designation.
    Our Response: Section 7 of the Act requires other Federal agencies 
to ensure that any action authorized, funded, or carried out by such 
agency is not likely to jeopardize the continued existence of any 
endangered or threatened species or result in the destruction or 
adverse modification of critical habitat. The Act does not place 
requirements on any other parties to consider the effect of their 
actions on critical habitat. As a result, non-Federal entities can only 
be affected by critical habitat designation when the activities they 
carry out have a Federal nexus and the activity having the nexus could 
adversely modify critical habitat.
    The draft economic analysis to the proposed rule found little 
incremental cost associated with the proposed designation because the 
shiner already inhabits many of the areas being proposed for 
designation, many of the areas overlap with interior least tern 
habitat, which is a federally protected species, and because many of 
the activities occurring within proposed critical habitat boundaries 
lacked any identifiable Federal nexus.
    Since the publication of the draft economic analysis, information 
has developed showing that not all the areas being proposed for 
critical habitat overlap with least tern habitat, as was originally 
believed. Furthermore, new information obtained subsequent to the 
proposed designation, indicates that the section of the Arkansas River 
through the City of Wichita is now no longer believed to be occupied by 
the species. As a result, the Addendum to the draft economic analysis 
now projects that there will be some incremental costs associated with 
the critical habitat designation. These costs result from some 
additional section 7 consultations that could occur for some of the 
activities taking place within critical habitat and that could be 
attributed to the designation. Activities and associated Federal 
nexuses that could be

[[Page 18012]]

affected by additional section 7 consultations include concentrated 
animal feeding operations (CAFOs) requiring U.S. EPA permits under the 
National Pollution Discharge Elimination System, sand and gravel 
removal operations, and pipeline construction and maintenance 
activities requiring U.S. Army Corps of Engineers permits under section 
404 of the Clean Water Act. While the Addendum reflects the associated 
costs of these consultations, we do not believe that such costs are 
significant.
    (54) Comment: We received several comments from individuals 
concerned about how critical habitat designation will affect surface 
and groundwater withdrawals.
    Our Response: The permitting and management of water access falls 
under the control of individual states. Consequently, a Federal nexus 
does not exist that would allow us to affect surface and groundwater 
withdrawals under the Act and a result, we do not believe that any 
section 7 consultations will be conducted for these activities. The 
Addendum to the draft economic analysis further clarifies these issues.
    (55) Comment: We received comments stating that it was inaccurate 
to assume that their would be no incremental effect on section 7 
consultations for activities affecting shiner critical habitat that 
also affect the interior least tern.
    Our Response: The Addendum to the draft economic analysis corrects 
for this oversight and now provides estimates for the few section 7 
consultations that we believe may need to discuss an activities impact 
on shiner critical habitat, in addition to the interior least tern. 
Because the section 7 consultation would need to occur regardless of 
shiner critical habitat designation, we believe the incremental effects 
to be minimal.
    (56) Comment: We received many comments from individuals concerned 
about the designation's impact on agricultural activities occurring on 
the 91.4 meters (300 ft) ``buffer zone'' bordering the designated river 
systems, including the planting of crops or livestock grazing that may 
receive some form of Federal subsidy or the operation of CAFOs, which 
may require a Federal permit to discharge wastes into river bodies.
    Our Response: In general, we have not observed any adverse impacts 
associated with traditional agricultural practices along the river 
systems being designated for critical habitat. As a result, we have 
conducted very few consultations on agricultural-related activities 
within the areas proposed for critical habitat.
    Although the draft economic analysis stated that we did not believe 
that any incremental effects associated with critical habitat 
designation would occur for agricultural-related practices, the 
Addendum to the draft economic analysis acknowledges that in some areas 
small impacts could occur. The Addendum found that, due to a better 
understanding of areas occupied for the shiner and least tern, 
agricultural-related activities may take place in areas being 
designated for critical habitat where the shiner and tern's current 
occupancy are not well documented. In these areas, any future section 7 
consultations that occur could therefore be attributed to critical 
habitat. The Addendum finds, however, that such effects remain 
relatively minor due to the combined fact that many of the 
agricultural-related activities lack a clear Federal nexus, which would 
allow us the opportunity to consult, and the relatively minor impacts 
currently adopted agricultural practices have had to date on the river 
ecosystems being designated.
    (57) Comment: We received several comments of concern that our 
draft economic analysis failed to identify some Federal nexuses that 
potentially could result in new consultations with us over the effects 
these actions could have on critical habitat once it is designated.
    Our Response: The draft economic analysis attempted to identify all 
the potential Federal nexuses on private lands and their associated 
activities in order to assess the likelihood of additional section 7 
consultations occurring because of the proposed designation. While the 
draft economic analysis identified many different Federal agencies 
having potential nexuses on some private property activities, the 
analysis considered the likelihood that critical habitat could trigger 
additional section 7 consultations based on the historical record of 
whether any of these nexuses or associated activities has triggered 
consultations in the past. In most cases, our section 7 consultations 
for the interior least tern, which occupies a significant portion of 
the area being designated as critical habitat for the shiner, involve 
many of the same activities that may affect shiner critical habitat. 
The only instance where the shiner critical habitat would result in 
new, incremental consultations within least tern habitat would involve 
projects that impede movement of the shiners or their reproductive 
products (e.g., eggs, larvae) but do not adversely impact abundance of 
other fishes used by the least tern as a food source. For example, a 
small channel dam or run-of-the-river hydropower project could 
influence distribution and abundance of shiners, but not necessarily 
other small fishes consumed by terns. In the absence of such 
activities, however, consultations required by shiner critical habitat 
will occur simultaneous with consultations for the least tern in those 
areas occupied both species.
    (58) Comment: Some commenters believed that we should have 
considered the effect of listing the shiner in our economic analysis.
    Our Response: We disagree that the economic impacts of the listing 
should be considered in the economic analysis for the designation of 
critical habitat. The Act is clear that the listing decision be based 
solely on the best available scientific and commercial data available 
(section 4(b) of the Act). Congress also made it clear in the 
Conference Report accompanying the 1982 amendments to the Act that 
``economic considerations have no relevance to determinations regarding 
the status of species * * *'' If we were to consider the economic 
impacts of listing in the critical habitat designation analysis it 
would lead to confusion, because the designation analysis is meant to 
determine whether areas should be excluded from the designation of 
critical habitat based solely upon the costs and benefits of the 
designation, and not upon the costs and benefits of listing a species. 
Additionally, because the Act specifically precludes us from 
considering the economic impacts of the listing, it would be improper 
to consider those impacts in the context of an economic analysis of the 
critical habitat designation. Our economic analyses address how the 
actions we are currently considering may affect current or planned 
activities and practices; they do not address impacts associated with 
previous Federal actions, which in this case includes the listing of 
the shiner as a threatened species. This method is consistent with the 
standards published by the Office of Management and Budget for 
preparing economic analyses under Executive Order 12866.
    (59) Comment: We received a comment that our draft economic 
analysis relied too much on our own resources for information at the 
expense of other established information sources.
    Our Response: The Act is clear that only the Federal government is 
required to consider the effect of its actions on critical habitat. As 
a result, we believe that only Federal government agency 
representatives are in a position to characterize whether or not any 
additional or re-initiated section 7

[[Page 18013]]

consultations may occur as a result of critical habitat designation. 
Because critical habitat in this case is composed principally of 
private lands, the only Federal agencies that could be affected by this 
designation are those that issue permits, fund, or authorize activities 
on private lands. The draft economic analysis found that the activities 
occurring on private land have very few Federal nexuses. Furthermore, 
few of the activities associated with these nexuses have required or 
are likely to require section 7 consultations. Consequently, the 
sources of available, useful information outside of the Service was 
limited for the analysis of this designation.
    (60) Comment: We received many comments from individuals expressing 
their concern that critical habitat designation will infringe on their 
rights as private property owners and that the designation could result 
in a reduction in their property's value.
    Our Response: Because only the Federal government is required to 
consider the effect of its actions on critical habitat we do not 
believe that the designation will result in any significant effects to 
private property owners. Only activities taking place on their property 
having some sort of Federal nexus could potentially be affected and 
experience has shown that the majority of such activities have rarely 
warranted enough concern to trigger a formal section 7 consultation. 
Activities occurring on private property that could result in the 
``take'' of a species, however, would still be subject to direct 
consultation with the Service, regardless of any connecting Federal 
nexus, under section 10 of the Act. Such requirements remain unaffected 
by the designation of critical habitat and as a result the impacts can 
not be attributed to this rulemaking.
    (61) Comment: The Environmental Protection Agency (EPA) indicated 
that we should evaluate Executive Order 12898, Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations, in our economic analysis.
    Our Response: Executive Order 12898 requires that each Federal 
agency make achieving environmental justice part of its mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects of its programs, 
policies, and activities on minorities and low-income populations. We 
do not believe that the designation of critical habitat for endangered 
and threatened species results in any changes to human health or 
environmental effects on surrounding human populations, regardless of 
their socioeconomic characterization. As such, we do not believe that 
Executive Order 12898 applies to critical habitat designations.
    (62) Comment: Some commenters believed that the draft economic 
analysis failed to adequately consider the effect that the designation 
would have on small businesses and rural communities.
    Our Response: The Regulatory Flexibility Act, as amended by the 
Small Business Regulatory Enforcement Fairness Act, generally requires 
an agency to prepare a regulatory flexibility analysis of any rule 
subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. We are certifying that this 
rule will in fact not have a significant economic impact on a 
substantial number of small entities and as a result, we do not need to 
prepare either an initial or final regulatory flexibility analysis. We 
have based our decision on the finding of the draft economic analysis 
and Addendum that this rule will not result in any significant 
additional burden to the regulated community, regardless of the size of 
the entity.

Issue 5: Site-Specific Issues

    The following comments and responses involve issues related to the 
inclusion or exclusion of specific streams reaches or our methods for 
selecting appropriate areas for designation as critical habitat.
    (63) Comment: The Arkansas River within the City of Wichita, KS, 
metropolitan area is unoccupied and is not suitable habitat for the 
Arkansas River shiner due to surface and groundwater contamination and 
the presence of water control structures that impede movement of the 
species.
    Our Response: During preparation of the proposed rule, we believed 
this section of the Arkansas River was inhabited by the Arkansas River 
shiner. Further examination of these specimens revealed that they were 
not Arkansas River shiners and the section of the Arkansas River 
through the City of Wichita is now no longer believed to be occupied by 
the species. In addition, two flow control structures exist within this 
reach that are likely physical barriers to the movement of Arkansas 
River shiner during normal and low flow conditions. One of these 
structures, the Lincoln Street Dam, also serves to impound the river 
for the purpose of maintaining constant water levels in the river 
throughout downtown Wichita and water depths are generally in excess of 
those preferred by the Arkansas River shiner. This reach of the river 
is also degraded by high nutrient loading and groundwater contamination 
and substrates in this reach are predominantly silt. Based on this 
information, we have excluded a 12.4-mile reach of the Arkansas River 
through the City of Wichita. However, the current mayor has made 
remediation a priority and the city is taking steps to improve water 
quality within this reach. Water quality improvements should facilitate 
improvement in habitat conditions in the river downstream of the city. 
The excluded section also remains important to recovery of the Arkansas 
River shiner because it serves to connect the upper section with the 
lower section during periods of high flow. Maintenance of this 
connection is essential to successful egg development and movement of 
juvenile Arkansas River shiners between the two sections, and will 
facilitate future efforts to restore Arkansas River shiners to this 
section of the Arkansas River. Considering the river functions to pass 
flood waters during elevated stream flow conditions, we do not 
anticipate that the city would propose modification of this reach to 
the point that connection between the upper and lower sections during 
elevated flows would no longer occur.
    (64) Comment: Designation of critical habitat in the Cimarron River 
provides no benefit. Restoration of the Cimarron and Arkansas rivers is 
not hydrologically feasible and these rivers do not qualify as critical 
habitat. Areas without sufficient flow should not qualify as critical 
habitat and should be excluded. How can rivers that do not always flow 
be habitat for the Arkansas River shiner?
    Our Response: As stated in our response to comment 35, these rivers 
and streams historically have portions that dry either seasonally, 
during drought conditions, or for other natural reasons. The species is 
adapted to this phenomenon and persist in isolated pools and tributary 
refugia only to recolonize the dewatered areas once flow resumes. 
Consequently, the absence of the Arkansas River shiner or other fishes 
from an area during certain periods or under certain conditions does 
not necessarily mean the reach is not suitable habitat.
    Arkansas River shiners successfully spawn during elevated flows but 
major overbank flood events are not necessary to ensure successful 
reproduction. Arkansas River shiners can, and do, spawn in isolated 
pools during the

[[Page 18014]]

summer but the reproductive effort is not likely to be successful. 
Flows in the Cimarron River and eastern portions of the Arkansas River 
basin in Kansas appear suitable for reproduction.
    As long as these drought and other adverse circumstances are 
temporary and not permanent, the shiner can recolonize reaches that 
were dewatered. Over the past several decades, the extent of areas in 
the Arkansas River basin that periodically lose flow has increased due 
to human alterations of the watersheds and stream channels and 
diversion of the streamflows. If sufficient areas of flow persist, and 
if all other habitat needs are met, then the stream is suitable for the 
species whether or not there is flow throughout all areas at all times.
    There are areas in the Cimarron and Arkansas rivers where flows are 
artificially altered by human diversion and uses, up to and including 
complete loss of flow. In some of these areas, changes in management 
may potentially increase duration of flows and the length of stream 
channel with permanent water, thus making them valuable for recovery 
and survival of Arkansas River shiner.
    (65) Comment: Although some comments supported inclusion of the 
adjacent riparian zone as critical habitat, many others were strongly 
opposed to this approach because the riparian zone should not be 
considered habitat for the Arkansas River shiner.
    Our Response: Riparian areas form the basis of healthy aquatic 
ecosystems and influence the primary constituent elements, therefore 
they are essential to the conservation of the species and may be 
included in a critical habitat designation. Streams and stream 
functioning are inextricably linked to adjacent riparian and upland 
areas. Streams regularly submerge portions of the riparian zone via 
floods and channel migration, and portions of the riparian zone provide 
seeds and insects eaten by shiners.
    The riparian zone also provides an array of important watershed 
functions that directly benefit plains fishes. Vegetation in the 
corridor shades the stream, stabilizes banks and provides organic 
litter and large woody debris. The riparian zone stores sediment, 
recycles nutrients and chemicals, mediates stream hydraulics and 
controls microclimate. Healthy riparian zones help ensure water quality 
essential to aquatic life. Human activities in the riparian zone can 
harm stream function and fishes by directly and indirectly interfereing 
with these important functions. For example grazing, cultivation, road 
building and similar disturbances can, although not always, increase 
sediment delivery, destabilize banks, reduce organic litter, simplify 
stream channels, increase peak flows and otherwise reduce the value of 
the habitat for stream fishes. In some instances, injury or mortality 
of fishes may occur. Because the riparian corridor is particularly 
susceptible to degradation from such activities, we concluded that the 
adjacent riparian corridor would require special management 
consideration and therefore was appropriate for inclusion in critical 
habitat.
    (66) Comment: Critical habitat in the Cimarron River in Oklahoma 
should be extended to a point at least one-half mile beyond the Lone 
Mountain/Safety Clean facility. Critical habitat in the Cimarron River 
in Oklahoma should be extended downstream to the Highway 412 crossing 
near the confluence of Eagle Chief Creek.
    Our Response: Because of the requirement for all proposed critical 
habitat designations to undergo public review and comment, areas 
normally are not added to the designation without an additional 
proposal. However, if restoration efforts are successful, existing 
Arkansas River shiner aggregations may expand and utilize additional 
segments of the Cimarron River downstream of the designated reach. We 
could amend critical habitat at a later date if information gained 
through the recovery planning process indicates such revisions are 
warranted. If, at that time, we believe a revision is warranted and 
funding available, we would propose revised critical habitat and 
consider all information provided, both on additional areas considered 
in the revision as well as areas included in the current designation, 
before a final rule is published. Based on the best available science 
at this time, we determine that the areas designated by this rule are 
sufficient to conserve the species. As stated in our response to 
comment 18, we do not currently anticipate a need to expand the present 
designation.
    (67) Comment: Critical habitat in the Canadian River (Unit 1a) 
should not include the area downstream of the U.S. Routes 87\287 
crossing to the mouth of Coetas Creek because this segment is within 
the operation pool of Lake Meredith. Critical habitat designation 
should not include the Canadian River in the Texas Panhandle.
    Our Response: The segment of the Canadian River from the mouth of 
Coetas Creek upstream to the vicinity of Ute Reservoir, NM, including 
the crossing of U.S. Routes 87\287, is occupied by a relatively stable 
aggregation of Arkansas River shiners. This segment contains all of the 
primary constituent elements needed by the Arkansas River shiner and is 
considered essential to conservation of the species. Because the area 
is already occupied by the species, protection under the Act within 
this section is already applicable regardless of the critical habitat 
designation. Additionally, the National Park Service, the primary land 
owner in the reach downstream of the U.S. Routes 87\287 crossing, 
requested the area be included because the designation would assist the 
National Park Service in future recovery of the species and management 
of its habitat (Karen P. Wade, Director, Intermountain Region, National 
Park Service, in litt. 2000).
    (68) Comment: Portions of the Arkansas River downstream of the 
Oklahoma\Kansas state boundary should be included in the designation.
    Our Response: These reaches are not suitable for the Arkansas River 
shiner due to the influence of flood control impoundments and stream 
channelization. Please see our discussion at Unit 4 under the 
``Critical Habitat Designation'' section.
    (69) Comment: Areas where the Arkansas River shiner has not been 
recorded from in the last two years should not be designated as 
critical habitat.
    Our Response: Failure to record Arkansas River shiner from specific 
locations in the past several years is generally indicative of low 
population levels but does not necessarily support a declaration of 
extirpation from the entire stream. Documentation of small populations 
is very difficult and often results in false declarations of 
extirpation (Mayden and Kuhajda 1996). At the least, this illustrates 
the need for caution in concluding that a population has been 
extirpated. Fish, particularly small species, are often very difficult 
to locate when population levels are very low.
    (70) Comment: Those streams proposed for designation of critical 
habitat that contain the nonnative Red River shiner does not meet the 
proposed constituent elements description of few or no predatory or 
competitive nonnative species present, and therefore do not qualify for 
designation as critical habitat.
    Our Response: The Cimarron River currently contains all of the 
primary constituent elements for the Arkansas River shiner, with the 
exception of the occurrence of the Red River shiner. We recognize the 
influence of this nonnative on the Arkansas River shiner and intend to 
investigate measures to control or remove the Red River shiner

[[Page 18015]]

prior to any attempts to reestablish the Arkansas River shiner. 
Although the lack of nonnative aquatic species is the best case 
scenario for the Arkansas River shiner, the mere presence of nonnative 
aquatic species does not eliminate an area from consideration as 
critical habitat. There is strong potential for enhancement of the 
Cimarron River to the point where it may once again support healthy 
populations of Arkansas River shiner.

Issue 6: Effects of Designation

    The following comments and responses involve issues related to the 
effects of critical habitat designation on land management or other 
activities.
    (71) Comment: The Service should clarify how critical habitat 
designation will affect private properties, private land uses, and 
management practices. Specific concerns raised included 
taking\confiscation of private property, imposed land use restrictions, 
reduced land values, limited or restricted surface and groundwater 
rights and ability to irrigate, supercede state's right to manage and 
regulate water, forced fencing of riparian zone, hamper individual 
decision-making capacity, forced land acquisition, further regulation 
of oil and gas industry, regulation of pesticides, restrict off-road 
and recreational vehicle use, require acquisition of water rights, 
prohibit or restrict farming operations such as cultivation, grazing, 
haying, pecan harvest, restrict aquaculture, and regulate CAFOs.
    Our Response: A critical habitat designation has no effect on 
situations where a Federal agency is not involved, for example, a 
landowner undertaking a project on private land that involves no 
Federal funding or permit. Individuals, organizations, States, local 
and tribal governments, and other non-Federal entities would 
potentially be affected by the designation of critical habitat only if 
their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding and the 
action has the potential to affect the species or its critical habitat. 
In this instance, Federal agencies are required to enter into section 7 
consultation with us. Effects of the designation on projects with a 
Federal nexus is explained in the ``Effect of Critical Habitat 
Designation'' section and in Comment (72).
    A critical habitat designation does not impose any additional 
regulatory burdens on private land other than those imposed by the 
species' listing. Private landowners continue to be free to manage 
their property as they see fit, using care to ensure that their land 
management practices do not result in take of listed species. Private 
actions on private property, such as those mentioned in the comment 
above, would generally be exempt from the regulatory provisions of the 
Act unless the actions involve Federal funds, Federal authorization, or 
some other Federal nexus, or if the individual is engaged in an 
activity that is likely to result in take of the Arkansas River shiner. 
The term ``take'' means to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct. Prohibitions against take of the species under section 9 of 
the Act would be present regardless of whether or not critical habitat 
has been designated. If areas designated as critical habitat are not 
occupied by Arkansas River shiners, no take in the form of harm or 
harassment would occur from activities on these areas and no section 9 
prohibitions would be in force. However, effects from activities in 
unoccupied habitat that extend downstream to areas occupied by a listed 
species could result in take, regardless of whether or not critical 
habitat has been designated. Although the legal definition of harm 
includes habitat modification, this applies only to the species and not 
to critical habitat. Critical habitat is not protected under the take 
prohibitions of section 9, and there is no regulatory effect of 
critical habitat on strictly non-Federal activities. If the action 
causing take does not involve a Federal nexus, a private party could 
seek a section 10(a)(1)(B) incidental take permit to legally take 
Arkansas River shiners incidental to otherwise lawful activities. When 
a Federal nexus is involved, consultation under the Act would be 
required.
    Within the delineated critical habitat boundaries for the Arkansas 
River shiner, only lands containing one or more of the primary 
constituent elements that are essential for the primary biological 
needs of the species are considered critical habitat. Existing human-
constructed features and structures within the critical habitat 
boundary, such as buildings, powerlines, roads, railroads, and others 
not currently containing one or more of the primary constituent 
elements are not considered critical habitat and are not included in 
the designation.
    Designation of critical habitat does not prescribe specific 
management actions but does serve to identify areas that are in need of 
special management considerations. Regarding grazing, we believe well-
managed livestock grazing is compatible with viable Arkansas River 
shiner populations and that certain types of grazing in riparian zones 
likely have minimal impacts. In fact, low to moderate grazing and 
seasonal or rotational grazing practices are compatible with many 
natural resource objectives. However, negative effects of overgrazing 
remain a concern (see ``Summary of Factors Affecting the Species'' 
section in the final listing determination (63 FR 64772)). In instances 
where water quality degradation may be occurring as a result of 
livestock grazing, fencing of the riparian area is one of many 
corrective measures which could be recommended. Designation of critical 
habitat does not result in the establishment of a refuge or wildlife 
management area and fencing of the riparian corridor is not anticipated 
to occur except in those isolated instances previously discussed.
    We are sensitive to the concerns of individuals concerning property 
rights and genuinely do not believe the designation of critical habitat 
will have significant effects beyond those imposed by the listing of 
the Arkansas River shiner. We will work with any landowner within the 
designated areas to help identify actions that would or would not 
likely result in take of the Arkansas River shiner, identify measures 
to conserve the shiner, and where appropriate, to develop Habitat 
Conservation Plans and associated permits under section 10 of the Act 
to authorize incidental take of the shiner. In unoccupied areas, 
individual landowners will not be affected unless a Federal nexus 
exists.
    (72) Comment: The Service should clarify how critical habitat 
designation will affect specific Federal activities and projects. 
Specific actions mentioned included construction and operation of 
watershed dams, farm program payments, government loans, technical 
assistance by Federal agencies, operation of flood control projects, 
operation of Federal dams, existing waste-water discharges, 
conservation plan compliance, and Lake Meredith Salinity Control 
project.
    Our Response: Section 7(a) of the Act requires Federal agencies to 
ensure that actions they fund, authorize, or carry out do not destroy 
or adversely modify critical habitat to the extent that the action 
appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Federal actions not affecting the 
species or its critical habitat, as well as actions on non-Federal 
lands that are not federally funded or permitted, will not require 
section 7 consultation and will not be affected. Specific Federal 
actions will need to be reviewed by the action

[[Page 18016]]

agency to determine if the species or its designated critical habitat 
would be affected. If the Federal action agency determines the proposed 
activity may affect the species or critical habitat, they will consult 
with us under section 7 of the Act. The implications of the 
consultation process on the various agencies would vary according to 
the nature of the project. If, during the consultation process, it is 
determined that the activity is likely to adversely modify critical 
habitat, we will work with the agency to modify the activity to 
minimize negative impacts to critical habitat. We will work with the 
agencies and affected public early in the consultation process to avoid 
or minimize potential conflicts and, whenever possible, find a solution 
which protects listed species and their habitat while allowing the 
action to go forward in a manner consistent with its intended purpose.
    Projects that were constructed or invoked before the listing of the 
Arkansas River shiner would not be affected by this designation except 
in those instances where the agency still retains some discretion or 
authority over the project. For these completed projects where affects 
to the species or critical habitat are anticipated, or a modification 
of the existing project is proposed, section 7 consultation would be 
required. Projects which have completed section 7 consultation but have 
not yet been fully constructed and the potential destruction or adverse 
modification of critical habitat for the Arkansas River shiner has not 
been addressed, section 7 consultation must be reinitiated with us.
    If a project was determined to adversely affect the Arkansas River 
shiner, or destroy or adversely modify its critical habitat, the action 
agency would initiate formal consultation with us. We would then 
prepare a biological opinion, pursuant to 50 CFR 402.14 (h) and (i). If 
incidental take of a listed species was involved, we would provide 
reasonable and prudent measures in an incidental take statement to 
minimize take and its effects. Under the terms of sections 7(b)(4) and 
7(o)(2), taking that is incidental to and not intended as part of the 
agency action is not considered taking within the bounds of the Act, 
provided that such taking is in compliance with an incidental take 
statement in a biological opinion.
    If we determine during formal consultation that a project would 
jeopardize the continued existence of a listed species, we would seek 
to develop reasonable and prudent alternatives to avoid jeopardy. Such 
reasonable and prudent alternatives might require project 
modifications. Implementation of reasonable and prudent measures and 
alternatives are not discretionary. However, discretionary measures to 
minimize or avoid adverse effects of a proposed action on listed 
species or critical habitat would be provided as conservation 
recommendations in the biological opinion.
    We are required to deliver a biological opinion, which concludes 
consultation, to the action agency within 135 days of receipt of a 
request for formal consultation (50 CFR 402.14(e)). If the action 
agency incorporates consultation into their planning process and 
consultation is initiated early, project delays are unlikely. Meetings 
with us, preparation of documents, and implementation of any reasonable 
and prudent alternatives or measures identified in the biological 
opinion may result in some additional project costs.
    Large water development projects virtually always involve a Federal 
agency through funding, permitting, or other action. Therefore, future 
construction and ongoing operation of Federal reservoirs should be 
evaluated by the action agency for impacts to the species or its 
critical habitat, and, where impacts occur, these actions would undergo 
consultation under section 7 of the Act. If feasible, modifications to 
these projects will be sought to ensure that the ecosystems upon which 
this species depends are conserved. However, if no adverse impacts 
would occur, or if the affected habitat is unoccupied and unsuitable, 
further consultation under section 7 would be unlikely.
    (73) Comment: Designation of critical habitat will bring a rash of 
lawsuits.
    Our Response: Section 11(g) of the Act allows citizens or 
organizations seeking redress in those instances where they contend 
that no action, limited action, or inappropriate action is putting 
listed species at risk. The individual or organization making such 
claims is required to present information to support its position.
    (74) Comment: We cannot guarantee that funds will be available for 
species management and recovery or to reimburse funds expended on 
management and to offset economic losses. Designation of critical 
habitat will hinder, complicate, or delay recovery.
    Our Response: We agree that listing does not guarantee that 
additional funding will become available to implement appropriate 
management of the species, such as that which may be recommended in an 
approved recovery plan. The listing does, however, raise the level of 
awareness about the species' plight and allows us to spend funds from 
our budget designated for listed species management and protection. It 
also increases the likelihood that other involved Federal, State, and 
private organizations will dedicate more funds to recovery of the 
Arkansas River shiner. Section 7 of the Act provides mandatory 
protection from any federally permitted, authorized, funded or carried 
out activity that would cause jeopardy or adverse modification of 
critical habitat, as explained above. In fact, the Service, U.S. Army 
Corps of Engineers, and the Bureau of Reclamation have already provided 
funding for implementation of conservation actions for the species. We 
do not believe the designation will hinder or delay recovery.
    (75) Comment: Does the listing and critical habitat designation 
allow the Service to be granted access to private property or allow 
trespass?
    Our Response: No. We do not condone entering private land without 
landowner permission.
    (76) Comment: Designation of critical habitat will prohibit 
hunting, fishing, hiking, off-road vehicle use and other forms of 
recreation. Off-road vehicle use is not affecting the Arkansas River 
shiner.
    Our Response: As stated in the final listing determination (63 FR 
64772), we believe that normal, lawfully authorized recreational 
activities such as hunting, and fishing, do not result in take of the 
Arkansas River shiner and would not be prohibited under section 9 of 
the Act. These activities do not generally impact or destroy the 
physical habitat for the shiner. However, although specific studies are 
lacking, heavy recreation use may be adversely impacting the stream and 
habitat for the Arkansas River shiner, particularly during periods of 
low flow. Within areas occupied by the shiner, recreational and off-
road vehicle use within the river bed to the extent that habitat for 
the Arkansas River shiner is adversely impacted could be a violation of 
section 9.
    The Lake Meredith National Recreation Area is managed by the 
National Park Service. Consequently, the National Park Service has an 
obligation under section 7 of the Act to evaluate its activities for 
possible effects on listed species. We do not anticipate that 
recreational activities at the Lake Meredith National Recreation Area 
or other Federal reservoirs would be significantly altered as a result 
of evaluations under section 7.
    (77) Comment: Even though the lateral extent only includes a 300-
foot riparian corridor, the implications of the designation appear to 
apply to the entire watershed of the streams designated as

[[Page 18017]]

critical habitat, including their tributaries.
    Our Response: Habitat quality within the mainstem river channels is 
directly and indirectly related to the character of the floodplain and 
the associated tributaries, side channels, and backwater habitats. 
Consequently activities occurring in the entire watershed can influence 
stream flow, habitat quality, and other key habitat features (e.g., 
substrate type and water quality). Federal agencies are responsible for 
ensuring that their activities do not jeopardize the continuing 
existence of the shiner or destroy or adversely modify it designated 
critical habitat. Some activities which occur within a watershed would 
likely have an impact on the species or its critical habitat and must 
undergo section 7 consultation. Although activities within the 
watershed may affect the critical habitat, it is not our intent to 
designate areas outside of the floodplain as critical habitat.
    (78) Comment: How will designation affect commercial minnow 
dealers?
    Our Response: As stated in the final listing determination (63 FR 
64772), we anticipate that listing of the Arkansas River shiner would 
only have minimal effects on the activities of the commercial minnow 
industry. Commercial minnow harvest does not generally lead to habitat 
impacts and the designation of critical habitat is not likely to have 
any effect on commercial harvest of bait fish.
    (79) Comment: The designation of critical habitat will result in 
control of, or ``taking'' of, private property in violation of the 
rights granted under the Fifth and Tenth Amendments to the U.S. 
Constitution.
    Our Response: This designation will not ``take'' private property. 
The designation of critical habitat affects only Federal agency 
actions. Please see our discussion under the section entitled 
``Takings.''

Issue 7: Designation of Critical Habitat on Tribal Land

    (80) Comment: One commenter questioned why we did not propose to 
designate critical habitat on tribal lands but proposed critical 
habitat on other private lands when the designation would have the same 
effects on both.
    Our Response: Under the Presidential Memorandum of April 29, 1994, 
and Executive Order 13175, we have an obligation to consult with tribes 
on a government-to-government basis and believe that fish, wildlife, 
and other natural resources on tribal lands are better managed under 
tribal authorities, policies, and programs than through Federal 
regulation. We believe that designating tribal land for the Arkansas 
River shiner provides very little benefit to the species and would 
compromise the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the Arkansas River shiner depends.

Issue 8: Recovery

    The following comments and responses involve issues related to 
recovery and recovery planning for the Arkansas River shiner. Although 
not relevant to the designation of critical habitat, we chose to 
address some of the comments related to this issue.
    (81) Comment: Some comments expressed concern regarding 
implementation of unfavorable recovery actions or noted that the 
details, costs, and recovery goals of the recovery program were missing 
from the proposed rule. Others mentioned specific tasks, such as 
further research, captive propagation, control of salt cedar (Tamarix 
sp.), stream flow restoration, control of non-native fishes, and 
restoration of the Arkansas River shiner to unoccupied habitat, which 
we might implement during recovery.
    Our Response: The Secretaries of the Interior and Commerce set 
forth an interagency policy to minimize social and economic impacts of 
the Act consistent with timely recovery of listed species on July 1, 
1994 (59 FR 34272). Consistent with this policy, we intend to work 
closely with stakeholders throughout the Arkansas River basin regarding 
development of recovery actions for the Arkansas River shiner and will 
strive to balance implementation of those recovery actions with social 
and economic concerns.
    The ultimate purpose of listing a species as threatened or 
endangered under the Act is to recover the species to the point at 
which it no longer needs the protections provided to the listed 
species. The Act mandates the conservation of listed species through 
different mechanisms. Section 4(f) of the Act authorizes us to develop 
and implement recovery plans for listed species. A recovery plan 
delineates reasonable actions which are believed to be required to 
recover and\or protect listed species and may address measures 
specifically mentioned during the comment period. Recovery plans do 
not, of themselves, commit personnel or funds nor obligate an agency, 
entity, or person to implement the various tasks listed in the plan. 
Recovery plans serve to bring together Federal, State, and private 
stakeholders in the development and implementation of conservation 
actions for the species. The plan establishes a framework for agencies 
to coordinate activities, and cooperate with each other in conservation 
efforts, set recovery priorities, and estimate costs of various tasks 
necessary to accomplish the goals of the plan. The plan will describe 
site specific management actions necessary to achieve conservation and 
survival of the species. One of the main emphases of recovery plans is 
to address threats affecting the survival of the species and to remove 
or minimize their influence. However, we have no intention of restoring 
these ecosystems to pristine conditions. The recovery plan also will 
identify delisting criteria.
    In the ``Available Conservation Measures'' section of the final 
listing determination, we listed four general conservation measures 
that could be implemented to help conserve the Arkansas River shiner. 
While this list does not constitute the entire scope of a recovery plan 
as discussed in the provisions of section 4(f) of the Act, it does 
provide an indication of measures we intend to investigate during 
preparation of a recovery plan.
    Future conservation and recovery of the shiner will emphasize 
remaining aggregations and habitats in the Canadian, Cimarron, and 
Beaver\North Canadian Rivers. We also intend to address the 
implications of groundwater withdrawals and diversions of surface water 
during the recovery process. Generally, we will support and encourage 
the States in their efforts to increase irrigation efficiency and 
improve conservation of groundwater sources in the High Plains. 
Conservation of the High Plains aquifer, and the resulting benefits to 
streamflow within the Arkansas River basin, will not occur without the 
participation of the States. We believe voluntary conservation of the 
groundwater resource will be more effective in recovery efforts for the 
Arkansas River shiner than restricting or otherwise regulating 
withdrawals.
    Introductions of non-indigenous species will be closely monitored. 
Where needed, we will develop and implement measures to minimize or 
eliminate the accidental or intentional release of these species. 
Studies will be initiated to determine the feasibility of, and 
techniques for, eradicating or controlling Red River shiners in the 
Cimarron River. If control or eradication is feasible, a control 
program will likely be implemented.
    As stated in the following section entitled ``Methods'', we have 
already begun steps to evaluate and study

[[Page 18018]]

captive propagation of the Arkansas River shiner using the non-native 
Pecos River population. And we have begun participating in a joint 
effort to investigate the feasibility of controlling salt cedar as a 
means of enhancing stream flow in western portions of the basin. The 
State of Texas also has initiated similar efforts in the Canadian 
River.
    (82) Comment: Recovery of the species is too costly and recovery is 
not guaranteed by listing or through the recovery process. The Service 
should involve stakeholders in meetings and in the development of 
recovery actions.
    Our Response: Regulations at 50 CFR 424.11(b) require the Secretary 
of the Interior to make listing decisions based on ``the best available 
scientific and commercial information regarding a species' status, 
without reference to possible economic or other impacts of such 
determination.'' Neither the Act nor implementing regulations allows us 
to consider the recovery potential or recovery cost for a species in 
determining whether a species should be listed.
    It is our policy (59 FR 34270) to solicit active participation by 
the scientific community, local, State, and Federal agencies, Tribal 
governments, and other interested parties in the development and 
implementation of recovery plans. Because the Arkansas River shiner 
occurs primarily on private property, we fully realize that recovery of 
this species will depend upon local community support and the voluntary 
cooperation of private landowners, and we welcome them as cooperators 
in the recovery effort. We will work closely with stakeholders in the 
management and recovery of the Arkansas River shiner to ensure that the 
concerns of local governments, citizens, and others are considered. 
Technical assistance will be provided to those property owners and land 
managers who wish to implement conservation measures for this species.
    (83) Comment: Use the Safe Harbor program to save species.
    Our Response: A Safe Harbor Agreement is a voluntary arrangement 
between us and cooperating non-Federal landowners designed to promote 
voluntary management of listed species (64 FR 52676). Through this 
process, we will authorize any necessary future incidental take while 
providing participating landowners with assurances that no additional 
restrictions will be imposed as a result of their conservation actions. 
We intend to utilize Safe Harbor Agreements to the extent practical 
during conservation of the Arkansas River shiner. In fact, the City of 
Wichita has already expressed interest in pursuing this program within 
the metropolitan area.
    (84) Comment: The Service handled recovery poorly by waiting until 
after the settlement agreement to begin recovery planning. The Service 
has completed most of the recovery plan without public involvement.
    Our Response: We are currently in the process of assembling a 
recovery team and drafting a recovery plan for the Arkansas River 
shiner. This draft recovery plan will include a more thorough analysis 
of recovery needs of the shiner. We did not wait until after the 
settlement agreement to begin recovery planning. We prepared, at the 
time of the final listing determination, a recovery outline for the 
shiner and have begun to implement some preliminary recovery tasks 
identified in the outline. Recovery outlines are brief internal 
planning documents that are prepared within 60 days after the date of 
publication of the final rule. These documents are intended to direct 
recovery efforts pending completion of the recovery plan. We have not, 
to this point, completed or even begun drafting a recovery plan. 
Considering the first two sections of a recovery plan present 
information on the biology, life history, and threats to the species, 
the final listing determination and this document will be used in the 
preparation of these sections. As such, much of the work required to 
draft a recovery plan has been completed. However, an implementation 
schedule, which details estimates of the time required to complete 
identified tasks and costs to carry out those measures needed to 
achieve the plan's goal is far from complete. We hope to utilize the 
expertise of the many stakeholders in the completion of this section of 
the plan. Once a recovery plan for the Arkansas River shiner has been 
developed, the plan will be available for public review and comment 
prior to adoption.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) 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 area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. The term ``conservation,'' as defined in section 3(3) of the 
Act, means ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary'' (i.e., the species is recovered and removed from the list 
of endangered and threatened species).
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We can 
exclude areas from critical habitat designation if we determine that 
the benefits of exclusion outweigh the benefits of including the areas 
as critical habitat, provided the exclusion will not result in the 
extinction of the species.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. We will not 
speculate about what areas might be found to be essential if better 
information became available, or what areas may become essential over 
time. If the information available at the time of designation does not 
show that an area provides essential life cycle needs of the species, 
then the area should not be included in the critical habitat 
designation.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and

[[Page 18019]]

commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information should be the listing package 
for the species. Additional information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, and 
biological assessments or other unpublished materials (i.e., gray 
literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under Section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the Section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    In finalizing critical habitat for the Arkansas River shiner, we 
reviewed the overall approach to the conservation of the species 
undertaken by local, State, tribal, and Federal agencies and private 
individuals and organizations since the species' listing in 1998. We 
also solicited information from knowledgeable biologists and reviewed 
the available information pertaining to habitat requirements of the 
species. This final critical habitat designation described below 
constitutes our best assessment of areas essential for the conservation 
of the Arkansas River shiner and is based on the best scientific and 
commercial information available. The areas designated are currently 
within or outside of the geographical range occupied by the species and 
contain one or more of the primary constituent elements identified in 
the ``Primary Constituent Elements'' section below. All of the areas 
designated as critical habitat are within the area historically 
occupied by the species and require special management consideration 
and protection to ensure their contribution to the species' recovery.
    Important considerations in selection of areas included in the 
critical habitat designation include factors specific to each river 
system, such as size, connectivity, and habitat diversity, as well as 
rangewide recovery considerations, such as genetic diversity and 
representation of all major portions of the species' historical range. 
Each area contains stream reaches with interconnected waters so that 
individual Arkansas River shiners can move between areas, at least 
during certain flows or seasons. The ability of the fish to repopulate 
areas where they have been depleted or extirpated is vital to recovery. 
Some areas include stream reaches that do not have optimum Arkansas 
River shiner habitat, but provide migration corridors. Additionally, 
these reaches play a vital role in the overall health of the aquatic 
ecosystem and, therefore, the integrity of upstream and downstream 
Arkansas River shiner habitats. This critical habitat designation 
reflects the need for areas of sufficient stream length to provide 
habitat for Arkansas River shiner populations large enough to be self-
sustaining over time, despite fluctuations in local conditions.
    In considering this designation, we took into account that 
preferred habitat for the Arkansas River shiner is the mainstems of 
larger plains rivers. The best scientific information available 
indicates that recovery of this species will depend on conservation of 
relatively long stretches of large rivers (Platania and Altenbach 
1998). Historically, the species has been documented from several 
smaller tributaries (e.g. Skeleton Creek, Wildhorse Creek, and others) 
to these rivers (Larson et al. 1991). Examination of the collection 
records provided in Larson et al. (1991) shows that about 53 percent of 
the reported capture dates for Arkansas River shiner in these smaller 
tributaries occurred during the months of June and July. Another 18 
percent occurred during the months of May and August. Consequently, we 
believe that these tributaries are occupied only during certain seasons 
during higher flows and do not represent optimum habitat. These 
seasonally occupied habitats may be important feeding, nursery, or 
spawning areas and all tributaries, no matter their size, are important 
in contributing flows to the critical habitat reaches. Federal actions 
which may substantially reduce these flows may adversely affect 
critical habitat and will be subject to consultation provisions 
outlined in section 7 of the Act. Considering newly hatched Arkansas 
River shiner seek mouths of tributaries where food is more abundant 
(Moore 1944), this designation (see ``Lateral Extent of Critical 
Habitat'' section) includes small sections of the tributaries near 
their confluence, which are important rearing areas for larval Arkansas 
River shiner.
    Stabilization of the Arkansas River shiner at its present 
population level and distribution will not achieve conservation. The 
overall trend in the status of the Arkansas River shiner has been 
characterized by dramatic declines in numbers and range despite the 
fact that this species evolved in rapidly fluctuating, harsh 
environments. None of the threats affecting the Arkansas River shiner 
have been eliminated since the fish was listed; consequently, known 
Arkansas River shiner aggregations remain fragmented and isolated to 
essentially one river system and are vulnerable to those natural or 
manmade factors that might further reduce population size. If recovery 
actions fail to reverse Arkansas River shiner declines in the 
Canadian\South Canadian River, the species' vulnerability to 
catastrophic events, such as the introduction of the Red River shiner, 
or a prolonged period of low or no flow, would increase. Recovery 
through protection and enhancement of the existing populations, plus 
reestablishment of

[[Page 18020]]

populations in suitable areas of historical range, are necessary for 
the species' survival and recovery. As we stated in the listing rule 
(November 23, 1998; 63 FR 64772), transplantation of Arkansas River 
shiners from the Pecos River will be evaluated as a means to recover 
the Arkansas River shiner in unoccupied portions of its historic 
habitat. In addition, our recovery outline for the species identified 
re-establishing the Arkansas River shiner into suitable unoccupied 
historic habitat as a crucial component of recovery. In accordance with 
the outline, we have undertaken steps to develop and document captive 
propagation techniques for the Arkansas River shiner. In November 1999, 
with the assistance of the NM Game and Fish Department, we collected 
over 300 Arkansas River shiners from the Pecos River. These fish were 
transported to the Tishomingo National Fish Hatchery in OK where 
hatchery personnel were successful in inducing spawning of the species 
and coaxing the juveniles to feed in captivity. Future restoration 
efforts will undoubtedly occur, pending completion of an approved 
recovery plan and genetic work to determine the suitability of using 
Arkansas River shiners from the Pecos River population in 
transplantation efforts.
    The inclusion of areas both within and outside of the geographical 
range occupied by the Arkansas River shiner in this designation of 
critical habitat is in accordance with the Act. Restoration of Arkansas 
River shiner populations to additional portions of their historical 
range significantly reduces the likelihood of extinction due to any 
natural or manmade factors that might otherwise further reduce 
population size. A vital recovery component for this species will 
likely involve establishment of secure, self-sustaining populations in 
habitats from which the species has been extirpated. We believe 
excluding areas outside the currently occupied range of the Arkansas 
River shiner from the critical habitat designation would be inadequate 
to ensure the conservation of the species. Therefore, we determine that 
the unoccupied areas designated as critical habitat are essential for 
the conservation of the species.

Critical Habitat Designation

    Table 1 shows approximate river lengths of occupied and unoccupied 
habitat in each county in which critical habitat is designated. The 
designation encompasses approximately 1,846 km (1,148 mi) of stream 
channels and adjacent areas (see Lateral Extent of Critical Habitat, 
below). However, the amount of stream channel actually designated as 
critical habitat is less than this amount because in Oklahoma we 
derived these figures from adding county totals, and where the river 
forms a county boundary, that length is included in both county totals.
    The critical habitat designation is divided among five reaches 
found within portions of four river systems. The areas we selected for 
critical habitat designation contain most, if not all, of the remaining 
genetic diversity within the Arkansas River Basin and include a 
representation of each major subbasin within the historical range of 
the species. The designation incorporates more than 95 percent of the 
currently known aggregations of Arkansas River shiner in the Arkansas 
River basin, including the remnant populations that may still persist 
in the Cimarron and Beaver/North Canadian Rivers. The designation also 
includes areas outside of the geographical range currently occupied by 
the Arkansas River shiner in the Arkansas, Cimarron, and Beaver/North 
Canadian Rivers that are considered essential for future conservation 
of the species.
    The range, numbers, and presumably genetic diversity of the species 
have already been much reduced. Noss and Cooperrider (1994) identified 
reduced genetic diversity as one of the factors which predispose small 
populations to extinction. Therefore, to conserve and recover the 
fishes to the point where they no longer require the protection of the 
Act and may be delisted, it is important to maintain and protect all 
remaining genetically diverse populations of this species.

 Table 1.--River Distances, by County, for Occupied and Unoccupied Designated Critical Habitat for the Arkansas
                                                  River Shiner
             [Information derived from USGS National Atlas 1:2,000,000 scale hydrography data sets]
----------------------------------------------------------------------------------------------------------------
                                            Occupied                 Unoccupied                   Total
              County               -----------------------------------------------------------------------------
                                     Kilometers     Miles      Kilometers     Miles      Kilometers     Miles
----------------------------------------------------------------------------------------------------------------
Kansas:
    Barton........................  ...........          0.0         44.4         27.5         44.4         27.5
    Clark.........................         20.7         12.8          9.2          5.7         29.9         18.5
    Comanche......................  ...........          0.0          9.8          6.1          9.8          6.1
    Cowley........................  ...........          0.0         45.4         28.1         45.4         28.1
    Edwards.......................  ...........          0.0         38.4         23.8         38.4         23.8
    Finney........................  ...........          0.0         42.5         26.4         42.5         26.4
    Ford..........................  ...........          0.0           67         41.5           67         41.5
    Gray..........................  ...........          0.0         41.6         25.8         41.6         25.8
    Hamilton......................  ...........          0.0         20.5         12.7         20.5         12.7
    Kearny........................  ...........          0.0         44.3         27.5         44.3         27.5
    Kiowa.........................  ...........          0.0          .37          .23         0.37          .23
    Meade.........................         28.6         17.7  ...........          0.0         28.6         17.7
    Pawnee........................  ...........          0.0         48.1         29.8         48.1         29.8
    Reno..........................  ...........          0.0         54.3         33.7         54.3         33.7
    Rice..........................  ...........  ...........         32.3         20.0         32.3         20.0
    Sedgwick......................  ...........  ...........         53.3         33.0         53.3         33.0
    Seward........................           15          9.3  ...........          0.0           15          9.3
    Sumner........................  ...........          0.0         32.1         19.9         32.1         19.9
                                   -----------------------------------------------------------------------------
      Sub-total...................         64.3         39.8       583.57        361.7       647.87        401.5
New Mexico:
    Quay..........................         51.8         32.1  ...........  ...........         51.8         32.1
      Sub-total...................         51.8         32.1  ...........  ...........         51.8         32.1

[[Page 18021]]

 
Oklahoma:
    Beaver........................        137.7         85.4  ...........          0.0        137.7         85.4
    Blaine........................         40.3         25.0  ...........          0.0         40.3         25.0
    Caddo.........................          0.8          0.5  ...........          0.0          0.8          0.5
    Canadian......................         71.4         44.3  ...........          0.0         71.4         44.3
    Cleveland.....................         81.2         50.3  ...........          0.0         81.2         50.3
    Custer........................          9.6          6.0  ...........          0.0          9.6          6.0
    Dewey.........................         98.3         60.9  ...........          0.0         98.3         60.9
    Ellis.........................         84.3         52.3  ...........          0.0         84.3         53.4
    Grady.........................           37         22.9  ...........          0.0           37         22.9
    Harper........................         61.9         38.4         26.3         16.3         88.2         54.7
    Hughes........................           70         43.4  ...........          0.0           70         43.4
    Major.........................  ...........          0.0          3.4          2.1          3.4          2.1
    McClain.......................        104.1         64.5  ...........          0.0        104.1         64.5
    McIntosh......................          8.2          5.1  ...........          0.0          8.2          5.1
    Pittsburg.....................           27         16.7  ...........          0.0           27         16.7
    Pontotoc......................         80.4         49.8  ...........          0.0         80.4         49.8
    Pottawatomie..................         44.5         27.6  ...........          0.0         44.5         27.6
    Roger Mills...................         84.3         52.3  ...........          0.0         84.3         52.3
    Seminole......................         48.5         30.1  ...........          0.0         48.5         30.1
    Texas.........................         16.1         10.0  ...........          0.0         16.1         10.0
    Woods.........................  ...........          0.0        214.9        133.2        214.9        133.2
    Woodward......................          1.9          1.2        127.6         79.1        129.5         80.3
                                   -----------------------------------------------------------------------------
      Sub-total \1\...............       1107.5        686.7        372.2        230.8       1479.7        918.5
Texas:
    Hemphill......................         35.8         22.2  ...........  ...........         35.8         22.2
    Oldham........................        115.7         71.7  ...........  ...........        115.7         71.7
    Potter........................           47         29.1  ...........  ...........           47         29.1
                                   -----------------------------------------------------------------------------
      Sub-total...................        198.5        123.0  ...........  ...........        198.5        123.0
                                   =============================================================================
          Total \1\...............       1507.7        934.6        870.2        539.5       2377.9      1475.1
----------------------------------------------------------------------------------------------------------------
\1\ Note: Totals and subtotals are higher for Oklahoma than the actual lengths designated as critical habitat
  because, where the river forms a county boundary, that length is included in the table more than once.

    For each stream reach designated, the up-and downstream boundaries 
are described below. The distances below are approximate due to the 
meandering and dynamic nature of the river reaches. Uncertainty on 
upstream and downstream distributional limits of some Arkansas River 
shiner populations may result in small areas of occupied habitat being 
excluded from the designation. Similarly, the need to identify 
sufficient reference points that define the specific limits of the 
designation also may result in small areas of occupied habitat being 
excluded from the designation. Finally, as described previously, this 
critical habitat designation is focused on mainstem rivers, so we have 
not included some smaller tributaries that may at least seasonally 
support Arkansas River shiner, but are not considered essential for the 
conservation of this species.
    In some instances, areas outside of critical habitat that contain 
one or more of the primary constituent elements may still be important 
to the conservation of the Arkansas River shiner even if they are not 
designated as critical habitat. These areas may be of value in 
maintaining ecosystem integrity and supporting other organisms 
indirectly contributing to recovery of the species. Additionally, these 
areas may have those missing elements restored in the future. We have 
not included these areas in the critical habitat designation because we 
have determined that they are not essential to the conservation of the 
species. However, we anticipate that these areas can be adequately 
protected under the Act through section 7 consultation, the section 9 
prohibition against taking listed species, and the section 10 habitat 
conservation planning process, and through other appropriate State and 
Federal statutes and regulations.
    We designate the following areas as critical habitat for the 
Arkansas River Basin population of the Arkansas River shiner (see the 
``Regulation Promulgation'' section of this rule for exact descriptions 
of boundaries).
    1. Canadian/South Canadian River, NM, TX, and OK. The Canadian/
South Canadian River from near Ute Dam in NM to the upper reaches of 
Eufaula Reservoir in OK, except for those areas rendered unsuitable for 
Arkansas River shiner by Lake Meredith in TX, is currently occupied by 
the Arkansas River shiner. These are the largest, perhaps only, 
remaining viable aggregations of Arkansas River shiner, and are 
considered to represent the ``core'' of what remains of the species. 
Smaller tributary streams, with the exception of Revuelto Creek in NM 
and small sections of the tributaries near their confluence may be 
seasonally occupied by the Arkansas River shiner.
    a. Canadian River, Quay County, NM, and Oldham and Potter Counties, 
TX--215 km (134 mi) of river extending from U.S. Highway 54 bridge near 
Logan, NM, downstream to confluence with Coetas Creek, TX. Seepage from 
Ute Reservoir, inflow from Revuelto Creek,

[[Page 18022]]

and several springs help sustain perennial flow in most years. There 
are occasional periods of no flow, and prior to 1956, low flows in the 
lower section were historically maintained by effluent from the 
Amarillo, TX, wastewater treatment plant. This segment of the Canadian 
River, despite flows having been modified by Conchas and Ute 
reservoirs, still supports a largely intact plains river fish fauna.
    We did not include the following areas in the designation. Upstream 
of Ute Reservoir, the Canadian River was substantially modified 
following the construction of Conchas Reservoir and likely provides 
little suitable habitat. A small portion of Arkansas River shiner 
historical range occurs upstream of Conchas Reservoir, but the 
suitability of that reach for Arkansas River shiner is unknown. No 
extant aggregations of Arkansas River shiner are known from that reach. 
Arkansas River shiners still occur in portions of the 3.2 km (2 mi) 
reach between the U.S. Highway 54 bridge and Ute Dam, above the reach 
designated as critical habitat. We do not consider this section of the 
stream to be essential to the conservation of the species since it 
rarely contains suitable habitat due to the influence of Ute Reservoir.
    b. Canadian/South Canadian River, Hemphill County, TX, and Blaine, 
Caddo, Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Hughes, 
McClain, McIntosh, Pittsburg, Pontotoc, Pottawatomie, Roger Mills, and 
Seminole Counties, OK--593 km (368 mi) of river extending from the U.S. 
Highway 60/83 bridge near Canadian, TX, downstream to the Indian Nation 
Turnpike bridge northwest of McAlester, OK. This segment of the 
Canadian/South Canadian River is the longest unfragmented reach in the 
Arkansas River basin that still supports the Arkansas River shiner. 
Here, Arkansas River shiner range from rare to common, with the species 
becoming more abundant in a downstream direction.
    We did not include the following reaches in the designation. The 
Canadian River upstream of the community of Canadian, TX, to Sanford 
Dam at Lake Meredith, supported Arkansas River shiner prior to the 
construction of Lake Meredith. However, habitat in this segment is 
degraded and generally unsuitable. Some aggregations of Arkansas River 
shiner may still persist upstream of Canadian, TX, primarily on a 
seasonal basis and in extremely small numbers. Altered flow regimes 
will continue to affect habitat quality in this reach. Aggregations of 
Arkansas River shiner also persist in the 49 km (30 mi) section of the 
South Canadian River from the Indian Nation Turnpike bridge downstream 
to the upper limits of Eufaula Reservoir. However, the downstream 
distributional limit of these populations frequently fluctuates. 
Management of water surface elevations in Eufaula Reservoir for flood 
control and the resultant backwater effects routinely alter stream 
morphology at the downstream extent of the population. Under elevated 
surface water conditions, the lower reaches of this segment are 
degraded or may be entirely unsuitable for Arkansas River shiner.
    2. Beaver/North Canadian River, Beaver, Ellis, Harper, Major, 
Texas, and Woodward Counties, OK--259 km (161 mi) of river extending 
from Optima Dam in Texas County, OK, downstream to U.S. Highway 60/281 
bridge in Major County, OK. Almost the entire Beaver/North Canadian 
River mainstem and at least one of the major tributaries (Deep Fork 
River) in OK was historically known to support Arkansas River shiner 
aggregations. A small population may still persist between Optima Dam 
and the upper reaches of Canton Reservoir, based on the collection of 
four individuals since 1990. At present, habitat in large areas of the 
drainage are degraded or unsuitable, either because of reservoirs, 
reduced stream flow, or water quality impairment. The segment between 
Optima Dam and the upper reaches of Canton Reservoir offers the best 
opportunity for recovery of the Arkansas River shiner in the Beaver/
North Canadian River. Habitat in this reach appears suitable although 
detailed studies have not yet been conducted. Recovery activities will 
include augmenting existing aggregations of the Arkansas River shiner 
and reestablishing additional populations in this system. Designation 
of the unoccupied areas of this reach reflects the need for areas of 
sufficient stream length to provide habitat for Arkansas River shiner 
populations large enough to be self-sustaining over time, despite 
fluctuations in local conditions.
    We did not include the following reaches in the designation. Above 
Optima Reservoir, pumping from the High Plains aquifer has considerably 
reduced streamflow in the Beaver River (Luckey and Becker 1998), and 
the habitat is no longer suitable for Arkansas River shiner.
    3. Cimarron River, Clark, Comanche, Meade, and Seward Counties, KS, 
and Beaver, Harper, Woods, and Woodward, Counties, OK--215 km (134 mi) 
of river extending from U.S. Highway 54 bridge in Seward County, KS, 
downstream to U.S. Highway 281 bridge in Woods County, OK. 
Historically, almost the entire Cimarron River mainstem and several of 
the major tributaries were inhabited by the Arkansas River shiner, 
including the type locality for the species (the area from which the 
specimens that were used to first describe the species were taken). A 
small population of Arkansas River shiner could still persist in the 
Cimarron River in OK and KS, based on the collection of nine 
individuals since 1985. Arkansas River shiners were last reported from 
the Cimarron River in 1992. At present, habitat appears suitable 
throughout most of the system, but detailed studies have not yet been 
conducted. Recovery activities for Arkansas River shiner will likely 
include augmenting existing populations and reestablishing additional 
aggregations in this system or the Arkansas River in KS. Lack of 
adequate streamflow in both systems and the presence of Red River 
shiners in the Cimarron River will hinder recovery efforts in these two 
rivers. The introduction of the Red River shiner, in combination with 
habitat loss and degradation, was responsible for the diminished 
distribution and abundance of the Arkansas River shiner in the Cimarron 
River. The Red River shiner, a small minnow endemic to the Red River, 
was first recorded from the Cimarron River in Kansas in 1972 (Cross et 
al. 1985) and from the Cimarron River in Oklahoma in 1976 (Marshall 
1978). Since that time, the nonindigenous Red River shiner has 
essentially replaced the Arkansas River shiner in the Cimarron River. 
The Cimarron River is included in the designation because it is 
essential habitat and contains all of the primary constituent elements, 
except for the presence of a competitive nonnative species, which we 
intend to address during recovery planning efforts for the Arkansas 
River shiner. We are also including unoccupied areas of this reach 
since it reflects the need for areas of sufficient stream length to 
provide habitat for Arkansas River shiner populations large enough to 
be self-sustaining over time, despite fluctuations in local conditions.
    4. Arkansas River, Barton, Cowley, Edwards, Finney, Ford, Gray, 
Hamilton, Kearny, Kiowa, Pawnee, Reno, Rice, Sedgwick, and Sumner 
Counties, KS--564 km (351 mi) of river extending from Kansas State 
Highway 27 bridge in Hamilton County, KS, downstream to KS/OK State 
line in Cowley County, KS, excluding a 20 km (12.4 mi) reach of the 
Arkansas River within the City of Wichita metropolitan area, extending 
from the westbound lane of Kansas State

[[Page 18023]]

Highway 96 crossing downstream to the Interstate 35 crossing. The 
Arkansas River in KS contains a significant portion of the species' 
historical range. The Arkansas River shiner historically inhabited the 
entire mainstem of the Arkansas River, but had begun to decline by 1952 
due to the construction of John Martin Reservoir 10 years earlier on 
the Arkansas River in Bent County, Colorado (Cross et al. 1985).
    Typically, releases from John Martin Reservoir and irrigation 
return flows from eastern Colorado maintain streamflow in the Arkansas 
River as far east as Syracuse, KS (Kansas Geologic Survey 1996). 
Between Syracuse and Garden City, KS, the river often ceases to flow 
due to surface and groundwater withdrawals. Surface flow then resumes 
near Great Bend, KS. Lack of sufficient streamflow and ongoing water 
quality degradation renders much of the Arkansas River west of Great 
Bend at least seasonally unsuitable for Arkansas River shiner. However, 
in early 1995, the U.S. Supreme Court ruled that Colorado had violated 
the Arkansas River Compact by depleting usable flows of the Arkansas 
River in Kansas 
(Kansas v. Colorado, No. 105, Orig., US Supreme Ct, 1995). Based on 
this ruling, Colorado has provided additional water to Kansas and, 
according to USGS, releases of water in the Arkansas River have helped 
to increase the flow of the river to near record levels during the 1998 
water year. We expect habitat conditions in the Arkansas River west of 
Great Bend to improve as a result of the additional water. Recovery for 
Arkansas River shiner will include reestablishing additional 
populations in this system or the Cimarron River, or potentially both 
based upon the assessment of the Recovery Team regarding the 
feasibility of reducing or controlling the presence of the Red River 
shiner in the Cimarron River. This segment of the Arkansas River is the 
longest unfragmented, unoccupied reach in the Arkansas River basin. 
Stream flows in approximately the eastern half of this stream segment 
are more reliable and habitats are characteristic of those used by 
Arkansas River shiner. This stream segment contains one or more of the 
primary constituent elements and thus is essential for the conservation 
of the Arkansas River shiner.
    We did not include the following reaches in the designation. 
Downstream of the KS/OK State line, large areas of the basin are 
unsuitable for Arkansas River shiner, either because of reservoirs 
(i.e., Kaw and Keystone) and the associated streamflow alterations, or 
because of stream channel alteration for navigation. Even if releases 
from these reservoirs were modified to mimic historic, pre-impoundment 
flow patterns, we suspect that the reaches below Kaw and Keystone 
reservoirs would never provide suitable habitat. The distance between 
Kaw Dam and the upper reaches of Keystone Reservoir is only 139 river 
km (86 river mi), and the distance between Keystone Dam and the 
McClellan-Kerr Navigation System is only about 130 river km (81 river 
mi). These distances are likely insufficient to sustain reproducing 
populations (see ``Primary Constituent Elements'' below).
    The 1998 listing rule for the Arkansas River shiner conservatively 
estimated that at least 3,900 km (2,450 mi) of habitat within the 
species' range was occupied historically. This final designation 
involves approximately half that amount. Considering the amount of 
historically occupied habitat that occurred in the smaller tributaries 
of the Arkansas River Basin, which are not included in this 
designation, the amount being designated as critical habitat is much 
less than one-half of the historically occupied habitat. Although the 
amount of habitat being designated as critical habitat is less than 
one-half the historical range of the species, we believe that 
conservation of the Arkansas River shiner within these areas can secure 
the long-term survival and recovery of this species.

Lateral Extent of Critical Habitat

    This designation takes into account the naturally dynamic nature of 
riverine systems and recognizes that floodplains are an integral part 
of the stream ecosystem. Habitat quality within the mainstem river 
channels in the historical range of the Arkansas River shiner is 
intrinsically related to the character of the floodplain and the 
associated tributaries, side channels, and backwater habitats that 
contribute to the key habitat features (e.g., substrate, water quality, 
and water quantity) in these reaches. Among other things, the 
floodplain provides space for natural flooding patterns and latitude 
for necessary natural channel adjustments to maintain appropriate 
channel morphology and geometry. A relatively intact riparian zone, 
along with periodic flooding in a relatively natural pattern, are 
important in maintaining the stream conditions necessary for long-term 
survival and recovery of the Arkansas River shiner.
    Human activities that occur outside the river channel can have a 
demonstrable effect on physical and biological features of aquatic 
habitats. However, not all of the activities that occur within a 
floodplain will have an adverse impact on the Arkansas River shiner or 
its habitat. Thus, in determining the lateral extent of critical 
habitat along riverine systems, we must consider the definition of 
critical habitat under the Act. That is, critical habitat must contain 
the elements essential to a species' conservation and must be in need 
of special management considerations or protection. We see no need for 
special management considerations or protection for the entire 
floodplain, and we are not proposing to designate the whole floodplain 
as critical habitat. However, conservation of the river channel alone 
is not sufficient to ensure the survival and recovery of the Arkansas 
River shiner. For instance, the diet of the Arkansas River shiner 
includes many species of terrestrial insects and seeds of grasses 
occurring in the riparian corridor (Jimenez 1999). We believe the 
riparian corridors adjacent to the river channel provide a reasonable 
lateral extent for critical habitat designation.
    Riparian areas are seasonally flooded habitats (i.e., wetlands) 
that are major contributors to a variety of vital functions within the 
associated stream channel (Federal Interagency Stream Restoration 
Working Group 1998, Brinson et al. 1981). They are responsible for 
energy and nutrient cycling, filtering runoff, absorbing and gradually 
releasing floodwaters, recharging groundwater, maintaining streamflows, 
protecting stream banks from erosion, and providing shade and cover for 
fish and other aquatic species. Healthy riparian corridors help ensure 
water courses maintain the primary constituent elements essential to 
stream fishes, including the Arkansas River shiner.
    The lateral extent (width) of riparian corridors fluctuates 
considerably between a stream's headwaters and its mouth. The 
appropriate width for riparian buffer strips has been the subject of 
several studies (Castelle et al. 1994). Most Federal and State agencies 
generally consider a zone 23-46 meters (m) (75.4-150.9 feet (ft)) wide 
on each side of a stream to be adequate (NRCS 1998, Moring et al. 1993, 
Lynch et al. 1985), although buffer widths as wide as 152 m (500 ft) 
have been recommended for achieving flood attenuation benefits (Corps 
1999). In most instances, however, riparian buffer zones are primarily 
intended to reduce (i.e. buffer) detrimental impacts to the stream from 
sources outside the river channel. Consequently, while a riparian 
corridor 23-46 m (75.4-150.9 ft) in width may function adequately as a 
buffer, it is likely inadequate to preserve the natural processes that 
provide Arkansas River shiner constituent elements.

[[Page 18024]]

    Generally, we consider a lateral distance of 91.4 m (300 ft) on 
each side of the stream beyond the bankfull width to be an appropriate 
riparian corridor width for the preservation of Arkansas River shiner 
constituent elements. The bankfull width is the width of the stream or 
river at bankfull discharge, i.e., the flow at which water begins to 
leave the channel and move into the floodplain (Rosgen 1996); this 
activity generally occurs every 1 to 2 years (Leopold et al. 1992). 
Bankfull discharge, while a function of the size of the stream, is a 
fairly consistent feature related to the formation, maintenance, and 
dimensions of the stream channel (Rosgen 1996).

Primary Constituent Elements

    In identifying areas as critical habitat, 50 CFR 424.12 provides 
that we consider those physical and biological features that are 
essential to conservation of the species and that may require special 
management considerations or protection. These physical and biological 
features, as outlined in 50 CFR 424.12, include, but are not limited 
to, the following:
     Space for individual and population growth, and for normal 
behavior;
     Food, water, or other nutritional or physiological 
requirements;
     Cover or shelter;
     Sites for breeding, reproduction, or rearing of offspring; 
and
     Habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    The important habitat features that provide for the physiological, 
behavioral, and ecological requirements of the Arkansas River shiner 
include adequate spawning flows; habitat for food organisms; 
appropriate water quality; a natural flow regime; rearing and juvenile 
habitat appropriate for growth and development to adulthood; and flows 
sufficient to allow Arkansas River shiner to recolonize upstream 
habitats. Given the large geographic range the species historically 
occupied, and the diverse habitats used by the various life-history 
stages, describing specific values or conditions for each of these 
habitat features is not always possible. However, the following 
discussion summarizes the biological requirements of the Arkansas River 
shiner relevant to identifying the primary constituent elements of its 
critical habitat.
    The Arkansas River shiner historically inhabited the main channels 
of wide, shallow, sandy-bottomed rivers and larger streams of the 
Arkansas River basin (Gilbert 1980). Adults are uncommon in quiet pools 
or backwaters lacking streamflow, and almost never occurred in habitats 
having deep water and bottoms of mud or stone (Cross 1967). Cross 
(1967) believed that adults prefer to orient into the current on the 
``lee'' sides of large transverse sand ridges and prey upon food 
organisms washed downstream in the current.
    The Arkansas River shiner is believed to be a generalized forager 
and feeds upon both items suspended in the water column and items lying 
on the substrate (Jimenez 1999, Bonner et al. 1997). In the South 
Canadian River of central OK, Polivka and Matthews (1997) found that 
gut contents were dominated by sand/sediment and detritus (decaying 
organic material) with invertebrate prey being an incidental component 
of the diet. In the Canadian River of NM and TX, the diet of Arkansas 
River shiner was dominated by detritus, invertebrates, grass seeds, and 
sand and silt (Jimenez 1999). Invertebrates were the most important 
food item, followed by detrital material.
    Terrestrial and semiaquatic invertebrates were consumed at higher 
levels than were aquatic invertebrates (Jimenez 1999). With the 
exception of the winter season, when larval flies were consumed much 
more frequently than other aquatic invertebrates, no particular 
invertebrate taxa dominated the diet (Bonner et al. 1997). Fly larvae, 
copepods, immature mayflies, insect eggs, and seeds were the dominant 
items in the diet of the nonnative population of the Arkansas River 
shiner inhabiting the Pecos River in NM (Keith Gido, University of 
Oklahoma, in litt. 1997).
    Most plains streams are highly variable environments. Water 
temperatures, flow regimes, and overall physicochemical conditions 
(e.g., quantity of dissolved oxygen) typically fluctuate so drastically 
that fishes native to these systems often exhibit life-history 
strategies and microhabitat preferences that enable them to cope with 
these conditions. Matthews (1987) classified several species of fishes, 
including the Arkansas River shiner, based on their tolerance for 
adverse conditions and selectivity for physicochemical gradients. The 
Arkansas River shiner was described as having a high thermal and oxygen 
tolerance, indicating a high capacity to tolerate elevated temperatures 
and low dissolved oxygen concentrations (Matthews 1987). Observations 
from the Canadian River in NM and TX revealed that dissolved oxygen 
concentrations, conductivity, and pH rarely influenced habitat 
selection by the Arkansas River shiner (Wilde et al. 2000). Arkansas 
River shiners were collected over a wide range of conditions--water 
temperatures from 0.4 to 36.8 deg. Celsius (32.7 to 98.2 deg. 
Fahrenheit), dissolved oxygen from 3.4 to 16.3 parts per million, 
conductivity (total dissolved solids) from 0.7 to 14.4 millisiemens per 
centimeter, and pH from 5.6 to 9.0.
    In the South Canadian River of central OK, Polivka and Matthews 
(1997) found that Arkansas River shiner exhibited only a weak 
relationship between the environmental variables they measured and the 
occurrence of the species within the stream channel. Water depth, 
current, dissolved oxygen, and sand ridge and midchannel habitats were 
the environmental variables most strongly associated with the 
distribution of Arkansas River shiner within the channel. Similarly, 
microhabitat selection by Arkansas River shiner in the Canadian River 
of NM and TX was influenced by water depth, current velocity, and, to a 
lesser extent, water temperature (Wilde et al. 2000). Arkansas River 
shiners generally occurred at mean water depths between 17 and 21 
centimeters (cm) (6.6-8.3 in) and current velocities between 30 and 42 
cm (11.7 and 16.4 in) per second. Juvenile Arkansas River shiner 
associated most strongly with current, conductivity, and backwater and 
island habitat types (Polivka and Matthews 1997).
    Wilde et al. (2000) found no obvious selection for or avoidance of 
any particular habitat type (i.e., main channel, side channel, 
backwaters, and pools) by Arkansas River shiner. Arkansas River shiners 
did tend to select side channels and backwaters slightly more than 
expected based on the availability of these habitats (Wilde et al. 
2000). Likewise, they appeared to make no obvious selection for or 
avoidance of any particular substrate type. Substrates in the Canadian 
River in NM and TX were predominantly sand; however, Arkansas River 
shiner were observed to occur over silt slightly more than expected 
based on the availability of this substrate (Wilde et al. 2000).
    Successful reproduction by Arkansas River shiner appears to be 
strongly correlated with streamflow. Moore (1944) believed the Arkansas 
River shiner spawned in July, usually coinciding with elevated flows 
following heavy rains associated with summertime thunderstorms. Bestgen 
et al. (1989) found that spawning in the nonnative population of 
Arkansas River shiner in the Pecos River of NM generally occurred in 
conjunction with releases from Sumner Reservoir.

[[Page 18025]]

However, recent studies by Polivka and Matthews (1997) and Wilde et al. 
(2000) neither confirmed nor rejected the hypothesis that elevated 
streamflow triggered spawning in the Arkansas River shiner.
    Arkansas River shiners are open-water, broadcast spawners that 
release their eggs and sperm over an unprepared substrate (Platania and 
Altenbach 1998, Johnston 1999). Examination of Arkansas River shiner 
gonadal development between 1996 and 1998 in the Canadian River of NM 
and TX demonstrated that the species undergoes multiple, asynchronous 
(not happening at the same time) spawns in a single season (Wilde et 
al. 2000). The Arkansas River shiner appears to be in peak reproductive 
condition throughout the months of May, June, and July (Wilde et al. 
2000, Polivka and Matthews 1997); however, spawning may occur as early 
as April and as late as September. Arkansas River shiners may, on 
occasion, spawn in standing waters (Wilde et al. 2000), but it is 
unlikely that such events are successful.
    Both Moore (1944) and Platania and Altenbach (1998) described egg 
behavior in the Arkansas River shiner. The fertilized eggs are 
nonadhesive and semibuoyant. Platania and Altenbach (1998) found that 
spawned eggs settled to the bottom of the aquaria where they quickly 
absorbed water and expanded. Upon absorbing water, the eggs became more 
buoyant, rose with the water current, and remained in suspension. The 
eggs would sink when water current was not maintained in the aquaria. 
This led Platania and Altenbach (1998) to conclude that the Arkansas 
River shiner and other plains fishes likely spawn in the upper to mid-
water column during elevated flows. Spawning under these conditions 
would allow the eggs to remain suspended during the 10- to 30-minute 
period the eggs were non-buoyant. Once the egg became buoyant, it would 
remain suspended in the water column as long as current was present.
    In the absence of sufficient streamflows, the eggs would likely 
settle to the channel bottom, where silt and shifting substrates would 
smother the eggs, hindering oxygen uptake and causing mortality of the 
embryos. Spawning during elevated flows appears to be an adaptation 
that likely increases survival of the embryo and facilitates dispersal 
of the young. Assuming a conservative drift rate of 3 km/hour, Platania 
and Altenbach (1998) estimated that the fertilized eggs could be 
transported 72-144 km (45-89 mi) before hatching. Developing larvae 
could then be transported up to an additional 216 km (134 mi) before 
they were capable of directed swimming movements. Bonner and Wilde 
(2000) speculate that 218 km (135 mi) may be the minimum length of 
unimpounded river that allows for the successful completion of the 
life-history for the Arkansas River shiner, based on their observations 
in the Canadian River in NM and TX.
    Rapid hatching and development of the young is likely another 
adaptation in plains fishes that enhances survival in the harsh 
environments of plains streams. Arkansas River shiner eggs hatch in 24-
48 hours after spawning, depending upon water temperature (Moore 1944, 
Platania and Altenbach 1998). The larvae are capable of swimming within 
3-4 days; they then seek out low-velocity habitats, such as backwater 
pools and quiet water at the mouths of tributaries where food is more 
abundant (Moore 1944).
    Evidence from Wilde et al. (2000) indirectly supports the 
speculation by Cross et al. (1985) that the Arkansas River shiner 
initiates an upstream spawning migration. Whether this represents a 
true spawning migration or just a general tendency in these fish to 
orient into the current and move upstream, perhaps in search of more 
favorable environmental conditions, is unknown (Wilde et al. 2000). 
Regardless, strong evidence suggested the presence of a directed, 
upstream movement by the Arkansas River shiner over the course of a 
year.
    As previously discussed, introductions of nonindigenous species can 
have a significant adverse impact on Arkansas River shiner populations 
under certain conditions. The morphological characteristics, population 
size, and ecological preferences exhibited by the Red River shiner, a 
species endemic to the Red River drainage, suggest that it competes 
with the Arkansas River shiner for food and other essential life 
requisites (Cross et al. 1983, Felley and Cothran 1981). Since its 
introduction, the Red River shiner has colonized much of the Cimarron 
River and frequently may be a dominant component of the fish community 
(Cross et al. 1983, Felley and Cothran 1981). The intentional or 
unintentional release of Red River shiners, or other potential 
competitors, into other reaches of the Arkansas River drainage by 
anglers or the commercial bait industry is a potentially serious threat 
that could drastically alter habitat quality in these reaches.
    We determined the primary constituent elements for Arkansas River 
shiner from studies on their habitat requirements and population 
biology, as outlined above. These primary constituent elements are the 
following:
    1. A natural, unregulated hydrologic regime complete with episodes 
of flood and drought or, if flows are modified or regulated, a 
hydrologic regime characterized by the duration, magnitude, and 
frequency of flow events capable of forming and maintaining channel and 
instream habitat necessary for particular Arkansas River shiner life-
stages in appropriate seasons;
    2. A complex, braided channel with pool, riffle (shallow area in a 
streambed causing ripples), run, and backwater components that provide 
a suitable variety of depths and current velocities in appropriate 
seasons;
    3. A suitable unimpounded stretch of flowing water of sufficient 
length to allow hatching and development of the larvae;
    4. Substrates of predominantly sand, with some patches of silt, 
gravel, and cobble;
    5. Water quality characterized by low concentrations of 
contaminants and natural, daily and seasonally variable temperature, 
turbidity, conductivity, dissolved oxygen, and pH;
    6. Abundant terrestrial, semiaquatic, and aquatic invertebrate food 
base; and
    7. Few or no predatory or competitive nonnative species present.
    The areas we are designating as critical habitat for Arkansas River 
shiner provide one or more of the above primary constituent elements. 
All of the areas designated as critical habitat require special 
management considerations or protection to ensure their contribution to 
the species' recovery.

Land Ownership

    The vast majority (about 98 percent) of areas we designated as 
critical habitat are in private ownership, with relatively small, 
scattered tracts of State and Federal lands. Private lands are 
primarily used for grazing and agriculture, but also include towns, 
small-lot residences, and industrial areas. A general description of 
land ownership in each complex follows:
    1a. Canadian River--This reach is predominantly in private 
ownership. The State of New Mexico owns scattered tracts. The reach in 
TX is in private ownership, except for a small segment that is owned by 
the National Park Service as part of the Lake Meredith National 
Recreation Area.
    1b. Canadian/South Canadian River--This reach is predominantly in 
private ownership, with limited areas of State and tribal ownership. 
Although we have included tribal lands within the critical

[[Page 18026]]

habitat boundary, we have narratively excluded them from the 
designation (see ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' section). The Texas 
Parks and Wildlife Department owns a small segment downstream of the 
town of Canadian, TX (Gene Howe Wildlife Management Area (WMA)). The 
Oklahoma Department of Wildlife Conservation owns a small section near 
Roll, OK (Packsaddle WMA). Small tracts of tribal lands are near 
Oklahoma City.
    2. Beaver/North Canadian River--The ownership is predominantly 
private, with limited areas of State-owned lands. The Oklahoma 
Department of Wildlife Conservation owns small sections near Beaver, OK 
(Beaver River WMA) and near Fort Supply, OK (Cooper WMA). The Oklahoma 
Department of Parks and Tourism owns a small section near Woodward, OK 
(Boiling Springs State Park).
    3. Cimarron River--Land here is entirely in private ownership.
    4. Arkansas River--This area is entirely in private ownership 
except for a small area near the Kansas/Oklahoma State line owned by 
the U.S. Army Corps of Engineers (Kaw Wildlife Area). This area is 
managed by the State of Kansas (Kansas Department of Wildlife and 
Parks).

Effect of Critical Habitat Designation

    Section 7(a) of the Act requires Federal agencies to ensure that 
actions they fund, authorize, or carry out do not destroy or adversely 
modify critical habitat to the extent that the action appreciably 
diminishes the value of the critical habitat for the survival and 
recovery of the species. Individuals, organizations, States, local and 
tribal governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding. Thus, activities on Federal lands that may 
affect the Arkansas River shiner or its critical habitat will require 
section 7 consultation. Actions on private or State lands receiving 
funding or requiring a permit from a Federal agency also will be 
subject to the section 7 consultation process if the action may affect 
critical habitat. Federal actions not affecting the species or its 
critical habitat, as well as actions on non-Federal lands that are not 
federally funded or permitted, will not require section 7 consultation.
    Federal agencies are required to evaluate their actions with 
respect to any species that is proposed or listed as endangered or 
threatened and with respect to its proposed or designated critical 
habitat. Regulations implementing these interagency cooperation 
provisions of the Act are codified at 50 CFR part 402. Section 7(a)(4) 
of the Act and regulations at 50 CFR 402.10 require Federal agencies to 
confer with us on any action that is likely to jeopardize the continued 
existence of a proposed species or to result in destruction or adverse 
modification of proposed critical habitat. A section 7 conference on 
proposed critical habitat results in a report that may provide 
conservation recommendations to assist the action agency in eliminating 
or minimizing adverse effects to the proposed critical habitat that may 
be caused by the proposed agency action. The conservation 
recommendations in a conference report are advisory. We may issue a 
formal conference report, if requested by a Federal agency. Formal 
conference reports on proposed critical habitat contain a conference 
opinion as to whether the proposed action is likely to destroy or 
adversely modify proposed critical habitat. This biological opinion is 
prepared as if critical habitat were designated as final, in accordance 
with 50 CFR 402.13.
    If we subsequently finalize the proposed critical habitat 
designation, then section 7(a)(2) will require Federal agencies to 
enter into consultation with us on agency actions that may affect 
critical habitat. Consultations on agency actions that will likely 
adversely affect critical habitat will result in issuance of a 
biological opinion. We may adopt a formal conference report as the 
biological opinion if no significant new information or changes in the 
action alter the content of the opinion (see 50 CFR 402.10(d)).
    If we find a proposed agency action is likely to destroy or 
adversely modify the critical habitat, our biological opinion may 
include reasonable and prudent alternatives to the action that are 
designed to avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives are defined at 50 CFR 
402.02 as alternative actions that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that we believe would avoid destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative vary accordingly.
    Regulations at 50 CFR 402.16 also require Federal agencies to 
reinitiate consultation in instances where we have already reviewed an 
action for its effects on a listed species if critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation if their actions may affect designated critical habitat, 
or conferencing with us on actions likely to destroy or adversely 
modify proposed critical habitat.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat, a description and 
evaluation of those activities involving a Federal action that may 
adversely modify such habitat or that may be affected by such 
designation. A wide range of Federal activities have the potential to 
destroy or adversely modify critical habitat for the Arkansas River 
shiner. These activities may include land and water management actions 
of Federal agencies (e.g., U.S. Army Corps of Engineers, Natural 
Resources Conservation Service, Bureau of Reclamation, and the Bureau 
of Indian Affairs) and related or similar actions of other federally 
regulated projects (e.g., road and bridge construction activities by 
the Federal Highway Administration; dredge and fill projects, sand and 
gravel mining, and bank stabilization activities conducted or 
authorized by the U.S. Army Corps of Engineers; and, National Pollutant 
Discharge Elimination System permits authorized by the Environmental 
Protection Agency). Specifically, activities that may destroy or 
adversely modify critical habitat are those that alter the primary 
constituent elements (defined above) to an extent that the value of 
critical habitat for both the survival and recovery of the Arkansas 
River shiner is appreciably reduced. Such activities include, but are 
not limited to:
    (1) Significantly and detrimentally altering the minimum flow or 
the natural flow regime of any of the designated stream segments. 
Possible actions would include groundwater pumping, impoundment, water 
diversion, and hydropower generation. We note that such flow reductions 
that result from actions affecting tributaries of the designated stream 
reaches may also destroy or adversely modify critical habitat.

[[Page 18027]]

    (2) Significantly and detrimentally altering the characteristics of 
the riparian zone in any of the designated stream segments. Possible 
actions would include vegetation manipulation, timber harvest, road 
construction and maintenance, prescribed fire, livestock grazing, off-
road vehicle use, powerline or pipeline construction and repair, 
mining, and urban and suburban development.
    (3) Significantly and detrimentally altering the channel morphology 
of any of the stream segments listed above. Possible actions would 
include channelization, impoundment, road and bridge construction, 
deprivation of substrate source, destruction and alteration of riparian 
vegetation, reduction of available floodplain, removal of gravel or 
floodplain terrace materials, reduction in stream flow, and excessive 
sedimentation from mining, livestock grazing, road construction, timber 
harvest, off-road vehicle use, and other watershed and floodplain 
disturbances.
    (4) Significantly and detrimentally altering the water chemistry in 
any of the designated stream segments. Possible actions would include 
release of chemical or biological pollutants into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point).
    (5) Introducing, spreading, or augmenting nonnative aquatic species 
in any of the designated stream segments. Possible actions would 
include fish stocking for sport, aesthetics, biological control, or 
other purposes; use of live bait fish; aquaculture; construction and 
operation of canals; and interbasin water transfers.
    Not all of the identified activities are necessarily of current 
concern within the Arkansas River basin; however, they do indicate the 
potential types of activities that will require consultation in the 
future and, therefore, that may be affected by critical habitat 
designation. We do not expect that designation of critical habitat in 
areas occupied by the Arkansas River shiner will result in a regulatory 
burden above that already in place, due to the presence of the listed 
species. However, areas designated as critical habitat that are not 
currently occupied by the species may require protections similar to 
those provided to occupied areas under past consultations.
    As discussed previously, Federal actions that are found likely to 
destroy or adversely modify critical habitat may often be modified, 
through development of reasonable and prudent alternatives, in ways 
that will remove the likelihood of destruction or adverse modification 
of critical habitat. Such project modifications may include such things 
as adjustment in timing of projects to avoid sensitive periods for the 
species and its habitat; replanting of riparian vegetation; 
minimization of work and vehicle use in the wetted channel; restriction 
of riparian and upland vegetation clearing; fencing to exclude 
livestock and limit recreational use; use of alternative livestock 
management techniques; avoidance of pollution; minimization of ground 
disturbance in the floodplain; use of alternative material sources; 
storage of equipment and staging of operations outside the floodplain; 
use of sediment barriers; access restrictions; and use of best 
management practices to minimize erosion.
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor, Oklahoma Ecological Services 
Office (see ADDRESSES section). Requests for copies of the regulations 
on listed wildlife and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Division of Endangered 
Species, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505-
248-6920; facsimile 505-248-6788).
    We are in the process of developing a recovery plan for the 
Arkansas River Basin population of the Arkansas River shiner. The 
recovery plan, when finalized, will provide recommendations on 
recovering this species, including recommendations on management of its 
critical habitat. Further, should the recovery plan recommend adding or 
deleting areas as critical habitat, we will consider whether a future 
revision of critical habitat is appropriate.

Summary of Changes From the Proposed Rule

    A 20 km (12.4 mi) reach of the Arkansas River within the City of 
Wichita metropolitan area, extending from the westbound lane of Kansas 
State Highway 96 crossing downstream to the Interstate Highway 35 
crossing, has been excluded from the designation. During preparation of 
the proposed rule, we believed that this section of the Arkansas River 
was inhabited by the Arkansas River shiner. In 1999, six fish 
originally identified as Arkansas River shiners were collected from the 
Arkansas River in Wichita, KS, at two locations--four from near the 
47th Street South bridge and two near the Kansas State Highway 96 
crossing (Vernon Tabor, U.S. Fish and Wildlife Service, Manhattan, KS, 
pers. comm., 2000). However, further examination of these specimens 
revealed that they were not Arkansas River shiners but instead were 
sand shiners, a minnow that closely resembles the Arkansas River 
shiner. Thus, the section of the Arkansas River through the City of 
Wichita is now no longer believed to be occupied by the species. In 
addition, two flow control structures, the Wichita Valley Center Flood 
Control Structure Number 4 and the Lincoln Street Dam exist within the 
excluded reach. These two control structures likely are physical 
barriers to the movement of Arkansas River shiner during normal and low 
flow conditions. The Lincoln Street Dam also serves to impound the 
river for the purpose of maintaining constant water levels in the river 
throughout downtown Wichita. Water depths maintained by the Lincoln 
Street Dam are generally in excess of those preferred by the Arkansas 
River shiner. This reach of the river is also degraded by high nutrient 
loading and groundwater contamination, and substrates in this reach are 
predominantly silt. Although this reach of the river is presently 
degraded and generally unsuitable for Arkansas River shiners, the City 
of Wichita is taking steps to improve water quality within this reach 
which should facilitate improvement in habitat conditions in the river 
downstream of the city. The excluded section remains important to 
recovery of the Arkansas River shiner because it serves to connect the 
upper section with the lower section during periods of high flow. 
Maintenance of this connection is essential to successful egg 
development and movement of juvenile Arkansas River shiners between the 
two sections. Considering the river functions to pass flood waters 
during elevated stream flow conditions, we do not anticipate that the 
city would propose modification of this reach to the point that 
connection between the upper and lower sections during elevated flows 
would no longer occur.

Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. The economic 
impacts to be considered in a critical habitat designation are the 
incremental effects of the designation over and above the economic 
impacts attributable to listing of the species. In general, these 
incremental impacts are more likely to result from management

[[Page 18028]]

activities in areas outside the present distribution of the listed 
species.
    We may exclude areas from critical habitat upon a determination 
that the benefits of such exclusions outweigh the benefits of 
specifying those areas as critical habitat; however, we cannot exclude 
areas from critical habitat when the exclusion will result in the 
extinction of the species. We utilized the economic analysis, and took 
into consideration all comments and information submitted during the 
public hearings and comment period, to determine whether areas should 
be excluded from the final critical habitat designation.
    The economic effects already in place due to the listing of the 
Arkansas River shiner as threatened is the baseline upon which we 
analyzed the economic effects of the designation of critical habitat. 
The critical habitat economic analysis examined the incremental 
economic and conservation effects of designating critical habitat. The 
economic effects of a designation were evaluated by measuring changes 
in national, regional, or local indicators. A draft analysis of the 
economic effects of the proposed Arkansas River shiner critical habitat 
designation was prepared and made available for public review (August 
15, 2000; 65 FR 49781). We concluded in the final analysis, which 
included review and incorporation of public comments, that no 
significant economic impacts are expected from critical habitat 
designation above and beyond that already imposed by listing the 
Arkansas River shiner. A copy of the final economic analysis is 
included in our administrative record and may be obtained by contacting 
the Oklahoma Ecological Services Field Office (see ADDRESSES section).

American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act

    In accordance with the Presidential Memorandum of April 29, 1994, 
and Executive Order 13175, we believe that, to the maximum extent 
possible, fish, wildlife, and other natural resources on tribal lands 
are better managed under tribal authorities, policies, and programs 
than through Federal regulation wherever possible and practicable. 
Based on this philosophy, we believe that, in most cases, designation 
of tribal lands as critical habitat provides very little additional 
benefit to threatened and endangered species. This is especially true 
where the habitat is occupied by the species and is therefore already 
subject to protection under the Act through section 7 consultation 
requirements. Conversely, such designation is often viewed by tribes as 
unwarranted and an unwanted intrusion into tribal self governance, thus 
compromising the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the viability of threatened and endangered species populations 
depend.
    To this end, we support tribal measures that preclude the need for 
conservation regulations, and we provide technical assistance to Indian 
tribes who wish assistance in developing and expanding tribal programs 
for the management of healthy ecosystems so that Federal conservation 
regulations, such as designation of critical habitat, on tribal lands 
are unnecessary.
    Section 4(b)(2) of the Act requires us to consider the economic and 
other relevant impacts of critical habitat designation, and authorizes 
us to exclude areas from designation upon finding that the benefits of 
exclusion outweigh the benefits of including the areas as critical 
habitat, so long as excluding those areas will not result in the 
extinction of the species concerned. In the proposed rule for this 
critical habitat designation we solicited information from interested 
parties on the anticipated economic and other relevant impacts of 
designation. Below we evaluate the benefits of excluding these tribal 
lands from critical habitat and the benefits of including these areas.
    In our deliberations over this critical habitat designation, we 
identified two categories of possible effects to tribes or tribal 
resources. These include: (1) Effects resulting from designation of 
critical habitat on tribal lands; and (2) effects on tribal resources, 
such as water deliveries, resulting from designation of critical 
habitat on nontribal lands. We identified tribal lands belonging to the 
Choctaw and Chickasaw Nations as containing stream reaches that may be 
appropriate for designation of critical habitat. Additionally, several 
tribes may have lands located downstream from the designated critical 
habitat.

1. Designation of Critical Habitat on Tribal Lands

    The Presidential Memorandum of April 29, 1994, also requires us to 
consult with the tribes on matters that affect them, and section 
4(b)(2) of the Act requires us to gather information regarding the 
designation of critical habitat and the effects thereof from all 
relevant sources, including the tribes. Recognizing a government-to-
government relationship with tribes and our Federal trust 
responsibility, we consulted to the extent possible with the Indian 
tribes having tribal trust resources, tribally owned fee lands, or 
tribal rights that might be affected by the designation of critical 
habitat.
    We met with representatives of the Cherokee, Chickasaw, Creek, and 
Seminole Nations on April 6, 2000, to discuss the proposed designation. 
The Chickasaw and Choctaw Nations are the two tribes that have habitat 
for Arkansas River shiner on their lands. Given our obligations under 
the Presidential Memorandum, we did not propose critical habitat on 
Tribal land. As provided under section 4(b)(2) of the Act, we solicited 
information during the comment period as to whether these areas should 
be designated as critical habitat. We did not receive any comments 
except one (see comment 80) related to the issue of our not proposing 
to designate critical habitat on tribal lands during the public comment 
period. In our weighing of the benefits of excluding tribal lands from 
this designation of critical habitat we felt that such a designation 
would be expected to adversely impact our working relationship with the 
Tribes, the maintenance of which is beneficial in implementing natural 
resource programs of mutual interest. In addition, we feel that the 
designation will provide little if any benefit since the areas where 
tribal lands occur (Unit 1b) is all occupied by the Arkansas River 
shiner.
    After carefully balancing the considerations involved in 
determining whether lands should be included or excluded from the 
designation of critical habitat, we determined that the benefits of 
promoting self-determination and the cooperative relationship with the 
tribes in managing threatened and endangered species and their 
habitats, outweigh the benefits to be obtained from designating 
critical habitat for this species. Exclusion of these lands from the 
designation will not result in extinction of the Arkansas River shiner.

2. Effects on Tribal Trust Resources From Critical Habitat Designation 
on Nontribal Lands

    We do not anticipate that designation of critical habitat on 
nontribal lands will result in any impact on tribal trust resources or 
the exercise of tribal rights. As stated above, some tribes may have 
lands located downstream from critical habitat for the Arkansas River 
shiner. However, we did not propose to include these lands in the 
critical habitat designation since we determined that they were not 
essential to the conservation of the Arkansas River shiner.

[[Page 18029]]

    In complying with our tribal trust responsibilities, we must 
communicate with all tribes potentially affected by the designation. 
Therefore, we solicited information during the comment period on the 
potential effects to tribes or tribal resources that may result from 
critical habitat designation. We did not receive any substantive 
comments related to the issue of impacts on tribal trust resources or 
exercise of tribal rights resulting from designation of critical 
habitat on nontribal lands during the public comment period.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget (OMB).
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit analysis is 
not required for purposes of Executive Order 12866. The Arkansas River 
shiner was listed as a threatened species in 1998. Currently, we have 
not conducted any formal section 7 consultation with other Federal 
agencies to ensure that their actions would not jeopardize the 
continued existence of the Arkansas River shiner.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 2 below). Section 7 requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species. Based upon our experience with the species and its needs, we 
conclude that any Federal action or authorized action that could 
potentially cause an adverse modification of the proposed critical 
habitat would currently be considered as ``jeopardy'' to the species 
under the Act. Accordingly, the designation of currently occupied areas 
as critical habitat does not have any incremental impacts on what 
actions may or may not be conducted by Federal agencies or non-Federal 
persons that receive Federal authorization or funding. Non-Federal 
persons who do not have a Federal ``sponsorship'' of their actions are 
not restricted by the designation of critical habitat (however, they 
continue to be bound by the provisions of section 9 of the Act 
concerning ``take'' of the species). Additionally, critical habitat for 
the shiner overlaps with land inhabited by the interior least tern 
(Sterna antillarum), a small white bird that has been listed as 
endangered since 1985. Three of the five shiner critical habitat units 
overlap with areas commonly inhabited by the least tern. For these 
areas, since consultations for the least tern would have taken place 
regardless of the designation of critical habitat for the shiner, 
shiner critical habitat is unlikely to result in new, incremental 
section 7 consultations in areas that overlap with least tern habitat. 
Thus, the incremental impacts of consultations addressing shiner 
critical habitat in such areas will be limited to the additional effort 
required to conduct a consultation for two species at once.
    Designation of unoccupied areas as critical habitat may have 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding. 
Based on our understanding of the threats to the species, the 
prohibition against adverse modification of critical habitat in 
unoccupied areas is not expected to impose any additional restrictions 
to federally sponsored projects or activities occurring in these areas, 
unless we make a determination that the proposed activity would result 
in an appreciable reduction of the value of the critical habitat for 
both the survival and recovery of the Arkansas River shiner. As 
discussed in the final addendum to the economic analysis, we do 
anticipate additional consultations to occur in unoccupied areas, 
incremental to the listing of the Arkansas River shiner, as Federal 
agencies will need to ensure that their actions do not result in 
adverse modification of the designated critical habitat. However, we 
determined that the costs of these additional consultations and any 
resulting project modifications will not have an annual economic effect 
of $100 million or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government.
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the Arkansas River 
shiner since its listing in 1998. The prohibition against adverse 
modification of critical habitat is not expected to impose any 
additional restrictions above those that currently exist. We do 
anticipate additional consultations to occur in unoccupied areas, 
incremental to the listing of the Arkansas River shiner, as Federal 
agencies will need to ensure that their actions do not result in 
adverse modification of the designated critical habitat.
    (c) This designation will not significantly impact entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Federal agencies are currently required to ensure 
that their activities do not jeopardize the continued existence of the 
species, and, as discussed above, we do not anticipate that the adverse 
modification prohibition (resulting from critical habitat designation) 
will have any incremental effects in areas of occupied habitat. In 
unoccupied areas, we anticipate that there will be some incremental 
increase in the number of consultations as Federal agencies will need 
to ensure that their actions do not result in adverse modification of 
the designated critical habitat.
    (d) OMB has determined that this rule will raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

[[Page 18030]]



                   Table 2.--Impacts of Designating Critical Habitat for Arkansas River Shiner
----------------------------------------------------------------------------------------------------------------
                                        Activities potentially
                                           affected by the
                                       designation of critical
                                           habitat in areas          Activities potentially affected by the
       Categories of activities        occupied by the species    designation of critical habitat in unoccupied
                                        (in addition to those                         areas
                                        affected from listing
                                             the species)
----------------------------------------------------------------------------------------------------------------
Federal activities potentially         None...................  Activities such as those affecting waters of the
 affected \1\.                                                   United States by the U.S. Army Corps of
                                                                 Engineers under section 404 or by the
                                                                 Environmental Protection Agency under section
                                                                 402 of the Clean Water Act; natural gas/
                                                                 petroleum pipeline and hydropower development/
                                                                 licensing by the Federal Energy Regulatory
                                                                 Commission; construction of communication sites
                                                                 licensed by the Federal Communications
                                                                 Commission; road construction and maintenance,
                                                                 vegetation manipulation, right-of-way
                                                                 designation, regulation of agricultural
                                                                 activities, and other activities funded by any
                                                                 Federal agency.
Private or other non-Federal           None...................  Activities that require a Federal action
 activities potentially affected \2\.                            (permit, authorization, or funding) and that
                                                                 involve such activities as removing or
                                                                 destroying Arkansas River shiner habitat (as
                                                                 defined in the primary constituent elements
                                                                 discussion), whether by mechanical, chemical,
                                                                 or other means (e.g., channelization, flood
                                                                 control, water diversions, etc.), including
                                                                 indirect effects (e.g., edge effects, invasion
                                                                 of exotic plants or animals, or fragmentation);
                                                                 and that appreciably decrease habitat value or
                                                                 quality.
----------------------------------------------------------------------------------------------------------------
\1\ Activities initiated by a Federal agency.
\2\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above, this designation is not expected to result in any 
additional restrictions in either areas occupied or unoccupied by the 
Arkansas River shiner.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    Our economic analysis demonstrated that designation of critical 
habitat will not cause (a) an annual effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers; 
individual industries; Federal, State, or local government agencies; or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act:
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
involving Federal funds, permits, or other authorized activities must 
ensure that their actions will not destroy or adversely modify critical 
habitat. However, as discussed above, no further restrictions are 
anticipated in areas of occupied designated critical habitat and few, 
if any, restrictions are anticipated in areas of unoccupied critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of more than $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This designation will not ``take'' private property. 
The designation of critical habitat affects only Federal agency 
actions. The rule will not increase or decrease the current 
restrictions on private property concerning take of the Arkansas River 
shiner. Additionally, critical habitat designation does not preclude 
development of habitat conservation plans and issuance of incidental 
take permits. Landowners in areas that are included in the designated 
critical habitat will continue to have opportunity to utilize their 
property in ways consistent with the survival of the Arkansas River 
shiner.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. The designation of critical habitat in areas currently 
occupied by the Arkansas River basin population of the Arkansas River 
shiner imposes no additional restrictions to those currently in place, 
and therefore has little incremental impact on State and local 
governments and their activities. In unoccupied areas, we do not 
anticipate the prohibition against adverse modification of critical 
habitat to impose any additional restrictions to federally sponsored 
projects or activities occurring in these areas, unless through the 
consultation process we find that the proposed activity will 
appreciably decrease habitat value or quality for both the survival and 
recovery of the Arkansas River shiner.
    In keeping with Department of the Interior policy, we requested 
information from and coordinated development of this critical habitat 
designation with appropriate State resource agencies in Kansas, New 
Mexico, Oklahoma, and Texas. We also utilized information on critical 
habitat submitted by the States during the listing of the Arkansas 
River shiner. We anticipate that the affected States will have 
representatives on our recovery team for this species. Consequently, we 
will continue to coordinate this and any future designation of critical 
habitat for the Arkansas River shiner with the appropriate State 
agencies.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
reviewed this final determination. We

[[Page 18031]]

made every effort to ensure that this final determination contains no 
drafting errors, provides clear standards, simplifies procedures, 
reduces burden, and is clearly written such that litigation risk is 
minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required.

National Environmental Policy Act

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). However, when the range of the species 
includes States within the Tenth Circuit (the States of CO, KS, NE, NM, 
OK, UT, and WY), such as that of the Arkansas River shiner, pursuant to 
the Tenth Circuit ruling in Catron County Board of Commissioners v. 
U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we 
undertake a NEPA analysis for critical habitat designation. We 
completed an environmental assessment and finding of no significant 
impact on the designation of critical habitat for the Arkansas River 
shiner.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Oklahoma Ecological Services Office 
(see ADDRESSES section).

Author

    The primary author of this notice is Ken Collins (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, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations 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. Amend Sec. 17.11(h), by revising the entry for ``shiner, 
Arkansas River'' under ``FISHES'' 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, Arkansas River...........  Notropis girardi....  U.S.A. (AR, KS, NM,  Arkansas River       T                       653  Sec.  17.95           NA
                                                          OK, TX).             Basin (AR, KS, NM,                                       (e)
                                                                               OK, TX.
             *                    *                    *                    *                    *                    *                    *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(e) by adding critical habitat for the Arkansas 
River shiner (Notropis girardi) in the same alphabetical order as this 
species occurs in 17.11(h) to read as follows.


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
ARKANSAS RIVER SHINER (Notropis girardi)
    1. Critical habitat is depicted for Barton, Clark, Comanche, 
Cowley, Edwards, Finney, Ford, Gray, Hamilton, Kearny, Kiowa, Meade, 
Pawnee, Reno, Rice, Sedgwick, Seward, and Sumner Counties, Kansas; Quay 
County, New Mexico; Beaver, Blaine, Caddo, Canadian, Cleveland, Custer, 
Dewey, Ellis, Grady, Harper, Hughes, Major, McClain, McIntosh, 
Pittsburg, Pontotoc, Pottawatomie, Roger Mills, Seminole, Texas, Woods, 
and Woodward Counties, Oklahoma; and Hemphill, Oldham, and Potter 
Counties, Texas, on the maps and as described below.
    2. Critical habitat includes the stream channels within the 
identified stream reaches indicated on the maps below, and includes a 
lateral distance of 91.4 m (300 ft) on each side of the stream width at 
bankfull discharge. Bankfull discharge is the flow at which water 
begins to leave the channel and move into the floodplain (Rosgen 1996) 
and generally occurs with a frequency of every 1 to 2 years (Leopold et 
al. 1992).
    3. Within these areas, the primary constituent elements include, 
but are not limited to, those habitat components that are essential for 
the primary biological needs of foraging, sheltering, and reproduction. 
These elements include the following--(1) a natural, unregulated 
hydrologic regime complete with episodes of flood and drought or, if 
flows are modified or regulated, a hydrologic regime characterized by 
the duration, magnitude, and frequency of flow events capable of 
forming and maintaining channel and instream habitat necessary for 
particular Arkansas River shiner life-stages in appropriate seasons; 
(2) a complex, braided channel with pool, riffle, run, and backwater 
components that provide a suitable variety of depths and current 
velocities in appropriate seasons; (3) a suitable unimpounded stretch 
of flowing water of sufficient length to allow hatching and development 
of the larvae; (4) substrates of predominantly sand, with some patches 
of gravel and cobble; (5) water quality characterized by low 
concentrations of contaminants and natural, daily and seasonally 
variable temperature, turbidity, conductivity, dissolved oxygen, and 
pH; (6) abundant terrestrial, semiaquatic, and aquatic invertebrate 
food base; and (7) few or no predatory or competitive nonnative species 
present.
    4. Existing human-constructed features and structures within the 
critical habitat boundary, such as buildings, powerlines, roads, 
railroads, urban development, and other features not containing any 
primary constituent elements, are not considered critical habitat and 
are not included in the designation. Tribal lands located within

[[Page 18032]]

the critical habitat boundary of Unit 1b are not considered critical 
habitat.
    5. Kansas (Sixth Principal Meridian (SPM)), New Mexico (New Mexico 
Principal Meridian (NMPM)), Oklahoma (Cimarron Meridian (CM) and Indian 
Meridian (IM)), and Texas (geographic coordinates): Areas of land and 
water as follows (physical features were identified using USGS 7.5' 
quadrangle maps; river reach distances were derived from digital data 
obtained from USGS National Atlas data set for river reaches, roads, 
and county boundaries.
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[[Page 18033]]

[GRAPHIC] [TIFF OMITTED] TR04AP01.000

    Use Constraints: This map is intended to be used as a guide to 
identify the general areas where Arkansas River Shiner critical habitat 
has been designated. The precise legal definition of critical habitat 
should be obtained from the text of the Final Designation of Critical 
Habitat for the Arkansas River Shiner.
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[[Page 18034]]

ARKANSAS RIVER SHINER (Notropis girardi)
    Reach 1. Canadian/South Canadian River, New Mexico, Texas, and 
Oklahoma.
    a. Canadian River--approximately 215 km (134 mi) from U.S. Highway 
54 bridge near Logan, Quay County, New Mexico (NMPM, T.13N., R.33E., 
NW\1/4\ Sec. 14) downstream to the confluence with Coetas Creek, Potter 
County, Texas (35 deg.27'53" N, 101 deg.52'46" W).
    b. Canadian River--approximately 593 km (368 mi), extending from 
U.S. Highway 60/83 bridge near Canadian, Hemphill County, Texas 
(35 deg.56'02" N, 100 deg.22'00" W) downstream to Indian Nation 
Turnpike bridge northwest of McAlester, Oklahoma (IM T.8N., R.13E., 
SE\1/4\ SW\1/4\ SE\1/4\ Sec. 23).
    Reach 2. Beaver/North Canadian River, Texas, Beaver, Harper, Ellis, 
Woodward, and Major Counties, Oklahoma--259 km (161 mi) of river 
extending from Optima Dam in Texas County, Oklahoma (CM,T.2N., R.18E., 
NW\1/4\ SE\1/4\ SE\1/4\ Sec. 5) downstream to U.S. Highway 60/281 
bridge in Major County, Oklahoma (IM, T.20N., R.16W., west boundary 
Sec. 28).
    Reach 3. Cimarron River, Seward, Meade, Clark and Comanche 
Counties, Kansas and Beaver, Harper, Woods, and Woodward, Counties, 
Oklahoma--215 km (134 mi) of river extending from U.S. Highway 54 
bridge in Seward County, Kansas (SPM, T. 33 S., R. 32 W., Sec. 25) 
downstream to U.S. Highway 281 bridge in Woods County, Oklahoma (IM, 
T.24N., R.16W., Sec. 35).
    Reach 4. Arkansas River, Hamilton, Kearny, Finney, Gray, Ford, 
Edwards, Kiowa, Pawnee, Barton, Rice, Reno, Sedgwick, Sumner, and 
Cowley Counties, Kansas--564 km (351 mi) of river extending from Kansas 
State Highway 27 bridge in Hamilton County, Kansas (SPM, T. 24 S., R. 
40 W., Sec. 18) downstream to KS/OK State line in Cowley County, Kansas 
(SPM, T.35S., R.5E., southern boundary Sec. 18).
* * * * *

    Dated: March 28, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-8082 Filed 3-30-01; 8:45 am]
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