[Federal Register Volume 67, Number 162 (Wednesday, August 21, 2002)]
[Proposed Rules]
[Pages 54262-54306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20939]



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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; Designation of Critical 
Habitat for the Topeka Shiner; Proposed Rule

  Federal Register / Vol. 67, No. 162 / Wednesday, August 21, 2002 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI20


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Topeka Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
designation of critical habitat pursuant to the Endangered Species Act 
of 1973, as amended (Act), for the Topeka shiner (Notropis topeka). 
This proposal is made in response to a court settlement in Biodiversity 
Legal Foundation et al. v. Ralph Morganweck et al. C00-D-1180, 
committing the Service 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 Topeka shiner by August 13, 2002. We are 
proposing to designate as critical habitat a total of 186 stream 
segments, representing 3,765.9 kilometers (2,340 miles) of stream in 
the States of Iowa, Kansas, Minnesota, Nebraska, and South Dakota. 
Proposed critical habitat includes portions of the North Raccoon, 
Boone, and Rock River watersheds in Iowa; the Kansas, Big Blue, Smoky 
Hill, and Cottonwood River watersheds in Kansas; the Rock and Big Sioux 
River watersheds in Minnesota; and the Big Sioux, Vermillion, and James 
River watersheds in South Dakota. If this proposed rule is finalized, 
Federal agencies proposing actions that may affect the areas designated 
as critical habitat must consult with the Service on the effects of the 
proposed actions, pursuant to section 7(a)(2) of the Act. A draft 
Economic Analysis will be prepared in the near future and made 
available for public comment. We will specify the availability of the 
draft Economic Analysis and subsequent reopening of the comment period 
in local and regional newspapers in the range of the species and 
through a notice in the Federal Register.

DATES: We will consider all comments on the proposed rule received from 
interested parties by October 21, 2002. We will hold public meetings 
in--Manhattan, KS, on September 4, 2002; Bethany, MO, on September 5, 
2002; Fort Dodge, IA, on September 9, 2002; Pipestone, MN, on September 
10, 2002; Sioux Falls, SD on September 11, 2002; and, Madison, NE, on 
September 12, 2002. We will start all meetings promptly at 6 p.m. and 
end them no later than 9 p.m. (See ``Public Hearings and Meetings'' 
section for times and locations.)

ADDRESSES: Send your comments on the proposed rule to the Kansas 
Ecological Services Field Office, U.S. Fish and Wildlife Service, 315 
Houston Street, Suite E, Manhattan, KS 66502. The complete file for the 
proposed rule will be available for public inspection, by appointment, 
during normal business hours at the above address. Copies of the 
proposed rule are available by writing to the above address or by 
connecting to the Service internet web site at ``http://mountain-prairie.fws.gov/topekashiner/ch.''

FOR FURTHER INFORMATION CONTACT: Vernon Tabor, Kansas Ecological 
Services Field Office, at the above address; telephone (785) 539-3474, 
facsimile (785) 539-8567.

SUPPLEMENTARY INFORMATION:

Background

    The Topeka shiner is a small, stout minnow, not exceeding 75 
millimeters (3 inches) in total length. The head is short with a small, 
moderately oblique mouth. The eye diameter is equal to or slightly 
longer than the snout. The dorsal fin is large, with the height more 
than one half the predorsal length of the fish, originating over the 
leading edge of the pectoral fins. Dorsal and pelvic fins each contain 
eight rays. The anal and pectoral fins contain 7 and 13 rays 
respectively, and there are 32 to 37 lateral line scales. Dorsally the 
body is olivaceous (olive-green), with a distinct dark stripe preceding 
the dorsal fin. A dusky stripe is exhibited along the entire 
longitudinal length of the lateral line. The scales above this line are 
darkly outlined with pigment, appearing cross-hatched. Below the 
lateral line the body lacks pigment, appearing silvery-white. A 
distinct chevron-like spot exists at the base of the caudal fin (Cross 
1967; Pflieger 1975; U.S. Fish and Wildlife Service 1993).
    The Topeka shiner was first described by C.H. Gilbert in 1884, 
using specimens captured from Shunganunga Creek, Shawnee County, Kansas 
(Gilbert 1884), a tributary to the Kansas River. The Topeka shiner is 1 
of 83 species within the genus Notropis (Robins et al. 1991), all in 
North America. The genus is within the minnow family (Cyprinidae).
    The Topeka shiner is characteristic of small to mid-size prairie 
streams with relatively high water quality and cool to moderate 
temperatures. Many of these streams exhibit perennial flow; however, 
some become intermittent during summer or periods of prolonged drought. 
At times when surface flows cease, pool levels and moderate water 
temperatures are maintained by percolation through the streambed or 
groundwater seepage. The predominant substrate types within these 
streams are gravel, cobble, and sand; however, bedrock and clay hardpan 
overlain by a layer of silt are not uncommon (Minckley and Cross 1959). 
Recently in northern portions of the species' range, the Topeka shiner 
has been found to exist at some stream sites with degraded water 
quality and habitat quality, characterized by moderately high turbidity 
and thick deposits of fine sediments, respectively (Hatch, University 
of Minnesota, pers. comm. 2000; Berry, South Dakota State University, 
pers. comm. 2000). At present, it is unknown whether the species 
utilizes these sites year-round or seasonally, or moves through these 
areas in an attempt to disperse from core habitat areas.
    In the late 1990s, the Topeka shiner was discovered to inhabit a 
number of off-channel sites in Minnesota and Iowa, primarily cut-off 
channels and oxbows that are seasonally flooded (Hatch, pers. comm. 
1999; Menzel, Iowa State University, pers. comm. 1999). It is 
speculated that a common factor of these off-channel sites is a 
connection with the water table, enabling water quality, particularly 
temperature and dissolved oxygen concentrations, to stay within the 
tolerance levels of the species during hot, dry periods. It also is 
suggested that the ground water contact prevents total freeze-out of 
these pools during winter.
    Topeka shiners most often occur in pool and run areas of streams, 
seldom being found in riffles. They are most often pelagic (living in 
open water) in nature, occurring in mid-water and surface areas, and 
are primarily considered a schooling fish. Occasionally individuals of 
this species have been found in larger streams, downstream of known 
populations (Cross 1967; Pflieger 1975; Tabor, U.S. Fish and Wildlife 
Service 1998).
    Historically, the Topeka shiner was widespread and abundant 
throughout small to mid-size streams of the central prairie regions of 
the United States. The Topeka shiner's historic range includes portions 
of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South Dakota. 
Stream basins within the range historically occupied by the Topeka 
shiner include the Des Moines, Raccoon, Boone, Missouri, Big Sioux, 
Cedar, Shell Rock, Rock, and Iowa

[[Page 54263]]

Basins in Iowa; the Arkansas, Kansas, Big Blue, Saline, Solomon, 
Republican, Smoky Hill, Wakarusa, Cottonwood, Nemaha, and Blue Basins 
in Kansas; the Des Moines, Cedar, Big Sioux, and Rock Basins in 
Minnesota; the Missouri, Grand, Lamine, Chariton, Des Moines, Loutre, 
Middle, Hundred and Two, and Blue Basins in Missouri; the Big Blue, 
Elkhorn, Missouri, and Loup Basins in Nebraska; and the Big Sioux, 
Vermillion, and James Basins in South Dakota. The known geographic 
range (watershed area where the species was known to occur) of the 
Topeka shiner has been reduced by approximately 90 percent. The number 
of historically known collection sites (documented in the literature or 
by museum specimens) of Topeka shiner has been reduced by approximately 
70 percent, with approximately 50 percent of this decline occurring 
within the last 40-50 years. The species now primarily exists in 
isolated population complexes (adjoining stream segments) and 
individual isolated stream reaches.
    The Topeka shiner is impacted by habitat destruction, degradation, 
modification, and fragmentation resulting from siltation, reduced water 
quality, tributary impoundment, stream channelization, in-stream gravel 
mining, and changes in stream hydrology. The species also can be 
impacted by introduced predaceous fishes. Additional information on the 
biology and status of the Topeka shiner can be found in the December 
15, 1998, final listing determination (63 FR 69008). Biological factors 
relevant to the species' habitat needs are discussed in the Primary 
Constituent Elements portion of this proposed rule.

Previous Federal Action

    In 1990 the Service's Kansas Field Office began a status review of 
the Topeka shiner using data collected from stream sampling activities 
and information requested from knowledgeable individuals and agencies, 
including State fish and wildlife conservation agencies, State health 
and pollution control agencies, colleges and universities, and other 
Service offices. The Topeka shiner first received listing consideration 
when the species was included in the Animal Candidate Review for 
Listing as Endangered or Threatened Species, as a category 2 candidate 
species, published in the Federal Register (56 FR 58816) on November 
21, 1991. Category 2 candidate species were those species for which 
information in the possession of the Service indicated that a proposal 
to list the species as endangered or threatened was possibly 
appropriate, but sufficient data on biological vulnerability and 
threats were not currently available to support proposed rules for 
listing. A status report, dated February 16, 1993 (Service 1993), was 
subsequently prepared concerning the species. In the November 15, 1994, 
Animal Candidate Review for Listing as Endangered or Threatened 
Species, published in the Federal Register (59 FR 58999), the Topeka 
shiner was reclassified as a category 1 candidate species. Category 1 
candidates comprised taxa for which the Service had substantial 
information on biological vulnerability and threats to support 
proposals to list the taxa as endangered or threatened. We have since 
discontinued the category 1 and category 2 designations for candidates 
and have established a new policy defining candidate species. Candidate 
species are currently defined as those species for which the Service 
has sufficient information on file detailing biological vulnerability 
and threats to support issuance of a proposed rule to list as 
threatened or endangered, but issuance of the proposed rule is 
precluded by other listing actions. In the February 28, 1996, Review of 
Plant and Animal Taxa That Are Candidates for Listing as Endangered or 
Threatened Species, published in the Federal Register (61 FR 7596), the 
Topeka shiner was reclassified as a candidate species.
    We published a proposed rule to list the Topeka shiner as 
endangered in the Federal Register on October 24, 1997 (62 FR 55381). 
Included in the proposed rule was notification of the opening of a 60-
day public comment period and request for public hearings. The comment 
period was open from October 24, 1997, to December 23, 1997. Four 
public hearings were held from January 26-29, 1998, across the species' 
range. A notice to reopen the public comment period was published in 
the Federal Register (62 FR 67324) to accommodate the hearings. This 
comment period was open from January 12, 1998, to February 9, 1998. We 
published the final rule listing the Topeka shiner as an endangered 
species on December 15, 1998 (63 FR 69008). The effective date of the 
listing was January 14, 1999. We did not designate critical habitat at 
the time of listing, as we determined that designation of critical 
habitat was not prudent.
    In early 1999, we assembled the Topeka Shiner Recovery Team. The 
team is composed of species experts from academia and industry, State 
natural resource agency personnel with knowledge of the species, and 
Fish and Wildlife Service staff. Seven team meetings were held between 
1999 to 2001, with the task of developing a draft recovery plan for the 
species. The Service is reviewing this draft and hopes its findings can 
be used as a basis for its proposed recovery plan.
    In an April 4, 2001, court settlement of the case, Biodiversity 
Legal Foundation et al. v. Ralph Morganweck et al., C00-D-1180, we 
agreed to reconsider our prudency determination and, if prudent, 
propose critical habitat for the Topeka shiner by August 13, 2002, and 
to finalize our decision on critical habitat by August 13, 2003.

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.''
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences 
with the Service on Federal actions that are likely to result in the 
destruction or adverse modification of proposed critical habitat. In 
our regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' Aside from the added protection that may be provided 
under section 7, the Act does not provide other forms of protection to 
lands designated as critical habitat. Because consultation under 
section 7 of the Act does not apply to activities on private or other 
non-Federal lands that

[[Page 54264]]

do not involve a Federal nexus, critical habitat designation would not 
result in any regulatory requirement for these actions.
    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 in which the 
primary constituent elements, as defined at 50 CFR 424.12(b), are 
found).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of 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.
    In accordance with sections 3(5)(C) of the Act, not all areas that 
can be occupied by a species will be designated critical habitat. 
Within the geographic area occupied by the species we designate only 
areas currently known to be essential. Essential areas should already 
have the features and habitat characteristics that are necessary to 
conserve the species. We will not speculate about what areas might be 
found to be essential if better information becomes 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. We will not designate areas within 
the geographic area occupied by the species unless at least one of the 
primary constituent elements, as defined at 50 CFR 424.12(b), is 
present. Moreover, areas occupied by certain known populations of the 
Topeka shiner have not been proposed as critical habitat. For example, 
we did not propose critical habitat for some small scattered 
populations or habitats in areas highly impacted by human development.
    Our regulations state, ``The Secretary shall designate as critical 
habitat areas outside the geographical area presently occupied by a 
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)). Based on the best available science and commercial data, 
there appears to be no foundation upon which to make a determination 
that the conservation needs of the Topeka shiner require designation of 
critical habitat outside of the geographic area occupied by the 
species, so we have not proposed to designate critical habitat outside 
of the geographic area believed to be occupied.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, procedures, and guidance to ensure 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, Tribes, and 
counties, scientific status surveys and studies, and biological 
assessments or other unpublished materials, and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize designation of critical 
habitat may not include all habitat eventually determined as necessary 
to recover 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) of 
the Act, and 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. 
Federally funded or assisted projects affecting listed species outside 
their designated critical habitat areas may still result in likely-to-
jeopardize 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.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider physical 
and biological features (primary constituent elements) that are 
essential to conservation of the species, and that may require special 
management considerations and protection. These physical and biological 
features include, but are not limited to--(1) Space for individual and 
population growth, and for normal behavior; (2) food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) cover or shelter; (4) sites for breeding, reproduction, rearing (or 
development) of offspring; and (5) habitats protected from disturbance 
or that are representative of the historic geographical and ecological 
distributions of a species.
    The following studies involving the habitat requirements, life 
history, and population biology of Topeka shiner serve as the best 
science available in establishing the primary constituent elements 
listed below--Barber 1986; Blausey 2001; Cross 1967; Cross 1970; Cross 
and Collins 1975; Cross and Collins 1995; Deacon and Metcalf 1961; 
Gelwicks and Bruenderman 1996; Hatch 2001; Hatch and Besaw 2001; Katula 
1998; Kerns 1983; Leopold et al. 1992; Michels 2000; Michl and Peters 
1993; Minckley and Cross 1959; Pflieger 1975; Pflieger 1997; Rosgen 
1996; Shranke et al. 2001; Stark et al. 1999; U.S. Fish and Wildlife 
Service 1993; Wall et al. 2001.
    Given the large geographic range the species historically occupied, 
and the varying habitats used by the different 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 and habitat requirements of the Topeka shiner 
relevant to identifying the primary constituent elements of its 
critical habitat.
    Topeka shiners are typically found in small, low order, prairie 
streams with good water quality, relatively cool temperatures, and low 
fish diversity (Minckley and Cross 1959; Cross 1967; Barber 1986; Cross 
and Collins 1995; Pflieger 1997; Blausey 2001). Although Topeka shiners 
can tolerate a range of water temperatures, cooler, spring-maintained 
systems are considered

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optimum (Cross and Collins 1995; Pflieger 1997). These streams 
generally maintain perennial flow but may become intermittent during 
summer or periods of drought. Evermann and Cox (1896) reported on 
surveys from the Nebraska portion of the Big Blue River watershed, and 
noted that Topeka shiners occurred in ``pond-like, isolated portions of 
streams which dry up in parts of their course during dry weather.'' 
Minckley and Cross (1959) found Topeka shiners ``almost exclusively in 
quiet, open pools of small, clear streams that drain upland prairies.'' 
They also noted that when these streams approach intermittency the 
``pools are maintained at fairly stable levels by percolation through 
the gravel or by springs.'' Similar habitat characteristics are 
described for populations in Missouri by Pflieger (1997). In South 
Dakota, Blausey (2001) found that runs were the dominant habitat type 
associated with Topeka shiner presence, although higher densities of 
the species were collected in pools. While characteristic of pools with 
stable water levels, the Topeka shiner appears to be well adapted to 
periodic drought conditions common to prairie streams. For example, 
Kerns (1983) found that even though mortality of several fish species 
was high in desiccating pools, juvenile Topeka shiners seemed 
especially drought-resistant.
    In Kansas, Missouri, and South Dakota, Topeka shiners typically 
occur in streams with clean gravel, cobble, or sand bottoms (Pflieger 
1975; Kerns 1983; Barber 1986; Cross and Collins 1995; Pflieger 1997; 
Blausey 2001). However, bedrock and clay hardpan covered by a thin 
layer of silt are not uncommon (Minckley and Cross 1959). In western 
Kansas pools containing Topeka shiners, Stark et al. (1999) determined 
the primary substrate to be coarse sand overlain by silt and detritus. 
Similarly, Michl and Peters (1993) reported the collection of Topeka 
shiners from a Nebraska stream having a sand and detritus substrate. 
While main channel areas may be typical of Kansas, Missouri, and South 
Dakota populations, Topeka shiners in Minnesota and Iowa appear more 
abundant in off-channel oxbows and side-channels than in the main 
channels (Menzel pers. comm. 1999; Hatch 2001). These seasonally 
flooded habitats also appear to have a connection with the water table, 
enabling temperature and dissolved oxygen to stay within tolerance 
levels of the species during dry, hot periods. It also suggests that 
the groundwater connection may prevent complete freezing of these pools 
in winter. Groundwater availability was a primary predictor of Topeka 
shiner presence in South Dakota (Blausey 2001). While we have recently 
found the species in some stream sites with excessive sedimentation, it 
is unknown whether the species uses these locations year-round, for 
portions of the year, or occupy these areas during periods of 
dispersal. In much of the range of Topeka shiner, moderate-sized 
mainstem streams likely provide occasional dispersal corridors for the 
species (Cunningham, Eco-Centrics, Inc., Omaha, Nebraska, pers. comm. 
1999; Menzel pers. comm. 2001). In most cases these larger streams do 
not provide habitat conditions suitable for the species to complete its 
necessary life cycle requirements, but in the Iowa and Minnesota range 
of the species oxbow and other off-channel habitats adjacent to these 
mainstems do provide these requirements (Menzel pers. comm. 2001; Hatch 
2001). In these cases, the primary constituent elements of critical 
habitat are present in the off-channel areas, but not in the larger 
mainstem streams themselves, even though they likely provide corridors 
for dispersion to other areas of suitable habitat.
    Topeka shiners are short-lived species, rarely surviving to their 
third summer (Minckley and Cross 1959; Cross 1967; Kerns 1983; Cross 
and Collins 1995; Pflieger 1997; Hatch 2001). The species typically 
matures at 12-14 months of age (Kerns 1983; Cross and Collins 1995; 
Pflieger 1997). Based on ovarian development, Hatch (2001) suggested 
that Topeka shiners are multiple-clutch spawners. Topeka shiners spawn 
in pool habitats, over green sunfish (Lepomis cyanellus) and 
orangespotted sunfish (Lepomis humilis) nests, from late May to August 
in Kansas and Missouri (Kerns 1983; Cross and Collins 1995; Pflieger 
1997). Stark et al. (1999) observed Topeka shiners spawning on the 
periphery of green sunfish nests and suggested that the habitats 
provided by these nests are important to the reproductive success of 
Topeka shiners. These same authors reported aggregations of Topeka 
shiners in close association with fathead minnow (Pimephales promelas) 
and orangespotted sunfish nests, but no spawning activities were 
observed. In Minnesota, Hatch (2001) found that Topeka shiners use 
rubble, boulder, and concrete rip-rap at the margins of pools and slow 
runs. Several authors have reported the defense of small territories by 
breeding male Topeka shiners (Kerns 1983, Pflieger 1997, Katula 1998, 
Stark et al. 1999, Hatch 2001). In Jack Creek, Chase County, Kansas, 
Mammoliti (Kansas Department of Wildlife and Parks, pers. comm. 1999) 
observed two male Topeka shiners defending a longear sunfish (Lepomis 
megalotis) nest as the male sunfish loafed nearby. Other authors have 
noted upstream movement as reproductive behavior in Topeka shiners 
(Minckley and Cross 1959, Kerns 1983, Barber 1986).
    The Topeka shiner is primarily a schooling fish and found 
throughout the water column. Pflieger (1997) noted that the species 
schooled with other cyprinids in mid-water or near the surface. Other 
studies have reported Topeka shiners schooling in the lower portion of 
the water column with central stonerollers (Campostoma annomalum) 
(Kerns 1983, Stark et al. 1999). While typical of small, headwater 
streams, occasionally the species has been captured in larger streams, 
downstream of known populations. Barber (1986) noted variation in 
mobility within a population of Topeka shiner based on sex and age 
class. In the spring, as precipitation and water temperatures 
increased, adult males tended to move upstream or downstream. In many 
instances, the fish moved back to their original pool. Young-of-the-
year fish tended to move downstream in the fall. Others have reported 
displacement of fish downstream during periods of high flow (Cross, 
University of Kansas, pers. comm. 1994; Tabor pers. comm. 1994). 
Although it is evident that the species has some capacity to disperse, 
at present the degree of dispersal and the species' ability to 
``tributary hop'' is unknown. It has been suggested that populations 
found in short, direct tributaries to the Missouri River were evidence 
of a historic dispersal eastward by ``tributary hopping.'' However, 
Deacon and Metcalf (1961) found the Topeka shiner to be one of several 
fishes with a low capacity for dispersal following drought conditions. 
In addition, Michels (2000) conducted a range-wide genetic analysis of 
different populations of Topeka shiner and suggested that successful 
migration, even between adjacent populations, is rare and that movement 
over long distances is unlikely.
    Earlier researchers (Kerns 1983, Cross and Collins 1995) reported 
that Topeka shiners are benthic insectivores that feed primarily on 
midges (chironomids), true flies (dipterans), and mayflies 
(ephemeropterans), with zooplankton (cladocerans and copepods) also 
contributing to their diet. More recent studies have found Topeka 
shiner feeding at a variety of trophic levels and on diverse foods. 
Stark et al. (1999) observed Topeka shiners consuming

[[Page 54266]]

eggs from fathead minnow nests in Willow Creek, Wallace County, Kansas. 
In Minnesota, food included several kinds of zooplankton, a variety of 
immature aquatic insects, larval fish, algal and vascular plant matter, 
including seed capsules (Hatch and Besaw 1998). These authors suggested 
that Topeka shiners function both as benthic and nektonic feeders, and 
propose that the species also may feed from the surfaces of aquatic 
plants.
    We determine the primary constituent elements associated with 
critical habitat for Topeka shiner to be:
    1. Streams most often with permanent flow, but that can become 
intermittent during dry periods;
    2. Side channel pools and oxbows either seasonally connected to a 
stream or maintained by groundwater inputs, at a surface elevation 
equal to or lower than the bank-full discharge stream elevation. The 
bankfull discharge is the flow at which water begins leaving the 
channel and flowing into the floodplain; this level is generally 
attained every 1 to 2 years. Bankfull discharge, while a function of 
the size of the stream, is a fairly constant feature related to the 
formation, maintenance, and dimensions of the stream channel;
    3. Streams and side channel pools with water quality necessary for 
unimpaired behavior, growth, and viability of all life stages. The 
water quality components can vary seasonally and include--temperature 
(1 to 30 deg.Centigrade), total suspended solids (0 to 2000 ppm), 
conductivity (100 to 800 mhos), dissolved oxygen (4 ppm or greater), pH 
(7.0 to 9.0), and other chemical characteristics;
    4. Living and spawning areas for adult Topeka shiner with pools or 
runs with water velocities less than 0.5 meters/second (approx. 20 
inches/second) and depths ranging from 0.1 to 2.0 meters (approximately 
4 to 80 inches);
    5. Living areas for juvenile Topeka shiner with water velocities 
less than 0.5 meters/second (approx. 20 inches/second) with depths less 
than 0.25 meters (approx. 10 inches) and moderate amounts of instream 
aquatic cover, such as woody debris, overhanging terrestrial 
vegetation, and aquatic plants;
    6. Sand, gravel, cobble, and silt substrates with amounts of fine 
sediment and substrate embeddedness that allows for nest building and 
maintenance of nests and eggs by native Lepomis sunfishes (green 
sunfish, orangespotted sunfish, longear sunfish) and Topeka shiner as 
necessary for reproduction, unimpaired behavior, growth, and viability 
of all life stages;
    7. An adequate terrestrial, semiaquatic, and aquatic invertebrate 
food base that allows for unimpaired growth, reproduction, and survival 
of all life stages;
    8. A hydrologic regime capable of forming, maintaining, or 
restoring the flow periodicity, channel morphology, fish community 
composition, off-channel habitats, and habitat components described in 
the other primary constituent elements; and
    9. Few or no nonnative predatory or competitive nonnative species 
present.
    The areas we are proposing for designation as critical habitat for 
Topeka shiner provide the above primary constituent elements essential 
for the conservation of the species. The proposed areas require special 
management considerations or protection to ensure their contribution to 
the conservation of the species.

Proposed Critical Habitat Designation

    In proposing critical habitat for Topeka 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 considered 
the measures identified as necessary for recovery, as outlined in the 
species' preliminary draft recovery plan. Additionally, we solicited 
information and recommendations from knowledgeable biologists and 
members of the Topeka Shiner Recovery Team. We also reviewed the 
available information pertaining to habitat requirements of the species 
received during the listing process.

  Table 1.--Number of Stream Segments and Total Stream Mileage Proposed
     for Designation as Critical Habitat for Topeka Shiner by State
------------------------------------------------------------------------
                                                   No. of       Total
                                                   stream       stream
                     State                        segments     mileage
                                                proposed by  proposed by
                                                   State        State
------------------------------------------------------------------------
Iowa..........................................           25          225
Kansas........................................           63          587
Minnesota.....................................           57          605
Nebraska......................................            1            6
South Dakota..................................           40          917
                                               -------------------------
    Total.....................................          186        2,340
------------------------------------------------------------------------


  Table 2.--Number of Stream Segments and Total Stream Mileage Proposed
     for Designation as Critical Habitat for Topeka Shiner by County
------------------------------------------------------------------------
                                                 Number of
                                                   stream       Stream
                    County                        segments     mileage
                                                proposed by  proposed by
                                                   county       county
------------------------------------------------------------------------
Iowa:
    Calhoun...................................            8           68
    Carroll...................................            2            7
    Dallas....................................            3            3
    Greene....................................            8           87
    Hamilton..................................            1            1
    Lyon......................................            3           16
    Osceola...................................            1            5
    Sac.......................................            4           12
    Webster...................................            1            9
    Wright....................................            3           16
Kansas:
    Butler....................................            1            5
    Chase.....................................           27          200
    Dickinson.................................            4           49
    Geary.....................................            7           62
    Greenwood.................................            2            7
    Marion....................................            1            9
    Marshall..................................            2           22
    Morris....................................            6           22
    Pottawatomie..............................            1            5
    Riley.....................................            4           44
    Shawnee...................................            1           18
    Wabaunsee.................................           15          136
    Wallace...................................            1            9
Minnesota:
    Lincoln...................................            4           27
    Murray....................................            2           19
    Nobles....................................           14          115
    Pipestone.................................           21          196
    Rock......................................           25          247
Nebraska:
    Madison...................................            1            6
South Dakota:
    Aurora....................................            1           27
    Beadle....................................            3           98
    Brookings.................................            6          106
    Clay......................................            2           29
    Davison...................................            4           63
    Deuel.....................................            2           36
    Hamlin....................................            1            8
    Hanson....................................            3           48
    Hutchinson................................            6           66
    Lincoln...................................            3           41
    McCook....................................            2           47
    Miner.....................................            2           31
    Minnehaha.................................            6          102
    Moody.....................................            5           63
    Turner....................................            6         151
------------------------------------------------------------------------
Note: Many stream segments occur in more than one county, thus inflating
  the total number per State, if totaled.

    Due to the need for additional information on the species, its 
habitats, restoration potential, possible unknown isolated occurrences, 
and other factors, interim criteria for downlisting and delisting were 
set forth in a preliminary draft recovery plan now under review by the 
Service. The recovery team agreed that even though much

[[Page 54267]]

information on the species is known, it would be prudent to develop 
interim recovery criteria, as opposed to final criteria at the time the 
plan was developed. It also was agreed by the recovery team that the 
interim recovery criteria would later be adjusted to reflect new 
information, as it becomes available, solidifying final recovery 
criteria. The primary information need identified in coming to this 
decision was information on stream and watershed conditions within 
unoccupied historic range, in reference to the potential for 
reintroduction and reestablishment of the species in these areas. 
Additionally, there was the need for more information on the species' 
range, particularly in Nebraska and parts of Iowa, where isolated, 
remnant populations of Topeka shiner might be discovered, possibly 
affecting recovery goals. If previously unknown populations were found 
in these areas, this would avoid the need for reintroduction in these 
areas. Reintroduction and successful reestablishment is most often 
viewed as being more difficult than maintenance and enhancement of 
existing populations and habitat. The interim recovery criteria 
recommend protection of existing populations, enhancement and 
restoration of habitats occupied by depleted populations, and 
reintroduction and reestablishment of the species into unoccupied 
streams within the historical range. Since information and data are 
lacking on conditions of the watersheds and instream habitat in 
unoccupied historic range of the species, we do not propose habitat in 
these areas, even though we recognize that the interim recovery 
criteria includes reintroduction and reestablishment of Topeka shiner 
to these areas. We are proposing stream segments occupied by Topeka 
shiner, and some stream segments with no records of capture for the 
species that connect with occupied stream segments. These connecting 
stream segments possess the primary constituent elements necessary for 
proposal, and likely harbor the species during some flow conditions. 
Examples of habitat use of this type include, upstream movement during 
high flows or wet periods, and downstream habitat use during dry 
periods or periods of extended drought. Due to this consideration, we 
regard all stream segments proposed for critical habitat as within the 
geographical area occupied by the species.
    Within the geographic area occupied by the species, we are 
designating only areas currently known to be ``essential to the 
conservation of the species.'' Critical habitat should already have, or 
have the potential for developing in the near future, many or all of 
the features and habitat characteristics that are necessary to sustain 
the species. We do not speculate about what areas might be found to be 
essential if better information were available, or what areas may 
become essential over time. If information available at the time of 
designation does not show an area provides essential support for a 
species at any phase of its life cycle, then the area should not be 
included in the critical habitat designation. Within the geographic 
area occupied by the species, we will not designate areas that do not 
now have the primary constituent elements that provide essential life 
cycle needs of the species, as defined at 50 CFR 424.12(b). 
Furthermore, we recognize designation of critical habitat may not 
include all habitat eventually determined as necessary to recover the 
species. For these reasons, areas outside the critical habitat 
designation will continue to be subject to conservation actions that 
may be implemented under section 7(a)(1) and 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 those 
planning efforts calls for a different outcome.
    The proposed critical habitat described below constitutes our best 
assessment of areas needed for the conservation of Topeka shiner and is 
based on the best scientific and commercial information available. The 
proposed areas are essential to the conservation of the species because 
they currently support populations of Topeka shiner or provide critical 
links or corridors to other habitat for the species. The stream 
segments proposed for designation as critical habitat in this proposed 
rule are consistent with the preliminary draft recovery plan's first 
recovery criterion, which states that recovery of the species will be 
recognized as achieved when all naturally occurring populations within 
primary and secondary recovery units are determined to be stable or 
increasing over a period of 10 years.
    Important considerations in selection of areas proposed in this 
rule include factors specific to each geographic area, watershed and 
stream segment, such as stream size and length, connectivity, and 
habitat diversity, as well as range-wide recovery considerations, such 
as genetic diversity and representation of major portions of the 
species' historical range. The proposed critical habitat reflects the 
need for habitat complexes and individual stream reaches of sufficient 
size to provide habitat for Topeka shiner populations large enough to 
be self-sustaining over time, despite fluctuations in local conditions.
    Habitat complexes contain interconnected waters so that Topeka 
shiners can move between areas, at least during certain flows or 
seasons. The ability of the fish to repopulate areas where they are now 
depleted or extirpated is vital to the species' conservation. Some 
complexes may include stream reaches with minimal instream habitat, but 
which provide migration corridors for Topeka shiners. These corridors 
play a vital role in the dispersal of the species and the overall 
functioning of the aquatic ecosystem and, therefore, the integrity of 
upstream and downstream habitats.
    The proposed designation includes representatives of all known 
populations of the species so as to conserve and protect genetic 
diversity within the species. Information on the Topeka shiner 
indicates a high degree of genetic differentiation among many of the 
remnant populations (Michels 2000), making conservation of as many of 
these populations as possible important to efforts to preserve genetic 
diversity.
    Uncertainty on upstream and downstream distributional limits of 
some populations may result in areas of occupied habitat being excluded 
from the designation. Additionally, there are streams with some recent 
association with Topeka shiners that may not be proposed for 
designation. These could include streams with records of one-time 
captures of Topeka shiner; streams for which habitat conditions are 
unknown; streams with unprecise, generalized, or questionable capture 
locations; and streams with severely altered habitat, lacking the 
primary constituent elements (e.g., drainage ditches).
    Our determination of which stream segments to propose for 
designation used the best scientific information and data available. We 
began the process by

[[Page 54268]]

compiling information on the species and its habitat to create draft 
maps of potentially suitable stream reaches. We then consulted species 
experts in academia, members of the Topeka Shiner Recovery Team, and 
biologists from State natural resource and fish and wildlife agencies 
familiar with the species or the watersheds in areas with the Topeka 
shiner. We also consulted biologists from other Service offices in the 
species' range. We asked for their review of the stream reaches 
identified on the draft maps, and for any suggested changes or 
additions.
    Factors considered in determining specific stream segments 
included--streams with occupancy and habitat information for the 
species; stream reaches with all or some of the primary constituent 
elements for Topeka shiners, including those able to attain them in the 
foreseeable future; habitat models; information on the species' ecology 
and biology; stream morphology and hydrology information; regional 
habitat use by the species, such as use of side-channel pools in Iowa, 
Minnesota, and the Big Sioux drainage in South Dakota; major habitat 
alterations, such as channelization and dams; and information on the 
mobility of Topeka shiner in reference to connectivity of adjacent 
stream reaches, and to home range and dispersal characteristics. 
Information and suggested changes provided by the individuals and 
agencies who reviewed the draft maps were carefully considered and 
implemented where they were consistent with the Service's criteria for 
designating critical habitat.
    The proposed designation includes 186 stream segments, encompassing 
3,765.9 kilometers (2,340 miles) of streams, including adjacent off-
channel pool habitats in Iowa, Minnesota, and the Big Sioux River 
watershed of South Dakota. The stream segments are within 11 major 
watersheds in the States of Iowa, Kansas, Minnesota, Nebraska, and 
South Dakota. These 186 proposed stream segments encompass 23 stream 
complexes (2 or more connecting stream segments) and 18 individual, 
isolated streams. No habitat is proposed for Missouri (see Exclusions 
from Critical Habitat section below).
    Proposed critical habitat includes the stream channels within the 
identified stream reaches and off-channel pools and oxbows in the 
Minnesota, Iowa, and the Big Sioux River portion of the South Dakota 
range. Side channel pools and oxbows that are proposed for designation 
are typically either seasonally connected to a stream or have waters 
maintained by groundwater inputs. The defining stream elevation for 
determining the lateral extent of proposed critical habitat in stream 
channels and off-channel or oxbow pools is the elevation equal to the 
bankfull discharge stream elevation. The bankfull discharge is the flow 
at which water begins leaving the channel and flowing into the 
floodplain (Rosgen 1996). This level is generally attained every 1 to 2 
years (Leopold et al. 1992). Bankfull discharge, while a function of 
the size of the stream, is a fairly constant feature related to the 
formation, maintenance, and dimensions of the stream channel (Rosgen 
1996).
    We propose the following areas for designation as critical habitat. 
These areas--(1) Are currently considered occupied or provide critical 
links or corridors between occupied habitats and/or potentially 
occupied habitat; (2) provide all or some of the primary constituent 
elements essential to the conservation of the species; and (3) may 
require special management considerations or protection. (See the 
Regulation Promulgation section of this rule for legal descriptions and 
maps of the boundaries.)

Iowa

Raccoon River Watershed

    1. North Raccoon River Complex (19 stream segments), Calhoun, 
Carroll, Dallas, Greene, Sac, and Webster Counties, Iowa. Multiple 
tributary streams and some of their adjacent off-channel pool habitats 
in this complex have recent collection records for Topeka shiners. 
While some habitat in these tributaries has been altered (primarily by 
channelization and sedimentation), current habitat conditions provide 
most or all of the primary constituent elements consistent with 
designation as critical habitat. Off-channel pool habitats adjacent to 
the mainstem of the North Raccoon River also have been discovered to be 
Topeka shiner habitat, and we propose these areas as well. However, 
records of Topeka shiners are lacking from the mainstem of the North 
Raccoon River itself. It is likely that the mainstem provides an 
important dispersal corridor for the species between tributary streams 
and off-channel pools adjacent to the mainstem, particularly during 
high flow events, but the habitat components within the mainstem itself 
do not provide the primary constituent elements necessary for proposing 
it for designation as critical habitat. We are proposing 19 stream 
segments within portions of the following tributaries and their 
qualifying, adjacent off-channel habitat for designation--Indian Creek, 
Ditch 57, and Outlet Creek; Camp Creek and West Fork Camp Creek; 
Prairie Creek; Lake Creek; Purgatory Creek; Cedar Creek, West Cedar 
Creek, and East Cedar Creek; Short Creek; Hardin Creek; Buttrick Creek, 
West Buttrick Creek, and East Buttrick Creek; and Elm Branch and Swan 
Lake Branch. Additionally, qualifying off-channel pool habitat (as 
described in the section on Primary Constituent Elements) adjacent to 
the mainstem of the North Raccoon River is proposed for designation.

Boone River Watershed

    2. Eagle Creek (one stream segment), Hamilton and Wright Counties, 
Iowa. Eagle Creek has several recent collections of Topeka shiner even 
though a large portion of its upper basin has been severely altered by 
stream channelization and drainage ditch construction. The lower 
reaches of Eagle Creek still retain much of its natural stream 
morphology, including meanders and pool habitat. We propose the lower 
reach of Eagle Creek and qualifying, adjacent off-channel pool habitats 
for designation. The upper, channelized, portions of Eagle Creek are 
not proposed for designation.
    3. Ditch 3 and Ditch 19 Complex (two stream segments), Wright 
County, Iowa. The proposed reach of Ditch 3 extends from its confluence 
with the Boone River, upstream to the Humboldt County line. Ditch 19 
also extends upstream from its confluence with Ditch 3 to the Humboldt 
County line. While the general map descriptions of these streams are 
termed ``ditches'' due to channelization activities in the past, both 
streams have reestablished much of their natural morphology and 
instream habitat conditions in the recent past, including meanders and 
pool habitats. Habitat components within these streams are consistent 
with the Primary Consistent Elements necessary for designation as 
critical habitat downstream from the Humboldt County line. Topeka 
shiners have been recently captured from both streams. Qualifying off-
channel pool habitat also is proposed. Habitat upstream from the 
Humboldt County line is highly modified by channelization and is not 
proposed for designation.

Rock River Watershed

    4. Rock River Complex (two stream segments in Iowa), Lyon County, 
Iowa. The Rock River Complex is comprised of 2 stream segments in Iowa 
and 28 stream segments in Minnesota. Topeka shiners have recently been 
captured throughout much of the Rock River watershed, both from streams 
and adjacent off-channel pools and oxbows.

[[Page 54269]]

We propose the reach of the Rock River from its confluence with 
Kanaranzi Creek upstream to the border with Minnesota, and Kanaranzi 
Creek from the confluence with the Rock River upstream to the Minnesota 
border. Adjacent, qualifying off-channel pool habitats along both 
stream segments also are proposed.
    5. Little Rock River Complex (one stream segment in Iowa), Lyon and 
Osceola Counties, Iowa. The Little Rock River Complex is comprised of 
one stream segment in Iowa and two stream segments in Minnesota. Topeka 
shiners have recently been captured in portions of the Little Rock 
River watershed, both from streams and adjacent off-channel pools and 
oxbows. We propose the reach of the Little Rock River from near the 
town of Little Rock, Iowa, upstream to the Minnesota border, including 
qualifying, adjacent off-channel pool habitat.

Kansas

Big Sioux River Watershed

    1. Medary Creek Complex (two stream segments in Minnesota), Lincoln 
County, Minnesota. This complex is comprised of two stream segments in 
Minnesota and three in South Dakota. Topeka shiners recently have been 
captured from several localities in this complex. We propose portions 
of Medary Creek and an unnamed tributary, and adjacent off-channel pool 
habitat for designation.
    2. Flandreau Creek Complex (four stream segments in Minnesota), 
Lincoln and Pipestone Counties, Minnesota. This complex is comprised of 
four stream segments in Minnesota and one in South Dakota. Topeka 
shiners have been recently captured from several localities in this 
complex. We proposed portions of Flandreau Creek and an unnamed 
tributary, East Branch Flandreau Creek, Willow Creek, and adjacent off-
channel pool habitat for designation.
    3. Split Rock/Pipestone/Beaver Creek Complex (18 stream segments in 
Minnesota), Pipestone and Rock Counties, Minnesota. This complex is 
comprised of 18 stream segments in Minnesota and 7 in South Dakota. The 
streams and some of their adjacent off-channel pool habitats in this 
complex have recent collection records for the Topeka shiner. While 
some habitat in these tributary streams has been altered, primarily by 
channelization and sedimentation, current habitat conditions provide 
most or all of the primary constituent elements.

Cottonwood River Watershed

    1. Fox Creek Complex (three stream segments), Chase County, Kansas. 
This complex is characterized by high quality aquatic habitat. Recent 
collection records exist from two unnamed tributaries to Fox Creek. We 
propose for designation the lower reach of Fox Creek from near Strong 
City, Kansas, upstream through the Tallgrass Prairie National Preserve, 
an area managed by the U.S. National Park Service, and two unnamed 
tributary streams in the Preserve.
    2. Diamond Creek Complex (eight stream segments), Chase and Morris 
Counties, Kansas. This complex is generally characterized by high-
quality aquatic habitat draining large tracts of tallgrass prairie. 
However, an upstream portion of the basin has been largely converted to 
rowcropping, with a subsequent decline in aquatic habitat quality. 
Recent collection records exist in many of the streams draining the 
upland prairie habitat. We propose portions of the following streams 
for designation--Diamond Creek from near its confluence with the 
Cottonwood River, upstream to the confluence with Sixmile Creek; Gannon 
Creek and an unnamed tributary; Mulvane Creek; Schaffer Creek and four 
unnamed tributaries; Dodds Creek; Sixmile Creek; Mulberry Creek and an 
unnamed tributary; and an unnamed direct tributary to the Cottonwood 
River immediately adjacent to, and downstream from, the lower reach of 
Diamond Creek.
    3. Middle Creek Complex (three stream segments), Chase County, 
Kansas. This complex is generally characterized by high-quality aquatic 
habitat draining large tracts of tallgrass prairie. However, portions 
of the western sub-basins have been converted to rowcropping. There 
also are several tributary streams that have had intensive dam 
construction, resulting in major changes to habitat and fish 
communities. Following dam development in the Stribby Creek drainage of 
the Middle Creek Basin, Topeka shiners disappeared both upstream and 
downstream from the impoundments. Recent collection records only exist 
from two streams--Collett Creek, and an unnamed tributary to Middle 
Creek in the lower portion of the basin. We propose portions of the 
following streams for designation--the lower reach of Middle Creek and 
two adjoining unnamed tributaries; and Collett Creek.
    4. South Fork of the Cottonwood River (South Fork) Complex (15 
stream segments), Butler, Chase, and Greenwood Counties, Kansas. This 
complex is characterized by high-quality aquatic habitat draining large 
tracts of tallgrass prairie. Many of the streams within this watershed 
have capture records for the species. There are several tributaries, 
including one site on the upper mainstem, that were dammed just prior 
to the Topeka shiner being listed as an endangered species. There have 
been no recent surveys along these streams to determine if Topeka 
shiner populations have been affected; however, the species persists in 
other portions of the watershed. We propose portions of the following 
streams for designation--the mainstem of the South Fork of the 
Cottonwood River from its confluence with the Cottonwood River, 
upstream to near its headwaters; Sharpes Creek; Rock Creek; Den Creek; 
Crocker Creek and an unnamed tributary; Mercer Creek and two unnamed 
tributaries; Jack Creek; Thurman Creek and an unnamed tributary; Little 
Cedar Creek; Shaw Creek; and Bloody Creek, a direct tributary to the 
Cottonwood River immediately downstream from the South Fork of the 
Cottonwood River confluence with the mainstem.
    5. Mud Creek (one stream segment), Marion County, Kansas. This 
watershed is characterized by a mosaic of prairie and cropland. We 
propose one stream segment in the upper portion of the Mud Creek 
watershed.

Kansas River Watershed

    6. Mill Creek Complex (14 stream segments), Wabaunsee County, 
Kansas. This complex is generally characterized by high-quality aquatic 
habitat draining large tracts of tallgrass prairie. However, much of 
the floodplain areas of mainstem Mill Creek and several of its 
tributaries have been converted to cropland. This conversion, likely in 
combination with intensive instream gravel dredging, has resulted in 
headcutting, bank erosion, and the loss of riparian vegetation. There 
is a moderate level of tributary dam development, primarily in the 
headwaters of the basin, and there are riparian and instream areas 
where cattle are over-wintered, resulting in large inputs of nutrients 
to the streams during periods of heavy rainfall. Recent collection 
records of Topeka shiner exist for many of the streams in the basin, 
but their abundance appears to be declining when compared with capture 
records from the 1950s-1970s. We propose portions of the following 
streams for designation--Mill Creek upstream from State Highway 30; 
West Branch Mill Creek; South Branch Mill Creek; East Branch Mill 
Creek; Mulberry Creek;

[[Page 54270]]

Spring Creek (a direct tributary to mainstem Mill Creek); Kuenzli 
Creek; Paw Paw Creek; Pretty Creek; Hendricks Creek; Loire Creek; 
Illinois Creek; Spring Creek (a tributary to West Branch Mill Creek); 
and Nehring Creek.
    7. Mission Creek (one stream segment), Shawnee and Wabaunsee 
Counties, Kansas. This stream is characterized by good aquatic habitat 
draining tallgrass prairie uplands and a cultivated floodplain. 
Riparian conditions are good and generally appear stable. We propose 
the reach of Mission Creek upstream from Interstate Highway 70.
    8. Deep Creek Complex (two stream segments), Riley County, Kansas. 
The Deep Creek Complex is characterized by high-quality aquatic habitat 
draining tallgrass prairie uplands and a partially cultivated 
floodplain. Riparian conditions are good and generally appear stable 
except for upstream reaches of Deep Creek where intensive instream 
gravel mining is occurring, resulting in severe stream bank erosion and 
headcutting. Recent records of Topeka shiner exist from the Pilsbury 
Crossing area of Deep Creek, and the lower and mid-reaches of School 
Creek. We propose portions of the following streams for designation--
Deep Creek from near its confluence with the Kansas River, upstream to 
Interstate Highway 70; and approximately the downstream one-half of 
School Creek.
    9. Wildcat Creek Complex (two stream segments), Riley County, 
Kansas. The Wildcat Creek Complex is composed of two stream segments 
and drains a variety of landscapes including cultivated cropland, 
tallgrass prairie uplands, and woodlands. The lower portion of the 
proposed downstream reach drains areas of suburban Manhattan, Kansas. 
This suburban reach retains good habitat quality including pool/riffle 
complexes, meanders, and stable riparian conditions. Riparian 
conditions throughout the proposed reaches are generally in good 
condition. Wildcat Creek's aquatic habitat is moderately impacted by 
sediment and nutrient inputs from upstream sources. We propose a stream 
segment near Riley, Kansas, and a reach from near Keats to Manhattan, 
Kansas. We are proposing to exclude the reach of Wildcat Creek flowing 
through the Fort Riley Military Installation (see Exclusions from 
Critical Habitat section).
    10. Clarks Creek Complex (five stream segments), Geary County, 
Kansas. These streams can generally be characterized as having good 
aquatic habitat draining tallgrass prairie uplands and a partially 
cultivated floodplain. Riparian conditions are good and generally 
appear stable. Instream gravel mining occurs at variable levels in this 
complex. Capture records of Topeka shiner within this complex are 
recent. We propose portions of the following streams for designation--a 
mid-basin reach of Clarks Creek; Thomas Creek; Davis Creek; Dry Creek; 
and West Branch Dry Creek.
    11. Lyon Creek Complex (five stream segments), Geary and Dickinson 
Counties, Kansas. The Lyon Creek Complex is composed of five stream 
segments that drain variable landscapes. Much of the basin, 
particularly the western portion, drains a mosaic of prairie uplands 
and croplands. Instream habitat conditions vary, with some stream 
reaches degraded by heavy sediment and nutrient loading. Watershed 
impoundments and ponds are a major feature in several of the sub-
drainages of this watershed, particularly in the southeastern portion 
of the Lyon Creek watershed. We propose portions of the following 
streams for designation--the lower and mid-basin reaches of Lyon Creek; 
Rock Springs Creek; Carry Creek and an unnamed tributary; and West 
Branch Lyon Creek.
    12. Walnut Creek (one stream segment), Big Blue River Watershed, 
Riley County, Kansas. Walnut Creek is characterized by good quality 
aquatic habitat. However, this reach at times has limited downstream 
refugia due to the backup of floodwaters from Tuttle Creek Reservoir. 
The proposed reach is upstream from the flood pool of the reservoir.

Big Blue River Watershed

    13. Clear Fork Creek (one stream segment), Marshall and 
Pottawatomie Counties, Kansas. Clear Fork Creek is a tributary to the 
Black Vermillion River. Their confluence is in the flood pool of Tuttle 
Creek Reservoir. This stream is characterized by good aquatic habitat 
draining primarily tallgrass prairie uplands and a partially cultivated 
floodplain. Riparian conditions are good and generally appear stable. 
An apparently stable population of Topeka shiners exists within its 
mid-to upper reaches. Clear Fork Creek is a relatively long stream 
upstream of the flood pool of the reservoir, with the upper and middle 
reaches proposed for designation.
    14. North Elm Creek (one stream segment), Marshall County, Kansas. 
North Elm Creek is a direct tributary to the Big Blue River near the 
Kansas/Nebraska border. This stream is characterized by moderately 
degraded instream habitat in many places, as a result of heavy sediment 
loading. The watershed is predominantly cropland. However, there are 
known areas within this stream with springs and seeps which likely 
contribute to the species' continuing existence in this locale. The 
proposed reach of North Elm Creek is upstream from its confluence with 
the Big Blue River to near its headwaters.

Smoky Hill River Watershed

    15. Willow Creek (one stream segment), Wallace County, Kansas. The 
available habitat in this stream is a series of spring-fed pools with 
good water quality, in a watershed drained by shortgrass prairie and 
areas of dryland and irrigated cropping. Good land stewardship on the 
property surrounding the permanent pools, in combination with the 
spring inflows, are likely the primary factors in the continuing 
conservation of this population.

Minnesota

Big Sioux River Watershed

    1. Medary Creek Complex (two stream segments in Minnesota), Lincoln 
County, Minnesota. This complex is comprised of two stream segments in 
Minnesota and three in South Dakota. Topeka shiners recently have been 
captured from several localities in this complex. We propose portions 
of Medary Creek and an unnamed tributary, and adjacent off-channel pool 
habitat for designation.
    2. Flandreau Creek Complex (four stream segments in Minnesota), 
Lincoln and Pipestone Counties, Minnesota. This complex is comprised of 
four stream segments in Minnesota and one in South Dakota. Topeka 
shiners have been recently captured from several localities in this 
complex. We propose portions of Flandreau Creek and an unnamed 
tributary, East Branch Flandreau Creek, Willow Creek, and adjacent off-
channel pool habitat for designation.
    3. Split Rock/Pipestone/Beaver Creek Complex (18 stream segments in 
Minnesota), Pipestone and Rock Counties, Minnesota. This complex is 
comprised of 18 stream segments in Minnesota and 7 in South Dakota. The 
streams and some of their adjacent off-channel pool habitats in this 
complex have recent collection records for the Topeka shiner. While 
some habitat in these tributary streams has been altered, primarily by 
channelization and sedimentation, current habitat conditions provide 
most or all of the primary constituent elements consistent with 
designation as critical habitat. We propose for designation portions 
of--Pipestone Creek and two unnamed

[[Page 54271]]

tributaries; North Branch Pipestone Creek and an unnamed tributary; and 
Split Rock Creek and five unnamed tributaries; Beaver Creek and two 
unnamed tributaries; Little Beaver Creek; Springwater Creek; and 
adjacent off-channel pool habitat.

Rock River Watershed

    4. Rock River Complex (28 stream segments in Minnesota), Murray, 
Nobles, Pipestone, and Rock Counties, Minnesota. The Rock River Complex 
is comprised of 28 stream segments in Minnesota and 2 stream segments 
in Iowa. Many streams in this complex have been impacted by 
channelization and sedimentation to varying degrees. These streams are 
characterized by predominantly natural morphology, instream pools, and 
a number of off-channel and oxbow pools, with some short reaches of 
channelization. Topeka shiners have recently been captured throughout 
much of the Rock River watershed, from both streams and adjacent off-
channel pools and oxbows. We propose portions of the following stream 
reaches, along with adjacent off-channel pool habitat for designation--
the Rock River from Minnesota/Iowa border, upstream to near Holland, 
Minnesota, and six unnamed tributaries; East Branch Rock River and an 
unnamed tributary; Kanaranzi Creek, East Branch Kanaranzi Creek, and 
three unnamed tributaries; Norwegian Creek and an unnamed tributary; 
Ash Creek; Elk Creek and an unnamed tributary; Champepadan Creek and 
three unnamed tributaries; Mound Creek; Poplar Creek and an unnamed 
tributary; and Chanarambie Creek and North Branch Chanarambie Creek.
    5. Little Rock River Complex (two stream segments in Minnesota), 
Nobles County, Minnesota. The Little Rock River Complex is comprised of 
two stream segment in Minnesota and one stream segment in Iowa. Topeka 
shiners have recently been captured in portions of the Little Rock 
River watershed, both from streams and adjacent off-channel pools and 
oxbows. We propose the reaches of the Little Rock River from the 
Minnesota/Iowa border, upstream to near Rushmore, Minnesota, and 
portions of Little Rock Creek, including adjacent off-channel pool 
habitat.
    6. Mud Creek Complex (three stream segments), Rock County, 
Minnesota. This complex is comprised of three stream segments. We 
propose portions of Mud Creek and two unnamed tributaries, and adjacent 
off-channel pool habitat for designation.

Nebraska

    1. Taylor Creek (one stream segment), Elkhorn River Watershed, 
Madison County, Nebraska. A small population of Topeka shiners exists 
in this stream, with two recent captures of the species. This is the 
only stream in Nebraska with capture records for the species since 
1989, and is the only proposed critical habitat in the greater Platte 
River watershed. Taylor Creek is somewhat modified in portions of its 
watershed, but retains several of the primary constituent elements 
necessary for designation as critical habitat, including stream 
morphology, pools, and instream habitat. The proposed reach of Taylor 
Creek is upstream from its confluence with Union Creek, near Madison, 
Nebraska.

South Dakota

Big Sioux River Watershed

    1. Hidewood Creek (one stream segment), Deuel and Hamlin Counties, 
South Dakota. We propose to designate critical habitat on Hidewood 
Creek from its confluence with the Big Sioux River, to upstream of 
State Highway 15, including adjacent off-channel pool habitat.
    2. Peg Munky Run (one stream segment), Deuel County, South Dakota. 
We propose habitat from State Highway 28, upstream to near Interstate 
Highway 29, including adjacent off-channel pool habitat. The downstream 
reach of this stream, to the confluence with the Big Sioux River, 
provides a possible corridor for dispersal by the species. However, 
this reach is highly channelized and does not have the necessary 
primary constituent elements present for proposing designation.
    3. Sixmile Creek Complex (two stream segments), Brookings County, 
South Dakota. Habitat is proposed from near the confluence with the Big 
Sioux River, to upstream of White, South Dakota. The proposed reaches 
include portions of Sixmile Creek and an unnamed tributary, including 
adjacent off-channel pool habitat.
    4. Medary Creek Complex (three stream segments), Brookings County, 
South Dakota. This complex is comprised of three stream segments in 
South Dakota and two in Minnesota. Topeka shiners have recently been 
captured from several localities in this complex. We propose for 
designation--Medary Creek from the confluence with the Big Sioux River, 
upstream to the South Dakota/Minnesota border; and portions of Deer 
Creek and an unnamed tributary, and adjacent off-channel pool habitat.

Lower Big Sioux Watershed

    5. Spring Creek (one stream segment), Brookings and Moody Counties, 
South Dakota. The proposed reach runs from the confluence with the Big 
Sioux River, upstream to the South Dakota/Minnesota border, including 
adjacent off-channel pool habitat.
    6. Flandreau Creek Complex (one stream segment in South Dakota), 
Moody County, South Dakota. This complex is comprised of one stream 
segment in South Dakota and four stream segments in Minnesota. Topeka 
shiners have been recently captured from several localities in this 
complex in Minnesota. No known collections exist from the reach 
proposed in South Dakota. However, this reach of stream is a likely 
dispersal corridor, and could be used as refugia for the species during 
long periods of drought. We propose for designation--Flandreau Creek, 
and adjacent off-channel pool habitat, from the confluence with the Big 
Sioux River, upstream to the South Dakota/Minnesota border.
    7. Brookfield Creek (one stream segment), Brookings County, South 
Dakota. The stream reach proposed for designation runs upstream from 
the confluence with the Big Sioux River, including adjacent off-channel 
pool habitat.
    8. Slip-Up Creek (one stream segment), Minnehaha County, South 
Dakota. The stream reach proposed for designation runs from the 
confluence with the Big Sioux River upstream, and includes adjacent 
off-channel pool habitat.
    9. Split Rock/Pipestone/Beaver Creek Complex (seven stream segments 
in South Dakota), Minnehaha and Moody Counties, South Dakota. This 
complex is comprised of 7 stream segments in South Dakota and 18 in 
Minnesota. The streams and some of their adjacent off-channel pool 
habitats in this complex have recent collection records for Topeka 
shiner. While some habitat in these tributary streams has been altered, 
primarily by channelization and sedimentation, current habitat 
conditions provide most or all of the primary constituent elements 
consistent with designation as critical habitat. We propose for 
designation portions of--Split Rock Creek and an unnamed tributary; 
Pipestone Creek and an unnamed tributary; West Pipestone Creek; Beaver 
Creek; Fourmile Creek; and adjacent off-channel pool habitat within 
these reaches.

Vermillion River Watershed

    10. Vermillion River Complex (nine stream segments), Clay, Lincoln,

[[Page 54272]]

McCook, Miner, and Turner Counties, South Dakota. This complex is 
comprised primarily of long reaches of the Vermillion River mainstem 
and West Fork Vermillion River. Additionally, several tributaries 
provide habitat for the species, with conditions varying across the 
complex. While some aquatic habitat has been altered, primarily by 
channelization and sedimentation, current habitat conditions provide 
most or all of the primary constituent elements consistent with 
designation as critical habitat. Topeka shiners have been captured in 
several locations within this complex, including the mainstem river 
reaches. It is likely that the species utilizes these mainstem reaches 
as dispersal corridors and refugia during periods of drought. We 
propose portions of the following streams for designation--Vermillion 
River; West Fork Vermillion River; East Fork Vermillion River; Silver 
Lake Creek; Camp Creek; Turkey Ridge Creek; Long Creek; Saddle Creek; 
and Blind Creek.

Lower James River Watershed

    11. Lonetree Creek Complex (two stream segments), Hutchinson 
County, South Dakota. This complex provides the primary constituent 
elements necessary for designation as critical habitat, including 
natural stream morphology and instream habitat. We propose portions of 
Lonetree Creek immediately upstream from its confluence with the James 
River, and South Branch Lonetree Creek.
    12. Dry Creek Complex (two stream segments), Hutchinson County, 
South Dakota. This complex provides the primary constituent elements 
necessary for designation as critical habitat, including natural stream 
morphology and instream habitat. We propose portions of Dry Creek 
upstream from its confluence with the James River and North Branch Dry 
Creek.
    13. Wolf Creek (one stream segment), Hutchinson County, South 
Dakota. This stream is characterized by moderate quality aquatic 
habitat draining a mostly grassy floodplain and primarily cultivated 
uplands. The stream reach proposed for designation runs upstream from 
the confluence with the James River.
    14. Twelve-mile Creek (one stream segment), Davison, Hanson, and 
Hutchinson Counties, South Dakota. This stream is characterized by 
moderate quality aquatic habitat draining a mostly grassy floodplain 
and primarily cultivated uplands. The stream reach proposed for 
designation upstream runs from the confluence with the James River.
    15. Enemy Creek (one stream segment), Davison and Hanson Counties, 
South Dakota. This stream is characterized by moderate quality aquatic 
habitat draining a mostly grassy floodplain and primarily cultivated 
uplands. The stream reach proposed for designation runs upstream from 
the confluence with the James River.
    16. Rock Creek (one stream segment), Davison, Hanson, and Miner 
Counties, South Dakota. This stream is characterized by moderate 
quality aquatic habitat draining a grassy floodplain and primarily 
cultivated uplands. The stream reach proposed for designation runs 
upstream from the confluence with the James River.
    17. Firesteel Creek Complex (two stream segments), Aurora and 
Davison Counties, South Dakota. This complex provides the primary 
constituent elements necessary for designation as critical habitat, 
including natural stream morphology and instream habitat. We are 
proposing the reach of Firesteel Creek from near the headwaters of Lake 
Mitchell upstream to the confluence with West Branch Firesteel Creek 
and West Branch Firesteel upstream to near Wilmarth Lake.

Upper James River Watershed

    18. Pearl Creek Complex (two stream segments), Beadle County, South 
Dakota. The streams in this complex are characterized by quality 
aquatic habitat draining a grassy floodplain and primarily cultivated 
uplands. Riparian conditions are good and appear stable. Recent records 
of Topeka shiners within these stream segments suggest a healthy and 
stable population. We propose for designation portions of Pearl Creek 
from its confluence with the James River upstream past its confluence 
with Middle Pearl Creek and a reach of Middle Pearl Creek upstream from 
its confluence with Pearl Creek.
    19. Shue Creek (one stream segment), Beadle County, South Dakota. 
This stream is characterized by quality aquatic habitat draining a 
grassy floodplain and primarily cultivated uplands. The stream reach 
proposed for designation runs from Shue Creek's confluence with the 
James River upstream to Staum Dam.

Exclusions From Critical Habitat

    Section 3(5) of the Act defines critical habitat, in part, as areas 
within the geographical area occupied by the species ``on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection.'' Special management 
consideration is not required if adequate management or protection is 
already in place. Adequate special management consideration or 
protection is provided by a legally operative plan or agreement that 
addresses the maintenance and improvement of the primary constituent 
elements important to the species and manages for the long-term 
conservation of the species. We use the following three criteria to 
determine if a plan provides adequate special management or 
protection--(1) A current plan or agreement must be complete and 
provide sufficient conservation benefit to the species; (2) the plan 
must provide assurances that the conservation management strategies 
will be implemented; and (3) the plan must provide assurances that the 
conservation management strategies will be effective, (i.e., provide 
for periodic monitoring and revisions as necessary). If all of these 
criteria are met, then lands covered under the plan would no longer 
meet the definition of critical habitat.

Missouri--Exclusion Under Section 3(5)(A)

    In Missouri, the Topeka shiner historically occurred in small, 
headwater streams in northern portions of the State, within the 
Missouri/Grand River Watershed. This area has been designated as 
Primary Recovery Unit 5 by the Topeka Shiner Recovery Team in the 
preliminary Draft Topeka Shiner Recovery Plan. The Topeka shiner has 
been a focal species for planning and conservation efforts on various 
levels in the State since the mid-1990s. In 1995, the Missouri 
Department of Conservation (MDC) established a 5-member Topeka shiner 
Working Group and a 16-member Advisory Group to direct, implement, and 
facilitate Topeka shiner recovery actions in Missouri. In 1996, MDC, 
with approval of the Conservation Commission of Missouri (Conservation 
Commission), listed the Topeka shiner as an endangered species under 
the State's Wildlife Code (Conservation Commission of Missouri 2001). 
In January 1999, MDC adopted and approved an Action Plan for the Topeka 
shiner (Notropis topeka) in Missouri (Action Plan) (Missouri Department 
of Conservation 1999). The Action Plan identifies comprehensive 
conservation measures and programs necessary to achieve recovery of the 
Topeka shiner in Missouri. Implementation of recovery efforts for the 
Topeka shiner in Missouri as outlined in this plan are ongoing. In 
1999, the Conservation Commission established the Private Lands 
Services Division within MDC. Eighty-three MDC staff were redirected to 
private land

[[Page 54273]]

conservation throughout the State, including a minimum of 16 Private 
Lands Services personnel with responsibility for the counties in 
Primary Recovery Unit 5. Duties of personnel within this division 
include the facilitation of conservation efforts on private property 
throughout Missouri for all federally listed species, including the 
Topeka shiner. Additionally, there are at least 86 fisheries, forestry, 
natural history, protection, and wildlife staff delivering services to 
private landowners as a routine aspect of their job within Primary 
Recovery Unit 5.
    Within the Missouri/Grand Watershed in Missouri, the following 
Topeka shiner conservation actions have been completed or are ongoing--
(1) Establishment of the Missouri Topeka Shiner Working Group to direct 
the recovery of the species throughout the State; (2) the development 
and ongoing implementation of the Action Plan; (3) establishment of 
permanent sampling sites and standardized monitoring of Missouri's 
Topeka shiner populations and completion of a recent state-wide survey 
for the species (Gelwicks and Bruenderman 1996); (4) initiation of 
artificial propagation of Topeka shiners including the development and 
refinement of captive rearing techniques that will be applicable across 
the range of the species; (5) completion of genetic analyses of 
different populations of Topeka shiners in Missouri; (6) incorporation 
of Topeka shiner recovery and conservation efforts in State strategic 
planning documents on several different levels (e.g., regional 
management guidelines, watershed inventory and assessment plans, 
hatchery plans, conservation area plans, various division work plans) 
that facilitate the implementation of activities identified in the 
State Action Plan and the Service's preliminary draft Recovery Plan; 
(7) development and dissemination of public outreach and education 
materials throughout Missouri and elsewhere within the range of the 
species (e.g., Best Management Plans, posters, pamphlets, ``critter'' 
collector cards; various articles published in the Missouri 
Conservationist magazine); (8) completion and dissemination of several 
ecological and life history studies involving Topeka shiner; (9) 
securing matching funds from the Service (e.g., Cooperative Endangered 
Species Conservation Fund, Partners for Fish and Wildlife) to conduct 
surveys and ecological studies, and for various habitat restoration and 
enhancement activities; and (10) revision of the Action Plan that will 
include actions not yet completed since 1999 and those uncompleted 
actions identified in the Service's preliminary draft Recovery Plan. 
Revision of the Action Plan will include a detailed implementation 
schedule following the Service's time table outlined in the Service's 
preliminary draft Recovery Plan.
    Other specific Topeka shiner conservation efforts being undertaken 
within the Missouri/Grand Watershed in Missouri in accordance with the 
Action Plan are--(1) Implementation of a landowner incentive program 
and completion of a study on the potential impacts of Confined Animal 
Feeding Operations within the Moniteau Creek Watershed; (2) development 
of 10-year fish monitoring plans for the Moniteau, Bon Femme, and Sugar 
Creek watersheds; (3) development and implementation of a Sugar Creek 
sub-basin management plan; (4) development and implementation of a 
Three Creeks Conservation Area Management Plan within the Bon Femme 
Creek Watershed; (5) protection and management of Bon Femme Creek by 
establishing these watersheds as Missouri Department of Natural 
Resources' Agricultural Non-point Source Pollution Special Area Land 
Treatment watersheds; and (6) reestablishment or restoration of 
riparian corridors through tree plantings, natural regeneration, 
fencing to restrict livestock use of stream banks, creation of 
alternative livestock watering sources, establishment of warm season 
grass buffer strips, streambank stabilization activities, and actions 
outlined in a grazing plan developed for private landowners within the 
Bon Femme, Moniteau, and Sugar Creek watersheds. Additionally, 10 
Missouri Stream Teams formally ``adopted'' various stretches of 
occupied Topeka shiner habitat within the Bon Femme, Moniteau, and 
Sugar Creek watersheds. Stream teams assist in the conservation of the 
Topeka shiner in these watersheds by promoting local citizen awareness 
of Topeka shiners and stream health, and by direct involvement with 
stream cleaning and water quality monitoring activities.
    Additional assurances that the Action Plan will be implemented and 
conservation of the Topeka shiner will be achieved in Missouri is 
demonstrated by the following actions--(1) To date, at least $105,000 
has been expended on recovery actions for the Topeka shiner in 
Missouri, and is likely to increase to at least $600,000 within the 
next 10 years; (2) 80 percent (i.e., 12 of 15) of the priority 1 tasks 
(i.e., those actions deemed necessary to prevent extinction of the 
species) identified and outlined in the implementation schedule of the 
Service's preliminary draft Recovery Plan have either been completed or 
are currently being implemented by MDC in cooperation with us, the 
Topeka Shiner Recovery Team, and other Federal, State, and private 
entities; (3) the Private Land Services Division within MDC greatly 
facilitates the implementation of recovery actions on private property 
where the species currently exists or where the species may be 
reintroduced; (4) planned expansion of our Partners for Fish and 
Wildlife Program within Topeka shiner-occupied habitat to benefit an 
additional 10-15 landowners at an estimated cost of $100,000 within the 
next 5 years (Kelly Srigley Werner, Fish and Wildlife Service Missouri 
Private Lands Coordinator, pers. comm.); (5) commitments by MDC 
Fisheries and Natural History divisions staff to help coordinate and 
implement Topeka shiner recovery efforts between MDC and Federal, 
State, and private entities, and MDC's Topeka Shiner Recovery 
Coordinator; (6) active participation by MDC on the Topeka Shiner 
Recovery Team; and (7) revisions to the Action Plan, scheduled for 
completion within the current calendar year, will focus on 
incorporating any of the recovery actions outlined in the Service's 
preliminary draft Recovery Plan that are currently not addressed. The 
scientific soundness of MDC's Action Plan was further validated by us 
and the Recovery Team when the Action Plan's monitoring protocol and 
recommendations for reducing and eliminating threats to the Topeka 
shiner were incorporated, in part, into the Service's preliminary draft 
Recovery Plan.
    We evaluated the Action Plan and associated Topeka shiner 
conservation actions that have been completed, ongoing, or planned in 
Missouri against our three criteria used to determine whether lands 
require ``special management considerations or protections,'' under the 
definition of critical habitat in section 3 of the Act. The Action Plan 
clearly provides conservation benefits to the species; the Action Plan 
provides assurances that conservation efforts will be implemented since 
MDC has authority to implement the plan, has put in place the funding 
and staffing necessary to implement the Plan, and has completed or 
begun work on many significant elements of the Plan; and the Action 
Plan and efforts of MDC will be effective since they include biological 
goals, restoration objectives, and monitoring consistent with the 
preliminary draft

[[Page 54274]]

Recovery Plan. Therefore, we determined that all Topeka shiner areas in 
Missouri (Primary Recovery Unit 5) do not meet the definition of 
critical habitat because there is adequate special management or 
protection, and we did not include them in this proposal.

Fort Riley, Kansas (Department of the Army)--Exclusion Under Section 
3(5)(A)

    The Fort Riley Military Installation, located in Riley and Geary 
Counties, Kansas, is primarily an infantry and tank training facility. 
Fort Riley lies within the Flint Hills Region of Kansas and has several 
low order streams that drain to the Kansas River. Presently, the Topeka 
shiner occurs in four streams on Fort Riley--Wildcat Creek and its 
tributaries, Wind Creek, Little Arkansas Creek, and Sevenmile Creek. 
These streams are within Primary Recovery Unit 1, as designated by the 
preliminary draft Topeka Shiner Recovery Plan.
    The Topeka shiner has been a focal species for planning and 
conservation efforts on Fort Riley since the early 1990s, with numerous 
stream surveys occurring from this time to the present. Development of 
management guidelines for the species was initialized in 1994. The 
first Endangered Species Management Plan for Topeka Shiner on Fort 
Riley was formalized in 1997. This management plan was revised and 
incorporated into Fort Riley's Integrated Natural Resource Management 
Plan 2001-2005, which was formalized July 30, 2001 (Keating, Ft. Riley 
Natural Resources Division, pers. comm. 2002). This management plan 
outlines and describes--conservation goals; management prescriptions 
and actions; a monitoring plan; estimates of time, cost, and personnel 
needed; a checklist of tasks; and an annual report (Department of the 
Army 2001).
    We evaluated the Fort Riley Endangered Species Management Plan for 
Topeka Shiner and the Fort's associated Topeka shiner conservation 
actions that have been completed, ongoing, or planned, against our 
three criteria used to determine whether lands require ``special 
management considerations or protections,'' under the definition of 
critical habitat in section 3 of the Act. This management plan provides 
conservation benefits to the species; the plan provides assurances that 
conservation efforts will be implemented; and the plan and efforts of 
the Army will be effective since they include biological goals, 
restoration objectives, and monitoring consistent with the draft 
Recovery Plan. Therefore, we determine that all Topeka shiner areas on 
Fort Riley do not meet the definition of critical habitat because there 
is adequate special management or protection, and we did not include 
them in this proposal.

Land Ownership

    The vast majority (approximately 98 percent) of proposed critical 
habitat is in private ownership. Private lands are primarily used for 
grazing and agriculture, but also include some urban, suburban, and 
industrial areas. Additionally, there are small, scattered tracts of 
State and Federal lands.

Effects of Critical Habitat Designation

    Designating critical habitat does not, in itself, lead to the 
recovery of a listed species. The designation does not establish a 
reserve, create a management plan, establish numerical population 
goals, prescribe specific management practices (inside or outside of 
critical habitat), or directly affect areas not designated as critical 
habitat. Specific management recommendations for areas designated as 
critical habitat are most appropriately addressed in recovery and 
conservation plans, and through section 7 consultation and section 10 
permits.
    However, designation of critical habitat can help focus 
conservation activities for listed species by identifying areas 
essential to conserve the species. Designation of critical habitat also 
alerts the public, as well as land-managing agencies, to the importance 
of these areas. As a result of critical habitat designation, Federal 
agencies may be able to prioritize landowner incentive programs such as 
Conservation Reserve Program enrollment and other private landowner 
agreements that benefit the Topeka shiner. Critical habitat designation 
also may assist States and local governments in prioritizing their 
conservation and land management programs.

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which apply only 
to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement is met 
through section 7 consultation under the Act. Adverse modification 
might result from alterations that include, but are not limited to, 
adverse changes to the physical or biological features, i.e., the 
primary constituent elements that were the basis for determining the 
habitat to be critical.

Conference for Proposed Critical Habitat

    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to result in the destruction or adverse 
modification of proposed critical habitat. The regulations for 
interagency cooperation regarding proposed critical habitat are 
codified at 50 CFR 402.10. During a conference on the effects of a 
Federal action on proposed critical habitat, we make nonbinding 
recommendations on ways to minimize or avoid adverse effects of the 
action. We document these recommendations and any conclusions reached 
in a conference report provided to the Federal agency and to any 
applicant involved.
    If requested by the Federal agency and deemed appropriate by us, 
the conference may be conducted in accordance with the procedures for 
formal consultation under 50 CFR 402.14. We may adopt an opinion issued 
at the conclusion of the conference as our biological opinion when the 
critical habitat is designated by final rule, but only if new 
information or changes to the proposed Federal action would not 
significantly alter the content of the opinion.

Consultation for Designated Critical Habitat

    If a Federal action may affect a listed species or its designated 
critical habitat, the action agency must initiate consultation with us 
(50 CFR 402.14). Through this consultation, we would advise the agency 
whether the action would likely jeopardize the continued existence of 
the species or adversely modify its critical habitat.
    When we issue a biological opinion that concludes that an action is 
likely to result in the destruction or adverse modification of critical 
habitat, we must provide reasonable and prudent alternatives to the 
action, if any are identifiable. Reasonable and prudent alternatives 
are actions identified during consultation that can be implemented in a 
manner consistent with the intended purpose of the proposed action, are

[[Page 54275]]

consistent with the scope of the action agency's authority and 
jurisdiction, are economically and technologically feasible, and would 
likely avoid the destruction or adverse modification of critical 
habitat (50 CFR 402.02).

Reinitiation of Prior Consultations

    A Federal agency may request a conference with us for any 
previously reviewed action that is likely to destroy or adversely 
modify proposed critical habitat and over which the agency retains 
discretionary involvement or control, as described above under 
``Conference for Proposed Critical Habitat.'' Following designation of 
critical habitat, regulations at 50 CFR 402.16 require a Federal agency 
to reinitiate consultation for previously reviewed actions that may 
affect critical habitat and over which the agency has retained 
discretionary involvement or control.

Federal Actions That May Destroy or Adversely Modify Topeka Shiner 
Critical Habitat

    Section 4(b)(8) of the Act requires us to include 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 Topeka 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, and Bureau of Reclamation), 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 Topeka 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 include groundwater pumping, impoundment, and water 
diversion. We note that flow reductions that result from actions 
affecting tributaries of the proposed stream reaches also may destroy 
or adversely modify critical habitat;
    (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, 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 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 include release 
of chemical or biological pollutants into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point); and
    (5) Introducing, spreading, or augmenting nonnative aquatic species 
in any of the designated stream segments. Possible actions 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 range of the Topeka shiner; however, they do 
indicate the potential types of activities that will require 
consultation in the future and, therefore, may be affected by critical 
habitat designation. We note that the areas we propose for designation 
as critical habitat for the Topeka shiner are occupied by the species, 
and actions that adversely modify critical habitat may also jeopardize 
the continued existence of the species.
    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 adjusting the timing of projects to avoid sensitive periods for the 
species and its habitat; replanting riparian vegetation; minimizing 
work and vehicle use in the wetted channel; restricting riparian and 
upland vegetation clearing; fencing to exclude livestock and limit 
recreational use; use of alternative livestock management techniques; 
avoidance of pollution; minimizing 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, Kansas Ecological Services Field 
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 25486, Denver Federal Center, Denver, Colorado 80225 
(telephone 303-236-7400; facsimile 303-236-0027).
    A preliminary draft recovery plan for the Topeka shiner has been 
developed and is undergoing internal review prior to being formally 
proposed, peer-reviewed by scientists, and published to solicit public 
comments. The recovery plan, when finalized, will provide 
recommendations on recovering this species, including recommendations 
on management of critical habitat. Should the recovery plan recommend 
adding or deleting areas as critical habitat, we will consider whether 
a future revision of critical habitat is appropriate.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating these areas as critical habitat. We may exclude areas from 
critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of designating these areas as critical 
habitat. We cannot exclude areas from critical habitat when the 
exclusion will result in the extinction of the species. We will conduct 
an analysis of the economic impacts of designating these areas as 
critical habitat prior to a final determination. When completed, we 
will announce the availability of the

[[Page 54276]]

draft economic analysis with a notice in the Federal Register, and, if 
necessary, reopen the comment period at the time to accept comments on 
the economic analysis or further comments on the proposed rule. The 
economic analysis will be available at http://mountain-prairie.fws.gov/topekashiner/ch. This economic analysis will serve as the basis of our 
analysis under section 4(b)(2), and of any exclusions. As this economic 
analysis is not yet completed, we are not yet able to identify proposed 
exclusions under section 4(b)(2) in this proposed rule. We will review 
this analysis, public comments on the analysis and this proposed rule, 
and the benefits of designating areas as critical habitat; we may 
identify certain proposed areas that should be excluded from the final 
critical habitat designation, provided these exclusions will not result 
in the extinction of the species. As a result, the final critical 
habitat determination may differ from this proposal.

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

    In accordance with the Presidential Memorandum of April 29, 1994, 
we believe that, to the maximum extent possible, tribes should be the 
governmental entities to manage their lands and tribal trust resources. 
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. 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.
    In examining the geographic extent of areas proposed for 
designation as critical habitat, we did not identify any tribal trust 
resources, tribally owned fee lands, or tribal rights that might be 
affected by the designation. Our South Dakota Field Office corresponded 
with the Bureau of Indian Affairs (BIA), Great Plains Regional Office, 
which identified two potentially affected tribes, the Sisseton--
Wahpeton Sioux Tribe and the Flandreau Santee Sioux Tribe. The BIA 
communicated that these tribes do have land held in trust, either by 
the tribe or individuals, within the general range of the Topeka 
shiner, but did not provide locality information. We further contacted 
the tribes. The Sisseton--Wahpeton Sioux Tribe responded with general 
information on potential Topeka shiner habitat on their tribal lands 
and requested funding from the Service and the BIA for surveys for the 
Topeka shiner. However, up to the time of this publication, no maps 
identifying the location of these trust lands have been provided. 
Therefore, we are unable to identify any tribal trust lands potentially 
proposed for designation as critical habitat. We do not anticipate that 
proposal of critical habitat on non-tribal lands will result in any 
impact on tribal trust resources or the exercise of tribal rights. In 
complying with our tribal trust responsibilities, we must communicate 
with all tribes potentially affected by the designation. Therefore, we 
are soliciting additional information during the comment period on 
potential effects to the tribes or tribal resources that may result 
from critical habitat designation.

Public Comments Solicited

    We intend for any final action resulting from this proposal to be 
as accurate and effective as possible. Therefore, we are soliciting 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party regarding this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of excluding areas will outweigh the benefits of 
including areas as critical habitat;
    (2) Specific information on the abundance of the Topeka shiner and 
the amount and distribution of its habitat;
    (3) Areas that are essential to the conservation of the species and 
that may require special management considerations or protection and 
why;
    (4) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families; and
    (6) Economic and other values associated with designating critical 
habitat for the Topeka shiner, such as those derived from 
nonconsumptive uses (e.g., hiking, camping, birding, enhanced watershed 
protection, increased soil retention, existence values, and reductions 
in administrative costs).
    Our practice is to make comments that we receive on this 
rulemaking, including names and home addresses of respondents, 
available for public review during regular business hours. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
In some circumstances, we would withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish for us to 
withhold your name and/or address, you must state this request 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, including the individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand including answers to 
questions such as the following:
    (1) Are the requirements in the document clearly stated?
    (2) Does the proposed rule contain technical language or jargon 
that interferes with the clarity?
    (3) Does the format of the proposed rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?
    (4) Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful in understanding the 
document?
    (5) What else could we do to make the proposed rule easier to 
understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to--Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You also may e-mail comments to [email protected].

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to ensure listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will

[[Page 54277]]

send copies of this proposed rule immediately following publication in 
the Federal Register to these peer reviewers. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat. We will consider all comments and information 
received during the comment period on this proposed rule during 
preparation of a final rulemaking. Accordingly, the final decision may 
differ from this proposal.

Public Hearings and Meetings

    The Act provides for one or more public hearings or meetings on 
this proposal, if requested. Given the large geographic extent covered 
by this proposal, we have scheduled six public meetings.
    Public meetings will be held at:
    1. Manhattan, KS, on September 4, 2002, at the Ramada Inn, Landon 
Room, 17th and Anderson Avenue;
    2. Bethany, MO, on September 5, 2002, at the Bethany Community 
Center, 105 North 25th Street;
    3. Fort Dodge, IA, on September 9, 2002, at the Best Western 
Starlite Village, 1518 3rd Avenue NW.;
    4. Pipestone, MN, on September 10, 2002, at the Pipestone National 
Monument;
    5. Sioux Falls, SD, on September 11, 2002, at the Country Inn and 
Suites, Riverfront Room, 200 East 8th Street;
    6. Madison, NE., on September 12, 2002, at the Shelter House, 300 
West 10th Street.
    All public meetings will run from 6 p.m. to 9 p.m.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB). The Service is preparing a draft economic analysis of 
this proposed rule, and will use this analysis to meet the requirement 
of section 4(b)(2) of the ESA to determine the economic consequences of 
designating the specific areas as critical habitat and excluding any 
area from critical habitat if it is determined that the benefits of 
exclusion outweigh the benefits of specifying such areas as part of the 
critical habitat, unless failure to designate such areas as critical 
habitat will lead to the extinction of the Topeka shiner. This analysis 
will be available for public comment before finalizing this 
designation. The availability of the draft economic analysis will be 
announced in the Federal Register.

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

    In the economic analysis, we will determine whether designation of 
critical habitat will have a significant effect on a substantial number 
of small entities. As discussed under Regulatory Planning and Review 
above, this rule is expected to result in few, if any, restrictions in 
addition to those currently in existence. As indicated on Table 1 (see 
Critical Habitat Designation), we designated property owned by Federal 
and State governments, and private entities.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act, and section 10 
of the Rivers and Harbors Act;
    (2) Regulation of water flows, water delivery, and diversion by 
Federal agencies;
    (3) Sale, exchange, or lease of lands owned by a Federal agency;
    (4) Road construction and maintenance and right-of-way designation;
    (5) Funding of low-interest loans to facilitate the construction of 
low-income housing by the Department of Housing and Urban Development;
    (6) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (7) Promulgation of air and water quality standards under the Clean 
Air Act and the Clean Water Act and the cleanup of toxic waste and 
superfund sites under the Resource Conservation and Recovery Act and 
the Comprehensive Environmental Response, Compensation, and Liability 
Act by the U.S. Environmental Protection Agency;
    (8) Issuance of Endangered Species Act section 10(a)(1)(B) permits 
by the Fish and Wildlife Service; and
    (9) Activities funded, carried out, or authorized by any Federal 
agency.
    Many of these activities sponsored by Federal agencies within the 
proposed critical habitat areas are carried out by small entities (as 
defined by the Regulatory Flexibility Act) through contract, grant, 
permit, or other Federal authorization. As discussed above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities in areas of critical 
habitat occupied by the species. In the economic analysis, we will 
evaluate whether designation of critical habitat will have an effect on 
activities carried out by small entities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this rule will 
have no additional restrictions.

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

    In the economic analysis, we will determine whether designation of 
critical habitat will cause--(a) Any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, Tribal, or local government 
agencies, or geographic regions, or (c) any significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
the ability of United States-based enterprises to compete with foreign-
based enterprises.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (Executive 
Order 13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
As this proposed rule is not expected to significantly affect energy 
supplies, distribution, or use, this action is not a significant energy 
action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.) the Service will use the economic analysis to further evaluate 
this situation.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This determination will not ``take'' private property 
and will not alter the long-term value of private property. As 
discussed above, 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 Topeka 
shiner as defined in section 9 of the Act and its implementing 
regulations (50 FR 17.31). Due to current public knowledge of the 
species' protection, the prohibition against take of Topeka shiner both 
within and outside of the proposed areas, and the fact that critical 
habitat

[[Page 54278]]

provides no incremental restrictions, we do not anticipate that 
property values will be affected by the critical habitat designation. 
While real estate market values may temporarily decline following 
designation, due to the perception that critical habitat designation 
may impose additional regulatory burdens on land use, we expect any 
such impacts to be short term. 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 utilize 
their property in ways consistent with the conservation of the Topeka 
shiner.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, the 
Service requested information from and coordinated development of this 
critical habitat proposal with appropriate State resource agencies in 
Iowa, Kansas, Minnesota, Missouri, Nebraska, and South Dakota, as well 
as during the listing process. We will continue to coordinate any 
future designation of critical habitat for Topeka shiner with the 
appropriate State agencies. The designation of critical habitat for the 
Topeka shiner imposes few additional restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas essential to the conservation of 
the species are more clearly defined and the primary constituent 
elements of the habitat necessary to the conservation of the species 
are specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, doing so may assist these local governments in 
long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are proposing to designate critical habitat in 
accordance with the provisions of the Act and plan public meetings on 
the proposed designation during the comment period. The rule uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the Topeka shiner.

Paperwork Reduction Act of 1995

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required. 
Information collections associated with Endangered Species permits are 
covered by an existing OMB approval and are assigned control number 
1018-0094, which expires on July 31, 2004. An agency may not conduct or 
sponsor, and a person is not required to respond to a collection of 
information unless it displays a valid OMB control number.

National Environmental Policy Act

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the National Environmental 
Policy Act (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 (Ninth 
Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)). However, when the 
range of the species includes States within the 10th Circuit, pursuant 
to the 10th Circuit ruling in Catron County Board of Commissioners v. 
U.S. Fish and Wildlife Service, 75 F .3d 1429 (10th Cir. 1996), we will 
complete a NEPA analysis with an Environmental Assessment. The range of 
the Topeka shiner includes States within the 10th Circuit; therefore, 
we are completing an Environmental Assessment and will announce its 
availability in the Federal Register.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
readily acknowledge our responsibility to communicate meaningfully with 
recognized Federal Tribes on a government-to-government basis. We are 
required to assess the effects of critical habitat designation on 
tribal lands and tribal trust resources. We believe that no tribal 
lands or tribal trust resources are essential for the conservation of 
the Topeka shiner.

References Cited

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

Author

    The primary author of this proposed rule is Vernon Tabor, Kansas 
Ecological Services Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to 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, 
Topeka'' 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
 
 

[[Page 54279]]

 
                   *                  *                  *                  *                  *                  *                  *
Shiner, Topeka...................  (Notropis             U.S.A. (IA, KS, MN,  Entire.............  E                       654     17.95(e)          N/A
                                    topeka=tristis).      MO, NE, SD).
 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(e) by adding critical habitat for the Topeka 
shiner (Notropis topeka) in the same alphabetical order as this species 
occurs in Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes. * * *

Topeka Shiner (Notropis topeka)

    (1) Critical habitat is depicted for Calhoun, Carroll, Dallas, 
Greene, Hamilton, Lyon, Osceola, Sac, Webster, and Wright Counties, 
Iowa; Butler, Chase, Dickinson, Geary, Greenwood, Marion, Marshall, 
Morris, Pottawatomie, Riley, Shawnee, Wabaunsee, and Wallace 
Counties, Kansas; Lincoln, Murray, Nobles, Pipestone, and Rock 
Counties, Minnesota; Madison County, Nebraska; Aurora, Beadle, 
Brookings, Clay, Davison, Deuel, Hamlin, Hanson, Hutchinson, 
Lincoln, McCook, Miner, Minnehaha, Moody, and Turner Counties, South 
Dakota, on the maps and as described below.
    (2) Critical habitat includes all proposed stream channels up to 
the bankfull discharge elevation. Additionally, in Iowa, Minnesota, 
and the Big Sioux River drainage of South Dakota, the off-channel, 
side-channel, and oxbow pools at elevations at or below the bankfull 
discharge elevation. Bankfull discharge is the flow at which water 
begins to leave the channel and move into the floodplain and 
generally occurs with a frequency of every 1 to 2 years.
    (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 for Topeka 
shiner--(1) Streams most often with permanent flow, but that can 
become intermittent during dry periods; (2) Side channel pools and 
oxbows either seasonally connected to a stream or maintained by 
groundwater inputs, at a surface elevation equal to or lower than 
the bankfull discharge stream elevation. The bankfull discharge is 
the flow at which water begins leaving the channel and flowing into 
the floodplain; this level is generally attained every 1 to 2 years. 
Bankfull discharge, while a function of the size of the stream, is a 
fairly constant feature related to the formation, maintenance, and 
dimensions of the stream channel; (3) Streams and side channel pools 
with water quality necessary for unimpaired behavior, growth, and 
viability of all life stages. (The water quality components 
include--temperature, turbidity, conductivity, salinity, dissolved 
oxygen, pH, chemical contaminants, and other chemical 
characteristics); (4) Living and spawning areas for adult Topeka 
shiner with pools or runs with water velocities less than 0.5 
meters/second (approx. 20 inches/second) and depths ranging from 
0.1-2.0 meters (approx. 4-80 inches); (5) Living areas for juvenile 
Topeka shiner with water velocities less than 0.5 meters/second 
(approx. 20 inches/second) with depths less than 0.25 meters 
(approx. 10 inches) and moderate amounts of instream aquatic cover, 
such as woody debris, overhanging terrestrial vegetation, and 
aquatic plants; (6) Sand, gravel, cobble, and silt substrates with 
amounts of fine sediment and substrate embeddedness that allows for 
nest building and maintenance of nests and eggs by native Lepomis 
sunfishes (green sunfish, orangespotted sunfish, longear sunfish) 
and Topeka shiner as necessary for reproduction, unimpaired 
behavior, growth, and viability of all life stages; (7) An adequate 
terrestrial, semiaquatic, and aquatic invertebrate food base that 
allows for unimpaired growth, reproduction, and survival of all life 
stages; (8) A hydrologic regime capable of forming, maintaining, or 
restoring the flow periodicity, channel morphology, fish community 
composition, off-channel habitats, and habitat components described 
in the other primary constituent elements; and (9) Few or no 
nonnative predatory or competitive nonnative species present.
    (4) Critical habitat was identified using--the Fifth Principal 
Meridian in Iowa, Missouri, and Minnesota; the Sixth Principal 
Meridian in Kansas and Nebraska; U.S. Geological Survey 30*60 minute 
(1:100,000) quadrangle maps; the National Hydrography Dataset 
(1:100,000) for hydrology; and Digital Line Graph (1:2,000,000) for 
county and State boundaries.
    (5) Map 1 follows:
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[[Page 54281]]



North Raccoon River Complex

    1a. Indian Creek from its confluence with the North Raccoon 
River (T87N, R35W, Sec. 24), upstream through T87N, R35W, Sec. 29.
    1b. Tributary to Indian Creek (Ditch 57), from their confluence 
(T87N, R35W, Sec. 23), upstream to the confluence with the outlet 
creek from Black Hawk Lake (T86N, R36W, Sec. 1).
    1c. Outlet Creek from Black Hawk Lake from its confluence with 
Ditch 57 (T86N, R36W, Sec. 1), upstream to lake outlet (T87N, R35W, 
Sec. 35).
    2a. Camp Creek from its confluence with the North Raccoon River 
(T86N, R34W, Sec. 7), upstream through T87N, R34W, Sec. 8.
    2b. West Fork Camp Creek from its confluence with Camp Creek 
(T87N, R34W, Sec. 8), upstream through T88N, R34W, Sec. 32.
    3. Prairie Creek from its confluence with the North Raccoon 
River (T86N, R34W, Sec. 16), upstream through T87N, R34W, Sec. 35.
    4. Lake Creek from its confluence with the North Raccoon River 
(T86N, R34W, Sec. 23), upstream through T87N, R33W, Sec. 25.
    5. Purgatory Creek from its confluence with the North Raccoon 
River (T84N, R33W, Sec. 11), upstream through T86N, R32W, Sec. 17.
    6a. Cedar Creek from its confluence with the North Raccoon River 
(T85N, R32W, Sec. 33), upstream to the confluence of West Cedar 
Creek and East Cedar Creek (T87N, R31W, Sec. 31).
    6b. West Cedar Creek from its confluence with East Cedar Creek 
(T87N, R31W, Sec. 31), upstream through T87N, R31W, Sec. 18.
    6c. East Cedar Creek from its confluence with West Cedar Creek 
(T87N, R31W, Sec. 31), upstream through T87N, R31W, Sec. 9.
    7. Short Creek from its confluence with the North Raccoon River 
(T84N, R31W, Sec. 33), upstream through T84N, R31W, Sec. 28.
    8. Hardin Creek from its confluence with the North Raccoon River 
(T83N, R30W, Sec. 23), upstream through T85N, R31W, Sec. 27.
    9a. Buttrick Creek from its confluence with the North Raccoon 
River (T83N, R30W, Sec. 26), upstream to the confluence of West 
Buttrick Creek and East Buttrick Creek (T84N, R30W, Sec. 25).
    9b. West Buttrick Creek, from its confluence with East Buttrick 
Creek (T84N, R30W, Sec. 25), upstream through T86N, R30W, Sec. 3.
    9c. East Buttrick Creek, from its confluence with West Buttrick 
Creek (T84N, R30W, Sec. 25), upstream through T85N, R29W, Sec. 20.
    10a. Elm Branch from its confluence with the North Raccoon River 
(T81N, R28W, Sec. 28), upstream to its confluence with Swan Lake 
Branch T81N, R28W, Sec. 28.
    10b. Swan Lake Branch from its confluence with Elm Branch (T81N, 
R28W, Sec. 28), upstream through T80N, R28W, Sec. 4.
    11. Off-channel and side-channel pools (that meet the previously 
described criteria) adjacent to the North Raccoon River from U.S. 
Highway 6 (T79N, R27W, Sec. 32), upstream to U.S. Highway 20 (T88N, 
R36W, Sec. 24).
    (6) Map 2 follows:

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[[Page 54283]]


    12. Eagle Creek from its confluence with the Boone River (T89N, 
R25W, Sec. 6), upstream through T91N, R25W, Sec. 30.

Ditch 3 and Ditch 19 Complex

    13a. Ditch 3 from its confluence with the Boone River (T91N, R26W, 
Sec. 32), upstream through T91N, R26W, Sec. 30.
    13b. Ditch 19 from its confluence with Ditch 3 (T91N, R26W, Sec. 
31), upstream through T91N, R26W, Sec. 31.
    (7) Map 3 follows:

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[[Page 54285]]



Rock River Complex

    14. Rock River from its confluence with Kanaranzi Creek (T100N, 
R45W, Sec. 28), upstream to the Iowa/Minnesota State border (T100N, 
R45W, Sec. 8).
    15. Kanaranzi Creek from its confluence with the Rock River (T100N, 
R45W, Sec. 28), upstream to the Iowa/Minnesota State border (T100N, 
R45W, Sec. 11).

Little Rock River Complex

    16. Little Rock River from State Highway 9 (T100N, R43W, Sec. 34), 
upstream to the Iowa/Minnesota State border (T100N, R42W, Sec. 7).
    (8) Map 4 follows:

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[[Page 54287]]



Fox Creek Complex

    1a. Fox Creek from U.S. Highway 50 (T19S, R8E, Sec. 17), upstream 
through T18S, R8E, Sec. 29.
    1b. Unnamed tributary to Fox Creek, from their confluence (T18S, 
R8E, Sec. 32), upstream through T18S, R8E, Sec. 31.
    1c. Unnamed tributary to Fox Creek, from their confluence (T18S, 
R8E, Sec. 29), upstream through T18S, R8E, Sec. 19.

Diamond Creek Complex

    2a. Diamond Creek from U.S. Highway 50 (T19S, R7E, Sec. 14), 
upstream to its confluence with Sixmile Creek (T17S, R6E, Sec. 21).
    2b. Gannon Creek from its confluence with Diamond Creek (T19S, R7E, 
Sec. 10), upstream through T18S, R7E, Sec. 24; and an unnamed tributary 
to Gannon Creek, from their confluence (T18S, R7E, Sec. 34), upstream 
through T18S, R7E, Sec. 14.
    2c. Mulvane Creek from its confluence with Diamond Creek (T18S, 
R7E, Sec. 33), upstream through T18S, R7E, Sec. 16.
    2d. Schaffer Creek from its confluence with Diamond Creek (T18S, 
R7E, Sec. 17), upstream through T17S, R7E, Sec. 33; an unnamed 
tributary stream from its confluence with Schaffer Creek (T18S, R7E, 
Sec. 5), upstream through T17S, R7E, Sec. 32; an unnamed tributary 
stream from its confluence with Schaffer Creek (T18S, R7E, Sec. 5), 
upstream through T18S, R7E, Sec. 3; an unnamed tributary stream from 
its confluence with Schaffer Creek (T18S, R7E, Sec. 8), upstream 
through T18S, R7E, Sec. 4; and an unnamed tributary stream from its 
confluence with Schaffer Creek (T18S, R7E, Sec. 8), upstream through 
T18S, R7E, Sec. 8.
    2e. Dodds Creek from its confluence with Diamond Creek (T17S, R6E, 
Sec. 26), upstream through T17S, R6E, Sec. 1.
    2f. Sixmile Creek from its confluence with Diamond Creek (T17S, 
R6E, Sec. 22), upstream to its confluence with Mulberry Creek (T17S, 
R6E, Sec. 21).
    2g. Mulberry Creek from its confluence with Sixmile Creek (T17S, 
R6E, Sec. 21), upstream through T17S, R6E, Sec. 30; and an unnamed 
tributary to Mulberry Creek from their confluence (T17S, R6E, Sec. 30), 
upstream through T17S, R6E, Sec. 30.
    2h. Unnamed tributary to the Cottonwood River from their confluence 
(T19S, R7E, Sec. 12), upstream through T18S, R8E, Sec. 30.

Middle Creek Complex

    3a. Middle Creek from U.S. Highway 50 (T19S, R7E, Sec. 22), 
upstream to its confluence with Stribby Creek (T19S, R6E, Sec. 8).
    3b. Collett Creek from its confluence with Middle Creek (T19S, R7E, 
Sec. 18), upstream through T18S, R6E, Sec. 26).
    3c. Unnamed tributary to Middle Creek, from their confluence (T19S, 
R6E, Sec. 10), upstream through T18S, R6E, Sec. 33); and an unnamed 
tributary to the first tributary, from their confluence, upstream 
through T18S, R6E, Sec. 34.

South Fork of the Cottonwood River (South Fork) Complex

    4a. South Fork from its confluence with the Cottonwood River (T19S, 
R8E, Sec. 25), upstream through T23S, R8E, Sec. 21.
    4b. Sharpes Creek from its confluence with the South Fork (T20S, 
R8E, Sec. 34), upstream through T21S, R8E, Sec. 36.
    4c. Rock Creek from its confluence with the South Fork (T20S, R8E, 
Sec. 33), upstream through T21S, R7E, Sec. 14.
    4d. Den Creek from its confluence with Rock Creek (T20S, R8E, Sec. 
31), upstream through T20S, R8E, Sec. 30.
    4e. Crocker Creek from its confluence with the South Fork (T21S, 
R8E, Sec. 31), upstream through T22S, R7E, Sec. 1.
    4f. Unnamed tributary to Crocker Creek from their confluence (T21S, 
R8E, Sec. 31), upstream through T21S, R8E, Sec. 31.
    4g. Mercer Creek from its confluence with the South Fork (T22S, 
R8E, Sec. 8), upstream through T22S, R8E, Sec. 31.
    4h. Jack Creek from its confluence with Mercer Creek (T22S, R8E, 
Sec. 18), upstream through T22S, R7E, Sec. 14.
    4i. Unnamed tributary to Mercer Creek, from their confluence (T22S, 
R8E, Sec. 19), upstream through T22S, R7E, Sec. 26.
    4j. Unnamed tributary to Mercer Creek, from their confluence (T22S, 
R8E, Sec. 19), upstream through T22S, R8E, Sec. 31.
    4k. Thurman Creek from its confluence with the South Fork (T22S, 
R8E, Sec. 29), upstream through T23S, R9E, Sec. 17.
    4l. Unnamed tributary to Thurman Creek, from their confluence 
(T23S, R8E, Sec. 1), upstream through T22S, R9E, Sec. 31.
    4m. Little Cedar Creek from its confluence with the South Fork 
(T22S, R8E, Sec. 8), upstream through T22S, R8E, Sec. 25.
    4n. Shaw Creek from its confluence with Little Cedar Creek (T22S, 
R8E, Sec. 16), upstream through T22S, R8E, Sec. 14.
    4o. Bloody Creek from its confluence with the Cottonwood River 
(T19S, R9E, Sec. 29), upstream through T20S, R9E, Sec. 34.
    5. Mud Creek from the south section line of T19S, R3E, Sec. 13, 
upstream through T18S, R3E, Sec. 28.
    (9) Map 5 follows:

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Mill Creek Complex

    6a. Mill Creek from Kansas Highway 30 (T11S, R12E, Sec. 26), 
upstream to the confluence of West Branch Mill Creek and South Branch 
Mill Creek (T12S, R10E, Sec. 15).
    6b. Mulberry Creek from its confluence with Mill Creek (T11S, R11E, 
Sec. 25), upstream through T11S, R11E, Sec. 10.
    6c. Spring Creek from its confluence with Mill Creek (T11S, R11E, 
Sec. 28), upstream through T11S, R11E, Sec. 21.
    6d. Kuenzli Creek from its confluence with Mill Creek (T11S, R11E, 
Sec. 33), upstream through T12S, R11E, Sec. 21.
    6e. Paw Paw Creek from its confluence with Mill Creek (T11S, R11E, 
Sec. 31), upstream through T11S, R10E, Sec. 13.
    6f. Pretty Creek from its confluence with Mill Creek (T11S, R10E, 
Sec. 36), upstream to Kansas Highway 99 (T11S, R10E, Sec. 22).
    6g. Hendricks Creek from its confluence with Mill Creek (T12S, 
R10E, Sec. 2), upstream through T11S, R10E, Sec. 31.
    6h. West Branch Mill Creek from its confluence with South Branch 
Mill Creek (T12S, R10E, Sec. 15), upstream through T13S, R9E, Sec. 20.
    6i. Loire Creek from its confluence with West Branch Mill Creek 
(T12S, R10E, Sec. 29), upstream through T12S, R9E, Sec. 11.
    6j. Illinois Creek from its confluence with West Branch Mill Creek 
(T12S, R10E, Sec. 30), upstream through T13S, R9E, Sec. 11.
    6k. Spring Creek from its confluence with West Branch Mill Creek 
(T12S, R10E, Sec. 30), upstream through T12S, R9E, Sec. 21.
    6l. South Branch Mill Creek from its confluence with West Branch 
Mill Creek (T12S, R10E, Sec. 15), upstream to Kansas Highway 4/99 
(T13S, R10E, Sec. 26).
    6m. East Branch Mill Creek from its confluence with South Branch 
Mill Creek (T12S, R10E, Sec. 35), upstream through T13S, R11E, Sec. 22.
    6n. Nehring Creek from its confluence with East Branch Mill Creek 
(T13S, R10E, Sec. 1), upstream through T13S, R11E, Sec. 15.
    7. Mission Creek from Interstate Highway 70 (T11S, R14E, Sec. 33), 
upstream to the confluence of North Branch Mission Creek and South 
Branch Mission Creek (T13S, R12E, Sec. 1).

Deep Creek Complex

    8a. Deep Creek from Kansas Highway 18 (T10S, R9E, Sec. 26), 
upstream to Interstate Highway 70 (T11S, R8E, Sec. 26).
    8b. School Creek from its confluence with Deep Creek (T11S, R9E, 
Sec. 6), upstream through T11S, R8E, Sec. 2.

Wildcat Creek Complex

    9a. Wildcat Creek from Kansas Highway 18/Ft. Riley Boulevard (T10S, 
R7E, Sec. 24), upstream to the Ft. Riley boundary near Keats, Kansas 
(T10S, R6E, Sec. 1).
    9b. Wildcat Creek from the Ft. Riley boundary near Riley, Kansas 
(T9S, R5E, Sec. 12), upstream to U.S. Highway 77 (T9S, R5E, Sec. 3).

Clarks Creek Complex

    10a. Clarks Creek from its confluence with Humboldt Creek (T11S, 
R6E, Sec. 35), upstream to its confluence with Thomas Creek (T12S, R6E, 
Sec. 34).
    10b. Thomas Creek from its confluence with Clarks Creek (T12S, R6E, 
Sec. 34), upstream through T13S, R6E, Sec. 34.
    10c. Davis Creek from its confluence with Thomas Creek (T13S, R6E, 
Sec. 2), upstream through T13S, R7E, Sec. 31.
    10d. Dry Creek from its confluence with Clarks Creek (T12S, R6E, 
Sec. 23), upstream through T13S, R7E, Sec. 22.
    10e. West Branch Dry Creek from its confluence with Dry Creek 
(T13S, R7E, Sec. 16), upstream through T13S, R7E, Sec. 21.

Lyon Creek Complex

    11a. Lyon Creek from U.S. Highway 77 (T13S, R5E, Sec. 3), upstream 
to the confluence with West Branch Lyon Creek (T15S, R4E, Sec. 2).
    11b. Rock Springs Creek from its confluence with Lyon Creek (T13S, 
R5E, Sec. 3), upstream through T14S, R5E, Sec. 5.
    11c. Carry Creek from its confluence with Lyon Creek (T13S, R5E, 
Sec. 31), upstream through T15S, R3E, Sec. 10.
    11d. Unnamed tributary to Carry Creek from their confluence (T14S, 
R4E, Sec. 19), upstream through T14S, R3E, Sec. 24.
    11e. West Branch Lyon Creek from its confluence with Lyon Creek 
(T15S, R4E, Sec. 2), upstream through T15S, R3E, Sec. 25.
    (10) Map 6 follows:

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    12. Walnut Creek from the east section line of T7S, R6E, Sec. 19, 
upstream through T8S, R5E, Sec. 1.
    13. Clear Fork Creek from its confluence with Jim Creek (T5S, R9E, 
Sec. 17), upstream through T6S, R10E, Sec. 18.
    14. North Elm Creek from its confluence with the Big Blue River 
(T1S, R7E, Sec. 11), upstream through T1S, R8E, Sec. 21.
    (11) Map 7 follows:

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[GRAPHIC] [TIFF OMITTED] TP21AU02.006

    15. Willow Creek from its confluence with the Smoky Hill River 
(T13S, R41W, Sec. 17), upstream through T13S, R42W, Sec. 3.
    (12) Map 8 follows:

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Medary Creek Complex

    1a. Medary Creek from the MN/SD state border (T109N, R47W, Sec. 
13), upstream through T110N, R46W, Sec. 21.
    1b. Unnamed tributary to Medary Creek, from their confluence 
(T109N, R46W, Sec. 18), upstream through T110N, R46W, Sec. 30.

Flandreau Creek Complex

    2a. Flandreau Creek from the Minnesota/South Dakota State border 
(T107N, R47W, Sec. 13), upstream through (T109N, R45W, Sec. 31).
    2b. Unnamed tributary to Flandreau Creek, from their confluence 
(T108N, R46W, Sec. 11), upstream through T108N, R45W, Sec. 6.
    2c. East Branch Flandreau Creek from its confluence with Flandreau 
Creek (T108N, R46W, Sec. 14), upstream through T108N, R45W, Sec. 4.
    2d. Willow Creek from its confluence with Flandreau Creek (T107N, 
R46W, Sec. 6), upstream through T109N, R46W, Sec. 3.

Split Rock/Pipestone/Beaver Creek Complex

    3a. Pipestone Creek from the Minnesota/South Dakota State border 
(T106N, R47W, Sec. 23), upstream through T106N, R46W, Sec. 1.
    3b. Unnamed tributary to Pipestone Creek, from their confluence 
(T106N, R47W, Sec. 24), upstream through T106N, R46W, Sec. 19.
    3c. Unnamed tributary to Pipestone Creek, from the Minnesota/South 
Dakota State border (T105N, R47W, Sec. 2), upstream through T105N, 
R46W, Sec. 1.
    3d. North Branch Pipestone Creek from its confluence with Pipestone 
Creek (T107N, R46W, Sec. 5), upstream through T108N, R45W, Sec. 23.
    3e. Unnamed tributary to North Branch Pipestone Creek, from their 
confluence (T108N, R45W, Sec. 22), upstream through T108N, R45W, Sec. 
15.
    3f. Split Rock Creek from the Minnesota/South Dakota State border 
(T103N, R47W, Sec. 2), upstream to Split Rock Lake Outlet (T105N, R46W, 
Sec. 20).
    3g. Unnamed tributary to Split Rock Creek from the Minnesota/South 
Dakota State border (T103N, R47W, Sec. 23), upstream through T103N, 
R46W, Sec. 29.
    3h. Unnamed tributary to Split Rock Creek, from their confluence 
(T103N, R47W, Sec. 2), upstream through T103N, R46W, Sec. 8.
    3i. Unnamed tributary to Split Rock Creek, from their confluence 
(T104N, R47W, Sec. 25), upstream through T104N, R46W, Sec. 19.
    3j. Pipestone Creek from its confluence with Split Rock Creek 
(T104N, R47W, Sec. 23), upstream to the Minnesota/South Dakota State 
border (T104N, R47W, Sec. 23).
    3k. Unnamed tributary to Split Rock Creek, from their confluence 
(T104N, R46W, Sec. 6), upstream through T105N, R46W, Sec. 36.
    3l. Split Rock Creek from the headwater of Split Rock Lake (T105N, 
R46W, Sec. 15), upstream through T106N, R46W, Sec. 35.
    3m. Unnamed tributary to Split Rock Creek, from their confluence 
(T105N, R46W, Sec. 3), upstream through T105N, R46W, Sec. 2.
    3n. Beaver Creek from the Minnesota/South Dakota State border 
(T102N, R47W, Sec. 35), upstream through T104N, R45W, Sec. 20.
    3o. Springwater Creek from its confluence with Beaver Creek (T102N, 
R47W, Sec. 35), upstream through T102N, R46W, Sec. 6.
    3p. Little Beaver Creek from its confluence with Beaver Creek 
(T102N, R46W, Sec. 12), upstream through T103N, R45W, Sec. 9.
    3q. Unnamed tributary to Beaver Creek, from their confluence 
(T102N, R46W, Sec. 1), upstream through T103N, R46W, Sec. 35.
    3r. Unnamed tributary to Beaver Creek, from their confluence 
(T103N, R45W, Sec. 18), upstream through T104N, R46W, Sec. 36.

Rock River Complex

    4a. Rock River from the Minnesota/Iowa State border (T101N, R45W, 
Sec. 36), upstream through T107N, R44W, Sec. 7.
    4b. Kanaranzi Creek from the Minnesota/Iowa State border (T101N, 
R44W, Sec. 33), upstream through T103N, R42W, Sec. 7).
    4c. Norwegian Creek from its confluence with Kanaranzi Creek 
(T101N, R44W, Sec. 25), upstream through T101N, R43W, Sec. 21.
    4d. Unnamed tributary to Norwegian Creek, from their confluence 
(T101N, R44W, Sec. 20), upstream through T101N, R44W, Sec. 16.
    4e. East Branch Kanaranzi Creek from its confluence with Kanaranzi 
Creek (T102N, R42W, Sec. 5), upstream through T102N, R41W, Sec. 5.
    4f. Unnamed tributary to East Branch Kanaranzi Creek, from their 
confluence (T102N, R42W, Sec. 9), upstream through T102N, R42W, Sec. 
22.
    4g. Unnamed tributary to East Branch Kanaranzi Creek, from their 
confluence (T102N, R42W, Sec. 5), upstream through T102N, R42W, Sec. 5.
    4h. Unnamed tributary to Kanaranzi Creek, from their confluence 
(T102N, R43W, Sec. 31), upstream through T102N, R43W, Sec. 27.
    4i. Ash Creek from its confluence with the Rock River (T101N, R45W, 
Sec. 24), upstream through T101N, R45W, Sec. 14.
    4j. Elk Creek from its confluence with the Rock River (T102N, R45W, 
Sec. 36), upstream through T103N, R43W, Sec. 22.
    4k. Unnamed tributary to Elk Creek, from their confluence (T102N, 
R44W, Sec. 1), upstream through T102N, R43W, Sec. 6.
    4l. Champepadan Creek from its confluence with the Rock River 
(T103N, R44W, Sec. 29), upstream through T104N, R43W, Sec. 14.
    4m. Unnamed tributary to Champepadan Creek, from their confluence 
(T104N, R43W, Sec. 14), upstream through T104N, R43W, Sec. 13.
    4n. Unnamed tributary to Champepadan Creek, from their confluence 
(T103N, R44W, Sec. 23), upstream through T103N, R44W, Sec. 24.
    4o. Unnamed tributary to Champepadan Creek, from their confluence 
(T103N, R44W, Sec. 23), upstream through T103N, R44W, Sec. 12.
    4p. Unnamed tributary to the Rock River, from their confluence 
(T103N, R44W, Sec. 8), upstream through T104N, R44W, Sec. 26.
    4q. Mound Creek from its confluence with the Rock River (T103N, 
R44W, Sec. 30), upstream through T104N, R45W, Sec. 35).
    4r. Unnamed tributary to the Rock River, from their confluence 
(T103N, R44W, Sec. 7), upstream through T104N, R45W, Sec. 23.
    4s. Unnamed tributary to the Rock River, from their confluence 
(T104N, R44W, Sec. 28), upstream through T104N, R44W, Sec. 11.
    4t. Unnamed tributary to the Rock River, from their confluence 
(T104N, R44W, Sec. 16), upstream through T104N, R44W, Sec. 10.
    4u. Poplar Creek from its confluence with the Rock River (T104N, 
R44W, Sec. 5), upstream through T105N, R45W, Sec. 32.
    4v. Unnamed tributary to Poplar Creek, from their confluence 
(T105N, R45W, Sec. 27, upstream through T105N, R45W, Sec. 9.
    4w. Chanarambie Creek from its confluence with the Rock River 
(T105N, R44W, Sec. 33), upstream through (T105N, R42W, Sec. 8).
    4x. North Branch Chanarambie Creek from its confluence with 
Chanarambie

[[Page 54295]]

Creek (T105N, R43W, Sec. 8), upstream through T106N, R43W, Sec. 18.
    4y. Unnamed tributary to the Rock River, from their confluence 
(T105N, R44W, Sec. 8), upstream through T106N, R45W, Sec. 36.
    4z. Unnamed tributary to the Rock River, from their confluence 
(T106N, R44W, Sec. 33), upstream through T106N, R44W, Sec. 23.
    4aa. East Branch Rock River from its confluence with the Rock River 
(T106N, R44W, Sec. 18), upstream through T107N, R44W, Sec. 27.
    4bb. Unnamed tributary to East Branch Rock River, from their 
confluence (T107N, R44W, Sec. 34), upstream through T107N, R44W, Sec. 
35.

Little Rock River Complex

    5a. Little Rock River from the Minnesota/Iowa State border (T101N, 
R42W, Sec. 35), upstream through T102N, R41W, Sec. 27.
    5b. Little Rock Creek from its confluence with the Little Rock 
River (T101N, R42W, Sec. 26), upstream through T102N, R42W, Sec. 34.

Mud Creek Complex

    6a. Mud Creek from the Minnesota/Iowa State border (T102N, R46W, 
Sec. 34), upstream thru T101N, R46W, Sec. 11.
    6b. Unnamed tributary to Mud Creek, from their confluence (T101N, 
R46W, Sec. 22), upstream through T101N, R46W, Sec. 24.
    6c. Unnamed tributary to Mud Creek, from their confluence (T101N, 
R46W, Sec. 10), upstream through T101N, R46W, Sec. 1.
    (13) Map 9 follows:

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[GRAPHIC] [TIFF OMITTED] TP21AU02.008

    1. Taylor Creek from its confluence with Union Creek (T22N, R1W, 
Sec. 32), upstream through T22N, R2W, Sec. 22.
    (14) Map 10 follows:

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    1. Hidewood Creek from its confluence with the Big Sioux River 
(T113N, R51W, Sec. 15), upstream to State Highway 15 (T115N, R49W, Sec. 
35).
    2. Peg Munky Run from State Highway 28 (T113N, R50W, Sec. 20), 
upstream through T113N, R50W, Sec. 24 (near Interstate Highway 29).

Sixmile Creek Complex

    3a. Sixmile Creek from T110N, R50W, Sec. 33, upstream through 
T112N, R48W, Sec. 19.
    3b. Unnamed tributary to Sixmile Creek, from their confluence 
(T112N, R48W, Sec. 31), upstream through T112N, R48W, Sec. 33.

Medary Creek Complex

    4a. Medary Creek from its confluence with the Big Sioux River 
(T108N, R49W, Sec. 6), upstream to the SD/MN state border (T109N, R47W, 
Sec. 15).
    4b. Deer Creek from its confluence with Medary Creek (T109N, R49W, 
Sec. 16), upstream through T111N, R47W, Sec. 30.
    4c. Unnamed tributary to Deer Creek, from their confluence (T111N, 
R48W, Sec. 35), upstream through T111N, R48W, Sec. 11.
    (15) Map 11 follows:

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    5. Spring Creek from its confluence with the Big Sioux River 
(T107N, R48W, Sec. 5), upstream to the South Dakota/Minnesota State 
border (T109N, R47W, Sec. 34).

Flandreau Creek Complex

    6. Flandreau Creek from its confluence with the Big Sioux River 
(T107N, R48W, Sec. 23), upstream to the South Dakota/Minnesota State 
border (T107N, R47W, Sec. 15).
    7. Brookfield Creek from its confluence with the Big Sioux River 
(T105N, R49W, Sec. 24), upstream through T106N, R48W, Sec. 28.
    8. Slip-Up Creek from it confluence with the Big Sioux River 
(T102N, R49W, Sec. 36), upstream through T103N, R48W, Sec. 6.

Split Rock/Pipestone/Beaver Creek Complex

    9a. Split Rock Creek from its confluence with the Big Sioux River 
(T101N, R48W, Sec. 16), upstream to the South Dakota/Minnesota State 
border (T103N, R47W, Sec. 3).
    9b. Pipestone Creek from the South Dakota/Minnesota State border 
(T104N, R47W, Sec. 22), upstream to the SD/MN state border (T106N, 
R47W, Sec. 22).
    9c. Unnamed tributary to Pipestone Creek, from their confluence 
(T105N, R47W, Sec. 9), upstream to the South Dakota/Minnesota State 
border (T105N, R47W, Sec. 3).
    9d. Unnamed tributary to Split Rock Creek, from their confluence 
(T103N, R47W, Sec. 17), upstream to the South Dakota/Minnesota State 
border (T103N, R47W, Sec. 22).
    9e. West Pipestone Creek from its confluence with Split Rock Creek 
(T102N, R48W, Sec. 11), upstream through T104N, R48W, Sec. 3.
    9f. Beaver Creek from its confluence with Split Rock Creek (T101N, 
R48W, Sec. 10), upstream to the South Dakota/Minnesota State border 
(T102N, R47W, Sec. 34).
    9g. Fourmile Creek from its confluence with Beaver Creek (T101N, 
R48W, Sec. 13), upstream to the South Dakota/Minnesota State border 
(T101N, R47W, Sec. 15).
    (16) Map 12 follows:

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Vermillion River Complex

    10a. Vermillion River from the southeast corner of T94N, R52W, Sec. 
14, upstream to the confluence of West Fork Vermillion River and East 
Fork Vermillion River (T99N, R53W, Sec. 14).
    10b. East Fork Vermillion River, from its confluence with the West 
Fork Vermillion River (T99N, R53W, Sec. 14), upstream to East 
Vermillion Lake Dam (T102N, R53W, Sec. 34).
    10c. West Fork Vermillion River, from its confluence with the East 
Fork Vermillion River (T99N, R53W, Sec. 14), upstream through T105N, 
R56W, Sec. 1.
    10d. Silver Lake Creek from its confluence with the West Fork 
Vermillion River (T100N, R55W, Sec. 10), upstream to the Silver Lake 
outlet (T100N, R55W, Sec. 30).
    10e. Camp Creek from its confluence with the Vermillion River 
(T99N, R52W, Sec. 32), upstream through T99N, R52W, Sec. 7.
    10f. Turkey Ridge Creek from its confluence with the Vermillion 
River (T96N, R52W, Sec. 28), upstream through T98N, R54W, Sec. 31.
    10g. Long Creek from its confluence with the Vermillion River 
(T97N, R51W, Sec. 31), upstream through T99N, R52W, Sec. 3.
    10h. Saddle Creek from its confluence with Long Creek (T97N, R51W, 
Sec. 20), upstream through T97N, R50W, Sec. 18.
    10i. Blind Creek from its confluence with the Vermillion River 
(T95N, R52W, Sec. 11), upstream through T96N, R51W, Sec. 26.
    (17) Map 13 follows:

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Lonetree Creek Complex

    11a. Lonetree Creek from its confluence with the James River (T97N, 
R58W, Sec. 14), upstream to its confluence with South Branch Lonetree 
Creek (T97N, R58W, Sec. 10).
    11b. South Branch Lonetree Creek from its confluence with Lonetree 
Creek (T97N, R58W, Sec. 10), upstream through T97N, R59W, Sec. 23.

Dry Creek Complex

    12a. Dry Creek from its confluence with the James River (T99N, 
R59W, Sec. 11), upstream through T98N, R59W, Sec. 9.
    12b. North Branch Dry Creek from its confluence with Dry Creek 
(T99N, R59W, Sec. 28), upstream through T99N, R61W, Sec. 27.
    13. Wolf Creek from its confluence with the James River (T99N, 
R57W, Sec. 31), upstream through T99N, R57W, Sec. 4.
    14. Twelvemile Creek from its confluence with the James River 
(T99N, R59W, Sec. 3), upstream through T101N, R61W, Sec. 23.
    15. Enemy Creek from its confluence with the James River (T102N, 
R59W, Sec. 15), upstream through T102N, R61W, Sec.19.
    16. Rock Creek from its confluence with the James River (T103N, 
R60W, Sec. 13), upstream through T106N, R57W, Sec. 34.

Firesteel Creek Complex

    17a. Firesteel Creek from the east section line of T104N, R61W, 
Sec. 36, upstream to the confluence with West Branch Firesteel Creek 
(T104N, R62W, Sec. 30).
    17b. West Branch Firesteel Creek from its confluence with Firesteel 
Creek (T104N, R62W, Sec. 30), upstream to Wilmarth Lake outlet (T105N, 
R64W, Sec. 31).
    (18) Map 14 follows:

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Pearl Creek Complex

    18a. Pearl Creek from its confluence with the James River (T109N, 
R61W, Sec. 15), upstream through T112N, R59W, Sec. 16.
    18b. Middle Pearl Creek from its confluence with Pearl Creek 
(T109N, R60W, Sec. 4), upstream through T110N, R59W, Sec. 14.
    19. Shue Creek from its confluence with the James River (T111N, 
R61W, Sec. 11), upstream to Staum Dam (T113N, R59W, Sec. 14).
* * * * *


    Dated: August 12, 2002.
Craig Manson,
Assistant Secretary for Fish, Wildlife, and Parks.
[FR Doc. 02-20939 Filed 8-20-02; 8:45 am]
BILLING CODE 4310-55-C