[Federal Register Volume 69, Number 52 (Wednesday, March 17, 2004)]
[Proposed Rules]
[Pages 12619-12631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5926]


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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 Topeka Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revisions to proposed critical habitat, 
reopening of comment period, notice of availability of draft economic 
analysis and draft environmental assessment, and announcement of public 
meeting.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of a 30-day public comment period for the proposed rule to designate 
critical habitat for the Topeka shiner (Notropis topeka) pursuant to 
the Endangered Species Act of 1973, as amended (Act). The proposed rule 
to designate critical habitat in the States of Iowa, Kansas, Minnesota, 
Nebraska, and South Dakota was published on August 21, 2002 (67 FR 
54261). We herein propose critical habitat segments for Missouri and 
one additional segment for South Dakota, and discuss potential 
exclusions from critical habitat designation under the authority of 
section 4(b)(2). We also exclude habitat on the Fort Riley Military 
Installation in Kansas under authority of section 4(a)(3) of the Act. 
In addition, we announce the availability of the draft economic 
analysis and draft environmental assessment for the proposed 
designation, and announce a public meeting.

DATES: The public meeting will be held from 7 to 9 p.m. central 
standard time on April 13, 2004, in Boonville, Missouri.
    The comment period is hereby reopened until April 16, 2004. We will 
consider comments from all interested parties on the proposed rule of 
August 21, 2002 (67 FR 54261), the additional information provided 
herein, the draft economic analysis, and the draft environmental 
assessment. We must receive all comments by the closing date. Any 
comments that we receive after the closing date will not be considered 
in the final decision on this proposal.

ADDRESSES: The public meeting will be held at the Boonville High 
School, 1690 Ashley Rd., Boonville, Missouri.
    Written comments and materials concerning the proposed rule and 
amendments, proposed exclusions, draft economic analysis, and draft 
environmental assessment may be submitted to us at the hearing, or 
directly by any one of several methods:
    (1) You may submit written comments and information to the Kansas 
Ecological Services Field Office, U.S. Fish and Wildlife Service, 315 
Houston Street, Suite E, Manhattan, Kansas 66502.
    (2) You may hand-deliver comments and information to the Kansas 
Ecological Services Field Office, at the above address, or send 
comments via facsimile to (785) 539-8567.
    (3) You may send comments via electronic mail (e-mail) to [email protected]. For directions on how to submit comments 
electronically, see the ``Public Comments Solicited'' section.
    The complete file for this notice and the proposed rule are 
available for public inspection, by appointment, during normal business 
hours at the above address. Copies of the proposed rule, draft economic 
analysis, and draft environmental assessment 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, 
extension 110; facsimile: (785) 539-8567; e-mail: [email protected]).

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    We intend for any final action resulting from this reopened 
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, landowners, 
or any other interested party regarding the revisions to the proposed 
rule, the draft economic analysis, and the draft environmental 
assessment. In addition, we are requesting any further comments 
regarding our August 21, 2002, proposed rule (67 FR 54261), pertaining 
to the designation of critical habitat in the remainder of the Topeka 
shiner's range, which includes portions of Iowa, Kansas (not including 
Fort Riley), Minnesota, Nebraska, and South Dakota. 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

[[Page 12620]]

benefits of designation will outweigh any threats to the species 
resulting from designation;
    (2) Specific information on the amount and distribution of Topeka 
shiner and its habitat, and which habitat is essential to the 
conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments;
    (6) Whether the economic analysis identifies all State and local 
costs. If not, what other costs are overlooked;
    (7) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat;
    (8) Whether the economic analysis appropriately identifies land and 
water use regulatory controls that will likely result from the 
designation;
    (9) Whether the economic analysis appropriately identifies all 
costs that could result from the designation;
    (10) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land use controls that derive from the 
designation;
    (11) Whether the designation will result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion from the final designation;
    (12) The economic analysis should identify all costs related to the 
designation of critical habitat for the Topeka shiner which was 
intended to take place at the time the species was listed. As a result, 
the assumption is the economic analysis should be consistent with the 
Service's listing regulations. Does this analysis achieve that 
consistency?
    (13) Whether our characterization of existing regulatory 
protections in the listing document is consistent with the costs of the 
regulation imposed as a result of this critical habitat determination.
    All previous comments and information submitted during the initial 
comment period need not be resubmitted. Refer to the ADDRESSES section 
for information on how to submit written comments and information. 
Please submit electronic comments in an ASCII file format and avoid the 
use of special characters and encryption. Please also include ``Attn: 
RIN 1018-AI20'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, please contact us directly at our 
Kansas Ecological Services Field Office (see ADDRESSES section and FOR 
FURTHER INFORMATION CONTACT).
    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.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 306 species or 25 percent 
of the 1,211 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,211 listed species through conservation mechanisms such as 
listing, section 7 consultations, the section 4 recovery planning 
process, the section 9 protective prohibitions of unauthorized take, 
section 6 funding to the States, and the section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters

[[Page 12621]]

a second round of litigation in which those who fear adverse impacts 
from critical habitat designations challenge those designations. The 
cycle of litigation appears endless, is very expensive, and in the 
final analysis provides relatively little additional protection to 
listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with NEPA all 
are part of the cost of critical habitat designation. None of these 
costs result in any benefit to the species that is not already afforded 
by the protections of the Act enumerated earlier, and they directly 
reduce the funds available for direct and tangible conservation 
actions.

Background

    The Topeka shiner is a small, stout minnow. It has a dorsal (back) 
side that is olive-green, a distinct dark stripe preceding the dorsal 
fin, and a dusky stripe running along the entire longitudinal length of 
the lateral line. The Topeka shiner is found in small-to mid-size 
prairie streams of the central prairie regions of the United States 
with relatively high water quality and cool to moderate temperatures. 
Many of these streams exhibit perennial flow, although some become 
intermittent during summer or periods of prolonged drought. The Topeka 
shiner's historic range includes portions of Iowa, Kansas, Minnesota, 
Missouri, Nebraska, and South Dakota. The species continues to exist in 
these States, but in most areas, its range is greatly reduced.
    We published a final rule in the Federal Register on December 15, 
1998, designating the Topeka shiner as an endangered species; we also 
determined that designation of critical habitat for the species was not 
prudent (63 FR 69008). In an April 4, 2001, court settlement of the 
case, Biodiversity Legal Foundation et al. v. Ralph Morgenweck et al. 
(C00-D-1180), we agreed to reconsider our prudency determination and, 
if prudent, to propose critical habitat for the shiner by August 13, 
2002, and to finalize our designation of critical habitat by August 13, 
2003. On August 21, 2002, we published a proposed rule in the Federal 
Register (67 FR 54261) for the designation of Topeka shiner critical 
habitat. The proposed designation included 3,766 kilometers (km) (2,340 
miles (mi)) of stream in the States of Iowa, Kansas, Minnesota, 
Nebraska, and South Dakota as critical habitat. We also proposed not to 
include Topeka shiner habitat in the State of Missouri and on the Fort 
Riley Military Installation, Kansas, under the authority of section 
3(5)(A) of the Act. Following publication of the proposed rule, we 
opened a 60-day public comment period. We also held one public meeting 
in each of the six affected States during September 2002. Due to 
budgetary constraints, we did not finalize the designation of critical 
habitat by August 13, 2003. We petitioned the court to extend this 
deadline until July 17, 2004, and, in an order dated February 10, 2004, 
the court granted us this extension.
    In the August 2002 proposed rule for designation of critical 
habitat for the Topeka shiner, we indicated our intention not to 
include critical habitat in Missouri and on Ft. Riley, Kansas, in the 
critical habitat designation. This was based upon our interpretation of 
the definition of critical habitat found in section 3(5)(A) of the Act. 
Section 3(5)(A)(i) of the Act, as amended (16 U.S.C. 1531 et seq.), 
defines critical habitat as areas on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection. In order to give meaning to the last clause of the 
definition, we have considered that if an area was already adequately 
managed, there would be no requirement for special management 
considerations or protection. A management plan is considered adequate 
when it meets the following three criteria: (1) The plan provides a 
conservation benefit to the species (i.e., the plan must maintain or 
provide for an increase in the species' population, or the enhancement 
or restoration of its habitat within the area covered by the plan); (2) 
the plan provides assurances that it will be implemented (i.e., those 
responsible for implementing the management plan are capable of 
accomplishing the objectives, have an implementation schedule, and/or 
adequate funding for the management plan); and (3) the plan provides 
assurances the management plan will be effective (i.e., it identifies 
biological goals, has provisions for reporting progress, and is of a 
duration sufficient to implement the plan and achieve the plan's goals 
and objectives).
    Subsequent to publication of the proposed rule, two issues arose. 
The first issue is a January 2003 court ruling on a separate case not 
pertaining to the Topeka shiner (Center for Biological Diversity v. 
Norton, Civ. No. 01-409 TUC DCB, D. Ariz., Jan. 13, 2003). In that 
ruling, a Federal District Court in Arizona disagreed with our 
application of the definition of critical habitat as it pertains to 
section 3(5)(A) of the Act. The court stated that ``whether habitat 
does or does not require special management is not determinative on 
whether the habitat is `critical' to a threatened or endangered 
species.'' The court affirmed the Secretary's authority to exclude 
areas from critical habitat designation pursuant to section 4(b)(2) of 
the Act.
    The second issue is that section 318 of the National Defense 
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136, adopted 
November 24, 2003) amended the Endangered Species Act by adding new 
language to section 4(a)(3), which prohibits the Service from 
designating as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an Integrated Natural Resources Management 
Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 
670a), if the Secretary of the Interior determines in writing that such 
plan provides a benefit to the species for which critical habitat is 
proposed for designation. The Sikes Act Improvement Act of 1997 
requires each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found there. Each INRMP includes an assessment of the ecological needs 
on the installation, including needs to provide for the conservation of 
listed species; a statement of goals and priorities; a detailed 
description of management actions to be implemented to provide for 
these ecological needs; and a monitoring and adaptive management plan. 
The Service consults with the military on the development and 
implementation of INRMPs for installations with listed species.
    Because of the court's decision and the amendment to the Act, we 
decided to clarify the basis for proposed exclusions to critical 
habitat for the Topeka shiner. In the following paragraphs we address 
our consideration of Fort Riley, Kansas under section 4(a)(3), followed 
by our clarification of the basis for our proposed exclusion of the 
State of Missouri. In addition, we are proposing to designate one 
additional stream segment in South Dakota as critical habitat, based on 
information received since the proposed rule was published in 2002.

[[Page 12622]]

Fort Riley, Kansas

    We previously proposed not to include stream segments on the Fort 
Riley Military Installation, Kansas, in critical habitat, on the basis 
of our interpretation of section 3(5)(A) of the Act. Because of the 
court's decision and the amendment to the Act, we know clarify the 
basis for not proposing stream segments on Fort Riley. Section 4(a)(3) 
of the Act now allows the Secretary of the Department of the Interior 
to exempt defense sites from critical habitat designations if an 
adequate INRMP is in place. The law says the Secretary ``shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense * * * that are subject 
to an integrated natural resources management plan * * * if the 
secretary determines in writing that such a plan provides a benefit to 
the species for which critical habitat is proposed for designation.''
    We consider an INRMP adequate under section 4(a)(3) for military 
installations when it meets the same three criteria we consider under 
section 3(5)(A) of the Act: (1) The plan provides a conservation 
benefit to the species (i.e., the plan must maintain or provide for an 
increase in the species' population, or the enhancement or restoration 
of its habitat within the area covered by the plan); (2) the plan 
provides assurances that it will be implemented (i.e., those 
responsible for implementing the management plan are capable of 
accomplishing the objectives, have an implementation schedule, and/or 
adequate funding for the management plan); and (3) the plan provides 
assurances the management plan will be effective (i.e., it identifies 
biological goals, has provisions for reporting progress, and is of a 
duration sufficient to implement the plan and achieve the plan's goals 
and objectives).
    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. Fort Riley 
initiated development of management guidelines for the species 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 INRMP 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 the requirements of section 
4(a)(3) are being satisfied. 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.
    The primary benefit of proposing critical habitat is to identify 
lands essential to the conservation of the species, which, if 
designated as critical habitat, would require consultation with the 
Service to ensure that activities would not adversely modify critical 
habitat. As previously discussed, Fort Riley has a completed final 
INRMP that provides for sufficient conservation management and 
protection for the Topeka shiner. Moreover, this INRMP has already 
undergone section 7 consultation with the Service prior to its final 
approval. Further, activities authorized, funded, or carried out by the 
military or Federal agencies in these areas that may affect the Topeka 
shiner will still require consultation under section 7 of the Act, 
based on the requirement that Federal agencies ensure that such 
activities not jeopardize the continued existence of listed species. 
This requirement applies even without critical habitat designation on 
these lands.
    Based on the foregoing discussion, we believe that the requirements 
of section 4(a)(3) of the Act are satisfied in relation to Topeka 
shiner habitat on Fort Riley. We, therefore, do not include these 
stream segments in the proposed critical habitat for Topeka shiner.

Missouri

    We previously proposed not to include stream segments in the State 
of Missouri in proposed critical habitat, based on our interpretation 
of section 3(5)(A) of the Act. We determined that adequate special 
management or protection would be provided by a legally operative plan 
that addresses the maintenance and improvement of essential habitat 
elements and that provides for the long-term conservation of the 
species. We further determined that a plan is adequate when it meets 
the three criteria listed in a previous paragraph of this preamble.
    In the proposed rule for designation of critical habitat for the 
Topeka shiner, we evaluated Missouri's State Action Plan for the Topeka 
Shiner (Action Plan) and associated Topeka shiner conservation actions 
that have been completed, ongoing, or planned in Missouri against the 
three criteria to determine whether lands require ``special management 
considerations or protections.'' The Action Plan clearly provides 
conservation benefits to the species; the Action Plan provides 
assurances that conservation efforts will be implemented because 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 because they include biological goals, 
restoration objectives, and monitoring consistent with a Service 
preliminary draft Recovery Plan. We continue to believe that the 
Missouri Action Plan provides for special management of the Topeka 
shiner under the definition of critical habitat in section 3(5)(A) of 
the Act. However, as a consequence of the court's decision in Center 
for Biological Diversity v. Norton, we now propose the previously-
excluded segments in Missouri, and also clarify the basis for proposing 
to exclude these areas from the critical habitat designation for Topeka 
shiner.
    The 12 stream segments, representing 148 km (92 mi) of stream, 
described below, constitute our best assessment of areas in Missouri 
needed for the conservation of the Topeka shiner, based on the best 
scientific and commercial information available. These areas are: (1) 
Currently considered occupied by the Topeka shiner or provide critical 
links or corridors between occupied habitats and/or potentially 
occupied habitats; (2) provide all or some of the primary constituent 
elements essential to the conservation of the species as described in 
our proposed rule; and (3) may require special management 
considerations or protection. A more detailed description of the stream 
segments follows (see ``Proposed Regulation Promulgation'' section of 
this document for legal descriptions and maps of these stream 
segments).
    1. Sugar Creek Complex (three stream segments), Daviess and 
Harrison Counties, Missouri. The stream segments proposed in this 
complex provide the primary constituent elements necessary for 
designation as critical habitat, including natural stream

[[Page 12623]]

morphology and in-stream habitat. Stream habitat within this complex 
can be characterized as moderate in quality, with the watershed 
draining a mosaic of cropland and pastureland. This complex includes 
portions of the mainstem of Sugar Creek, Tombstone Creek, and an 
unnamed tributary to Sugar Creek. A downstream portion of Sugar Creek 
has been severely altered by channelization, and does not provide the 
primary constituent elements.
    2. Moniteau Creek Complex (four stream segments), Cooper and 
Moniteau Counties, Missouri. Stream habitat within this complex can be 
characterized as moderate to good in quality, with the watershed 
draining a mosaic of cropland, woodlands, and pastureland. Riparian 
areas are mostly wooded and appear stable. This complex includes 
portions of Moniteau Creek, an unnamed tributary to Moniteau Creek, 
Smiley Creek, and Pisgah Creek.
    3. Bonne Femme Creek Complex (five stream segments), Boone County, 
Missouri. The Bonne Femme Creek complex is comprised of four tributary 
streams, including Turkey Creek, Bass Creek, and two unnamed tributary 
streams to Bass Creek, as well as a portion of mainstem Bonne Femme 
Creek. Extensive watershed modification is occurring throughout this 
basin as the growth of Columbia, Missouri, rapidly spreads through this 
watershed from the north. There have been no documented collections of 
Topeka shiners from the streams of the Bonne Femme Creek watershed 
since 1997. However, it has yet to be determined if the species has 
been completely eliminated from the watershed or is still present in 
very reduced numbers. The stream segments in this complex provide the 
primary constituent elements, including natural stream morphology and 
in-stream habitat.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation if we determine 
that the benefits of such exclusion outweigh the benefits of including 
the areas within critical habitat, unless we determine, based on the 
best scientific and commercial data available, that the failure to 
designate such areas as critical habitat will result in the extinction 
of the species. For the areas of Missouri that were not included in the 
proposed designation pursuant to the definition of critical habitat, we 
believe that the benefits of excluding those areas from the final 
designation outweigh the benefits of including them. If we determine 
that the benefits of exclusion are greater than those of designation, 
critical habitat will be excluded from the final designation pursuant 
to section 4(b)(2).
    For our evaluation of potential critical habitat sites in Missouri, 
we have conducted an analysis of the economic impacts and other 
relevant impacts of designating critical habitat. Economic factors 
include: (1) Costs to us and Federal action agencies from increased 
workload to conduct consultations under section 7 of the Act and 
technical assistance associated with critical habitat; (2) costs of 
modifying projects, activities, or land uses resulting from 
consultations involving critical habitat; (3) costs of delays from 
increased consultations involving critical habitat; (4) costs of 
reduced property values or income resulting from increased regulation 
of critical habitat designation; (5) potential offsetting economic 
benefits associated with critical habitat, including educational 
benefits.
    Other relevant impacts include: (1) The willingness of landowners 
and land managers to work with natural resource agencies and 
participate in voluntary conservation activities that directly benefit 
the Topeka shiner and other threatened or endangered species, including 
such cooperative partnerships as Safe Harbor Agreements; (2) the 
implementation of various cooperative conservation measures agreed to 
through various State and local partnerships, such as those outlined in 
Missouri's State Action Plan or through similar collaborative efforts; 
(3) management or regulatory flexibility, such as the establishment of 
nonessential experimental populations under section 10(j) of the Act, 
to recover Topeka shiners through reintroductions; and (4) 
opportunities and interest of landowners to participate in various 
incentive and assistance programs offered by the Service and other 
Federal, State, and local agencies that restore habitats and improve 
water quality in watersheds containing Topeka shiners.
    Benefits of designating critical habitat include: (1) Focusing 
conservation activities for listed species by identifying areas 
essential to conserve the species; (2) increasing awareness by the 
public and land management agencies of the importance of these areas 
for conservation of the species; and (3) assisting Federal, State, and 
local agencies in prioritizing landowner incentive programs, developing 
agreements with private landowners, and implementing other conservation 
and land management programs.
    We are herein providing notice of availability of an analysis of 
the economic impacts of designating these areas as critical habitat, 
along with an opportunity for the public to formally comment on this 
analysis. This economic analysis along with the analysis of other 
relevant beneficial and detrimental impacts will serve as the basis of 
our analysis under section 4(b)(2), and our determination of any 
exclusions from critical habitat finalized in our future final rule. 
The final rule will contain our analysis of economic factors and other 
relevant impacts of designating critical habitat in Missouri, and our 
consideration of comments received during the public comment period. As 
a result, we may identify certain areas that will be excluded from the 
final critical habitat designation, and if so, the final critical 
habitat determination may exclude or reduce in extent the areas 
described in this proposal.
    In Missouri, the Topeka shiner historically occurred in small, 
headwater streams in northern portions of the State, within the 
Missouri/Grand River Watershed. The Topeka shiner has been a focal 
species for planning and conservation efforts 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, the 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 2001).
    In 1999, the Conservation Commission established the Private Lands 
Services Division within the MDC. Eighty-three MDC staff were 
redirected to private land conservation throughout the State, including 
a minimum of 16 Private Lands Services personnel with responsibility 
for the counties with Topeka shiner habitat. 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 the Missouri/Grand River Watershed.
    In January 1999, MDC adopted and approved an Action Plan for the 
Topeka shiner in Missouri (MDC 1999). The Action Plan identifies 
comprehensive

[[Page 12624]]

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, is ongoing. The 
current status of tasks in the Action Plan is described in Table 1 
below:

   Table 1.--Status of Tasks in the Missouri State Action Plan for the
                              Topeka Shiner
------------------------------------------------------------------------
                     Item                                Status
------------------------------------------------------------------------
Establishment of the Missouri Topeka Shiner    Complete & Ongoing.
 Working Group.
Development & ongoing implementation of the    Complete (1999) &
 Action Plan.                                   Ongoing.
Establishment of permanent sampling sites &    Annual Monitoring--
 standardized monitoring of Missouri's Topeka   Ongoing/Initiated (began
 shiner populations & completion of recent      in 2000) Statewide
 Statewide survey for the species.              Surveying-Complete &
                                                Ongoing.
Initiation of artificial propagation of        Complete & Ongoing.
 Topeka shiners, including the development &
 refinement of captive rearing techniques.
Completion of genetic analysis of different    Complete.
 populations of Topeka shiners in Missouri.
Incorporation of Topeka shiner recovery &      Complete & Ongoing.
 conservation efforts in State strategic
 planning documents on several different
 levels.
Development & dissemination of public          Complete & Ongoing.
 outreach & education materials throughout
 Missouri & elsewhere.
Completion & dissemination of several          Ongoing/Initiated.
 ecological & life history studies involving
 Topeka shiner.
Securing matching funds from the Service to    Complete & Ongoing.
 conduct surveys & ecological studies, & for
 various habitat restoration & enhancement
 activities.
Revision of the Action Plan that will include  Planned.
 actions not yet completed since 1999 & those
 uncompleted actions identified in the
 Service's preliminary draft Recovery Plan.
Implementation of a landowner incentive        Completed (CAFO study).
 program & completion of a study on the         Ongoing/Initiated
 potential impacts of Confined Animal Feeding   (landowner incentive
 Operations (CAFO) within the Moniteau Creek    program).
 Watershed.
Development of 10-year fish monitoring plans   Complete--Plan developed
 for Moniteau, Bonne Femme, & Sugar Creek       with initial sampling
 Watersheds.                                    conducted in 2000 &
                                                annual sampling since.
Development & implementation of Sugar Creek    Complete & Ongoing.
 subbasin management plan..
Development & implementation of a Three        Complete & Ongoing.
 Creeks Conservation Area management plan.
Protection & management of Bonne Femme Creek   Complete & Ongoing.
 by establishing these watersheds as Missouri
 Department of Natural Resources' Non-point
 Source Pollution Special Area Land Treatment
 watersheds.
Reestablishment or restoration of riparian     Initiated/Ongoing.
 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, stream bank
 stabilization activities, & actions outlined
 in grazing plan developed for private
 landowners within the Bonne Femme, Moniteau,
 & Sugar Creek Watersheds.
------------------------------------------------------------------------

    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. Between January 1999 and 
December 31, 2003, at least $351,100 was spent on recovery actions for 
the Topeka shiner in Missouri, and that total is likely to increase to 
at least $600,000 within the next 10 years. Eighty 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 a Service preliminary draft Recovery Plan 
have either been completed or are currently being implemented (this 
includes 20 percent of tasks that are 100 percent completed, 47 percent 
of tasks that are 50 percent or greater completed, and 33 percent of 
tasks that are 25 percent or less completed) by the MDC in cooperation 
with us, the Topeka Shiner Recovery Team, and other Federal, State, and 
private entities. 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. The planned expansion of our Partners for Fish and 
Wildlife Program within Topeka shiner-occupied habitat will benefit an 
additional 10-15 landowners at an estimated cost of $100,000 within the 
next 5 years (Kelly Srigley Werner, Missouri Private Lands Coordinator, 
pers. comm.). MDC Fisheries and Natural History Division staffs have 
committed to help coordinate and implement Topeka shiner recovery 
efforts between the MDC and Federal, State, and private entities, and 
MDC's Topeka Shiner Recovery Coordinator. The MDC is actively 
participating in the Topeka Shiner Recovery Team. MDC's revisions to 
the Action Plan, scheduled for completion in 2004, will focus on 
incorporating any of the recovery actions outlined in a Service 
preliminary draft Recovery Plan that are currently not addressed. The 
scientific soundness of the 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 a Service preliminary draft 
Recovery Plan. In addition, the MDC, in implementing the Action Plan, 
has established cooperative working relationships with private 
landowners. These relationships have allowed for the implementation of 
conservation programs for the benefit of the Topeka shiner.
    We provide the following preliminary 4(b)(2) analysis of the 
benefits of inclusion and the benefits of exclusion in assessing the 
potential exclusion of critical habitat in Missouri.
(1) Benefits of Inclusion
    Federal actions that adversely affect critical habitat must undergo 
consultation under section 7 of the Act. Consultations on Federal 
actions involving critical habitat ensure that habitat needed for the 
survival and recovery of a species is not destroyed or adversely 
modified. However, if adequate protections are provided in another 
manner (e.g., implementation of MDC's State Action Plan), there is no 
benefit due to designation of critical habitat.
    Other possible benefits of critical habitat include educating the 
public

[[Page 12625]]

regarding the conservation value of an area, focusing conservation 
activities on these essential areas, and assisting other parties in 
conservation and land management programs. In Missouri, the educational 
benefits that may be afforded by a critical habitat designation are 
already provided through implementation of the Action Plan.
(2) Benefits of Exclusion
    The benefits of excluding Missouri from designated critical habitat 
would include: Maintenance of effective working partnerships to promote 
the conservation of the Topeka shiner and its habitat; establishment of 
new partnerships; providing benefits from the Action Plan to the Topeka 
shiner and its habitat which exceed those that would be provided by the 
designation of critical habitat; avoiding added administrative costs to 
the Service, Federal agencies, and applicants; and future regulatory 
flexibility for the Service and landowners by maintaining the ability 
to reintroduce the shiner to formerly occupied streams in Missouri by 
experimental populations under section 10(j) of the Act.
    Recovery of listed species is often achieved through partnerships 
and voluntary actions. Through the Action Plan, the MDC has gained the 
cooperation of landowners and has been successful in developing 
voluntary conservation partnerships with these landowners. Cooperators, 
with the assistance of MDC, are implementing conservation measures for 
the Topeka shiner and its habitat in accordance with management 
objectives outlined in the Action Plan. These actions range from 
allowing access to private lands for surveys and site visits to 
rehabilitation of habitat and implementation of measures to control 
erosion and sedimentation. The partners have committed to conservation 
measures benefiting the Topeka shiner that are greater than the 
benefits of designating critical habitat. It is likely that many 
current and potential partners will not assume the cost and work 
associated with implementing voluntary management and protection if 
critical habitat is designated regardless of their desire to contribute 
to the conservation of the species. The MDC has advised us that the 
support of voluntary conservation actions of private landowners that 
benefit Topeka shiner recovery in the State could be withdrawn if 
critical habitat is designated.
    In the draft Economic Analysis of Critical Habitat Designation for 
the Topeka Shiner, Industrial Economics, Inc. (2003) determined that 
two of the three proposed areas in Missouri (Bon Femme and Moniteau 
Creeks) would have significantly higher costs for consultation under 
section 7 of the Act than most areas proposed as Topeka shiner critical 
habitat. This is despite the fact that minimal project modifications 
requiring consultation under section 7 of the Act are projected for 
activities conducted within these two watersheds. Consequently, 
Industrial Economics, Inc. estimates that consultations conducted 
within these two watersheds would be administratively and economically 
burdensome to local communities (Jessica Sargent-Michaud, Industrial 
Economics, Inc., pers. comm.).
    In summary, we view the continued implementation of the Action Plan 
and the cooperative conservation partnerships with landowners to be 
essential for the conservation of the Topeka shiner in Missouri. We 
believe that the benefits of including critical habitat in Missouri are 
small due to the successful implementation of conservation actions, as 
identified in the Action Plan, through multiple partnerships. We 
believe the benefits of excluding Missouri areas from critical habitat 
greatly exceed the limited benefits of including them. Furthermore, we 
believe that exclusion from critical habitat in this State will not 
result in the extinction of the Topeka shiner. In accordance with 
4(b)(2) of the Act, we believe that the benefits of excluding critical 
habitat in Missouri outweigh the benefits of designating critical 
habitat, and are proposing to exclude areas in Missouri containing 
primary constituent elements from the critical habitat designation.
    In making our final decision with regard to areas in Missouri 
containing primary constituent elements, we will consider several 
factors, including the benefits provided to the Topeka shiner from the 
Missouri Action Plan for the Topeka Shiner, as described in the August 
2002 proposal. You may request a copy of the Action Plan by contacting 
the Field Supervisor, U.S. Fish and Wildlife Service, 101 Park DeVille 
Dr., Suite A, Columbia, MO 65203.

South Dakota

    In our proposal to designate critical habitat for Topeka shiner 
published on August 21, 2002 (67 FR 54262), we proposed to designate 40 
stream segments in South Dakota totaling 1,475 km (917 mi) of stream 
channel. In the Big Sioux River basin of South Dakota and Minnesota, we 
also proposed off-channel/side-channel pool habitat for designation. 
After the publication of the August 2002 proposal, we received 
information on additional Topeka shiner habitat in South Dakota. In 
examining this information, we concluded that habitat within Stray 
Horse Creek, Hamlin County, South Dakota, contains the necessary 
elements for proposal as critical habitat. We are proposing one 
additional 24-km (15-mi) long stream segment in South Dakota, based on 
information received since the proposed rule was published in 2002 (see 
``Proposed Regulation Promulgation'' section of this document for legal 
description and map of this stream segment). Off-channel and side-
channel habitat, as well as main-channel habitat, also is proposed for 
this additional stream.
    1. Stray Horse Creek (one stream segment), Big Sioux River 
Watershed, Hamlin 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.
    We are giving consideration to exempting South Dakota from critical 
habitat designation under section 4(b)(2) of the Act. Since the listing 
of the Topeka shiner in 1998, additional surveys conducted for this 
species in South Dakota have located extensive occupied habitat that 
was unknown at the time of listing. These demonstrate that the entire 
historical range of the Topeka shiner continues to be occupied in South 
Dakota. Furthermore, these surveys have considerably increased the 
known number of occupied streams in South Dakota. South Dakota has also 
completed a State Management Plan for the Topeka shiner. We will 
continue to evaluate whether listing of areas in South Dakota as 
critical habitat will appreciably benefit the Topeka shiner beyond the 
protection already afforded the species under the Act and that afforded 
by the State Management Plan.

Kansas

    We are giving consideration to exempting Kansas from critical 
habitat designation under section 4(b)(2) of the Act. The Topeka shiner 
is a State-listed threatened species in Kansas under the Kansas Nongame 
and Endangered Species Conservation Act. The State has also designated 
its own critical habitat for the Topeka shiner. We will continue to 
evaluate whether listing of areas in Kansas as critical habitat will 
appreciably benefit the Topeka shiner beyond the protection already 
afforded the species under the Act and State laws and regulations.

Land Ownership

    The majority of stream segments containing primary constituent 
elements

[[Page 12626]]

in Missouri and South Dakota are in private ownership and are primarily 
used for grazing and crop production. Additionally, a portion of the 
Charles Green State Wildlife Management Area, owned by the State of 
Missouri and managed by the MDC, is within the Bonne Femme Creek 
Complex of Missouri.

Economic Analysis

    The draft economic analysis estimates the foreseeable economic 
impacts of the critical habitat designation on government agencies and 
private businesses and individuals. The Service will make its final 
decisions about exclusions based on economic impact, when it has 
obtained public comments on the economic analysis and produced an 
addendum to the economic analysis containing its final conclusions. The 
Service is interested in comments from the public on the draft economic 
analysis, on whether any of the areas identified in the economic 
analysis as having economic effects should be excluded for economic 
reasons, and whether those or any other areas should be excluded for 
other reasons.
    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. The draft economic analysis serves as 
the basis of our economic analysis under section 4(b)(2), and of any 
recommended exclusions made in this document for Missouri. Since the 
economic analysis supplement will not be completed until after we 
receive comments from the public on the draft economic analysis, we 
cannot identify final exclusions from critical habitat designation 
under section 4(b)(2) in this document. However, we have identified and 
recommended areas in Missouri that we believe, at this time, qualify 
for exclusion under section 4(b)(2). Upon completion of the economic 
analysis supplement, we will analyze the supplement, public comments on 
the draft economic analysis, and this proposal, and the benefits of 
designating areas as critical habitat in Missouri. At that time, we 
will make a final determination whether certain areas containing 
primary constituent elements 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 the proposal.

Public Meeting

    The Act provides for one or more public hearings or meetings on 
critical habitat proposals, if requested. Previously, following the 
publication of the initial proposed rule on August 21, 2002 (67 FR 
54261), we held six public meetings across the species' range 
concerning the designation of critical habitat for the Topeka shiner. 
Due to the reopening of the comment period, and the changes herein to 
the proposed designation of critical, we have scheduled an additional 
public meeting.
    The public meeting will be held at Boonville High School, 1690 
Ashley Rd., Boonville, Missouri, on April 13, 2004, from 7 p.m. to 9 
p.m.

Author

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

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

Proposed Regulation Promulgation

    For the reasons stated in the preamble, we propose to amend the 
proposed amendments to part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as published in the Federal Register 
of August 21, 2002, starting on page 54262, as follows:

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. In Sec. 17.95, as proposed to be amended by 67 FR 54262:
    a. Revise paragraph (e)(1);
    b. Redesignating paragraphs (e)(15) through (e)(18) as paragraphs 
(e)(16) through (e)(19) and adding a new paragraph (e)(15);
    c. Adding Map 10a and related text after the new paragraph (e)(15); 
and
    d. Adding new paragraphs (e)(20) through (e)(22), including maps 
and legal descriptions:


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; Boone, Cooper, Daviess, Harrison, and Moniteau Counties, 
Missouri; 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.
* * * * *
    (15) Map 10a follows:

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[[Page 12627]]

[GRAPHIC] [TIFF OMITTED] TP17MR04.010


[[Page 12628]]



Stray Horse Creek--Hamlin County, South Dakota

    20. Stray Horse Creek from its confluence with the Big Sioux River 
(T114N, R51W, Sec. 7), upstream through T115N, R51W, Sec. 3.
* * * * *
    (20) Map 15 follows:
    [GRAPHIC] [TIFF OMITTED] TP17MR04.011
    

[[Page 12629]]



Sugar Creek Complex

    1a. Sugar Creek from its confluence with Tombstone Creek (T62N, 
R26W, Sec. 25), upstream through T64N, R27W, Sec. 35.
    1b. Unnamed tributary to Sugar Creek from its confluence with Sugar 
Creek (T62N, R26W, Sec. 8), upstream through T62N, R27W, Sec. 14.
    1c. Tombstone Creek from its confluence with Sugar Creek (T62N, 
R26W, Sec. 25), upstream through T62N, R26W, Sec. 29.
    (21) Map 16 follows:
    [GRAPHIC] [TIFF OMITTED] TP17MR04.012
    

[[Page 12630]]



Moniteau Creek Complex

    2a. Moniteau Creek from its confluence with Pisgah Creek (T46N, 
R15W, Sec. 19), upstream through T45N, R17W, Sec. 17.
    2b. Pisgah Creek from its confluence with Moniteau Creek (T46N, 
R15W, Sec. 19), upstream through T47N, R16W, Sec. 36.
    2c. Smiley Creek from its confluence with Moniteau Creek (T46N, 
R17W, Sec. 24), upstream through T46N, R17W, Sec. 36.
    2d. Unnamed tributary to Moniteau Creek from its confluence with 
Moniteau Creek (T46N, R17W, Sec. 21), upstream through T46N, R17W, Sec. 
19.
    (22) Map 17 follows:
    [GRAPHIC] [TIFF OMITTED] TP17MR04.013
    
Bonne Femme Creek Complex

    3a. Bonne Femme Creek from its confluence with Turkey Creek (T47N, 
R12W, Sec. 20), upstream through T47N, R12W, Sec. 12.
    3b. Turkey Creek from its confluence with Bonne Femme Creek (T47N, 
R12W, Sec. 20), upstream to U.S. Highway 63 (T47N, R12W, Sec. 15).
    3c. Bass Creek from its confluence with Turkey Creek (T47N, R12W, 
Sec. 20), upstream through T47N, R12W, Sec. 35.

[[Page 12631]]

    3d. Unnamed tributary to Bass Creek from its confluence with Bass 
Creek (T47N, R12W, Sec. 27), upstream through T46N, R12W, Sec. 4.
    3e. Unnamed tributary to Bass Creek from its confluence with Bass 
Creek (T47N, R12W, Sec. 27), upstream through T46N, R12W, Sec. 3.

    Dated: March 5, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5926 Filed 3-16-04; 8:45 am]
BILLING CODE 4310-55-P