[Federal Register Volume 69, Number 143 (Tuesday, July 27, 2004)]
[Rules and Regulations]
[Pages 44736-44770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16646]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 69, No. 143 / Tuesday, July 27, 2004 / Rules 
and Regulations  

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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; Final Designation 
of Critical Habitat for the Topeka Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Topeka shiner (Notropis topeka) pursuant to 
the Endangered Species Act of 1973, as amended (Act). We are 
designating as critical habitat a total of 83 stream segments, 
representing 1,356 kilometers (km) (836 miles (mi)) of stream in the 
States of Iowa, Minnesota, and Nebraska. We exclude from designation 
all previously proposed critical habitat in the State of Missouri under 
authority of sections 3(5)(A) and 4(b)(2) of the Act, and in the States 
of Kansas and South Dakota under authority of section 4(b)(2) of the 
Act. Critical habitat is not designated on the Fort Riley Military 
Installation in Kansas under authority of section 4(a)(3) of the Act.

DATES: This rule becomes effective August 26, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Kansas Ecological Services Field Office, U.S. Fish and Wildlife 
Service, 315 Houston Street, Suite E, Manhattan, Kansas 66502. Copies 
of the final rule, final economic analysis, and final 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; 
facsimile: (785) 539-8567; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

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 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 ESA 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 445 species (36 percent) 
of the 1,244 listed species in the United States under jurisdiction of 
the Service, have designated critical habitat. We address the habitat 
needs of all 1,244 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 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 additional 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 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 critical habitat 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 the National Environmental Policy Act. 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 found in small to mid-sized 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.
    The following additional information on the distribution of the 
species in South Dakota has recently been made available to us. Few 
historical data were available regarding the distribution of

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the Topeka shiner in South Dakota; at the time this species was 
proposed for listing in 1997, only five locations were known. The South 
Dakota Department of Game, Fish, and Parks (SDDGFP) initiated surveys 
in 1997 to determine current occupation of known historical sites and 
investigate other possible waterways for the species' presence. These 
surveys indicated that the species was more widespread in South Dakota 
than previously thought. In 1999, a number of agencies began working 
closely with the South Dakota State University Cooperative Research 
Unit (SDSU Coop Unit) in Brookings to delineate where Topeka shiners 
existed in South Dakota. Those surveys found many new streams that were 
occupied by Topeka shiners as well as populations in six of eight of 
the historical locations. Of the remaining two historical locations, 
one is on a stream that is expected to have Topeka shiners but 
resources have limited the ability to conduct surveys, while the other 
historical location was in the outlet of a lake that has not been 
surveyed due to its uncharacteristic habitat for Topeka shiners. Since 
then, several studies have been initiated by South Dakota Department of 
Transportation (SDDOT) and Natural Resource Conservation Service (NRCS) 
through the SDSU Coop Unit that have further expanded the list of known 
occupied streams and general knowledge of the species in South Dakota.
    For more information on the Topeka shiner, refer to the proposed 
critical habitat rule published in the Federal Register on August 21, 
2002 (67 FR 54262) and the final listing rule published in the Federal 
Register on December 15, 1998 (63 FR 69008).

Previous Federal Actions

    We published a final rule in the Federal Register (63 FR 69008) on 
December 15, 1998, listing the Topeka shiner as an endangered species 
under the Act. In that document, we also determined that designation of 
critical habitat was not prudent for the species. 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 Topeka 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 54262) proposing the designation of Topeka shiner 
critical habitat. The proposed designation included 3,766 km (2,340 mi) 
of stream in the States of Iowa, Kansas, Minnesota, Nebraska, and South 
Dakota as critical habitat. We also proposed to exclude from 
designation 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. Concurrent with the publication of the 
proposed rule, we opened a 60-day public comment period. We 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. This order was 
upheld by the court on June 21, 2004.
    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 Fort 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 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 protections. 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).
    The National Defense Authorization Act for Fiscal Year 2004 (Public 
Law 108-136, adopted November 24, 2003) amended the 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 Amendment 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.
    On March 17, 2004, we published in the Federal Register (69 FR 
12619) a revision to our proposed rule, notice of availability for the 
draft economic analysis and the draft environmental assessment (EA), 
and notice of a 30-day reopening of the public comment period for the 
designation of critical habitat for the Topeka shiner. In this 
document, we reevaluated our previous intention to exclude from 
designation habitat in Missouri and on Fort Riley under section 3(5)(A) 
of the Act. We explained our intent to exclude habitat on Fort Riley 
under the new provisions of section 4(a)(3). We proposed critical 
habitat within the State of Missouri, including 12 stream segments 
representing 148 km (92 mi) of stream, and proposed to exclude these 
areas from designation under section 4(b)(2). We also proposed an 
additional 24-km (15-mi) stream reach in the State of South Dakota due 
to new information on distribution of the species, obtained after 
publication of the original critical habitat proposal. Finally, we 
stated our intention to consider excluding critical habitat proposed in 
the States of Kansas and South Dakota from designation, under section 
4(b)(2). This consideration was due to ongoing

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management actions, the development and implementation of State 
management plans for the species, State protections, and other 
conservation activities related to the species occurring in these two 
States.

Summary of Comments and Recommendations

    In the August 21, 2002, proposed rule, we requested that all 
interested parties submit comments or information concerning the 
designation of critical habitat for the Topeka shiner. A 60-day comment 
period closed on October 21, 2002. We contacted interested parties 
(including elected officials; Federal, State, and county governments; 
media outlets; and local interest groups) through a press release and 
related faxes, mailed announcements, telephone calls, and e-mails. On 
March 17, 2004, the Service opened an additional 30-day comment period 
on the revised proposal, draft economic analysis, draft EA, and 
original proposed rule.
    Newspaper notices inviting public comment on the proposal and 
announcing the public comment period and series of public meetings were 
published in the following newspapers--in Iowa, Des Moines Register and 
Ft. Dodge Messenger; in Kansas, Emporia Gazette, Manhattan Mercury, 
Topeka Capital-Journal, and Wichita Eagle; in Minnesota, Minneapolis 
Star-Tribune and Pipestone County Star; in Missouri, Kansas City Star, 
Columbia Missourian, and Harrison County Advisor; in Nebraska, Omaha 
World Herald and Norfolk News; and in South Dakota, Sioux Falls Argus-
Leader, Mitchell Daily Republic, and Huron Plainsman. The Service held 
six public meetings between September 4 and 12, 2002, in Manhattan, 
Kansas; Bethany, Missouri; Fort Dodge, Iowa; Pipestone, Minnesota; 
Madison, Nebraska; and Sioux Falls, South Dakota. In conjunction with 
our revised proposal for critical habitat in Missouri, we held an 
additional public meeting on April 13, 2004, in Booneville, Missouri, 
to allow for additional public input into the final designation.
    In the 2002 comment period, a total of 34 comments were received by 
the Service's Kansas Field Office--13 supported the proposed critical 
habitat; 14 opposed the proposed critical habitat; and 7 expressed 
neither support nor opposition. During the 2004 comment period, we 
received a total of 14 comments--5 supporting designation and opposing 
any exclusion; 4 supporting the Missouri exclusion; 3 opposing 
designation in South Dakota and supporting a South Dakota exclusion; 
and 2 that neither supported nor opposed the proposed designation, but 
provided specific comments on the designation. Generally, comments 
received posed questions on the proposed action, procedural issues, and 
the economic analysis, questioned the Service's information and 
conclusions on the species, provided additional information for the 
proposed listing, suggested alternatives, and/or simply stated support 
or opposition to the designation. In total, comments were received from 
13 Federal and State agencies or officials, 5 local agencies or 
officials, and 30 private organizations, companies, and individuals. 
All comments received during the comment period are addressed in the 
following summary. Comments of a similar nature are grouped into a 
number of general issues.

Peer Review Comments

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited the expert opinions of five independent 
specialists regarding this rule. The purpose of such review is to 
ensure that decisions are based on scientifically sound data, 
assumptions, and analyses. We sent these peer reviewers, who are all 
fisheries scientists, copies of the proposed rule immediately following 
publication in the Federal Register. Two of the peer reviewers 
responded, providing comments that we have incorporated into the final 
rule. Both reviewers were supportive of the proposed rule.

Responses to Public Comments

    (1) Comment: Several comments opposed designation of critical 
habitat because of concerns that designation would severely delay, 
restrict, or eliminate State and local government's ability to 
construct and maintain roads and bridges due to restrictions on 
construction in stream channels during the Topeka shiner spawning 
period.
    Our Response: Since the listing of the Topeka shiner in December 
1998, road and bridge maintenance and construction with a Federal 
connection (i.e., using Federal funds, requiring a Federal permit, or 
sponsored by a Federal agency) are already being reviewed for impacts 
to the Topeka shiner under the consultation provisions of section 7 of 
the Act. This review, in most cases, involves the implementation of 
best management practices to reduce harm to fish and its habitat, 
including the avoidance of instream work during the spawning period. 
The designation of critical habitat will have little, if any, 
additional impact to these existing restrictions. State and local 
activities with no Federal nexus have no Federal consultation 
requirement.
    (2) Comment: The designation of critical habitat will severely 
delay, restrict, or eliminate State and local government's ability to 
construct and maintain roads and bridges due to the additional cost of 
changing the methods and timing of construction and maintenance, and 
incorporating best management practices, to reduce impacts to the 
Topeka shiner.
    Our Response: Some additional costs are anticipated for State, 
county, and local governments maintaining and constructing roads and 
bridges. The Economic Analysis forecasts that over the next 10 years 
$8.7 million in project modification costs will be incurred (Industrial 
Economics, Inc. 2004). In this final designation, we are excluding 
critical habitat in the States of South Dakota, Missouri, and Kansas. 
The project modification costs in the remaining States of Iowa, 
Minnesota, and Nebraska are an estimated $6 million over 10 years 
(Industrial Economics, Inc. 2004). Project modifications include 
restrictions on instream construction, construction of longer or higher 
bridges, culvert restrictions, construction of alternative temporary 
crossings, spawning season restrictions, and surveys for the Topeka 
shiner. For a more complete discussion of potential impacts associated 
with road and bridge construction and maintenance, see Section 4 of the 
Economic Analysis (Industrial Economics, Inc. 2004).
    (3) Comment: Comments from South Dakota stated the estimate for 
project modifications for third parties (South Dakota Department of 
Transportation) identified in the Economic Analysis appears to be low.
    Our Response: The project modifications reported in the Economic 
Analysis for South Dakota Department of Transportation (SDDOT) road and 
bridge construction and maintenance projects include stream surveys. 
The SDDOT believes that it may need to survey streams when work occurs 
in or around areas of Topeka shiner habitat. The cost associated with a 
survey was estimated to be $3,800 per effort (Industrial Economics, 
Inc. 2004). This estimate is based on a recent survey conducted by the 
SDDOT on the Vermillion River (Personal communication with Dave Graves, 
Office of Project Development, SDDOT, October 8, 2002).
    (4) Comment: Negative economic impacts will occur to schools and 
rural residents because of the need to drive additional miles due to 
construction

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delays resulting from spawning date restrictions. Crop harvest also 
could be delayed or hampered due to spawning date restrictions that 
apply to construction projects.
    Our Response: Consultations on construction projects that have been 
occurring since the species was listed in 1998 include spawning date 
restrictions already. The designation of critical habitat will create 
little additional impact due to spawning date restrictions beyond what 
is already being incurred.
    (5) Comment: The designation of critical habitat and the resulting 
section 7 consultations will delay the implementation of soil and water 
conservation practices and result in less conservation, more 
bureaucratic regulation, and further economic hardship for private 
landowners.
    Our Response: Most soil and water conservation activities are not 
likely to affect Topeka shiners or their habitat, and are not 
encumbered by the consultation process.
    (6) Comment: Designation of critical habitat may cause land 
adjacent to designated streams to be taken out of crop production or 
cause production practices to be altered. This will result in less 
profit to the producer and severely affect his/her ability to farm or 
ranch.
    Our Response: Designation of critical habitat will not impact a 
farmer's right to farm nor dictate production practices. If a private 
producer plans actions with Federal sponsorship that may affect the 
Topeka shiner or adversely modify critical habitat, that Federal agency 
is required to consult with the Service regarding the potential impact 
to the species or its habitat. If there is no Federal nexus, there is 
no consultation requirement, whether critical habitat is designated or 
not. These consultation provisions have been in place since the listing 
of the species in 1998. Little new regulatory burden will result from 
designation of critical habitat because all designated areas are 
occupied habitat. Impacts in these areas already require consultation.
    (7) Comment: The designation of critical habitat and the 
implementation of the future recovery plan (see Comment 8) will 
interrupt or prohibit livestock grazing and feeding in and near areas 
of critical habitat. Livestock operations have been present in these 
areas for more than 100 years and it is apparent that Topeka shiners 
and livestock operations can coexist.
    Our Response: If a livestock producer plans actions with Federal 
sponsorship that may affect the Topeka shiner, that Federal agency is 
required to consult with the Service regarding the potential impact to 
the species or its habitat. These consultation provisions have been in 
place since the listing of the species in 1998. Little new regulatory 
burdens will result from the designation of critical habitat because 
all designated areas are occupied. Activities that may adversely affect 
the Topeka shiner already require consultation.
    (8) Comment: The Topeka Shiner Recovery Plan should have been 
released before, or concurrently with, the designation of critical 
habitat and the economic analysis, so that all aspects of the 
conservation efforts for the species could be thoroughly analyzed by 
agricultural producers and the general public.
    Our Response: We agree that the finalization of the recovery plan 
prior to or concurrently with the critical habitat designation would 
have been optimal. A technical draft recovery plan was under internal 
review at the time of the release of our proposed rule for critical 
habitat (August 21, 2002). Because of court-approved deadlines and the 
development of the critical habitat designation received priority over 
the completion of the recovery plan. Following completion of the 
critical habitat designation, we plan to restart work on the recovery 
plan. On completion of the draft recovery plan, we will provide an 
opportunity for interested parties to comment.
    (9) Comment: Topeka shiner populations are in decline, and failure 
to designate critical habitat in South Dakota will lead to their 
extirpation. Healthy populations in the waters of South Dakota will 
benefit not only aquatic and riparian wildlife species, but the human 
population as well.
    Our Response: We believe that, with the development and 
implementation of the South Dakota Management Plan for the Topeka 
Shiner and the ongoing conservation actions underway by private 
landowners in the State, the benefits of excluding critical habitat in 
that State exceed the benefits of designation. In addition, since the 
time of the species' listing in 1998, the Topeka shiner has been found 
to be much more widely distributed in South Dakota than previously 
believed. The best scientific information, at this time, indicates that 
exclusion of critical habitat will in no way cause the extirpation of 
the species from South Dakota, or the extinction of the species across 
its range as a whole.
    (10) Comment: Topeka shiner critical habitat should extend beyond 
the habitat proposed for designation and include all of the surrounding 
watersheds as well. With the limited amount of habitat proposed, Topeka 
shiners do not have enough room to recover to suitable levels.
    Our Response: In proposing and designating critical habitat for the 
Topeka shiner, we used the best scientific information available to 
determine the primary constituent elements (habitat components) 
required by the species; where these components exist within the range 
of the species; and what areas are essential to the conservation of the 
species. The information sources we compiled included the technical 
draft of the recovery plan, State conservation and recovery plans, 
conservation plans for localized areas, species status surveys, 
research efforts concerning the species, and habitat models. If Topeka 
shiner populations expand beyond the areas designated as critical 
habitat, the protections of the Act (i.e., section 7 consultation, 
section 9 ``take'' provisions) afforded listed species will protect 
these ``new'' or expanded populations as well. Watershed-based recovery 
actions improving habitat, as outlined in the conservation and recovery 
plans, will encourage expansion to these areas by Topeka shiners.
    (12) The maps of the proposed critical habitat in Iowa are 
inadequate. It is difficult to determine if the areas proposed are on 
drainage ditches or natural streams.
    Our Response: The critical habitat maps were created as a graphical 
representation of Topeka shiner critical habitat. The maps and GIS 
files used to create the critical habitat maps are not the definitive 
source of determining the critical habitat boundaries. The reaches 
proposed for designation were coded to specific legal descriptions of 
the habitat, which are included in the amendatory language of this 
rule. These specific legal descriptions are the definitive source of 
determining critical habitat boundaries. Larger-scale maps are 
available for inspection at the Kansas Field Office (see ADDRESSES).
    (13) Comment: Recent studies have shown that the Topeka shiner is 
doing very well in South Dakota due to the effective management 
practices being implemented by agricultural producers. Both further 
study of the Topeka shiner and implementation of the State management 
plan inappropriately waste time and State resources. The species needs 
no management in South Dakota.
    Our Response: Surveys since the Topeka shiner was listed indicate 
that the species is present in South Dakota in each of the three 
watersheds where it was known to exist historically (the Big Sioux, 
James, and Vermillion River

[[Page 44740]]

watersheds) as well as in nearly all of the historically known occupied 
streams. Additionally, the Topeka shiner has been documented in more 
streams in South Dakota than previously known, and evidence of its 
persistence has been documented in some areas where repeated sampling 
has occurred. The reasons for this are not entirely clear, but may be 
due to a variety of factors, including lack of tributary impoundments 
and associated stocking of predatory fish species, low numbers of 
channelized streams, and lack of instream gravel-mining practices. 
These activities have been implicated in the decline of the Topeka 
shiner's status in other States. We believe the Topeka Shiner 
Management Plan for the State of South Dakota, which outlines many of 
the practices currently ongoing in the State via cooperation with 
Federal, State, and local governments as well as private landowners, 
provides significant benefit to the species, and we encourage the State 
and its numerous partners to continue implementing the actions outlined 
in the Plan.
    (14) Comment: Critical habitat designation offers little or no 
benefit beyond that of the protections afforded the species when it was 
listed. When a species is listed as endangered, actions are 
automatically taken that limit activities around their habitat. The 
addition of critical habitat forces overly strict land use constraints 
and creates contention among various interest groups. Missouri already 
has a management plan for the species, and the State can handle 
recovery efforts without additional involvement from the Service.
    Our Response: This rule recognizes the benefits of the Missouri 
Action Plan for the Topeka Shiner and believe the benefits of excluding 
designation in Missouri exceed the benefits that designation would 
provide. The Service will continue to be involved in the conservation 
of the species in Missouri, including section 7 consultation, 
enforcement of section 9 provisions, conservation and recovery actions 
sponsored by the Service on private lands, and the continued 
development of the range-wide recovery plan for Topeka shiner that 
includes Missouri.
    (15) Comment: In Missouri a management plan already is being 
successfully implemented. This plan is based on partnerships between 
the Missouri Department of Conservation (MDC) and private landowners. 
Designating critical habitat in Missouri would severely damage these 
partnerships and greatly diminish the chances the Topeka shiner will 
recover and eventually be taken off the endangered species list.
    Our Response: We recognize the benefits of the Missouri Action Plan 
for the Topeka Shiner, including the partnerships between private 
landowners and the MDC. We conclude that the benefits of excluding 
designation in Missouri exceed the benefits that designation would 
provide. We recognize that recovery of the species is dependent on 
solid relationships and partnerships between conservation agencies and 
private landowners.
    (16) Comment: The Missouri Action Plan for the Topeka Shiner 
mentions tasks required for recovery that are to be completed by other 
State agencies, including the Missouri Department of Natural Resources 
(MDNR). To date there has been no formal transmittal of the Action Plan 
to the MDNR. The MDNR does not have time, money, or personnel to 
complete these tasks as envisioned in the Action Plan.
    Our Response: Although other agencies are identified in the State 
Action Plan, all identified tasks attributable to such entities are 
voluntary. Most of the items in the plan pertaining to the MDNR are 
actions that the agency regularly performs (e.g., Clean Water 401 
certification, review of National Pollution Discharge Elimination 
System permits). Because such tasks were already being performed by 
MDNR staff, the MDC saw no need at the time to formally transmit the 
action plan to MDNR. The MDNR continues to provide funding and 
personnel for various tasks identified in the State action plan.
    (17) Comment: The Missouri Action Plan for the Topeka Shiner was 
unilaterally developed by the MDC. MDNR, which was assigned tasks in 
the plan, and citizen's groups were not involved in development of the 
plan. The plan was conceived and developed by MDC personnel, with 
minimal involvement from other entities, including the Service.
    Our Response: The Service was an active participant and consultant 
to the team that developed the State action plan. The MDC plans to 
update the State action plan for the Topeka shiner within the current 
calendar year and will solicit input on its development and 
implementation from other potential partners, including MDNR.
    (18) Comment: Protections afforded a listed species under the 
section 7 consultation provisions vary between the ``jeopardy'' 
standard and the ``adverse modification'' standard. For example, if no 
critical habitat is designated in Missouri and a Federal action is 
proposed that the Service finds, in a biological opinion, could 
jeopardize the continuing existence of the species, the action agency 
could proceed with the project without modifications, even with the 
jeopardy opinion. This is not the case if critical habitat is 
designated. An objection by the Service would halt the project and the 
action agency could not proceed until substantial modifications are 
incorporated into the project.
    Our Response: Section 7(a)(2) of the Act requires Federal agencies 
to satisfy two standards in carrying out their programs. Federal 
agencies must ensure that their activities are not likely to--(1) 
jeopardize the continued existence of any listed species, or (2) result 
in the destruction or adverse modification of designated critical 
habitat. These two standards (i.e., jeopardy and adverse modification) 
are separate but equal determinations. In other words, determining that 
a project would adversely modify designated critical habitat does not 
have more regulatory weight than determining that the project would 
jeopardize the continued existence of a species. Although Federal 
agencies can choose to implement a project after receiving a biological 
opinion finding jeopardy or adverse modification, any take which 
results from the action is not exempt from the provisions of section 9 
of the Act. Additionally, failure to explain in the administrative 
record how the agency addressed the Service's biological opinion can 
expose the action agency to a judicial challenge under both the Act and 
the Administrative Procedure Act.
    (19) Comment: The Missouri Action Plan for the Topeka Shiner 
depends primarily on voluntary cooperation for its implementation.
    Our Response: We recognize that the Missouri Action Plan is 
voluntary in regard to the implementation of conservation tasks. The 
primary agency responsible for this ``voluntary implementation'' is the 
MDC. The MDC has a long and distinguished record involving conservation 
activities related to the Topeka shiner, dating back prior to Federal 
listing, and has consistently committed personnel and funding to these 
tasks.
    (20) Comment: The Missouri Action Plan has failed. Since it came 
into effect in 1999 Topeka shiner populations have continued to decline 
in Missouri. The Bonne Femme Creek population of Topeka shiners has 
likely disappeared since the plan's inception. While there are many 
aspects of the plan that are laudable, it is clear that recovery has 
not resulted, or even progressed. This voluntary action plan should not 
be

[[Page 44741]]

allowed to take the place of Federal designation of critical habitat 
and an enforceable Federal plan to assure recovery.
    Our Response: We disagree that the Missouri Action Plan for the 
Topeka Shiner has failed. While it is true some Missouri populations of 
the Topeka shiner have continued to decline since the action plan was 
finalized in 1999, it should be recognized that recovery of the species 
will not occur rapidly. The impacts that now affect the species are 
generally the result of decades of land-use and land-cover changes that 
cannot be remedied or corrected in a short period of time. The Missouri 
plan is being implemented and conservation actions completed, 
contributing toward achieving the goal of recovery. The action plan 
does not replace the Service's regulatory authorities under the Act. 
These authorities, under both sections 7 and 9, will continue into the 
future. We believe the benefits of excluding critical habitat in 
Missouri from our designation exceed the benefits of including it. The 
recovery of Topeka shiner will require a combination of voluntary 
actions and regulatory oversight.
    (21) Comment: All of the proposed habitat in Missouri should be 
designated, plus other habitat where the Topeka shiner once existed. 
Protection of this unoccupied habitat will be essential for the 
recovery of the species. It also is likely that additional populations 
still exist in other areas of the species' Missouri range. According to 
knowledgeable fisheries biologists, the Topeka shiner still may occur 
in Slate Creek. Additional surveys should be conducted to identify 
these sites, and this habitat should be designated as well.
    Our Response: We recognize that recovery of the Topeka shiner in 
Missouri will likely require the reintroduction to, or recolonization 
of, additional habitat. However, until the recovery plan is completed, 
we cannot identify all potential reintroduction sites. We also may 
identify an experimental population through section 10(j) of the Act. A 
nonessential, experimental population could provide more regulatory 
flexibility in managing reintroduced populations. The Act prohibits the 
Service from designating critical habitat for an experimental 
population, so it has been the Service's practice not to designate 
critical habitat where an experimental population is contemplated.
    The MDC continues to sample suitable habitat in hopes of locating 
additional Topeka shiner populations. The last known records of Topeka 
shiner from Slate Creek were from 1962. In 2003, Jemerson and Hart 
Creeks, both tributaries to Slate Creek, were sampled and no Topeka 
shiners were found (Kerns, pers. comm. 2004). Additional sampling in 
this watershed is planned for this year. However, at this time, we have 
not found the species in the Slate Creek watershed or confirmed any 
specimens.
    (22) Comment: Contrary to the Service's assertion, critical habitat 
provides added benefit to listed species. The Service is in possession 
of at least two studies, Rachlinski (1997) and Taylor et al. (2003), 
which demonstrate that listed species with critical habitat are 
significantly less likely to decline and more likely to improve than 
species without critical habitat. Designation helps to protect 
unoccupied habitat that is essential to the recovery of the species. In 
addition, there are two different standards for consultation under 
section 7. For species that are listed without critical habitat, a 
Federal agency must only consider whether their action jeopardizes the 
continuing existence of the species (in other words, whether it will 
increase the risk of extinction). For species with critical habitat, 
the agency also must consider whether the action will destroy or 
adversely modify critical habitat (in other words, whether it will 
impede recovery). Several Federal Circuit Courts have recognized this 
(Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434, 441-42, 
5th Cir. 2001; Greenpeace v. National Marine Fisheries Service, 55 F. 
Supp. 2d 1248, 1265, W.D. Wash. 1999; Conservation Council for Hawaii 
v. Babbitt, 2 F. Supp. 2d 1280, 1287, D. Haw. 1998).
    Our Response: Under section 7 of the Act, Federal agencies must 
consult with us on activities they undertake, fund, or permit that may 
affect critical habitat and lead to its destruction or adverse 
modification. However, the Act prohibits unauthorized take of listed 
species and requires consultation for activities that may affect them, 
including habitat alterations, regardless of whether critical habitat 
has been designated. This is why we have found that the designation of 
critical habitat provides little additional protection to most listed 
species.
    (23) Comment: The Service misapplies the section 4(b)(2) standard 
in excluding critical habitat. Throughout the proposed designation, the 
Service relies on State management plans in Missouri, Kansas, and South 
Dakota as justifications for excluding areas of critical habitat. 
However, under section 4(b)(2), the Secretary may only exclude critical 
habitat from designation if the benefits of exclusion outweigh the 
benefits of inclusion (16 U.S.C. 1533(b)(B)(2)). By relying on these 
management plans, the Service has based its decision on something other 
than the balancing of costs and benefits. Management plans are not 
sufficiently beneficial to the species as to outweigh the benefits of 
including the areas they cover in the final critical habitat 
designation. Section 4(b)(2) does not address other management plans as 
the ultimate deciding factor for excluding critical habitat 
designation. Since the Service asserts that there is no additional 
protection over existing benefit to designating critical habitat, they 
are ultimately balancing a zero benefit against overestimated costs and 
concluding that the costs outweigh the benefits. Thus, the Service 
never adequately weighed the benefits of designation against the risk 
of designation as required by statute.
    Our Response: Pursuant to section 4(b)(2) of the Act, we are 
required to take into consideration the economic impact, impact on 
national security, and any other relevant impact of specifying any 
particular area as critical habitat. We also may exclude any area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, provided that the failure to designate such area will not 
result in the extinction of the species. We use information from our 
economic analysis, or other sources such as public comments, management 
plans, etc., to conduct this analysis. A decision to exclude an area is 
at the discretion of the Secretary. However, for us to consider 
excluding an area from the designation, we are required to determine 
that the benefits of the exclusion outweigh the benefits (i.e., 
biological or conservation benefits) of including the specific area in 
the designation. This is not simply a monetary cost/benefit analysis, 
however. This is a policy analysis, and can include consideration of 
the impacts of the designation, the benefits to the species from the 
designation, as well as policy considerations such as national 
security, tribal relationships, impacts on conservation partnerships, 
and other public policy concerns. This evaluation is done on a case-by-
case basis for particular areas based on the best available scientific 
and commercial data. In the case of Topeka shiner, we are not only 
considering the State management plans, we are also considering our 
partnerships with the States and with private landowners. These 
partnerships have been critically

[[Page 44742]]

important to the conservation of the Topeka shiner, and could be 
jeopardized through a designation. We have concluded that benefit of 
exclusion outweighs the benefit of inclusion for Kansas, Missouri, and 
South Dakota.
    (24) Comment: The Economic Analysis overestimates costs in 
Missouri, particularly in the Bonne Femme Creek Watershed.
    Our Response: The Economic Analysis relies on information from a 
variety of sources, including the action agencies conducting, 
permitting, or funding projects, such as the U.S. Army Corps of 
Engineers (Corps) and the Natural Resources Conservation Service (NRCS) 
in the Department of Agriculture, to determine the expected activities 
within each watershed likely to be impacted by conservation measures 
associated with the Topeka shiner.
    Based on the high rate of conversion of agriculture and forest 
lands into residential, commercial, golf course, and hobby farm 
development, the Corps estimates that over the next 10 years the Bonne 
Femme Creek watershed is likely to experience growth resulting in up to 
twice as many projects as were permitted over the previous 10 years 
(Industrial Economics, Inc. 2004). The population of Boone County is 
expected to increase approximately 14 percent from 2005 to 2015, 
compared to the State of Missouri, which is forecast to increase 
approximately 5 percent over the same time period (Industrial 
Economics, Inc. 2004).
    Though there have been no consultations on agriculture and ranching 
activities for the Topeka shiner in the past, based on historical 
program participation in the watersheds concerned, the NRCS anticipates 
future consultations. The NRCS expects pond construction to be an issue 
over the next 10 years (of all the watershed practices that may impact 
the Topeka shiner, pond construction is the most common) (Industrial 
Economics, Inc. 2004). Both the Service and NRCS anticipate completing 
a programmatic consultation on all NRCS program activities within the 
next year. Therefore, the Economic Analysis indicates that it is 
reasonable, given currently available information, to anticipate 
consultation regarding agriculture in the next 10 years regarding the 
Topeka shiner in these watersheds (Industrial Economics, Inc. 2004).
    In addition, a comment noted that the amount reported for ``other'' 
forecast costs in Appendix B of the Economic Analysis includes possible 
water quality monitoring. The comment stated that this is inaccurate as 
the Environmental Protection Agency (EPA) does not undertake water 
quality sampling. The forecast costs reported as ``other,'' in Appendix 
B of the Economic Analysis, include two informal consultation efforts 
by the State of Missouri to revise water quality standards and do not 
include EPA water quality monitoring costs.

Summary of Changes From the Proposed Rule

    In preparation for development of our final designation of critical 
habitat for the Topeka shiner, we reviewed comments received on the 
proposed designation of critical habitat and those received on the 
revised proposal we published in early 2004. In addition to minor 
modifications and corrections of legal descriptions, we have made three 
revisions to our critical habitat designation, as follows:
    (1) We have excluded from designation the proposed critical habitat 
units in the State of Kansas under the authority of section 4(b)(2) of 
the Act. Kansas has a State Endangered Species Act that provides for 
special management and state designation of critical habitat, which is 
more extensive than what the Service originally proposed under the 
Federal Endangered Species Act. Therefore, we have concluded that 
adequate management for the Topeka shiner is already in place, and that 
the benefits of exclusion outweigh the benefits of designating critical 
habitat in the State.
    (2) We have excluded from designation the proposed critical habitat 
units in the State of Missouri under the authority of sections 3(5)(A) 
and 4(b)(2) of the Act. Missouri has had a management plan for the 
Topeka shiner since 1999. We have concluded that adequate management 
for the Topeka shiner is already in place, and that the benefits of 
exclusion outweigh the benefits of designating critical habitat in the 
State.
    (3) We have excluded from designation the proposed critical habitat 
units in the State of South Dakota under the authority of section 
4(b)(2) of the Act. South Dakota completed a State-wide management plan 
for the Topeka shiner in 2003, and we find that the benefits of 
exclusion outweigh the benefits of designating critical habitat in the 
State.
    (4) We did not designate critical habitat on the Fort Riley 
Military Reservation in Kansas because the installation has an approved 
INRMP containing special management considerations for the Topeka 
shiner. We consider the Topeka shiner conservation measures to be 
adequate and are thus prohibited from designating critical habitat on 
the installation in accordance with section 4(a)(3) of the Act.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical 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 
geographical 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. ``Conservation'' means the use of all methods and 
procedures needed to bring an endangered or threatened species to the 
point at which listing under the Act is 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 authorized, funded, or carried 
out by a Federal agency. Section 7 of the Act also requires conferences 
on Federal actions that are likely to result in the destruction or 
adverse modification of proposed critical habitat.
    To be included in a critical habitat designation, the habitat must 
first be ``essential to the conservation of the species.'' Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
424.12(b)). Occupied habitat may be included in critical habitat only 
if the essential features thereon may require special management or 
protection.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, impacts to national security, and any other 
relevant impact of

[[Page 44743]]

designating any particular area as critical habitat. We may exclude 
areas from critical habitat designation when the benefits of exclusion 
outweigh the benefits of including the areas within critical habitat, 
provided the exclusion will not result in extinction of the species.
    Our Policy on Information Standards under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
and our U.S. Fish and Wildlife Service Information Quality Guidelines 
(2002) provide criteria, establish procedures, and provide guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge.
    This critical habitat designation does not signal that habitat 
outside the designation is unimportant to the Topeka shiner. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1), and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining the areas 
essential to the conservation of the 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 solicited 
information and recommendations from knowledgeable biologists and 
members of the Topeka Shiner Recovery Team. The Topeka Shiner Recovery 
Team is composed of species experts from academia and industry, State 
natural resource agency personnel with knowledge of the species, and 
Service staff. It has completed an agency technical draft Recovery 
Plan, which we used, in part, to develop this final critical habitat 
designation. We reviewed the available information pertaining to 
habitat requirements of the species received during the listing 
process.
    We have reviewed available information that pertains to the habitat 
requirements of this species, including information from the final rule 
listing the species as endangered (63 FR 69008). In addition, the 
following studies address the habitat requirements and other biological 
and physical needs of the Topeka shiner and serve as the best available 
information in determining critical habitat for the species--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.

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 designate as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements (PCEs)) that are essential to the 
conservation of the species, and that may require special management 
considerations or protection. These include, but are not limited to: 
Space for individual and population growth, and for normal behavior; 
food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing (or development) of offspring; and habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species. The 
area designated as critical habitat for the Topeka shiner is within the 
geographical area presently occupied by the species and contains the 
physical or biological features (PCEs) essential for the conservation 
of the species.
    The specific PCEs required for Topeka shiner habitat are derived 
from the biological needs of the Topeka shiner as described here. 
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 optimal (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 macrohabitat type associated with Topeka shiner presence, 
although higher densities of the species were collected in pools. While 
characteristic of pools with stable water levels and cooler 
temperatures, Topeka shiners appear to be well adapted to periodic 
drought conditions common to prairie streams and are able to endure 
acute periods of high water temperatures. 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 and Missouri, 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

[[Page 44744]]

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 the species has 
recently been found in some stream sites with excessive sedimentation, 
it is unknown whether it uses these locations year-round, for portions 
of the year, or 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 a short-lived species, rarely surviving to their 
third summer in the wild (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 (L. 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 suggest 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 observed no spawning activities. In 
Minnesota, Hatch (2001) found that Topeka shiners used rubble, boulder, 
and concrete rip-rap at the margins of pools and slow runs. Several 
authors 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 rangewide 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 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 suggest 
that Topeka shiners function both as benthic (bottom) and nektonic 
(water column) feeders, and propose that the species also may feed from 
the surfaces of aquatic plants.
    The primary constituent elements for the Topeka shiner consist of:
    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 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 shiners with water velocities 
less than 0.5 meters/second (approx. 20 inches/

[[Page 44745]]

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 nonnative competitive species 
present.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat in areas we have determined are 
essential to the conservation of the Topeka shiner. These areas have 
the primary constituent elements described above. According to the best 
available information, they are all occupied by the species or provide 
critical links or corridors between occupied habitats.
    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. 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 designated 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 designated 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 designated as critical habitat in this 
final rule are consistent with the preliminary agency technical draft 
recovery plan first recovery criterion, which states that recovery of 
the species will be recognized as achieved when all naturally occurring 
populations within recovery units are determined to be stable or 
increasing over a period of 10 years.
    Important considerations in selection of areas designated 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 rangewide recovery considerations, such 
as genetic diversity and representation of major portions of the 
species' historical range. The designated 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 designation includes representatives of all known populations 
of the species so as to conserve and protect the genetic diversity of 
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.
    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 imprecise, generalized, or 
questionable capture locations; and streams with severely altered 
habitat, lacking the primary constituent elements (e.g., drainage 
ditches).
    We used the best scientific information and data available in 
making our determination of which stream segments to designate as 
critical habitat. We compiled information on the species and its 
habitat to create proposed 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 proposed maps, and for any 
suggested changes or additions. We opened two public comment periods 
and held seven public meetings to solicit input and additional 
information from the public and other interested parties or groups. We 
also solicited peer review from five fisheries scientists.
    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 
and Minnesota; 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

[[Page 44746]]

range and dispersal characteristics. Information and suggested changes 
provided by the individuals and agencies that reviewed the proposed 
maps were carefully considered and implemented where they were 
consistent with the Service's criteria for designating critical 
habitat.
    The designation includes 83 stream segments, encompassing 1,356 km 
(836 mi) of stream in Iowa, Minnesota, and Nebraska. This includes 
adjacent off-channel pool habitats in Iowa and Minnesota. The stream 
segments are within five major watersheds in the States of Iowa, 
Minnesota, and Nebraska. These 83 designated stream segments encompass 
8 stream complexes (2 or more connecting stream segments) and 2 
individual, isolated streams. All habitat previously proposed for 
designation in Kansas, Missouri, and South Dakota is excluded from 
designation as critical habitat for Topeka shiner (see Exclusions from 
Critical Habitat).
    Designated critical habitat includes the stream channels within the 
identified stream reaches and off-channel pools and oxbows in Minnesota 
and Iowa. 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).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protection. Primary threats and special 
management considerations are described below on a unit-by-unit basis 
(see Critical Habitat Unit Descriptions). Overall, major threats to 
this species include sedimentation caused by agricultural practices, 
ditch maintenance, and road construction, as described in the final 
listing rule. Measures to improve habitat include grass waterways, 
riparian fencing, and best management practices for construction 
projects and ditch maintenance (63 FR 69008).

Critical Habitat Designation

    Tables 1 and 2 summarize the location and extent of designated 
critical habitat. We provide general descriptions of the boundaries of 
designated critical habitat units below.

   Table 1.--Number of Stream Segments and Total Stream Mileage Being
       Designated as Critical Habitat for Topeka Shiner, by State
------------------------------------------------------------------------
                                                 Number of      Total
                     State                         stream       stream
                                                  segments     mileage
------------------------------------------------------------------------
Iowa..........................................           25          225
Minnesota.....................................           57          605
Nebraska......................................            1            6
                                               --------------
  Total.......................................           83          836
------------------------------------------------------------------------


   Table 2.--Number of Stream Segments and Total Stream Mileage Being
       Designated as Critical Habitat for Topeka Shiner, by County
------------------------------------------------------------------------
                                                 Number of
                    County                         stream       Stream
                                                  segments     mileage
------------------------------------------------------------------------
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
Minnesota:
  Lincoln.....................................            4           27
  Murray......................................            2           19
  Nobles......................................           14          115
  Pipestone...................................           21          196
  Rock........................................           25          247
Nebraska:
  Madison.....................................            1            6
------------------------------------------------------------------------


    Note: Many stream segments occur in more than one county, thus 
inflating the total number per State, if totaled.

Critical Habitat Unit Descriptions

    We are designating the following areas as critical habitat for the 
Topeka shiner. These areas constitute our best assessment at this time 
of the areas essential for the conservation of the Topeka shiner that 
may require special management. All of these units are essential for 
the conservation of Topeka shiners because the overall water quality, 
substrate, and stream flow characteristics can support healthy 
populations of the species when recovery efforts are implemented. In 
accordance with our conservation strategy for this species, it is 
important to provide special management to all stream reaches that we 
know are occupied.

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 PCEs 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 designate 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 PCEs necessary for proposing it for designation as critical 
habitat. Primary threats to the Topeka shiner that require special 
management in this watershed include agricultural practices and 
channelization that increase sedimentation and other water quality 
impacts. Special management for the Topeka shiner in this watershed 
would include grass waterways and terracing to reduce erosion, and 
implementation of best management practices for ditch maintenance. In 
this unit, 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

[[Page 44747]]

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. Primary threats to the Topeka shiner that 
require special management in this watershed include agricultural 
practices and channelization that increases sedimentation and other 
water quality impacts. Special management for the Topeka shiner in this 
watershed would include grass waterways and terracing to reduce 
erosion, and implementation of best management practices for ditch 
maintenance.
    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 PCEs 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. Primary 
threats to the Topeka shiner that require special management in this 
watershed include agricultural practices and channelization that 
increases sedimentation and other water quality impacts. Special 
management for the Topeka shiner in this watershed would include grass 
waterways and terracing to reduce erosion, and implementation of best 
management practices for ditch maintenance.

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. 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. 
Primary threats to the Topeka shiner that require special management in 
this watershed include agricultural practices and channelization that 
increases sedimentation and other water quality impacts. Special 
management for the Topeka shiner in this watershed would include grass 
waterways and terracing to reduce erosion, and implementation of best 
management practices for ditch maintenance.
    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. Primary threats to the 
Topeka shiner that require special management in this watershed include 
agricultural practices and channelization that increases sedimentation 
and other water quality impacts. Special management for the Topeka 
shiner in this watershed would include grass waterways and terracing to 
reduce erosion, and implementation of best management practices for 
ditch maintenance.

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. 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. Primary threats to the Topeka shiner that require special 
management in this watershed include agricultural practices and channel 
maintenance that increases sedimentation and other water quality 
impacts. Special management for the Topeka shiner in this watershed 
would include grass waterways and riparian fencing to reduce erosion.
    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. Primary threats to the Topeka 
shiner that require special management in this watershed include 
agricultural practices and channel maintenance that increases 
sedimentation and other water quality impacts. Special management for 
the Topeka shiner in this watershed would include grass waterways and 
riparian fencing to reduce erosion.
    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 PCEs consistent with designation as critical 
habitat. We propose for designation portions of Pipestone Creek and two 
unnamed 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. Primary threats to the 
Topeka shiner that require special management in this watershed include 
agricultural practices and channelization that increases sedimentation 
and other water quality impacts. Special management for the Topeka 
shiner in this watershed would include grass waterways and terracing to 
reduce erosion, and implementation of best management practices for 
ditch maintenance.

[[Page 44748]]

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. 
Primary threats to the Topeka shiner that require special management in 
this watershed include agricultural practices and channelization that 
increases sedimentation and other water quality impacts. Special 
management for the Topeka shiner in this watershed would include grass 
waterways and terracing to reduce erosion, and implementation of best 
management practices for ditch maintenance.
    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. Primary threats to the Topeka shiner that require special 
management in this watershed include agricultural practices and channel 
maintenance that increases sedimentation and other water quality 
impacts. Special management for the Topeka shiner in this watershed 
would include grass waterways and terracing to reduce erosion, and 
implementation of best management practices for ditch maintenance.
    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. Primary threats to the Topeka 
shiner that require special management in this watershed include 
agricultural practices and channel maintenance that increases 
sedimentation and other water quality impacts. Special management for 
the Topeka shiner in this watershed would include grass waterways and 
riparian fencing, and implementation of best management practices for 
ditch maintenance.

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 PCEs 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. Primary threats to 
the Topeka shiner that require special management in this watershed 
include agricultural practices and channel maintenance that increases 
sedimentation and other water quality impacts. Special management for 
the Topeka shiner in this watershed would include grass waterways, 
grazing management plans and riparian habitat protection projects to 
reduce erosion.

Land Ownership

    The vast majority (approximately 99 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. The remaining one percent of lands are owned by 
State, county and local governments, and are used for public 
recreation, flood control projects and bridge crossings.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory. If a species is listed or critical habitat is designated, 
section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that the permitted actions do not destroy or 
adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a

[[Page 44749]]

reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the Topeka shiner or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the Army Corps under section 404 of the Clean Water 
Act, a section 10(a)(1)(B) permit from the Service, or some other 
Federal action, including funding (e.g., Federal Highway Administration 
(FHA) or Federal Emergency Management Agency funding), will also 
continue to be subject to the section 7 consultation process. Federal 
actions not affecting listed species or critical habitat and actions on 
non-Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to the Topeka shiner. We note that such activities may also 
jeopardize the continued existence of the species.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
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 from 
impoundment, groundwater pumping, and water diversion that would cause 
the elimination or reduction of scouring flows; prolonged release of 
high flows; and habitat fragmentation. These impacts threaten 
maintenance of pool habitat needed for Topeka shiner survival and 
successful reproduction. Groundwater pumping and water diversion 
threaten water availability to the species and can reduce water quality 
impacting reproductive success. 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 resulting in 
increased sedimentation of Topeka shiner spawning habitat and decreased 
water quality. 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 that would cause elimination 
of pool habitat, degradation of Topeka shiner spawning habitat, and 
decreased water quality effecting the species' reproduction and 
survival. 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 that reduces water quality 
thereby impacting reproductive success and recruitment of young fish 
into the adult population. 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 that increases predation, and 
competition for habitat and food. 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.
    We consider all of the units we are designating as critical habitat 
to be occupied by the Topeka shiner. We are not designating habitat in 
the unoccupied historic range of the species. We are designating some 
stream segments with no records of capture that possess the primary 
constituent elements of Topeka shiner habitat and connect occupied 
stream segments. These likely harbor the species during certain flow 
conditions. Federal agencies consult with us on activities in areas 
currently occupied by the species or if the species may be affected by 
the action to ensure that their actions do not jeopardize the continued 
existence of the species.

Previous Section 7 Consultations

    A small number of section 7 consultations for Federal actions 
affecting the Topeka shiner and its habitat have preceded this critical 
habitat designation. The action agencies have included the Corps, EPA, 
FHA, and NRCS. Since the Topeka shiner was listed on December 15, 1998, 
we have conducted more than 26 informal and 3 formal consultations 
involving the species. These consultations addressed a range of 
actions, including bridge construction, highway maintenance, stream 
bank stabilization, and water quality discharge permits. The 
designation of critical habitat will have no impact on private 
landowner activities that do not require Federal funding or permits. 
Determinations regarding adverse modification of critical habitat are 
only applicable to activities approved, funded, or carried out by 
Federal agencies.
    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). 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, Colorado 80225 (telephone 303-236-
7400; facsimile 303-236-0027).

[[Page 44750]]

Application of Section 3(5)(A) and Section 4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic 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. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that do not require special management 
also are not, by definition, critical habitat. To determine whether an 
area requires special management, we first determine if the essential 
features located there generally require special management to address 
applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
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 the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures 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).
    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    We have completed an analysis of the economic impacts of 
designating specific areas as Topeka shiner critical habitat. The 
economic analysis was conducted in a manner that is consistent with the 
ruling of the 10th Circuit Court of Appeals in N.M. Cattle Growers 
Ass'n v. USFWS, 248 F.3d 1277 (2001). It was available for public 
review and comment during the comment periods for the proposed rule.
    In our evaluation of potential critical habitat, our consideration 
of economic factors included: (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.
    Other relevant impacts considered in this evaluation included: (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 the action or management plans 
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.
    The economic analysis, along with the analysis of other relevant 
beneficial and detrimental impacts, serve as the basis of our analysis 
under section 4(b)(2) and our determination of exclusions from critical 
habitat. This final rule contains our analysis of economic factors and 
other relevant impacts of designating critical habitat, and our 
consideration of comments received during the public comment periods. 
As a result, we have identified certain areas that are excluded from 
the final critical habitat designation.
    In our critical habitat designations, we use both the provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that we are considering proposing designating as 
critical habitat as well as for those areas that are formally proposed 
for designation as critical habitat. Lands we have found do not meet 
the definition of critical habitat under section 3(5)(A) or have 
excluded pursuant to section 4(b)(2) include those covered by the 
following types of plans if they provide assurances that the 
conservation measures they outline will be implemented and effective: 
(1) Legally operative HCPs that cover the species; (2) draft HCPs that 
cover the species and have undergone public review and comment (i.e., 
pending HCPs); (3) Tribal conservation plans that cover the species; 
(4) State conservation plans that cover the species; (5) National 
Wildlife Refuge System Comprehensive Conservation Plans; and (6) other 
conservation efforts by State and local governments and groups that 
provide the necessary conservation benefits for the species, and which 
may cease if critical habitat is designated.
    In this designation of critical habitat for the Topeka shiner, we 
exclude all proposed critical habitat in the State of Missouri pursuant 
to section 3(5)(A) and 4(b)(2), and all proposed critical habitat in 
the States of Kansas and South Dakota pursuant to section 4(b)(2) of 
the Act. These States have all completed management or recovery plans 
for the species, which are in various stages of implementation. No HCPs 
that include Topeka shiners are under development or completed.

Kansas

    We previously proposed 63 stream segments encompassing 945 km (587 
mi) of stream in the State of Kansas as Federal critical habitat for 
Topeka shiner. In our March 17, 2004, Federal Register notice (69 FR 
12619), we notified the public that we were considering excluding the 
previously proposed stream segments in Kansas from designation as 
critical habitat for Topeka shiner under section 4(b)(2) of the Act.
    We have evaluated the Recovery Plan for the Topeka Shiner in Kansas 
(Kansas Plan), developed by the Kansas Department of Wildlife and Parks 
(KDWP); the protections afforded the species and its habitat under the 
Kansas Nongame and Endangered Species

[[Page 44751]]

Conservation Act of 1975 (Kansas Act); and the associated Topeka shiner 
conservation actions that have been completed, ongoing, or planned in 
Kansas against the three criteria to determine whether lands require 
``special management considerations or protections.'' The Kansas Plan 
and Kansas Act clearly provide conservation benefits to the species. 
The Kansas Plan and Kansas Act provide assurances that conservation 
efforts will be implemented because KDWP has authority to implement the 
Kansas Plan and Kansas Act, has demonstrated a history of funding and 
staffing the Kansas Act, has funded and staffed conservation activities 
for Topeka shiner in the past, and has completed or begun work on many 
significant elements of the Kansas Plan. The Kansas Plan and efforts of 
KDWP are effective because they include biological goals, restoration 
objectives, and monitoring consistent with a Service agency technical 
draft recovery plan. The regulatory purview provided by the Kansas Act, 
and the essential elements of the Kansas Plan, provide for special 
management of the Topeka shiner. We have determined that adequate 
special management and protection are provided by State-designated 
critical habitat and 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, as measured by 
the three criteria listed in the introductory paragraphs of this 
section of the preamble.
    In Kansas, the Topeka shiner historically occurred in small, 
headwater streams throughout much of the State, including the Kansas, 
Big Blue, Smoky Hill, Saline, Republican, Arkansas, and Cottonwood 
Rivers watersheds. The Topeka shiner has been a focal species for 
planning and conservation efforts in the State since the early 1990s. 
In December 1999, the KDWP listed the Topeka shiner as a threatened 
species under the Kansas Act, and designated State critical habitat for 
the species as required by the Kansas Act. Shortly afterwards KDWP 
formed the Topeka Shiner Advisory Committee, a 12-member group with 
representatives from academia, watershed districts, State and local 
agencies, and private interest groups, to work with KDWP to provide 
input into the recovery planning effort and disseminate information to 
the public and private landowners on a local scale. The Recovery Plan 
for the Topeka Shiner in Kansas is expected to be finalized by the KDWP 
in 2004 and will designate more habitat in the State for the Topeka 
shiner than we proposed.
    The objectives of the Kansas Plan are to: (1) Stabilize, protect, 
and enhance existing populations of Topeka shiner and its habitat in 
Kansas; (2) identify unoccupied areas of historic habitat capable of 
supporting, or capable of being restored to support the species, and 
reintroduce populations to these areas; (3) downlist (to Species In 
Need of Conservation status) and delist the species as identified by 
State recovery criteria. The Kansas Plan identifies four separate and 
distinct recovery units based on watershed boundaries, genetic 
variability between units, and degree of geographic isolation. Each 
recovery unit supports known populations and contains habitat features 
that provide the physiological, behavioral, and ecological requirements 
essential for the species.
    The recovery criteria established in the Kansas Plan for 
downlisting are: (1) All naturally-occurring populations within the 
Kansas, Big Blue, and Cottonwood recovery units are determined to be 
stable or increasing for 10 years; (2) a minimum of eight 
reintroduction efforts have been implemented and monitored for 3 years 
in the above recovery units; and (3) the natural population in the 
Upper Smoky Hill recovery unit is stable or increasing for 10 years, 
and a minimum of two reintroductions in that recovery unit has occurred 
and been monitored for 3 years. The delisting criterion is considered 
met when all populations (natural and introduced) are determined stable 
or increasing for a period of 10 years. Provisions for statistically 
sound, long-term monitoring of Topeka shiner populations in Kansas are 
included in the Kansas Plan.
    The Kansas Plan contains a narrative outline, which briefly 
describes each recovery action needed for the recovery of the Topeka 
shiner in Kansas. The KDWP also provides an implementation schedule for 
these actions. Of the 29 tasks listed in the schedule, 13 are ongoing. 
There are presently three Service-sponsored (section 6 funding) 
research efforts involving Topeka shiners funded in the State. The KDWP 
are partners, along with the Service and three different watershed 
districts, in three individual conservation agreements for the Topeka 
shiner.
    The Kansas Act protects State and federally listed species in 
Kansas. The Kansas Act was implemented to protect State-listed species 
classified as threatened, endangered, or ``species in need of 
conservation'' within Kansas. The Kansas Act places the responsibility 
for identifying and undertaking appropriate conservation measures for 
State threatened and endangered species directly upon KDWP through 
Kansas Administrative Regulations. The KDWP also must undertake efforts 
to conserve listed species and pursue increasing their populations and 
improving their habitats to the point that they are no longer listed 
under the Kansas Act.
    Kansas Administrative Regulations require the KDWP to issue special 
action permits for activities that affect species listed as threatened 
or endangered, where an action is defined as ``an activity resulting in 
the physical alteration of a listed species' critical habitat, physical 
disturbance of a listed species, or destruction of individuals of a 
listed species.'' These activities must be publicly funded, State or 
federally assisted, or require a permit from another State or Federal 
government agency to be included as activities that fall under KDWP's 
regulatory purview where action permits could be required. Critical 
habitat as defined under the Kansas Act is--(1) Specific areas 
documented as currently providing essential physical and biological 
features and supporting a self-sustaining population of a listed 
species; or (2) specific areas not documented as currently supporting a 
listed species, but determined essential for the listed species by the 
Secretary (of KDWP). Operationally, documentation relies on occurrence 
records of the species or identification of the essential habitat 
requirements as obtained through field assessment and scientific 
studies conducted by KDWP, State universities, and other qualified 
individuals or organizations. State critical habitat is designated by 
the KDWP.
    The KDWP's Environmental Services Section (ESS) is responsible for 
reviewing proposed activities that fall under KDWP's regulatory 
purview. The ESS personnel conduct environmental reviews of these 
projects, including potential effects to threatened and endangered 
species and State-designated critical habitats. The ESS personnel issue 
action permits for activities that will affect listed species or their 
critical habitats. Special conditions are incorporated into the action 
permits to help offset negative effects to listed species or critical 
habitats. Permit conditions can limit where and when (e.g., spawning 
date restrictions) construction activities occur and require 
restoration, creation, and perpetual protection of existing habitats. 
The KDWP can refuse to issue an action permit for activities that 
affect listed species and critical habitats if these activities cannot 
be adequately

[[Page 44752]]

mitigated to offset the negative effects to a listed species and its 
critical habitats.
    Each calendar year, ESS personnel conduct environmental reviews for 
approximately 750 new proposed activities that fall under KDWP's 
regulatory purview. Since the Topeka shiner was listed by the State of 
Kansas on November 11, 1999, through December 31, 2003, ESS staff have 
conducted environmental reviews for 2,814 new proposed activities, of 
which 59 included the Topeka shiner. Of the 59 projects, 5 required 
action permits be issued by KDWP.
    The KDWP presently has 68 stream segments designated as State 
critical habitat for the Topeka shiner, representing over 1,046 km (650 
mi) of stream. The Service previously proposed 63 stream segments 
representing 945 km (587 mi) of stream as Federal critical habitat.
    In our March 17, 2004, Federal Register notice (69 FR 12619), we 
stated that we were considering excluding the previously proposed 
stream segments in Kansas from designation as critical habitat for 
Topeka shiner under section 4(b)(2) of the Act. In our evaluation of 
potential critical habitat sites in Kansas, we conducted an analysis of 
the economic impacts and other relevant impacts of designating critical 
habitat. We provide the following 4(b)(2) analysis of the benefits of 
inclusion and the benefits of exclusion in assessing this exclusion of 
critical habitat in Kansas.
(1) Benefits of Inclusion
    The principal benefit of designating critical habitat is that 
federally funded or authorized activities 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, in addition to the jeopardy standard 
applied to all listed species.
(2) Benefits of Exclusion
    The benefits of excluding Kansas from designated critical habitat 
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 Kansas 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 Topeka shiner to formerly occupied streams in Kansas 
by experimental populations under section 10(j) of the Act.
    Recovery of listed species is often achieved through partnerships 
and voluntary actions. Through previous conservation actions (e.g., 
conservation agreements with watershed districts), the KDWP has gained 
the cooperation of some local governmental entities and landowners and 
has been successful in developing voluntary conservation partnerships. 
Cooperators, with the assistance of KDWP, are implementing conservation 
measures for the Topeka shiner and its habitat in accordance with 
management objectives outlined in the Kansas 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. Excluding these areas from 
the designation will send a positive message to our partners and 
reinforce their commitment to shiner conservation.
    The Economic Analysis of Critical Habitat Designation for the 
Topeka Shiner determined that the total potential economic costs for 
Kansas range from $2.3 million to $5.1 million over 10 years 
(Industrial Economics, Inc. 2004).
    In summary, we view the continued application of the regulatory 
authority of State-designated critical habitat, the implementation of 
the Kansas Plan, and the cooperative conservation partnerships with 
landowners to be essential for the conservation of the Topeka shiner in 
Kansas. We conclude that the benefits of including Federal critical 
habitat in Kansas are small due to KDWP's regulatory purview over State 
critical habitat and the ongoing implementation of conservation 
actions, as identified in the Kansas Plan, and that the benefits of 
excluding Kansas areas from Federal critical habitat exceed the limited 
benefits of including them. Furthermore, we determine that exclusion 
from critical habitat in this State will not result in the extinction 
of the Topeka shiner. In accordance with section 4(b)(2) of the Act, we 
determine that the benefits of excluding critical habitat in Kansas 
outweigh the benefits of designating critical habitat, and exclude 
areas in Kansas containing primary constituent elements from the 
critical habitat designation.

Missouri

    In the proposed rule, we 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 (67 FR 54261). In our 
March 17, 2004, Federal Register notice (69 FR 12619), we also proposed 
excluding Missouri under Section 4(b)(2) of the Act.
    We have evaluated the Action Plan for the Topeka Shiner in Missouri 
(Action Plan) and associated Topeka shiner conservation actions that 
have been completed, are ongoing, or are 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. 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.
    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 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 Service 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

[[Page 44753]]

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, the MDC adopted and approved an Action Plan for 
the Topeka shiner in Missouri (MDC 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 the Action 
Plan, is ongoing. The current status of recovery tasks outlined in the 
Action Plan is described in Table 3 below:

  Table 3.--Status of Tasks in the Action Plan for the Topeka Shiner in
                                Missouri
------------------------------------------------------------------------
                    Item                                Status
------------------------------------------------------------------------
Establishment of the Missouri Topeka Shiner  Complete & Ongoing.
 Working Group.
Development & ongoing implementation of the  Complete (1999) & Ongoing.
 Action Plan.
Establishment of permanent sampling sites &  Annual Monitoring--Ongoing/
 standardized monitoring of Missouri's        Initiated (began in 2000)
 Topeka shiner populations & completion of    Statewide Surveying--
 recent Statewide survey for the species.     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 on
 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        Planned.
 include actions not yet completed since
 1999 & those uncompleted actions
 identified in the Service's preliminary
 draft recovery plan.
Implementation of a landowner incentive      Completed (Confined Animal
 program & completion of a study on the       Feeding Operations study)
 potential impacts of Confined Animal         Ongoing/Initiated
 Feeding Operations within the Moniteau       (landowner incentive
 Creek Watershed.                             program).
Development of 10-year fish monitoring       Complete--Plan developed
 plans for Moniteau, Bonne Femme, & Sugar     with initial sampling
 Creek 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       Complete & Ongoing.
 Creek 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 are 
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 to 15 
landowners at an estimated cost of $100,000 within the next 5 years 
(Kelly Srigley Werner, Missouri Private Lands Coordinator, pers. 
comm.). The 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. The 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 
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 have concluded that Topeka shiner habitat in Missouri does not 
meet the definition of critical habitat as

[[Page 44754]]

outlined in section 3(5)(A) of the Act because there is adequate 
special management or protection already in place. Therefore, these 
areas are not included in this critical habitat designation.
    In our March 17, 2004, Federal Register notice (69 FR 12619), as a 
consequence of the court's decision in Center for Biological Diversity 
v. Norton, we described the previously-excluded segments in Missouri 
and clarified the basis for proposing to exclude these areas from the 
critical habitat designation for Topeka shiner under section 4(b)(2) of 
the Act. In our evaluation of potential critical habitat sites in 
Missouri, we conducted an analysis of the economic impacts and other 
relevant impacts of designating critical habitat. We provide the 
following 4(b)(2) analysis of the benefits of inclusion and the 
benefits of exclusion in assessing this exclusion of critical habitat 
in Missouri.
(1) Benefits of Inclusion
    The principal benefit of designating critical habitat is that 
federally funded or authorized activities 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, in addition to the jeopardy standard 
applied to all listed species.
(2) Benefits of Exclusion
    The benefits of excluding Missouri from designated critical habitat 
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 Topeka shiner to formerly occupied streams in 
Missouri as 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
    The Final Economic Analysis of Critical Habitat Designation for the 
Topeka Shiner determined that Bonne Femme and Moniteau Creeks in 
Missouri are potentially the most costly units of critical habitat 
based on costs per river mile (Industrial Economics, Inc. 2004). 
Together, these two units would cost an estimated $6.3 million over a 
10-year period based on the expectation that approximately 500 section 
7 consultations would result from Topeka shiner listing and critical 
habitat in these units (Industrial Economics, Inc. 2004). An additional 
$0.9 million in section 7 costs associated with listing and critical 
habitat in the Sugar Creek Watershed, Missouri, would be expected over 
the same period (Industrial Economics, Inc. 2004).
    In summary, we view the continued implementation of the Action Plan 
and the associated 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 would be only small additions to the currently ongoing 
successful 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 section 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 exclude 
areas in Missouri containing primary constituent elements from the 
critical habitat designation.

South Dakota

    We have evaluated the Topeka Shiner Management Plan for the State 
of South Dakota (SD Plan) and associated Topeka shiner conservation 
actions that have been completed, are ongoing, or are planned in South 
Dakota, against the three criteria to determine whether lands require 
``special management considerations or protections.'' The SD Plan 
provides conservation benefits to the species. It provides assurances 
that conservation efforts will be implemented because the State of 
South Dakota 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. It is effective 
because the SD Plan and other efforts by the State of South Dakota 
include biological goals, restoration objectives, and monitoring 
consistent with a Service preliminary draft recovery plan. The SD Plan 
and other cooperative efforts in South Dakota provide for special 
management of the Topeka shiner.
    In our August 21, 2002, proposed rule, we identified 40 stream 
segments for designation in South Dakota. We proposed one additional 
segment in our revision to the proposal published March 17, 2004 (69 FR 
12619). Before the original proposal was published, the South Dakota 
Department of Game, Fish, and Parks (SDDGFP) requested that we consider 
a State-wide exclusion from designation based on the authority given 
the Service under section 3(5)(A) and/or 4(b)(2) of the Act.
    Prior to the 2002 proposal to designate critical habitat, SDDGFP 
and the South Dakota Department of Agriculture, the South Dakota 
Department of Environment and Natural Resources (SDDENR), and the SDDOT 
developed the Topeka Shiner Management Plan for the State of South 
Dakota (SD Plan). The development of the SD Plan was a cooperative 
effort that also involved Federal agencies, private individuals, 
agricultural groups, and academia. The SD Plan was completed and signed 
in June 2003 by the four State agencies with management 
responsibilities for actions that can influence Topeka shiner streams. 
This commitment by the lead regulatory and management agencies within 
State government to the SD Plan is a unique approach to cooperative 
Topeka shiner conservation within the range of this species.
    The goals of the SD Plan are to--(1) maintain habitat integrity in 
Topeka shiner streams; and (2) establish a point-based management goal 
for the State of South Dakota in contribution toward national recovery 
efforts. The SD Plan states specific objectives to meet the plan goals, 
including: (1) Management actions that address stream hydrology, 
geomorphology, and water quality; (2) establishment of a monitoring and 
assessment protocol to evaluate South Dakota's point-based recovery 
goal; and

[[Page 44755]]

(3) development of public outreach and education strategies to inform 
all entities involved about Topeka shiner management in South Dakota.
    The SD Plan provides conservation benefits to the species by 
implementation of on the ground actions undertaken through partnership 
efforts and conservation strategies. The SD Plan provides assurances 
that conservation efforts will be implemented because the State of 
South Dakota has authority to implement the plan and has put in place 
the funding and staffing necessary to implement the Plan. In addition, 
there is a long history of implementation of strategies in the SD Plan 
that have had positive effects on Topeka shiners. The SD Plan, and 
efforts by the State of South Dakota, have been and will continue to be 
effective because they address the threats to the species in South 
Dakota and include biological goals, restoration objectives, and 
monitoring consistent with, or superior to, a Service preliminary draft 
recovery plan that has been developed (U.S. Fish and Wildlife Service 
2002).
    Implementation of recovery efforts for the Topeka shiner in South 
Dakota, are planned or ongoing. The current status of tasks in the SD 
Plan is described in Table 4 below:

 Table 4.--Status of Tasks in the Topeka Shiner Management Plan for the
                          State of South Dakota
------------------------------------------------------------------------
          Action item                            Status
------------------------------------------------------------------------
Establish the South Dakota      Complete and Ongoing.
 Topeka shiner working group.
Develop and implement the       Complete (2003) and Ongoing.
 State Plan.
Conduct surveys to determine    Complete and Ongoing.
 extent of Topeka shiner range
 in South Dakota.
Design long term monitoring     Complete.
 and assessment plan.
Develop an education and        Ongoing.
 outreach program to provide
 information on the Topeka
 shiner and watershed health.
Develop and maintain a Topeka   Complete and Ongoing.
 shiner website for
 information on this species.
Complete genetic analyses of    Complete.
 different Topeka shiner
 populations in South Dakota.
Incorporation of Topeka shiner  Ongoing.
 recovery and conservation
 efforts in State strategic
 planning documents on
 different levels.
Secure matching funds from the  Complete and Ongoing.
 Service and others to conduct
 surveys and ecological
 studies and for various
 habitat restoration and
 enhancement activities.
Conduct research in             Ongoing.
 relationship to stream
 hydrology and Topeka shiner
 habitat.
Provide technical and           Complete and Ongoing.
 financial assistance to
 landowners interested in
 creating or restoring wetland
 areas.
Provide landowner incentives    Complete and Ongoing.
 to increase native vegetative
 cover.
Work with government agencies   Complete and Ongoing.
 to develop best management
 practices that minimize
 erosion.
Provide financial and           Complete and Ongoing.
 technical assistance to
 landowners to reestablish
 native vegetation along
 riparian zones.
Provide technical and           Complete and Ongoing.
 financial assistance to
 landowners and other agencies
 interested in restoring
 habitat in degraded stream
 reaches.
Review projects that may        Complete and Ongoing.
 adversely alter Topeka shiner
 streams.
Continue working with the       Ongoing.
 Service to provide
 information and assistance on
 section 7 consultation issues.
Continue working with section   Ongoing.
 6 funds to further identify
 Topeka shiner areas and
 strategy for long-term
 conservation.
Provide technical assistance    Complete and Ongoing.
 to urban, residential and
 development planners to
 improve water quality from
 water discharge systems.
Work with NRCS to have Topeka   Complete and Ongoing.
 shiner streams get higher
 priority for EQIP and WHIP
 funding.
Provide incentives for          Complete and Ongoing.
 landowners to establish
 riparian buffers or filter
 strips along agricultural
 fields with high runoff
 potential.
Continue technical assistance   Ongoing.
 for permitting and designing
 confined animal feeding
 operations.
Continue routine inspections    Ongoing.
 of sewage treatment
 facilities to ensure
 compliance with water quality
 standards.
------------------------------------------------------------------------

    Assurances that the SD Plan will be implemented and conservation of 
the Topeka shiner will be achieved in South Dakota are demonstrated by 
the following actions. Between January 1999 and December 31, 2003, at 
least $700,000 was expended on recovery actions and habitat improvement 
for the Topeka shiner by the State of South Dakota, and that total is 
likely to increase to at least $3 million over the next 10 years (Dowd 
Stukel and Shearer, SDDGFP, pers. comm. 2004; Graves, SDDOT, pers. 
comm. 2004; SDDENR Web site 2004). All of the tasks identified in the 
SD Plan that have definite end points have been completed. Remaining 
tasks, such as project reviews to minimize adverse impacts to Topeka 
shiners, implementation of projects to enhance Topeka shiner streams, 
and Topeka shiner surveys will be ongoing.
    Overall, 86 percent (i.e., 12 of 14) 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. Of two remaining priority 1 tasks, one 
involves ``determining impacts of sedimentation on habitat quality.'' 
South Dakota recognizes that sedimentation may impair habitat for 
Topeka shiner and has instituted aggressive provisions to minimize 
erosion from activities they may undertake or permit. One example is 
the development of stringent erosion control measures and spawning 
season restrictions that the SDDOT includes for all projects crossing 
Topeka shiner streams.
    The other priority 1 task involved evaluation of piscivorous fish 
within Topeka shiner habitat. This task was included in the rangewide 
draft Recovery Plan because some fish, particularly largemouth bass, 
have been documented to be damaging to Topeka shiner populations. The 
information for South Dakota does not show much overlap between Topeka 
shiner populations and largemouth bass. Therefore, while this is an 
important issue in parts of the Topeka shiner range, it is not believed 
to be problematic in South Dakota.
    In addition to two Topeka shiner studies initiated by SDDOT through 
the SDSU Coop Unit, SDDOT has committed to extensive management 
practices to minimize adverse effects of

[[Page 44756]]

road and highway stream crossing projects on Topeka shiner streams. 
These provisions are among the most rigorous in the species' range. 
SDDOT has also conducted a programmatic formal section 7 consultation 
with the Service for construction projects that involve all SDDOT road 
crossings of Topeka shiner streams.
    SDDGFP and SDDENR also routinely review projects to ensure impacts 
to Topeka shiners and its habitat are minimized. In South Dakota, 
SDDENR has assumed the section 401 water quality program from EPA and 
issues certification for all section 404 permits authorized by the U.S. 
Army Corps of Engineers. This State program ensures discharges do not 
compromise water quality in the receiving water bodies.
    The SDDGFP has been an active partner in cooperation with us, the 
Topeka Shiner Recovery Team, and other Federal, State, and private 
entities. The SD Plan greatly facilitates the implementation of 
recovery actions on private property where the species currently exists 
or where potential habitat for the species exists.
    The SDDGP Habitat Program recently developed a series of 
implementation guidelines for wetland projects proposed within Topeka 
shiner watersheds. The guidelines provide field staff with an early 
screening process to identify any potential conflict habitat projects 
may create in Topeka shiner streams. This screen also allows selection 
of management tools that can provide specific benefits to water 
quality.
    The SDDGFP staff has committed to help coordinate and implement 
Topeka shiner recovery efforts between the State of South Dakota and 
Federal, State, and private entities. The SDDGFP is actively 
participating in the Topeka Shiner Recovery Team. In addition, the 
SDDGFP and other State signatory agencies have established cooperative 
working relationships with private landowners. These relationships have 
allowed for the implementation of conservation programs for the benefit 
of the Topeka shiner.
    The SDDENR also has upgraded numerous reaches of Topeka shiner 
streams to a fisheries classification for Clean Water Act purposes 
(Snyder, SDDENR, pers. comm. 2004). This includes all areas proposed 
for critical habitat designations in South Dakota. This is important, 
since some areas where Topeka shiners have been found in recent years 
have been on streams or portions of streams that are intermittent and 
were previously not classified as a fishery water body. With SDDENR 
reclassification of these streams to a fishery, the full suite of water 
quality standards apply to that water body when evaluating a National 
Pollution Discharge Elimination System permit. A fishery classification 
to a stream is an important upgrade that the State has undertaken as 
part of their Triennial Review Process of water quality standards.
    The State of South Dakota developed a general permit in 1998 to 
address animal waste resulting from concentrated animal feeding 
operations (CAFOs). Since development of this permit, the State has 
regulated 64 CAFOs in the Topeka shiner range in South Dakota. There 
are an additional 55 CAFOs in the Topeka shiner range going through the 
permitting system to be authorized under the general permit. This can 
include existing operations being brought into compliance as well as 
new or expanded facilities. This important regulatory measure requires 
strict adherence to provisions of the general permit that allows no 
discharge of animal waste to streams or rivers from livestock waste 
management facilities. This regulatory requirement has resulted in 
significant upgrades to animal waste disposal systems in the range of 
the Topeka shiner. Significant partnerships between landowners and 
programs such as the Environmental Quality Incentive Program (EQIP) 
funds have resulted and are being used to bring existing CAFOs into 
compliance.
    South Dakota has worked with agencies to prioritize expenditures of 
funds towards actions that would benefit Topeka shiner. For example, 
through efforts by the resource agencies, the NRCS has modified their 
ranking criteria such that projects funded by the Environmental Quality 
Incentives Program (EQIP) and the Wildlife Habitat Incentives Program 
(WHIP) receive additional points, and thus higher ranking, if benefits 
to Topeka shiners will result from a proposed project. The SDDENR 
through their implementation of the 319 program, in concert the 
Environmental Agency Program, provides incentives to undertake actions 
that benefit water quality of Topeka shiner streams. SDDGFP and others 
have cooperated to attain federal grants that prioritize Topeka shiner 
watersheds with projects that benefit water quality and stream 
hydrology. Designation of critical habitat would not be expected to 
appreciably enhance the prioritization efforts that have already 
occurred and those that are ongoing.
    The State also believes that the SD Plan will lay the groundwork 
for a future Habitat Conservation Plan (HCP) that may be developed by 
the State. The SD Plan is recognized to be an important component of a 
future HCP, and provides an indication of South Dakota's ongoing 
efforts to develop an HCP for Topeka shiners.
    In our evaluation of potential critical habitat sites in South 
Dakota, we conducted an analysis of the economic impacts and other 
relevant impacts of designating critical habitat. We provide the 
following 4(b)(2) analysis of the benefits of inclusion and the 
benefits of exclusion in assessing this exclusion of critical habitat 
in South Dakota.
(1) Benefits of Inclusion
    The principal benefit of designating critical habitat is that 
federally funded or authorized activities 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, in addition to the jeopardy standard 
applied to all listed species.
(2) Benefits of Exclusion
    The benefits of excluding South Dakota from designated critical 
habitat include continued participation of State agencies to neutralize 
threats to Topeka shiner, maintenance of effective working partnerships 
to promote the conservation of the Topeka shiner and its habitat; 
establishment of new partnerships; providing benefits from the SD Plan 
to the Topeka shiner and its habitat which exceed those that would be 
provided by the designation of critical habitat; and avoiding added 
administrative costs to the Service, Federal agencies, and permit 
applicants.
    Recovery of listed species that occur primarily on or adjacent to 
private lands is often best achieved through partnerships, voluntary 
actions, and incentives. Through the SD Plan, the State of South Dakota 
has gained the cooperation of landowners and has been successful in 
developing voluntary conservation partnerships with these landowners. 
Cooperators, with the assistance of partners identified in the SD Plan, 
are implementing conservation measures for the Topeka shiner and its 
habitat in accordance with management objectives outlined in the SD 
Plan. The broad engagement of the many diverse groups and individuals 
that developed the SD Plan lends strength to both the SD Plan as well 
as our belief that its partnership and cooperative concepts have 
conservation value. The monitoring plan that the SD Plan has undertaken 
will provide annual data to track the status of the species. Section 
4(a)(3)(B) allows us to revisit critical

[[Page 44757]]

habitat designations. If in the future the currently healthy population 
declines, we retain the ability to designate CH in the State at a later 
date.
    In summary, we view the continued implementation of the SD Plan 
with its threat abatement and cooperative conservation partnerships 
with landowners to be essential for the conservation of the Topeka 
shiner in South Dakota. We believe that the benefits of including 
critical habitat in South Dakota are negligible compared to benefits of 
the conservation actions identified in the SD Plan. Finally, we believe 
that exclusion from critical habitat in South Dakota will not result in 
the extinction of the Topeka shiner nor adversely impact the species. 
In accordance with section 4(b)(2) of the Act, we believe that the 
benefits of excluding critical habitat in South Dakota outweigh the 
benefits of designating critical habitat in the State, and exclude 
areas in South Dakota containing primary constituent elements from the 
critical habitat designation.

Application of Section 4(a)(3) of the Act

    Section 318 of fiscal year 2004 the National Defense Authorization 
Act (Public Law No. 108-136) amended the Endangered Species Act to 
address the relationship of INRMPs to critical habitat by adding a new 
section 4(a)(3)(B). This provision 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 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. Fort Riley, Kansas, has 
an INRMP in place that provides a benefit for the Topeka shiner (see 
Application of Section 4(a)(3) of the Act). All Topeka shiner habitat 
suitable for designation on the Fort Riley Military Installation, 
Kansas, also is not included in this designation under the authority of 
section 4(a)(3) of the Act.

Fort Riley, Kansas

    In our August 21, 2002, proposed rule, we proposed not to include 
stream segments on the Fort Riley Military Installation, Kansas, as 
critical habitat, on the basis of our interpretation of section 3(5)(A) 
of the Act. Due to the Federal District Court decision (Center for 
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB, D. Ariz., Jan. 
13, 2003) and the amendment to section 4(a)(3) of the Act, we now 
clarify the basis for not designating stream segments on Fort Riley. As 
discussed above, Section 4(a)(3) of the Act now prohibits the Secretary 
of the Department of the Interior from designating critical habitat on 
Department of Defense lands if an adequate INRMP is in place.
    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 (U.S. 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, and find that it 
provides a benefit to the species under section 4(a)(3).
    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.
    The requirements of section 4(a)(3) of the Act are satisfied in 
relation to Topeka shiner habitat on Fort Riley. Therefore, we do not 
include these stream segments in the designation as critical habitat 
for Topeka shiner.

Iowa, Minnesota and Nebraska

    We have designated occupied critical habitat on a number of streams 
in Iowa, Minnesota and Nebraska because, although these States are 
implementing conservation actions that benefit Topeka shiners, there 
are currently no ``legally operative'' conservation plans proposed or 
in place that we can weigh against the three criteria we use to address 
special management needs. 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.

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 a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on March 17, 2004 (69 CFR 12619). We 
accepted comments on the draft analysis until April 16, 2004.
    Our economic analysis evaluated the potential future effects 
associated with the listing of the Topeka shiner as endangered under 
the Act, as well as any potential effect of the critical habitat 
designation above and beyond those regulatory and economic impacts 
associated with listing. The following discussion presents the 
potential economic effects of the proposed critical habitat 
designation. However, in this final critical habitat rule, we are 
excluding lands owned by Fort Riley and the States of Kansas, Missouri, 
and South Dakota from the areas designated as critical habitat for the 
Topeka shiner. Therefore, because our economic analysis included 
impacts of areas that are subsequently excluded from the final critical 
habitat, the values presented below and in the economic analysis are 
likely significant overestimates of the potential economic

[[Page 44758]]

effects resulting from this critical habitat rule for the Topeka 
shiner.
    The categories of potential costs considered in the analysis 
included the costs associated with: (1) Conducting section 7 
consultations due to the listing or the critical habitat, including 
reinitiated consultations and technical assistance; (2) modifications 
to projects, activities, or land uses resulting from the section 7 
consultations; and (3) potential offsetting beneficial costs connected 
to critical habitat including educational benefits.
    We conclude that the designation of critical habitat would not 
result in a significant economic impact. Our economic analysis 
estimates that the potential economic effects over a 10-year period 
would range from $16.7 million to $37.0 million using a 7 percent 
discount rate (Industrial Economics, Inc. 2004). Road and bridge 
construction and maintenance, agriculture, and ranching-related 
activities account for 66 percent of these costs (Industrial Economics, 
Inc. 2004).
    Agriculture and ranching are the main activities in Topeka shiner 
critical habitat. However, our analysis indicates that economic impacts 
to farmers and ranchers will likely be minimal as the consultations 
that are expected to arise from farming and ranching-related activities 
are not likely to result in costly additional project modifications 
because they primarily involve Federal assistance for conservation 
programs (i.e., the Conservation Reserve Program) (Industrial 
Economics, Inc. 2004). The administrative costs of consultation and 
technical assistance efforts account for over 80 percent of the 
projected costs of this designation, with project modifications 
representing the remaining 20 percent (Industrial Economics, Inc. 
2004).
    The economic impacts associated with the proposed critical habitat 
designation would be manifest primarily as increased operating costs 
for Federal, State, and local agencies in Iowa, Minnesota, Missouri, 
Kansas, Nebraska, and South Dakota. Federal, State, and local agencies 
would bear 70 percent of these costs, with private entities incurring 
the remainder (Industrial Economics, Inc. 2004). Because we are 
excluding Missouri, Kansas, and South Dakota and because most of the 
costs of this rule are borne by governmental agencies rather than 
private businesses or landowners, secondary impacts to the region are 
expected to be minimal (Industrial Economics, Inc. 2004).
    Although we do not find the economic costs to be significant, they 
were considered in balancing the benefits of including and excluding 
areas from critical habitat.
    We received four comments on the draft economic analysis of the 
proposed designation. Two of the comments identified that some of the 
costs attributed to transportation and sand and gravel operations were 
overstated, while one stated that estimated third party costs for 
transportation projects in South Dakota appeared to be low. One 
commenter requested that the analysis include benefits and incremental 
costs. Following the close of the comment period, the economic analysis 
was finalized. We made no revisions or additions to the draft economic 
analysis.
    A copy of the final economic analysis and a description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting our Kansas 
Ecological Services Field Office (see ADDRESSES).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Because 
of the Court-ordered deadline for publication in the Federal Register, 
formal Office of Management and Budget (OMB) review was not undertaken. 
We prepared an economic analysis of this action to meet the requirement 
of section 4(b)(2) of the Endangered Species Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. The draft economic analysis was made available for public 
comment and we considered those comments during the preparation of this 
rule. The costs of the final designation are estimated to be between 
$8.84 to $13.66 million. The economic analysis indicates that this rule 
will not have an annual economic effect of $100 million or more or 
adversely affect any economic sector, productivity, competition, jobs, 
the environment, or other units of government.
    Under the Act, critical habitat may not be destroyed or adversely 
modified by a Federal agency action; the Act does not impose any 
restrictions related to critical habitat on non-Federal persons unless 
they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency. Because of the potential for impacts on 
other Federal agencies' activities, we reviewed this action for any 
inconsistencies with other Federal agency actions. Based on our 
economic analysis and information related to implementing the listing 
of the species such as conducting section 7 consultations, we believe 
that this designation will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency, nor will it materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    On the basis of information in our final economic analysis, we have 
determined that a substantial number of small entities are not affected 
by the critical habitat designation for Topeka shiner. Therefore, we 
are certifying that the designation will not have a significant effect 
on a substantial number of small entities. The factual basis for 
certifying that this rule will not have a significant economic impact 
on a substantial number of small entities is as follows.
    Small entities include small organizations, such as independent 
nonprofit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses. The RFA/SBREFA 
requires that agencies use the Small Business Administration's 
definition of ``small business'' that has been codified at 13 CFR 
121.201. Small businesses include manufacturing and mining concerns 
with fewer than 500 employees, wholesale trade entities with fewer than 
100 employees, retail and service

[[Page 44759]]

businesses with less than $5 million in annual sales, general and heavy 
construction businesses with less than $27.5 million in annual 
business, special trade contractors doing less than $11.5 million in 
annual business, and agricultural businesses with annual sales less 
than $750,000. The RFA/SBREFA does not explicitly define either 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
addition, Federal courts and Congress have indicated that an RFA/SBREFA 
is properly limited to impacts to entities directly subject to the 
requirements of the regulation (Service 2002). Therefore, entities not 
directly regulated by the listing or critical habitat designation are 
not considered in this section of the analysis. The RFA/SBREFA defines 
``small governmental jurisdiction'' as the government of a city, 
county, town, school district, or special district with a population of 
less than 50,000. Although certain State agencies may be affected by 
this critical habitat designation, State governments are not considered 
small governments, for the purposes of the RFA. The SBREFA further 
defines ``small organization'' as any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    Even where the requirements of section 7 might apply due to 
critical habitat, based on our experience with section 7 consultations 
for all listed species, virtually all projects, including those that, 
in their initial proposed form, would result in jeopardy or adverse 
modification determinations under section 7, can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures by definition must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation.
    The designation of critical habitat for the shiner is not expected 
to result in a significant economic impact on a substantial number of 
small entities. Approximately 12 to 22 percent ($1 million to 3 
million) of the forecast total costs of $8.84 to $13.66 million will be 
borne by Federal agencies. The majority (approximately 80 to 90 
percent) of the remaining costs ($7.8 million to $10.6 million) are 
largely associated with transportation-related activities. 
Specifically, approximately 60 to 80 percent of the forecast total 
costs, or $7.1 million to $8.2 million, are associated with road/bridge 
construction and maintenance projects. These costs will primarily be 
borne by State DOT and various action agencies. Agriculture makes up 
the remaining five to 13 percent of forecast total costs ($450,000 to 
$1,750,000) and recreation and conservation activities three to seven 
percent of forecast total costs ($250,000 to $975,000). Third parties 
may be impacted by consultations regarding agriculture activities 
(e.g., critical area planting, nutrient management, multiple purpose 
dams, and structures for water controls) and recreation projects (e.g., 
boat docks), however, project modifications are anticipated to be 
minimal. The Service expects these costs will be relatively small to 
the individual operator and therefore will not generate significant 
economic impacts on a substantial number of small entities.
    For these reasons, we are certifying that the designation of 
critical habitat for Topeka shiner will not have a significant economic 
impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act

    Under the SBREFA (5 U.S.C. 801 et. seq.), this rule is not a major 
rule. Based on the effects identified in the economic analysis, we 
believe that this critical habitat designation will not have an effect 
on the economy of $100 million or more, will not cause a major increase 
in costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises. Our detailed assessment of the 
economic effects of this designation is described in the economic 
analysis.

Energy Supply, Distribution, or Use

    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 final 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), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate

[[Page 44760]]

in a voluntary Federal aid program, the Unfunded Mandates Reform Act 
would not apply; nor would critical habitat shift the costs of the 
large entitlement programs listed above on to State governments.
    (b) The economic analysis that was prepared in support of this 
rulemaking fully assesses the effects of this designation on Federal, 
State, local, and tribal governments, and to the private sector, and 
indicates that this rule will not significantly or uniquely affect 
small governments. As such, Small Government Agency Plan is not 
required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property Rights,'' 
March 18, 1988; 53 FR 8859), we have analyzed the potential takings 
implications of the designation of critical habitat for Topeka shiner. 
The takings implications assessment concludes that this final rule does 
not pose significant takings implications. A copy of this assessment 
can be obtained by contacting the Kansas Field Office (see ADDRESSES).

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, we 
requested information from, and coordinated development of, this 
critical habitat designation with, appropriate State resource agencies 
in Iowa, Kansas, Minnesota, Missouri, Nebraska, and South Dakota. The 
designation of critical habitat in areas currently occupied by Topeka 
shiner imposes no additional restrictions to those currently in place 
and, therefore, has little additional 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 is more clearly 
defined, and the PCEs 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, it 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 have designated critical habitat in accordance with 
the provisions of the Act. The rule uses standard property descriptions 
and identifies the PCEs within the designated area to assist the public 
in understanding the habitat needs of the Topeka shiner.

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

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required. 
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 in connection with designating critical habitat under the 
Act. 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 Tenth Circuit, pursuant to the Tenth Circuit ruling in 
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 
75 F .3d 1429 (Tenth Cir. 1996), we will complete a National 
Environmental Policy Act analysis. The range of Topeka shiner includes 
States within the Tenth Circuit; therefore, we completed a draft 
environmental assessment and made it available for public review and 
comment. A final environmental assessment and Finding of No Significant 
Impact have been prepared for this designation and are available from 
the Kansas Field Office (see ADDRESSES).

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 
Topeka shiner.

References Cited

    A complete list of all references cited herein is available upon 
request from the Kansas Field Office (see ADDRESSES).

Author

    The primary author of this 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.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

0
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.


0
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) * * *

[[Page 44761]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Species                                                                                         When critical special
----------------------------------------------  Historic range     Vertebrate population where   -------------------------------------------------------
        Common name           Scientific name                        endangered or threatened       Status      Listed        Habitat          Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
FISHES
 
                                                                      * * * * * * *
Shiner, Topeka.............  (Notropis topeka  U.S.A. (IA, KS,   Entire.........................  E.........        654  17.95(e)........  N/A
                              = tristis).       MN, MO, NE, SD).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
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 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; Lincoln, Murray, Nobles, Pipestone, and Rock Counties, Minnesota; 
and Madison County, Nebraska, on the maps and as described below.
    (2) Critical habitat includes all stream channels up to the 
bankfull discharge elevation. Additionally, in Iowa and Minnesota, 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) The primary constituent elements of critical habitat for the 
Topeka shiner consist of:
    (i) Streams most often with permanent flow, but that can become 
intermittent during dry periods;
    (ii) 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;
    (iii) 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.);
    (iv) 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);
    (v) 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;
    (vi) Sand, gravel, cobble, and silt substrates with amounts of fine 
sediment and substrate embeddedness that allow 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;
    (vii) An adequate terrestrial, semiaquatic, and aquatic 
invertebrate food base that allows for unimpaired growth, reproduction, 
and survival of all life stages;
    (viii) 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
    (ix) Few or no nonnative predatory or nonnative competitive species 
present.

Critical Habitat Map Units

    (4) Critical habitat was identified using the Fifth Principal 
Meridian in Iowa and Minnesota; the Sixth Principal Meridian in 
Nebraska; U.S. Geological Survey 30- x 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) Unit 1: North Raccoon River Watershed--Calhoun, Carroll, 
Dallas, Greene, Sac and Webster Counties, Iowa.
    (i) Reach 1a. Indian Creek from its confluence with the North 
Raccoon River (T87N, R35W, Sec. 24), upstream through T87N, R35W, Sec. 
29.
    (ii) Reach 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).
    (iii) Reach 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).
    (iv) Reach 2a. Camp Creek from its confluence with the North 
Raccoon River (T86N, R34W, Sec. 7), upstream through T87N, R34W, Sec. 
8.
    (v) Reach 2b. West Fork Camp Creek from its confluence with Camp 
Creek (T87N, R34W, Sec. 8), upstream through T88N, R34W, Sec. 32.
    (vi) Reach 3. Prairie Creek from its confluence with the North 
Raccoon River (T86N, R34W, Sec. 16), upstream through T87N, R34W, Sec. 
35.
    (vii) Reach 4. Lake Creek from its confluence with the North 
Raccoon River (T86N, R34W, Sec. 23), upstream through T87N, R33W, Sec. 
25.
    (viii) Reach 5. Purgatory Creek from its confluence with the North 
Raccoon River (T84N, R33W, Sec. 11), upstream through T86N, R32W, Sec. 
17.
    (ix) Reach 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).
    (x) Reach 6b. West Cedar Creek from its confluence with East Cedar 
Creek (T87N, R31W, Sec. 31), upstream through T87N, R31W, Sec. 18.
    (xi) Reach 6c. East Cedar Creek from its confluence with West Cedar 
Creek (T87N, R31W, Sec. 31), upstream through T87N, R31W, Sec. 9.

[[Page 44762]]

    (xii) Reach 7. Short Creek from its confluence with the North 
Raccoon River (T84N, R31W, Sec. 33), upstream through T84N, R31W, Sec. 
28.
    (xiii) Reach 8. Hardin Creek from its confluence with the North 
Raccoon River (T83N, R30W, Sec. 23), upstream through T85N, R31W, Sec. 
27.
    (xiv) Reach 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).
    (xv) Reach 9b. West Buttrick Creek, from its confluence with East 
Buttrick Creek (T84N, R30W, Sec. 25), upstream through T86N, R30W, Sec. 
3.
    (xvi) Reach 9c. East Buttrick Creek, from its confluence with West 
Buttrick Creek (T84N, R30W, Sec. 25), upstream through T85N, R29W, Sec. 
20.
    (xvii) Reach 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.
    (xviii) Reach 10b. Swan Lake Branch from its confluence with Elm 
Branch (T81N, R28W, Sec. 28), upstream through T80N, R28W, Sec. 4.
    (xix) Reach 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) Note: Unit 1 (Map 1) follows.
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[GRAPHIC] [TIFF OMITTED] TR27JY04.000


[[Page 44764]]


    (7) Unit 2: Boone River Watershed--Wright and Hamilton Counties, 
Iowa.
    (i) Reach 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

    (ii) Reach 13a. Ditch 3 from its confluence with the Boone River 
(T91N, R26W, Sec. 32), upstream through T91N, R26W, Sec. 30.
    (iii) Reach 13b. Ditch 19 from its confluence with Ditch 3 (T91N, 
R26W, Sec. 31), upstream through T91N, R26W, Sec. 31.
    (8) Note: Unit 2 (Map 2) follows.

[[Page 44765]]

[GRAPHIC] [TIFF OMITTED] TR27JY04.001


[[Page 44766]]


    (9) Unit 3: Rock River Watershed--Lyon and Osceola Counties, Iowa.

Rock River Complex

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

    (iii) Reach 16. Little Rock River from State Highway 9 (T100N, 
R43W, Sec. 34), upstream to the Iowa/Minnesota State border (T100N, 
R42W, Sec. 7).
    (10) Note: Unit 3 (Map 3) follows.
    [GRAPHIC] [TIFF OMITTED] TR27JY04.002
    
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[[Page 44767]]

    (11) Unit 4: Big Sioux River Watershed--Lincoln, Pipestone and 
Rock, Counties, Minnesota; and Rock River Watershed--Murray, Nobles, 
Pipestone and Rock Counties, Minnesota.

Medary Creek Complex

    (i) Reach 1a. Medary Creek from the Minnesota/South Dakota State 
border (T109N, R47W, Sec. 13), upstream through T110N, R46W, Sec. 21.
    (ii) Reach 1b. Unnamed tributary to Medary Creek, from their 
confluence (T109N, R46W, Sec. 18), upstream through T110N, R46W, Sec. 
30.

Flandreau Creek Complex

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

Split Rock/Pipestone/Beaver Creek Complex

    (vii) Reach 3a. Pipestone Creek from the Minnesota/South Dakota 
State border (T106N, R47W, Sec. 23), upstream through T106N, R46W, Sec. 
1.
    (viii) Reach 3b. Unnamed tributary to Pipestone Creek, from their 
confluence (T106N, R47W, Sec. 24), upstream through T106N, R46W, Sec. 
19.
    (ix) Reach 3c. Unnamed tributary to Pipestone Creek, from the 
Minnesota/South Dakota State border (T105N, R47W, Sec. 2), upstream 
through T105N, R46W, Sec. 1.
    (x) Reach 3d. North Branch Pipestone Creek from its confluence with 
Pipestone Creek (T106N, R46W, Sec. 5), upstream through T107N, R45W, 
Sec. 4.
    (xi) Reach 3e. Unnamed tributary to North Branch Pipestone Creek, 
from their confluence (T107N, R45W, Sec. 4), upstream through T108N, 
R45W, Sec. 23.
    (xii) Reach 3f. Split Rock Creek from the Minnesota/South Dakota 
State border (T103N, R47W, Sec. 2), upstream to Split Rock Lake Outlet 
(T105N, R46W, Sec. 22).
    (xiii) Reach 3g. Unnamed tributary to Split Rock Creek from the 
Minnesota/South Dakota State border (T103N, R47W, Sec. 23), upstream 
through T103N, R46W, Sec. 29.
    (xiv) Reach 3h. Unnamed tributary to Split Rock Creek, from their 
confluence (T103N, R47W, Sec. 2), upstream through T103N, R46W, Sec. 8.
    (xv) Reach 3i. Unnamed tributary to Split Rock Creek, from their 
confluence (T104N, R47W, Sec. 25), upstream through T104N, R46W, Sec. 
19.
    (xvi) Reach 3j. Pipestone Creek from its confluence with Split Rock 
Creek (T104N, R47W, Sec. 22), upstream to the Minnesota/South Dakota 
State border T104N, R47W, Sec. 23.
    (xvii) Reach 3k. Unnamed tributary to Split Rock Creek, from their 
confluence (T104N, R46W, Sec. 6), upstream through T105N, R46W, Sec. 
36.
    (xviii) Reach 3l. Split Rock Creek from the headwater of Split Rock 
Lake (T105N, R46W, Sec. 15), upstream through T106N, R46W, Sec. 35.
    (xix) Reach 3m. Unnamed tributary to Split Rock Creek, from their 
confluence (T105N, R46W, Sec. 3), upstream through T105N, R46W, Sec. 2.
    (xx) Reach 3n. Beaver Creek from the Minnesota/South Dakota State 
border (T102N, R47W, Sec. 34), upstream through T104N, R45W, Sec. 20.
    (xxi) Reach 3o. Springwater Creek from its confluence with Beaver 
Creek (T102N, R47W, Sec. 34), upstream through T102N, R46W, Sec. 6.
    (xxii) Reach 3p. Little Beaver Creek from its confluence with 
Beaver Creek (T102N, R46W, Sec. 12), upstream through T103N, R45W, Sec. 
9.
    (xxiii) Reach 3q. Unnamed tributary to Beaver Creek, from their 
confluence (T102N, R46W, Sec. 1), upstream through T103N, R46W, Sec. 
35.
    (xxiv) Reach 3r. Unnamed tributary to Beaver Creek, from their 
confluence (T103N, R45W, Sec. 18), upstream through T104N, R46W, Sec. 
36.

Rock River Complex

    (xxv) Reach 4a. Rock River from the Minnesota/Iowa State border 
(T101N, R45W, Sec. 36), upstream through T107N, R44W, Sec. 7.
    (xxvi) Reach 4b. Kanaranzi Creek from the Minnesota/Iowa State 
border (T101N, R44W, Sec. 33), upstream through T103N, R42W, Sec. 7).
    (xxvii) Reach 4c. Norwegian Creek from its confluence with 
Kanaranzi Creek (T101N, R44W, Sec. 25), upstream through T101N, R43W, 
Sec. 21.
    (xxviii) Reach 4d. Unnamed tributary to Norwegian Creek, from their 
confluence (T101N, R44W, Sec. 20), upstream through T101N, R44W, Sec. 
16.
    (xxix) Reach 4e. East Branch Kanaranzi Creek from its confluence 
with Kanaranzi Creek (T102N, R42W, Sec. 5), upstream through T102N, 
R41W, Sec. 5.
    (xxx) Reach 4f. Unnamed tributary to East Branch Kanaranzi Creek, 
from their confluence (T102N, R42W, Sec. 9), upstream through T102N, 
R42W, Sec. 22.
    (xxxi) Reach 4g. Unnamed tributary to East Branch Kanaranzi Creek, 
from their confluence (T102N, R42W, Sec. 5), upstream through T102N, 
R42W, Sec. 5.
    (xxxii) Reach 4h. Unnamed tributary to Kanaranzi Creek, from their 
confluence (T102N, R43W, Sec. 31), upstream through T102N, R43W, Sec. 
27.
    (xxxiii) Reach 4i. Ash Creek from its confluence with the Rock 
River (T101N, R45W, Sec. 24), upstream through T101N, R45W, Sec. 14.
    (xxxiv) Reach 4j. Elk Creek from its confluence with the Rock River 
(T102N, R45W, Sec. 36), upstream through T103N, R43W, Sec. 22.
    (xxxv) Reach 4k. Unnamed tributary to Elk Creek, from their 
confluence (T102N, R44W, Sec. 16), upstream through T102N, R44W, Sec. 
9.
    (xxxvi) Reach 4l. Champepadan Creek from its confluence with the 
Rock River (T103N, R44W, Sec. 29), upstream through T104N, R43W, Sec. 
14.
    (xxxvii) Reach 4m. Unnamed tributary to Champepadan Creek, from 
their confluence (T104N, R43W, Sec. 14), upstream through T104N, R43W, 
Sec. 13.
    (xxxviii) Reach 4n. Unnamed tributary to Champepadan Creek, from 
their confluence (T103N, R44W, Sec. 23), upstream through T103N, R44W, 
Sec. 24.
    (xxxix) Reach 4o. Unnamed tributary to Champepadan Creek, from 
their confluence (T103N, R44W, Sec. 23), upstream through T103N, R44W, 
Sec. 12.
    (xl) Reach 4p. Unnamed tributary to the Rock River, from their 
confluence (T103N, R44W, Sec. 17), upstream through T104N, R44W, Sec. 
26.
    (xli) Reach 4q. Mound Creek from its confluence with the Rock River 
(T103N, R44W, Sec. 30), upstream through T104N, R45W, Sec. 35.
    (xlii) Reach 4r. Unnamed tributary to the Rock River, from their 
confluence (T103N, R44W, Sec. 8), upstream through T104N, R45W, Sec. 
33.
    (xliii) Reach 4s. Unnamed tributary to the Rock River, from their 
confluence (T104N, R44W, Sec. 28), upstream through T104N, R44W, Sec. 
11.
    (xliv) Reach 4t. Unnamed tributary to the Rock River, from their 
confluence (T104N, R44W, Sec. 16), upstream through T104N, R44W, Sec. 
10.
    (xlv) Reach 4u. Poplar Creek from its confluence with the Rock 
River (T104N,

[[Page 44768]]

R44W, Sec. 5), upstream through T105N, R45W, Sec. 32.
    (xlvi) Reach 4v. Unnamed tributary to Poplar Creek, from their 
confluence (T105N, R45W, Sec. 27), upstream through T105N, R45W, Sec. 
9.
    (xlvii) Reach 4w. Chanarambie Creek from its confluence with the 
Rock River (T105N, R44W, Sec. 33), upstream through T105N, R43W, Sec. 
8.
    (xlviii) Reach 4x. North Branch Chanarambie Creek from its 
confluence with Chanarambie Creek (T105N, R43W, Sec. 8), upstream 
through T106N, R43W, Sec. 18.
    (xlix) Reach 4y. Unnamed tributary to the Rock River, from their 
confluence (T105N, R44W, Sec. 8), upstream through T106N, R45W, Sec. 
36.
    (l) Reach 4z. Unnamed tributary to the Rock River, from their 
confluence (T106N, R44W, Sec. 33), upstream through T106N, R44W, Sec. 
23.
    (li) Reach 4aa. East Branch Rock River from its confluence with the 
Rock River (T106N, R44W, Sec. 18), upstream through T107N, R44W, Sec. 
27.
    (lii) Reach 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

    (liii) Reach 5a. Little Rock River from the Minnesota/Iowa State 
border (T101N, R42W, Sec. 35), upstream through T102N, R41W, Sec. 34.
    (liv) Reach 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

    (lv) Reach 6a. Mud Creek from the Minnesota/Iowa State border 
(T101N, R46W, Sec. 34), upstream thru T101N, R46W, Sec. 11.
    (lvi) Reach 6b. Unnamed tributary to Mud Creek, from their 
confluence (T101N, R46W, Sec. 22), upstream through T101N, R46W, Sec. 
24.
    (lvii) Reach 6c. Unnamed tributary to Mud Creek, from their 
confluence (T101N, R46W, Sec. 11), upstream through T101N, R46W, Sec. 
1.
    (12) Note: Unit 4 (Map 4) follows.
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[[Page 44770]]


    (13) Unit 5: Elkhorn River Watershed--Madison County, Nebraska.
    Taylor Creek from its confluence with Union Creek (T22N, R1W, Sec. 
32), upstream through T22N, R2W, Sec. 22.
    (14) Note: Unit 5 (Map 5) follows.
    [GRAPHIC] [TIFF OMITTED] TR27JY04.004
    
* * * * *

    Dated: July 16, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-16646 Filed 7-26-04; 8:45 am]
BILLING CODE 4310-55-C