[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Proposed Rules]
[Pages 59859-59879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22396]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT84


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Arkansas River Basin population of 
the Arkansas River Shiner (Notropis girardi) pursuant to the Endangered 
Species Act of 1973, as amended (Act). Limited new information on the 
biological needs of the Arkansas River Shiner has become available 
since critical habitat for the Arkansas River Shiner was published on 
April 4, 2001 (66 FR 18002). However, this rule is being proposed 
pursuant to a court order issued in September 2003, vacating critical 
habitat established for the Arkansas River Basin population of the 
Arkansas River Shiner and remanding the previous designation of 
critical habitat for preparation of a new analysis of the economic and 
other effects of the designation (New Mexico Cattle Growers Association 
et al. v. Norton, et al. Civ. No. 02-0461).
    We propose to designate as critical habitat a total of 
approximately 2,002 kilometers (1,244 miles) of linear distance of 
rivers, including 91.4 meters (300 feet) of adjacent riparian areas 
measured laterally from each bank. This distance includes areas that we 
are proposing to exclude which is described further in the proposed 
rule below. The areas that we have determined to be essential to the 
conservation of the Arkansas River Shiner include portions of the 
Canadian River (often referred to as the South Canadian River) in New 
Mexico, Texas, and Oklahoma, the Beaver/North Canadian River of 
Oklahoma, the Cimarron River in Kansas and Oklahoma, and the Arkansas 
River in Arkansas, Kansas, and Oklahoma.
    In developing this proposal, we evaluated those lands determined to 
be essential to the conservation of the Arkansas River Shiner to 
ascertain if any specific areas would be appropriate for exclusion from 
the final critical habitat designation pursuant to section 4(b)(2) of 
the Act. On the basis of our preliminary evaluation, we believe that 
the benefits of excluding the Beaver/North Canadian River of Oklahoma 
(Unit 2) and the Arkansas River in Arkansas, Kansas, and Oklahoma (Unit 
4), from the final critical habitat for the Arkansas River Shiner 
outweigh the benefits of their inclusion. As noted in the ``Public 
Comments Solicited'' section below, we are seeking comments on our 
prelimary 4(b)(2) analysis that is contained within this rule.
    If this proposal is made final, section 7 of the Act would prohibit 
destruction or adverse modification of critical habitat by any activity 
authorized, funded, or carried out by any Federal agency. As required 
by section 4 of the Act, we will consider the economic and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat.
    We hereby solicit data and comments from the public on all aspects 
of this proposal, including data on economic and other impacts of the 
proposed designation. We may revise this proposal prior to final 
designation to incorporate or address new information received during 
public comment periods.

DATES: We will accept comments until April 30, 2005. The Act provides 
for a public hearing on this proposal, if requested. Given the high 
likelihood of such requests, we intend to hold three public hearings, 
one in central Oklahoma, one in southwest Kansas and one in Texas. The 
specific times, dates, and locations for those hearings will be 
announced in the Federal Register in the coming months.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to the Field 
Supervisor, Oklahoma Ecological Services Office, U.S. Fish and Wildlife 
Service, 222 South Houston, Tulsa, Oklahoma 74127-8909.
    2. You may hand-deliver written comments and information to our 
Oklahoma Office, at the above address, or fax your comments to 918/581-
7467.
    3. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jerry Brabander, Field Supervisor, 
Oklahoma Office (telephone 918/581-7458; facsimile 918/581-7467).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. On the basis of public comment, 
during the development of the final rule we may find that areas 
proposed are not essential, are appropriate for exclusion under section 
4(b)(2), or not appropriate for exclusion; in all of these cases, this 
information would be incorporated into the final designation. We 
particularly seek comments concerning:

    (1) The reasons why any areas included in this proposal should 
or should not be determined to be critical habitat as provided by 
section 4 of the Act, including whether the benefit of designation 
will outweigh any threats to the species due to the designation;
    (2) Specific information on the amount and distribution of 
Arkansas River Shiner habitat, and which habitat or habitat 
components are essential to the conservation of this species and 
why;
    (3) Information on the status, viability, and distribution of 
the Arkansas River Shiner in the Cimarron River in Kansas and 
Oklahoma;
    (4) Comments or information related to our determination to 
include the adjacent riparian area (i.e., 300-feet on either side of 
the stream bank) as proposed critical habitat;
    (5) Land use designations and current or planned activities in 
or adjacent to the areas proposed and their possible impacts on 
proposed critical habitat;
    (6) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation, 
particularly any impacts on small entities;
    (7) Two areas previously designated as critical habitat (the 
Beaver/North Canadian River of Oklahoma (Unit 2) and portions of the 
Arkansas River in Arkansas, Kansas, and Oklahoma (Unit 4), although 
still considered essential for the conservation of the Arkansas 
River Shiner, are currently proposed for exclusion from critical 
habitat because we believe the benefit of excluding these areas 
outweighs the benefit of including them. We specifically solicit 
comment on the inclusion

[[Page 59860]]

or exclusion of such areas and: (a) Whether these areas are 
essential; (b) whether these areas warrant exclusion; (c) the basis 
for excluding these areas as critical habitat (section 4(b)(2) of 
the Act); and (d) whether the preliminary 4(b)(2) analysis contained 
within this rule is adequate to justify an exclusion and/or any 
other factors that we should take into consideration; and
    (8) Whether our approach to designating critical habitat could 
be improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.

    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit electronic comments in ASCII file format and 
avoid the use of special characters or any form of encryption. Please 
also include ``Attn: RIN 1018-AT84'' in your e-mail subject header and 
your name and return address in the body of your message. If you do not 
receive a confirmation from the system that we have received your 
Internet message, contact us directly by calling our Oklahoma 
Ecological Services Office at phone number 918-581-7458. Please note 
that the e-mail address, [email protected] will be closed out at the 
termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has changed 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 amounts of agency resources, and imposes huge social and 
economic costs. The Service believes that additional agency discretion 
would allow our focus to return to those actions that provide the 
greatest benefit to the species most in need of protection.

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

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the U.S. under the 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.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). 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 Arkansas River Shiner is a small, robust minnow with a small, 
dorsally flattened head, rounded snout, and small subterminal mouth 
(located near the head end of the body but not at the extreme end) 
(Miller and Robison 1973; Robison and Buchanan 1988). Dorsal (back) 
coloration tends to be light tan, with silvery sides gradually grading 
to white on the belly. Adults typically

[[Page 59861]]

attain a maximum length of 51 millimeters (2 inches). Dorsal, anal, and 
pelvic fins all have eight rays, and there is a small, black chevron 
(v-shaped mark) usually present at the base of the caudal (tail) fin.
    The Arkansas River Shiner was first described based on a fish 
collection in 1926 from the Cimarron River northwest of Kenton, 
Cimarron County, Oklahoma (Hubbs and Ortenburger 1929). Historically, 
the Arkansas River Shiner was widespread and abundant throughout the 
western portion of the Arkansas River Basin in Kansas, New Mexico, 
Oklahoma, and Texas. This species has disappeared from more than 80 
percent of its historical range and is now almost entirely restricted 
to about 820 km (508 mi) of the Canadian River in Oklahoma, Texas, and 
New Mexico (Larson et al. 1991; Pigg 1991). A small aggregation of 
Arkansas River Shiner still persists in the Cimarron River in Oklahoma 
and Kansas, based on the collection of 24 individuals since 1985. The 
Arkansas River Shiner was last captured from the Cimarron River in 
August of 2004 near Guthrie, Oklahoma, by SWCA Environmental 
Consultants (Stuart Leon, U.S. Fish and Wildlife Service, in litt. 
2004). A remnant population also may persist in the Beaver/North 
Canadian River of Oklahoma, based on collection of only four 
individuals since 1990 (Larson et al. 1991; Jimmie Pigg, Oklahoma 
Department of Environmental Quality, pers. comm., 1993). The Arkansas 
River Shiner is no longer believed to occur in the Arkansas River in 
Arkansas, Kansas, and Oklahoma; a loss of over 1,240 km (770 mi) of 
previously occupied habitat. However, an accurate assessment of 
Arkansas River Shiner populations in the Arkansas and Beaver/North 
Canadian Rivers is difficult because the populations are likely so 
small, if present, that individuals escape detection during routine, 
one-time surveys.
    The decline of the Arkansas River Shiner throughout its historical 
range is primarily the result of modification of the duration and 
timing of stream flows and inundation by impoundments, channel drying 
by water diversion and groundwater mining, stream channelization, and 
introduction of nonindigenous plant and animal species. Additional 
information on the biology and status of this species, as well as a 
thorough discussion of the threats to the species, can be found in the 
November 23, 1998, final listing determination (63 FR 64772) and the 
final critical habitat determination (66 FR 18002; April 4, 2001). 
Biological factors relevant to the species' habitat needs are discussed 
in the ``Primary Constituent Elements'' section of this proposed rule.

Previous Federal Action

    We published a proposed rule to list the Arkansas River Basin 
population of the Arkansas River Shiner as endangered and invited 
public comment on August 3, 1994 (59 FR 39532). A non-native population 
of the Arkansas River Shiner that has become established in the Pecos 
River was not included in that proposal. We reopened the comment period 
from January 6, 1995, to February 3, 1995 (60 FR 2070), to accommodate 
three public hearings. Following a moratorium on issuing final listings 
or critical habitat designations that ended on April 26, 1996, we again 
reopened the comment period on the proposal on December 5, 1997 (62 FR 
64337). We published the final rule listing the Arkansas River Basin 
population of the Arkansas River shiner as a threatened species on 
November 23, 1998 (63 FR 64772). A recovery plan for this species has 
not yet been completed.
    At the time of listing, we concluded that designation of critical 
habitat for the Arkansas River Shiner was not prudent because such 
designation would not benefit the species. As part of a settlement 
order of February 16, 2000, in Center for Biological Diversity v. Bruce 
Babbitt, et al. C99-3202 SC, we agreed to reconsider the question of 
whether critical habitat would be prudent; and, if designation of 
critical habitat were prudent, we agreed to subsequently propose 
designation of critical habitat for the Arkansas River Basin population 
of the Arkansas River Shiner by June 23, 2000. Our proposed designation 
of critical habitat for the Arkansas River Shiner was published in the 
Federal Register on June 30, 2000 (65 FR 40576). On August 15, 2000 (65 
FR 49781), we published a notice in the Federal Register extending the 
comment period on the proposed rule and draft environmental assessment 
and announcing the availability of the draft economic analysis for 
public review and comment. The final comment period was open until 
October 16, 2000. After review of all comments received in response to 
the proposed rule, we published a final rule designating critical 
habitat for the Arkansas River Basin population of the Arkansas River 
Shiner (66 FR 18002; April 4, 2001).
    On April 25, 2002, the New Mexico Cattle Growers Association and 16 
other plaintiffs filed a complaint in United States District Court for 
the District of New Mexico for alleged violations of the Act, the 
Administrative Procedure Act, and NEPA. A decision in that case was 
issued by Senior U.S. District Judge C. LeRoy Hansen in September of 
2003. In that Memorandum Opinion, critical habitat for the Arkansas 
River Shiner was vacated and the Service was ordered to complete a 
proposed rulemaking to redesignate critical habitat by September 30, 
2004. A final rulemaking is due one year later.
    This proposal relies upon the best scientific and commercial data 
available to us, including the biological and habitat information 
described in the previous final rules, and recognized principles of 
conservation biology. Accordingly, this proposal differs from the 
previous critical habitat designation for the Arkansas River Shiner and 
includes only those areas we currently consider essential to the 
conservation of the species.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic 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 that are 
necessary to bring an endangered or a 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 carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    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

[[Page 59862]]

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. Thus, we do not include areas where existing management is 
sufficient to conserve the species. (As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).)
    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.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific and 
commercial data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, a primary 
source of information should be the listing package for the species. 
Additional information sources include the recovery plan for the 
species, 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.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted 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, in determining areas 
that are essential for the conservation of the Arkansas River Shiner, 
we used the best scientific and commercial data available. These 
included data from research and survey observations published in peer-
reviewed articles and that were conducted by the Service and others; 
conservation measures described in the final listing determination (63 
FR 64772) and in the Issue 8: Recovery section of the prior final 
critical habitat determination (66 FR 18002); our recovery outline; 
regional Geographic Information System (GIS) watershed and species 
coverages; and data compiled in the Oklahoma Natural Heritage Inventory 
Database. In addition, information provided in comments on the proposed 
critical habitat designation and draft economic analysis will be 
evaluated and considered in the development of the final designation 
for the Arkansas River Shiner. Although a recovery plan has not yet 
been prepared for this species, the areas we have proposed as critical 
habitat represent those that currently support viable populations of 
the Arkansas River Shiner or are areas where we have data that the 
Arkansas River Shiner is still extant (i.e. the Cimarron River). Full 
recovery of the species likely will require conservation of existing 
populations and establishment of at least one additional viable 
population in an additional stream drainage within the historic range 
of the Arkansas River Shiner.
    Physical features were identified using U.S. Geological Survey 
(USGS) 7.5[min] quadrangle maps. River reach distances, as noted in 
Table 1 below, were caculated from TIGER 2000 water line and water 
polygon Geographic Information Systems files.
    We request that peer reviewers who are familiar with this species 
review the proposed rule (see ``Peer Review'' section below) in order 
to ensure that we have identified those areas that are essential for 
the conservation of the Arkansas River Shiner and avoid designating 
unsuitable habitat inappropriately.
    This proposed designation does not include all areas previously 
designated as critical habitat for the Arkansas River Shiner (66 FR 
18002; April 4, 2001). Some areas that were included in the previous 
designation are not being included in this proposal because they no 
longer meet the definition of critical habitat based on recent 
information concerning habitat quality and lack of primary constituent 
elements. Specifically, and as explained in further detail below, the 
Arkansas River upstream of Larned, Kansas, is not included in this 
proposed designation. Portions of the Beaver/North Canadian and the 
lower reaches of the Arkansas River between the cities of Larned and 
the Kansas/Oklahoma State line, are proposed for exclusion from this 
critical habitat designation as explained under the ``Relationship of 
Section 4(b)(2) of the Act to Arkansas River Shiner Critical Habitat'' 
section below.
    During 2000 and 2001, Wilde (2002) conducted an assessment of fish 
communities and aquatic habitat at 10 sites from the Beaver/North 
Canadian River within the area previously designated (66 FR 18002; 
April 4, 2001) as critical habitat (Unit 2) for the Arkansas River 
Shiner. No Arkansas River Shiners were encountered and habitat was 
considered marginal for Arkansas River Shiner (Wilde 2002). Overall, 
aquatic habitat in the lower reach (i.e., North Canadian River) was 
generally swifter and deeper than that preferred by the Arkansas River 
Shiner in the Canadian River in Texas. Habitat in the upper reach 
(i.e., Beaver River) was, on average, slightly swifter but comparable 
in depth with habitats preferred by the Arkansas River Shiner in the 
Canadian River in Texas. While habitat quality in the North Canadian 
River, previously designated as Unit 2, appears marginal, all of the 
primary constituent elements are present. However, we are uncertain if 
the Arkansas River Shiner still inhabits this reach. Reestablishing 
Arkansas River Shiner in this reach would involve some

[[Page 59863]]

habitat restoration to achieve more optimal conditions for the Arkansas 
River Shiner.
    Habitat improvements due to increased stream flow previously 
anticipated to occur in the upper reaches of the Arkansas River in 
Kansas, formerly designated as part of Unit 4, have failed to occur. 
Much of the Arkansas River upstream of Great Bend, Kansas, continues to 
be dewatered for significant periods of time. Examination of 
information (USGS 2004) for the Arkansas River in Kansas revealed that 
average annual streamflow values, as measured at Syracuse, Garden City, 
and Dodge City, were considerably higher during the period from 1998 to 
2000 than they were from 2001 to 2003. Consequently, we no longer 
believe this reach provides all of the primary constituent elements 
needed by the Arkansas River Shiner. We are not including it in this 
proposal because we do not believe the area meets the definition of 
critical habitat. Habitat in the lower reaches of the Arkansas River 
between the cities of Great Bend and Wichita, Kansas, remains suitable 
for the Arkansas River Shiner. While streamflows were much lower during 
the period from 2001 to 2003 than they were from 1998 to 2000, 
streamflows were consistently higher than those measured at the more 
upstream gauging stations. Unfortunately, the Arkansas River Shiner no 
longer persists in the Arkansas River. It is not known with certainty 
why the species is no longer present in the Arkansas River; however, it 
is likely due to a combination of factors including streamflow 
alterations and water quality-related issues, the combination of which 
have precluded successful reproduction. Surveys have been conducted 
within the past five years with consistent negative results reported.
    We intend to promote conservation and recovery of the Arkansas 
River Shiner in these two reaches through the use of other tools, which 
may include reestablishment of the Arkansas River Shiner through the 
provisions of section 10(j) of the Act--experimental populations. See 
our analysis under ``Relationship of Section 4(b)(2) of the Act to 
Arkansas River Shiner Critical Habitat'' section of this rule.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to consider those physical and biological 
features (primary constituent elements) that are essential to the 
conservation of the species and that may require special management 
considerations or protection. These features include, but are not 
limited to, space for individual and population growth and for normal 
behavior; food, water, light, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing of offspring; and habitats that are protected from disturbance 
or are representative of the historical, geographical, and ecological 
distributions of a species.
    The specific biological and physical features, referred to as the 
primary constituent elements, that provide for the physiological, 
behavioral, and ecological requirements of the Arkansas River Shiner 
include adequate spawning flows over sufficient distances; habitat for 
food organisms; appropriate water quality; a natural flow regime; 
rearing and juvenile habitat appropriate for growth and development to 
adulthood; and suitable habitat (e.g., sufficient flows and lack of 
barriers) sufficient to allow Arkansas River Shiner to recolonize 
upstream habitats. Special management, such as habitat rehabilitation 
efforts (e.g., removal or control of non-native competitors), also may 
be necessary over much of the area being proposed for designation. 
Given the large geographic range the species historically occupied, and 
the diverse habitats used by the various life-history stages, the 
specific values or conditions described for each of these habitat 
features may not capture all of the variability that is inherent in 
natural systems supporting the Arkansas River Shiner. However, the 
following discussion summarizes the primary constituent elements 
determined essential to the conservation of the Arkansas River Shiner.
    The Arkansas River Shiner historically inhabited the main channels 
of wide, shallow, sandy-bottomed rivers and larger streams of the 
Arkansas River Basin (Gilbert 1980). Adult Arkansas River Shiner are 
uncommon in quiet pools or backwaters lacking streamflow, and almost 
never occur in habitats having deep water and bottoms of mud or stone 
(Cross 1967). Cross (1967) believed that adult Arkansas River Shiner 
prefer to orient into the current on the ``lee'' sides of large 
transverse sand ridges and prey upon food organisms washed downstream 
with the current.

Food

    The Arkansas River Shiner is believed to be a generalized forager 
and feeds upon both items suspended in the water column and items lying 
on the substrate (Jimenez 1999; Bonner et al. 1997). In the Canadian 
River of central Oklahoma, Polivka and Matthews (1997) found that gut 
contents were dominated by sand/sediment and detritus (decaying organic 
material) with invertebrate prey being an incidental component of the 
diet. In the Canadian River of New Mexico and Texas, the stomach 
contents of Arkansas River Shiner were dominated by detritus, 
invertebrates, grass seeds, and sand and silt (Jimenez 1999). 
Invertebrates were the most important food item, followed by detrital 
material.
    Terrestrial and semiaquatic invertebrates were consumed at higher 
levels than were aquatic invertebrates (Jimenez 1999). With the 
exception of the winter season, when larval flies were consumed much 
more frequently than other aquatic invertebrates, no particular 
invertebrate taxa dominated the diet (Bonner et al. 1997). Fly larvae, 
copepods, immature mayflies, insect eggs, and seeds were the dominant 
items in the diet of the non-native population of the Arkansas River 
Shiner inhabiting the Pecos River in New Mexico (Keith Gido, University 
of Oklahoma, in litt. 1997).

Water

    Most plains streams are highly variable environments. Water 
temperatures, flow regimes, and overall physicochemical conditions 
(e.g., quantity of dissolved oxygen) typically fluctuate so drastically 
that fishes native to these systems often exhibit life-history 
strategies and microhabitat preferences that enable them to cope with 
these conditions. Matthews (1987) classified several species of fishes, 
including the Arkansas River Shiner, based on their tolerance for 
adverse conditions and selectivity for physicochemical gradients. The 
Arkansas River Shiner was described as having a high thermal and oxygen 
tolerance, indicating a high capacity to tolerate elevated temperatures 
and low dissolved oxygen concentrations (Matthews 1987). Observations 
from the Canadian River in New Mexico and Texas revealed that dissolved 
oxygen concentrations, conductivity, and pH rarely influenced habitat 
selection by the Arkansas River Shiner (Wilde et al. 2000). Arkansas 
River shiners were collected over a wide range of conditions--water 
temperatures from 0.4 to 36.8[deg] Celsius (32.7 to 98.2[deg] 
Fahrenheit), dissolved oxygen from 3.4 to 16.3 parts per million, 
conductivity (total dissolved solids) from 0.7 to 14.4 millisiemens per 
centimeter, and pH from 5.6 to 9.0.
    In the Canadian River in central Oklahoma, Polivka and Matthews 
(1997) found that Arkansas River Shiner

[[Page 59864]]

exhibited only a weak relationship between the environmental variables 
they measured and the occurrence of the species within the stream 
channel. Water depth, current, dissolved oxygen, and sand ridge and 
midchannel habitats were the environmental variables most strongly 
associated with the distribution of adult Arkansas River Shiner within 
the channel. Similarly, microhabitat selection by Arkansas River Shiner 
in the Canadian River in New Mexico and Texas was influenced by water 
depth, current velocity, and, to a lesser extent, water temperature 
(Wilde et al. 2000). Arkansas River shiners generally occurred at mean 
water depths between 17 and 21 centimeters (cm) (6.6-8.3 inches (in)) 
and current velocities between 30 and 42 cm (11.7 and 16.4 in) per 
second. Juvenile Arkansas River Shiner associated most strongly with 
current, conductivity, and backwater and island habitat types (Polivka 
and Matthews 1997).

Space for Individual and Population Growth and for Normal Behavior

    Wilde et al. (2000) found no obvious selection for or avoidance of 
any particular habitat type (i.e., main channel, side channel, 
backwaters, and pools) by Arkansas River Shiner. Arkansas River shiners 
did tend to select side channels and backwaters slightly more than 
expected based on the availability of these habitats (Wilde et al. 
2000). Likewise, they appeared to make no obvious selection for, or 
avoidance of, any particular substrate type. Substrates (i.e. the river 
bed) in the Canadian River in New Mexico and Texas were predominantly 
sand; however, the Arkansas River Shiner was observed to occur over 
silt slightly more than expected based on the availability of this 
substrate (Wilde et al. 2000).
    Successful reproduction by the Arkansas River Shiner appears to be 
strongly correlated with streamflow. Moore (1944) believed the Arkansas 
River Shiner spawned in July, usually coinciding with elevated flows 
following heavy rains associated with summertime thunderstorms. Bestgen 
et al. (1989) found that spawning in the non-native population of 
Arkansas River Shiner in the Pecos River of New Mexico generally 
occurred in conjunction with releases from Sumner Reservoir. However, 
recent studies by Polivka and Matthews (1997) and Wilde et al. (2000) 
neither confirmed nor rejected the hypothesis that elevated streamflow 
triggered spawning in the Arkansas River Shiner.
    Arkansas River shiners are in-channel, open-water, broadcast 
spawners that release their eggs and sperm over an unprepared substrate 
(Platania and Altenbach 1998; Johnston 1999). Examination of Arkansas 
River Shiner gonadal development between 1996 and 1998 in the Canadian 
River in New Mexico and Texas demonstrated that the species undergoes 
multiple, asynchronous (not happening at the same time) spawns in a 
single season (Wilde et al. 2000). The Arkansas River Shiner appears to 
be in peak reproductive condition throughout the months of May, June, 
and July (Wilde et al. 2000; Polivka and Matthews 1997); however, 
spawning may occur as early as April and as late as September. Arkansas 
River shiners may, on occasion, spawn in standing waters (Wilde et al. 
2000), but it is unlikely that such events are successful.
    Both Moore (1944) and Platania and Altenbach (1998) described 
behavior of Arkansas River Shiner eggs. The fertilized eggs are 
nonadhesive and semibuoyant. Platania and Altenbach (1998) found that 
spawned eggs settled to the bottom of the aquaria where they quickly 
absorbed water and expanded. Upon absorbing water, the eggs became more 
buoyant, rose with the water current, and remained in suspension. The 
eggs would sink when water current was not maintained in the aquaria. 
This led Platania and Altenbach (1998) to conclude that the Arkansas 
River Shiner and other plains fishes likely spawn in the upper to mid-
water column during elevated flows. Spawning under these conditions 
would allow the eggs to remain suspended during the 10-to 30-minute 
period the eggs were non-buoyant. Once eggs became buoyant, they would 
remain suspended in the water column as long as current was present.
    In the absence of sufficient streamflows, the eggs would likely 
settle to the channel bottom, where silt and shifting substrates would 
smother the eggs, hindering oxygen uptake and causing mortality of the 
embryos. Spawning during elevated flows appears to be an adaptation 
that likely increases survival of the embryo and facilitates dispersal 
of the young. Assuming a conservative drift rate of 3 km/hour, Platania 
and Altenbach (1998) estimated that the fertilized eggs could be 
transported 72-144 km (45-89 mi) before hatching. Developing larvae 
could then be transported up to an additional 216 km (134 mi) before 
they were capable of directed swimming movements. Bonner and Wilde 
(2000) speculate that 218 km (135 mi) may be the minimum length of 
unimpounded river that allows for the successful completion of Arkansas 
River Shiner life history, based on their observations in the Canadian 
River in New Mexico and Texas.
    Rapid hatching and development of the young is likely another 
adaptation in plains fishes that enhances survival in the harsh 
environments of plains streams. Arkansas River shiner eggs hatch in 24-
48 hours after spawning, depending upon water temperature (Moore 1944; 
Platania and Altenbach 1998). The larvae are capable of swimming within 
3-4 days; they then seek out low-velocity habitats, such as backwater 
pools and quiet water at the mouths of tributaries where food is more 
abundant (Moore 1944).
    Evidence from Wilde et al. (2000) indirectly supports the 
speculation by Cross et al. (1985) that the Arkansas River Shiner 
initiates an upstream spawning migration. Whether this represents a 
true spawning migration or just a general tendency in these fish to 
orient into the current and move upstream, perhaps in search of more 
favorable environmental conditions, is unknown (Wilde et al. 2000). 
Regardless, strong evidence suggested the presence of a directed, 
upstream movement by the Arkansas River Shiner over the course of a 
year.
    Introductions of nonindigenous species can have a significant 
adverse impact on Arkansas River Shiner populations under certain 
conditions. The morphological characteristics, population size, and 
ecological preferences exhibited by the Red River shiner (Notropis 
bairdi), a species endemic to the Red River drainage, suggest that it 
competes with the Arkansas River Shiner for food and other essential 
life requisites (Cross et al. 1983; Felley and Cothran 1981). Since its 
introduction, the Red River shiner has colonized much of the Cimarron 
River and frequently may be a dominant component of the fish community 
(Cross et al. 1983; Felley and Cothran 1981). The intentional or 
unintentional release of Red River shiners, or other potential 
competitors, into other reaches of the Arkansas River drainage by 
anglers or the commercial bait industry is a potentially serious threat 
that could drastically alter habitat availability for the Arkansas 
River Shiner in these reaches.
    Pursuant to our regulations, we are required to identify the known 
physical and biological features, i.e., primary constituent elements, 
essential to the conservation of the Arkansas River Shiner, together 
with a description of any critical habitat that is proposed. In 
identifying the primary constituent elements, we used the best 
available scientific and commercial data available. The primary 
constituent

[[Page 59865]]

elements determined essential to the conservation of the Arkansas River 
Shiner are:

    (1) A natural, unregulated hydrologic regime complete with 
episodes of flood and drought or, if flows are modified or 
regulated, a hydrologic regime characterized by the duration, 
magnitude, and frequency of flow events capable of forming and 
maintaining channel and instream habitat necessary for particular 
Arkansas River Shiner life-stages in appropriate seasons;
    (2) A complex, braided channel with pool, riffle (shallow area 
in a streambed causing ripples), run, and backwater components that 
provide a suitable variety of depths and current velocities in 
appropriate seasons;
    (3) A suitable unimpounded stretch of flowing water of 
sufficient length to allow hatching and development of the larvae;
    (4) Substrates of predominantly sand, with some patches of silt, 
gravel, and cobble;
    (5) Water quality characterized by low concentrations of 
contaminants and natural, daily and seasonally variable temperature, 
turbidity, conductivity, dissolved oxygen, and pH;
    (6) Suitable reaches of aquatic habitat, as defined by primary 
constituent elements 1 through 5 above, and adjacent riparian 
habitat sufficient to support an abundant terrestrial, semiaquatic, 
and aquatic invertebrate food base; and
    (7) Few or no predatory or competitive non-native fish species 
present.

    All areas proposed as critical habitat for the Arkansas River 
Shiner are within the historic range occupied by the species and 
contain one or more of the primary constituent elements essential for 
its conservation.

Criteria Used To Define Critical Habitat

    We are proposing to designate critical habitat within portions of 
the Canadian and Cimarron Rivers and their associated riparian zones 
that we determine are essential to the conservation of the Arkansas 
River Shiner. We considered several criteria in the selection and 
proposal of Arkansas River Shiner critical habitat. We first determined 
the occupancy status of the areas. All of the stream reaches 
historically known to support the Arkansas River Shiner at the time of 
listing, including portions of the Arkansas, Cimarron, Beaver/North 
Canadian, and Canadian Rivers, are considered essential habitat for 
this species. However, as discussed in the ``Relationship of Section 
4(b)(2) of the Act to Critical Habitat for the Arkansas River Shiner'' 
section below, we are proposing to exclude those portions of the 
Arkansas and the Beaver/North Canadian Rivers determined to be 
essential for the conservation of the Arkansas River Shiner. These 
areas have the primary constituent elements described above and, as 
such, provide suitable habitat as defined in several recent scientific 
studies including Platania and Altenbach 1998, Polivka and Matthews 
1997, and Wilde et al. 2000. We solicited information from 
knowledgeable biologists and reviewed available information pertaining 
to Arkansas River Shiner biology and life history. We then evaluated 
suitable habitat as defined by the primary constituent elements 
discussed above to assess whether they may require special management 
considerations or protection (see ``Special Management Considerations 
or Protection'' section below).
    We also 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. For example, we previously designated an area (Unit 4) that was 
within the historic distribution of the Arkansas River Shiner but was 
believed to be unoccupied. As stated in the final rule (66 FR 18002; 
April 4, 2001) this area does not lack protection. The Kansas 
Department of Wildlife and Parks (KDWP) has designated critical habitat 
for the Arkansas River Shiner in accordance with Kansas State law. 
Portions of the mainstem Cimarron, Arkansas, South Fork Ninnescah, and 
Ninnescah Rivers have been designated as critical habitat for the 
Arkansas River Shiner in Kansas. A permit is required by the State of 
Kansas for public actions that have the potential to destroy State-
listed individuals or their State designated critical habitat. Subject 
activities include any publicly funded or State or federally assisted 
action, or any action requiring a permit from any other State or 
Federal agency. Violation of the permit constitutes an unlawful taking, 
a Class A misdemeanor, and is punishable by a maximum fine of $2,500 
and confinement for a period not to exceed 1 year.
    We repropose the designation on National Park Service lands in the 
Lake Meredith National Recreation Area. In addition to federally-owned 
lands, we are proposing to designate critical habitat on non-Federal 
public lands and privately owned lands including lands owned by the 
Texas Parks and Wildlife Department, Oklahoma Department of Wildlife 
Conservation, and The Nature Conservancy. All non-Federal lands 
proposed as critical habitat meet the definition of critical habitat 
under 16 U.S.C. 1532(5)(A)(i) of the Act in that they are within the 
geographical area occupied by the species, are essential to the 
conservation of the species, and may require special management 
consideration or protection. As noted below, we are proposing to 
exclude the Beaver/North Canadian River in Oklahoma and the lower 
Arkansas River in Kansas. As discussed in this rule, we believe that 
the Arkansas River Shiner is extirpated from these river segments; 
however, we consider these areas to be essential to the conservation of 
the Arkansas River Shiner primarily for future restoration effects.
    Important considerations in selection of areas included in the 
proposed critical habitat designation include factors specific to each 
river system, such as size, connectivity, and habitat diversity, as 
well as rangewide recovery considerations, such as genetic diversity 
and having populations of the Arkansas River Shiner established 
throughout major portions of its historic range. Each area contains 
stream reaches with interconnected waters so that individual Arkansas 
River shiners can move between areas, at least during certain flows or 
seasons. The ability of the fish to repopulate areas where they have 
been depleted or extirpated is vital to recovery to help stabilize the 
population and better ensure its future persistence. Some areas include 
stream reaches that do not exhibit optimal Arkansas River Shiner 
habitat, but provide movement corridors. Additionally, these reaches 
play a vital role in the overall health of the aquatic ecosystem and, 
therefore, the integrity of upstream and downstream Arkansas River 
Shiner habitats. This proposed critical habitat designation reflects 
the need for areas of sufficient stream length to provide habitat for 
Arkansas River Shiner populations large enough to be self-sustaining 
over time, despite fluctuations in local conditions.
    In considering this proposed designation, we took into account that 
preferred habitat for the Arkansas River Shiner is predominantly the 
mainstems of larger plains rivers. The best scientific information 
available indicates that recovery of this species will depend on 
conservation of relatively long stretches of large rivers (Platania and 
Altenbach 1998) within Arkansas River Shiner historic range. 
Historically, the species has been documented from several smaller 
tributaries (e.g., Skeleton Creek, Wildhorse Creek, and others) to 
these rivers (Larson et al. 1991). Examination of the collection 
records provided in Larson et al. (1991) shows that about 53 percent of 
the reported capture dates for the Arkansas River Shiner in these 
smaller tributaries occurred during the months of June and July. 
Another 18 percent occurred during the months of May and August. 
Consequently, we believe that these tributaries are

[[Page 59866]]

occupied only during certain seasons during higher flows and do not 
represent optimal habitat. These seasonally occupied habitats may be 
important feeding, nursery, or spawning areas and all tributaries, no 
matter their size, are important in contributing flows to the critical 
habitat reaches. Federal actions that may substantially reduce these 
flows may adversely affect critical habitat and will be subject to 
consultation provisions outlined in section 7 of the Act. Because newly 
hatched Arkansas River Shiner seek mouths of tributaries where food is 
more abundant (Moore 1944), this designation (see ``Lateral Extent of 
Critical Habitat'' section) includes small sections of the tributaries 
near their confluence, which are important rearing areas for larval 
Arkansas River Shiner.
    As we stated in the listing rule (63 FR 64772; November 23, 1998), 
transplantation of the Arkansas River Shiner from the Pecos River will 
be evaluated as a means to recover the Arkansas River Shiner in 
unoccupied portions of its historic habitat. In addition, our recovery 
outline for the species identified re-establishing the Arkansas River 
Shiner into suitable unoccupied historic habitat as a crucial component 
of recovery. In accordance with the outline, we have undertaken steps 
to develop and document captive propagation techniques for the Arkansas 
River Shiner. In November 1999, with the assistance of the New Mexico 
Game and Fish Department, we collected over 300 Arkansas River Shiner 
from the Pecos River. These fish were transported to the Tishomingo 
National Fish Hatchery in Oklahoma where hatchery personnel were 
successful in inducing spawning of the species and coaxing the 
juveniles to feed in captivity. Future restoration efforts will 
undoubtedly occur, pending completion of an approved recovery plan and 
genetic work to determine the suitability of using Arkansas River 
Shiner from the Pecos River population in transplantation efforts.
    Restoration of Arkansas River Shiner populations to additional 
portions of their historical range significantly reduces the likelihood 
of extinction due to natural or manmade factors, such as the 
introduction of the Red River shiner, pollution episodes, or a 
prolonged period of low or no flow, that might otherwise further reduce 
population size. For example, in July of 2003, an unintentional but 
unauthorized discharge of livestock waste entered the Canadian River 
upstream of Oklahoma City, Oklahoma. In the ensuing fish kill, an 
estimated 11,000 Arkansas River Shiner perished. If recovery actions 
fail to reverse Arkansas River Shiner declines in the Canadian River, 
the species' vulnerability to similar catastrophic events would 
increase. A vital recovery component for this species likely will 
involve establishment of secure, self-sustaining populations in 
habitats from which the species has been extirpated.

Special Management Considerations or Protection

    As discussed in the final listing rule and throughout this proposed 
critical habitat rule, the Arkansas River Shiner and its habitat are 
threatened by a number of factors including, but not limited to, stream 
flow modification, habitat loss by inundation, channel drying by water 
diversion and groundwater mining, stream channelization, water quality 
degradation, and introduction of nonindigenous plant and animal 
species. While many of these threats operate concurrently and 
cumulatively with one another and with natural disturbances like 
drought, habitat loss and modification represents the most significant 
threat to the Arkansas River Shiner. Consequently, each area proposed 
for designation as critical habitat may require some level of 
management and/or protection to address current and future threats to 
the Arkansas River Shiner and maintain the primary constituent elements 
essential to its conservation to ensure the overall recovery of the 
species.
    The range and numbers of the species has already been much reduced. 
Consequently, the remaining fragmented sections are more likely to be 
affected by influences from other factors such as drought, water 
withdrawals, and permitted and unpermitted wastewater discharges. Once 
the habitats are isolated, other aggregations of Arkansas River Shiner 
can no longer disperse into these reaches and help maintain or restore 
these populations. Isolation and segregation caused by habitat 
fragmentation can lead to a reduction in overall genetic diversity. 
Lande (1999) identified reduced genetic diversity as one of several 
factors influencing extinction in small populations. Therefore, to 
conserve and recover the fishes to the point where they no longer 
require the protection of the Act and may be delisted, it is important 
to maintain and protect all remaining genetically diverse populations 
of this species within its historic range.
    Within the historic range of the Arkansas River Shiner, 
considerable reaches of formerly occupied habitat have been inundated 
by reservoirs. While these losses are permanent and cannot reasonably 
be restored, management of water releases, such as those from Ute 
Reservoir, can be carried out in a manner that minimizes any adverse 
impacts and facilitates maintenance of Arkansas River Shiner habitat. 
Removal of the non-native salt cedar (Tamarix spp.) also can free 
additional water that, with management, can further provide for the 
habitat needs of the Arkansas River Shiner. Streamflow management 
combined with control of salt cedar can retard the channel narrowing 
that often occurs following a reduction in streamflow and can improve 
Arkansas River Shiner habitat.
    In other portions of the historic range, a lack of reservoir 
releases and groundwater mining has drastically reduced streamflows 
necessary for maintenance of Arkansas River Shiner habitat. In these 
areas, control of salt cedar and enhanced water conservation, for both 
municipal and agricultural uses, can help ensure adequate streamflow 
continues to occur. Considering the amount of free-flowing habitat 
required to sustain Arkansas River Shiner reproduction (as discussed in 
the ``Primary Constituent Element'' section above), such management may 
be particularly beneficial in ensuring that suitable spawning, rearing, 
and nursery habitat persists.
    Introductions of non-native species, whether intentional or 
accidental, often have deleterious impacts to native species. The 
accidental introduction of the non-native Red River shiner has 
negatively influenced the distribution and abundance of the Arkansas 
River Shiner in the Cimarron River. A further introduction into other 
portions of its historic range poses a considerable threat to the 
Arkansas River Shiner. Management efforts to eradicate the Red River 
shiner and eliminate or reduce the potential for additional releases of 
this species would be beneficial to survival of the Arkansas River 
Shiner.

Proposed Critical Habitat Designation

    The areas we are proposing as critical habitat currently provide 
all of those habitat components necessary to meet the primary 
biological needs of the Arkansas River Shiner, as defined by the 
primary constituent elements. The areas proposed for designation are 
those river reaches most likely to substantially contribute to 
conservation of the Arkansas River Shiner, which when combined with 
future management of certain unoccupied habitats suitable for 
restoration efforts, will contribute to the long-term survival and 
recovery of the species.

[[Page 59867]]

    Included in the proposed designation are areas that contain most, 
if not all, of the remaining genetic diversity of the Arkansas River 
Shiner within the Arkansas River Basin because the two segments in the 
Canadian River and the segment in the Cimarron River represent the 
largest, perhaps only, remaining viable aggregations of Arkansas River 
Shiner. The designation incorporates more than 90 percent of the 
currently known aggregations of Arkansas RIver Shiner in the Arkansas 
River Basin.
    In selecting areas of critical habitat, we made an effort to avoid 
developed areas, such as towns and other similar lands that are not 
likely to contribute to Arkansas River Shiner conservation. However, 
the minimum mapping unit that we used to approximate our delineation of 
critical habitat for the Arkansas River Shiner did not allow us to 
exclude all developed areas such as roads and rural developed areas or 
other lands. Existing features and structures within the boundaries of 
the mapped units, such as buildings, roads, railroads, and other urban 
landscaped areas removed from essential aquatic and riparian habitat, 
are not likely to contain the primary constituent elements essential 
for the conservation of the Arkansas River Shiner. Therefore, Federal 
actions limited to these areas would not trigger section 7 
consultations, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.

Lateral Extent of Critical Habitat

    This designation takes into account the naturally dynamic nature of 
riverine systems and recognizes that floodplains are an integral part 
of the stream ecosystem. Habitat quality within the mainstem river 
channels in the historical range of the Arkansas River Shiner is 
intrinsically related to the character of the floodplain and the 
associated tributaries, side channels, and backwater habitats that 
contribute to the key habitat features (e.g., substrate, water quality, 
and water quantity) in these reaches. Among other contributions, the 
floodplain provides space for natural flooding patterns and latitude 
for necessary natural channel adjustments to maintain appropriate 
channel morphology and geometry. A relatively intact riparian zone, 
along with periodic flooding in a relatively natural pattern, are 
important in maintaining the stream conditions necessary for long-term 
survival and recovery of the Arkansas River Shiner.
    Human activities that occur outside the river channel can have a 
demonstrable effect on physical and biological features of aquatic 
habitats. However, not all of the activities that occur within a 
floodplain will have an adverse impact on the Arkansas River Shiner or 
its habitat. Thus, in determining the lateral extent of critical 
habitat along riverine systems, we considered the definition of 
critical habitat under the Act. That is, critical habitat must contain 
the elements essential to a species' conservation and must be in need 
of special management considerations or protection. We see no need for 
special management considerations or protection for the entire 
floodplain, and we are not proposing to designate the whole floodplain 
as critical habitat. However, conservation of the river channel alone 
is not sufficient to ensure the survival and recovery of the Arkansas 
River Shiner. For instance, the diet of the Arkansas River Shiner 
includes many species of terrestrial insects and seeds of grasses 
occurring in the riparian corridor (Jimenez 1999). We believe the 
riparian corridors adjacent to the river channel provide a reasonable 
lateral extent for critical habitat designation.
    Riparian areas are seasonally flooded habitats (i.e., wetlands) 
that are major contributors to a variety of vital functions within the 
associated stream channel (Federal Interagency Stream Restoration 
Working Group 1998; Brinson et al. 1981). Riparian zones are essential 
for energy and nutrient cycling, filtering runoff, absorbing and 
gradually releasing floodwaters, recharging groundwater, maintaining 
streamflows, protecting stream banks from erosion, and providing shade 
and cover for fish and other aquatic species. Healthy riparian 
corridors help ensure water courses maintain the primary constituent 
elements essential to stream fishes, including the Arkansas River 
Shiner. Although the Arkansas River Shiner cannot be found in riparian 
areas when they are dry, riparian areas provide habitat during high 
water periods and contribute to the food base utilized by the Arkansas 
River Shiner.
    The lateral extent (width) of riparian corridors fluctuates 
considerably between a stream's headwaters and its mouth. The 
appropriate width for riparian buffer strips has been the subject of 
several studies (Castelle et al. 1994). Most Federal and State agencies 
generally consider a zone 23-46 meters (m) (75-150 feet (ft)) wide on 
each side of a stream to be adequate (NRCS 1998; Moring et al. 1993; 
Lynch et al. 1985), although buffer widths as wide as 152 m (500 ft) 
have been recommended for achieving flood attenuation benefits (Corps 
1999). In most instances, however, riparian buffer zones are primarily 
intended to reduce (i.e. buffer) detrimental impacts to the stream from 
sources outside the river channel. Consequently, while a riparian 
corridor 23-46 m (75-150 ft) in width may function adequately as a 
buffer, it is likely inadequate to preserve the natural processes that 
provide Arkansas River Shiner constituent elements.
    Generally, we consider a lateral distance of 91.4 m (300 ft) on 
each side of the stream beyond the bankfull width to be an appropriate 
riparian corridor width for the preservation of Arkansas River Shiner 
constituent elements. The bankfull width is the width of the stream or 
river at bankfull discharge, i.e., the flow at which water begins to 
leave the channel and move into the floodplain (Rosgen 1996); the 
bankfull discharge generally occurs every 1 to 2 years (Leopold et al. 
1992). Bankfull discharge, while a function of the size of the stream, 
is a fairly consistent feature related to the formation, maintenance, 
and dimensions of the stream channel (Rosgen 1996).
    Some developed lands within the 91.4-m (300-ft) lateral extent are 
not considered critical habitat because they do not contain the primary 
constituent elements and, therefore, are not essential to the 
conservation of the Arkansas River Shiner. Lands located within the 
boundaries of the critical habitat designation, but that do not contain 
any of the primary constituent elements or provide habitat or 
biological features essential to the conservation of the Arkansas River 
Shiner include: existing paved roads; bridges; parking lots; railroad 
tracks; railroad trestles; water diversion and irrigation canals 
outside of natural stream channels; active sand and gravel pits; 
regularly cultivated agricultural land; and residential, commercial, 
and industrial developments. However, activities funded, authorized, or 
carried out in these areas by Federal action agencies that may affect 
the primary constituent elements of the critical habitat, may require 
consultation pursuant to section 7 of the Act.
    In summary, the riparian zone included in the lateral extent of 
proposed critical habitat for the Arkansas River Shiner serves several 
functions vital to ensuring the aquatic habitat continues to provide 
the primary constituent elements needed by the shiner. As stated above, 
a proper functioning riparian zone helps ensure that the aquatic 
habitat continues to function ecologically and riparian areas can 
provide habitat during high water periods. Plains rivers are primarily 
located in areas with soils predominated by sands. These soils are 
extremely susceptible to wind and water erosion.

[[Page 59868]]

Once erosion starts, channel characteristics, such as hydraulics, 
depths, velocity and related features can change considerably and large 
volumes of sediment can become suspended and transported in the 
channel. The riparian vegetation is crucial to holding soils in place 
and avoiding stream bank erosion. Riparian vegetation also provides 
shade vital during summer time low flow events. During these times, 
stream flows begin to decline and fishes are often isolated to pools 
near the margins of the river. The overhanging vegetation helps shade 
these pools. Without the shade, temperatures in these pools can quickly 
become lethal when they exceed the thermal capacity of the fish. The 
riparian zone also provides seeds and terrestrial invertebrates that 
form a component of the diet of the Arkansas River Shiner. In addition, 
vegetative material from the riparian zone, along with instream 
production, drives the nutrient/energy cycle of the stream. Aquatic 
invertebrates utilize this terrestrial vegetative material as food. The 
Arkansas River Shiner in turn feeds on the invertebrates. The riparian 
vegetation is an important component of the food web that everything 
else depends upon for energy and nutrients. The riparian zone also 
serves to buffer the stream from impacts that occur within the 
floodplain but outside of the riparian zone. However, in determining 
the lateral extent for the Arkansas River Shiner, we believe that the 
riparian zone is capable of supporting most of these important 
processes and functions, not just serving as a buffer zone.

Critical Habitat Unit Descriptions

    Critical habitat is being proposed for the Arkansas River Shiner in 
three reaches of two different rivers within the Arkansas River basin 
in Kansas, New Mexico, Oklahoma, and Texas. During development of the 
critical habitat proposal for the Arkansas River Shiner, we determined 
which lands are essential to the conservation of the species by 
defining the physical and biological features essential to the species' 
conservation and delineating the specific areas defined by them. We 
then evaluated those lands determined to be essential to ascertain if 
any specific areas are appropriate for exclusion from critical habitat 
pursuant to section 4(b)(2) of the Act. On the basis of our initial 
evaluation, we believe that the benefits of excluding areas in the 
Beaver/North Canadian (Unit 2) and the Arkansas River (Unit 4), as 
described in the unit descriptions below, outweighs the benefits of 
their inclusion, and we are proposing to exclude those lands from the 
final designation of critical habitat for this species pursuant to 
section 4(b)(2) of the Act (refer to ``Relationship of Section 4(b)(2) 
of the Act to Critical Habitat for the Arkansas River Shiner'' section 
below). A description of all areas determined essential to the 
conservation of the Arkansas River Shiner follows.
    Critical habitat is being proposed for the Arkansas River Shiner on 
two reaches of the Canadian River in the states of New Mexico, Texas, 
and Oklahoma. The Canadian River from near Ute Dam in New Mexico to the 
upper reaches of Eufaula Reservoir in Oklahoma, except for those areas 
rendered unsuitable for Arkansas River Shiner by Lake Meredith in 
Texas, is currently occupied by the Arkansas River Shiner. These are 
the largest, remaining viable aggregations of Arkansas River Shiner, 
and are considered to represent the ``core'' of what remains of the 
species. Smaller tributary streams, with the exception of Revuelto 
Creek in New Mexico and small sections of the tributaries near their 
confluence may be seasonally occupied by the Arkansas River Shiner.
    Unit 1: Canadian River, Quay County, New Mexico, and Oldham and 
Potter counties, Texas:
    Critical habitat Unit 1a consists of approximately 248 km (154 mi) 
of the Canadian River extending from U.S. Highway 54 bridge near Logan, 
New Mexico, downstream to the confluence with Coetas Creek, Texas. 
Seepage from Ute Reservoir, inflow from Revuelto Creek, and several 
springs help sustain perennial flow in most years. There are occasional 
periods of no flow, and prior to 1956, low flows in the lower section 
were historically maintained by effluent from the Amarillo, Texas, 
wastewater treatment plant. This segment of the Canadian River, despite 
flows having been modified by Conchas and Ute reservoirs, still 
supports a largely intact plains river fish fauna. This reach is 
predominantly in private ownership. The State of New Mexico owns 
scattered tracts. The reach in Texas is in private ownership, except 
for a small segment on the extreme lower end that is owned by the 
National Park Service as part of the Lake Meredith National Recreation 
Area.
    We did not include the following areas in this proposed designation 
because we determined that these areas are not to essential to the 
conservation of the Arkansas River Shiner and therefore do not meet the 
definition of critical habitat. Upstream of Ute Reservoir, the Canadian 
River was substantially modified following the construction of Conchas 
Reservoir and likely provides little suitable habitat. A small portion 
of Arkansas River Shiner historical range occurs upstream of Conchas 
Reservoir, but the suitability of that reach for Arkansas River Shiner 
is unknown. No extant aggregations of the Arkansas River Shiner are 
known from that reach. Arkansas River shiners still occur in portions 
of the 3.2 km (2 mi) reach between the U.S. Highway 54 bridge and Ute 
Dam, above the reach proposed as critical habitat. We do not consider 
this section of the stream to be essential to the conservation of the 
species since it rarely contains suitable habitat due to the influence 
of Ute Reservoir.
    Unit 1b: Canadian River, Hemphill County, Texas, and Blaine, Caddo, 
Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Hughes, McClain, 
McIntosh, Pittsburg, Pontotoc, Pottawatomie, Roger Mills, and Seminole 
counties, Oklahoma: This reach is predominantly in private ownership, 
with limited areas of State and tribal ownership (see ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' section). The Texas Parks and Wildlife 
Department owns a small segment downstream of the town of Canadian, 
TEXAS (Gene Howe Wildlife Management Area (WMA)). The Oklahoma 
Department of Wildlife Conservation owns a small section near Roll, 
Oklahoma (Packsaddle WMA). Small tracts of tribal lands are near 
Oklahoma City.
    Critical habitat Unit 1b consists of approximately 642 km (399 mi) 
of river extending from the U.S. Highway 60/83 bridge near Canadian, 
Texas, downstream to the Indian Nation Turnpike bridge northwest of 
McAlester, Oklahoma. This segment of the Canadian River is the longest 
unfragmented reach in the Arkansas River Basin that still supports the 
Arkansas River Shiner. Here, the Arkansas River Shiner range from rare 
to common, with the species becoming more abundant in a downstream 
direction.
    We did not include the following areas in this proposed designation 
because we determined that these areas are not to essential to the 
conservation of the Arkansas River Shiner and therefore do not meet the 
definition of critical habitat. The Canadian River upstream of the 
community of Canadian, Texas, to Sanford Dam at Lake Meredith, 
supported Arkansas River Shiner prior to the construction of Lake 
Meredith. However, habitat in this segment is degraded and generally 
unsuitable. Some aggregations of Arkansas River Shiner may still 
persist upstream of Canadian, Texas, primarily

[[Page 59869]]

on a seasonal basis and in extremely small numbers. Altered flow 
regimes will continue to affect habitat quality in this reach. 
Aggregations of Arkansas River Shiner also persist in the 49 km (30 mi) 
section of the Canadian River from the Indian Nation Turnpike bridge 
downstream to the upper limits of Eufaula Reservoir. However, the 
downstream distributional limit of these populations frequently 
fluctuates. Management of water surface elevations in Eufaula Reservoir 
for flood control and the resultant backwater effects routinely alter 
stream morphology at the downstream extent of the population. Under 
elevated surface water conditions, the lower reaches of this segment 
are degraded or may be entirely unsuitable for Arkansas River Shiner.
    Unit 2: Beaver/North Canadian River, Beaver, Ellis, Harper, Major, 
Texas, and Woodward Counties, Oklahoma--340 km (211 mi) of river 
extending from Optima Dam in Texas County, Oklahoma, downstream to U.S. 
Highway 60/281 bridge in Major County, Oklahoma. Almost the entire 
Beaver/North Canadian River mainstem and at least one of the major 
tributaries (Deep Fork River) in Oklahoma was historically known to 
support Arkansas River shiner aggregations. A small population may 
still persist between Optima Dam and the upper reaches of Canton 
Reservoir, based on the collection of four individuals since 1990. At 
present, habitat in large areas of the drainage are degraded or 
unsuitable, either because of reservoirs, reduced stream flow, or water 
quality impairment. As previosuly indicated, an assessment of fish 
communities and aquatic habitat at 10 sites within this unit was 
conducted during 2000 and 2001 (Wilde 2002). No Arkansas River Shiner 
were encountered and habitat was considered marginal for Arkansas River 
Shiner (Wilde 2002). While habitat quality in this reach appears 
marginal, all of the primary constituent elements are present. However, 
we are uncertain if the Arkansas River Shiner still inhabits this 
reach. The segment between Optima Dam and the upper reaches of Canton 
Reservoir offers the best opportunity for recovery of the Arkansas 
River Shiner in the Beaver/North Canadian River. Reestablishing 
Arkansas River Shiner in this reach would involve some habitat 
restoration to achieve more optimal conditions for the Arkansas River 
Shiner. Recovery activities will include augmenting existing 
aggregations of the Arkansas River Shiner and may involve 
reestablishing additional populations in this system. Consequently we 
believe habitat within this reach is essential to the conservation of 
the Arkansas River Shiner but we are proposing, under section 4(b)(2) 
of the Act, to exclude this reach from the final critical habitat 
determination.
    Land ownership for Unit 2 is predominantly private, with limited 
areas of State-owned lands. The Oklahoma Department of Wildlife 
Conservation owns small sections near Beaver, Oklahoma (Beaver River 
WMA) and near Fort Supply, Oklahoma (Cooper WMA). The Oklahoma 
Department of Parks and Tourism owns a small section near Woodward, 
Oklahoma (Boiling Springs State Park).
    Unit 3: Cimarron River, Clark, Comanche, Meade, and Seward 
Counties, Kansas, and Beaver, Blaine, Harper, Kingfisher, Logan, Major, 
Woods, and Woodward, Counties, Oklahoma, 460 km (286 mi) of river 
extending from U.S. Highway 54 bridge in Seward County, Kansas, 
downstream to U.S. Highway 77 bridge in Logan County, Oklahoma. 
Historically, almost the entire Cimarron River mainstem and several of 
the major tributaries were inhabited by the Arkansas River Shiner, 
including the type locality for the species (the area from which the 
specimens that were used to first describe the species were taken). 
Between 1985 and 1992, only 16 specimens of the Arkansas River Shiner 
were collected from the Cimarron River. Since 1992, no specimens had 
been reported until 2004. In August of 2004 eight Arkansas River 
Shiners were collected near Guthrie, Oklahoma, by SWCA Environmental 
Consultants (Stuart Leon, U.S. Fish and Wildlife Service, in litt. 
2004). Although this population is by no means secure, it continues to 
persist over time and appears to be at least marginally viable. The 
diminished distribution and abundance of the Arkansas River Shiner in 
the Cimarron River is due, in part, to the introduction of the Red 
River shiner and continuing habitat loss and degradation (Cross et al. 
1983; Felley and Cothran 1981). The Red River shiner, a small minnow 
endemic to the Red River, was first recorded from the Cimarron River in 
Kansas in 1972 (Cross et al. 1985) and from the Cimarron River in 
Oklahoma in 1976 (Marshall 1978). Since that time, the nonindigenous 
Red River shiner has essentially replaced the Arkansas River shiner 
throughout much of the Cimarron River. While reduced streamflow in the 
upper reaches and the presence of Red River shiners will likely 
complicate recovery efforts in the Cimarron River, increased management 
efforts would enhance the survival of the Arkansas River Shiner in this 
river system. Suitable habitat for the Arkansas River Shiner appears to 
exist throughout most of the system, but detailed studies have not yet 
been conducted. The Cimarron River is included in the designation 
because it is essential habitat and contains all of the primary 
constituent elements, except for the presence of a competitive 
nonnative species, which we intend to address during recovery planning 
efforts for the Arkansas River Shiner. The reach proposed for 
designation reflects the need for sufficient lengths of stream that 
provide habitat for successful completion of Arkansas River Shiner life 
cycle (see ``Primary Constituent Elements'' section) and to support 
populations of Arkansas River Shiner large enough to be self-sustaining 
over time, despite fluctuations in local conditions. Based upon the 
limited number of Arkansas River Shiner collection records from the 
Cimarron River, we are uncertain if this population is self-sustaining 
over time. As noted in the ``Public Comments Solicited'' section above, 
we are seeking data on the status and distribution of the Arkansas 
River Shiner in the Cimarron River. On the basis of public comment and 
any new information received, we may find during the development of the 
final rule that this river segment or portions thereof, are not 
essential, are appropriate for exclusion under section 4(b)(2), or not 
appropriate for exclusion; in all of these cases, this information 
would be incorporated into the final designation.
    Land ownership for Unit 3 is predominantly in private. Private 
lands in this reach are primarily used for grazing and other forms of 
agriculture.
    We did not include the Cimarron River downstream of the U.S. 
Highway 77 bridge near Guthrie to Keystone Reservoir because we have no 
evidence that this reach is occupied and do not believe that it is an 
area essential to the conservation of the Arkansas River Shiner. This 
area was also not part of the prior designation of critical habitat for 
the Arkansas River Shiner. We believe sufficient habitat for the 
Arkansas River Shiner to complete its life cycle exists within the 
reach proposed for designation as critical habitat.The lower most reach 
of the Cimarron River, including its confluence with the Arkansas 
River, was inundated when Keystone Reservoir was impounded in 1964. 
This area, including Keystone Reservoir, does not provide suitable 
habitat because the Arkansas River Shiner would not be able to persist 
within the inundated portions of the River.

[[Page 59870]]

    Unit 4: Arkansas River, Barton, Cowley, Pawnee Reno, Rice, 
Sedgwick, and Sumner Counties, Kansas, -313 km (194 mi) of river 
extending from the confluence of the Pawnee River near Larned, Kansas, 
downstream to Kansas/Oklahoma State line in Cowley County, Kansas. This 
distance does not inlude a 20 km (12.4 mi) reach of the Arkansas River 
within the City of Wichita metropolitan area, extending from the 
westbound lane of Kansas State Highway 96 crossing downstream to the 
Interstate 35 crossing. The Arkansas River in Kansas contains a 
significant portion of the species' historical range. The Arkansas 
River shiner historically inhabited the entire mainstem of the Arkansas 
River, but had begun to decline by 1952 due to the construction of John 
Martin Reservoir 10 years earlier on the Arkansas River in Bent County, 
Colorado (Cross et al. 1985). Typically, releases from John Martin 
Reservoir and irrigation return flows from eastern Colorado maintain 
streamflow in the Arkansas River as far east as Syracuse, Kansas; but, 
the river often ceases to flow between Syracuse and Dodge City, Kansas, 
due to surface and groundwater withdrawals. Surface flow then resumes 
near Larned and Great Bend, Kansas. Lack of sufficient streamflow and 
ongoing water quality degradation renders much of the Arkansas River 
west of Larned largely unsuitable for the Arkansas River Shiner. As 
previously stated, we are not including the reach upstream of Larned, 
Kansas, in this proposed designation because it lacks several of the 
primary constituent elements and no longer meets the definition of 
critical habitat. Stream flows downstream of the confluence of the 
Pawnee River near Larned are more reliable and habitats are 
characteristic of those used by Arkansas River Shiner in other portions 
of its current range. This stream segment contains one or more of the 
primary constituent elements and recovery activities for the Arkansas 
River Shiner likely will include reestablishing additional populations 
in this reach. Consequently, this segment is considered essential for 
the conservation of the Arkansas River Shiner but we are proposing, 
under section 4(b)(2) of the Act, to exclude this reach from the final 
critical habitat determination.
    Lands in Unit 4 are entirely in private ownership except for a 
small area near the Kansas/Oklahoma State line owned by the U.S. Army 
Corps of Engineers (Kaw Wildlife Area). This area is managed by the 
State of Kansas (Kansas Department of Wildlife and Parks).
    Table 1 below provides approximate area (mi/km) determined to be 
essential to the Arkansas River Shiner and area proposed for exclusion 
from the final critical habitat designation by State.

------------------------------------------------------------------------
                                                          Area proposed
                                       Essential area     for exclusion
                                         proposed as     from the final
                                      critical habitat  critical habitat
                                                           designation
------------------------------------------------------------------------
Kansas..............................      62.5 (100.6)     194.1 (312.4)
New Mexico..........................       38.0 (61.2)                0
Oklahoma............................     595.6 (958.5)     210.8 (339.3)
Texas...............................     142.6 (229.5)                0
                                     -----------------------------------
------------------------------------------------------------------------

Relationship of Section 4(b)(2) of the Act to Arkansas River Shiner 
Critical Habitat

    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 available 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 in our analysis 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.
    Pursuant to section 4(b)(2) of the Act, we must consider impacts to 
national security and other relevant impacts in addition to economic 
ones. We have determined that the lands within the designation of 
critical habitat for the Arkansas River Shiner are not owned or managed 
by the Department of Defense and there are currently no habitat 
conservation plans for the Arkansas River Shiner. In developing 
critical habitat designations, we have also recognized under section 
4(b)(2) partenerships and conservation programs or efforts that provide 
a conservation benefit to the subject species. In the case of Arkansas 
River Shiner, it is our intent to recognize future conservation 
efforts. In this regard we have met with the Arkansas River Shiner 
Coalition (Coalition) whose mission is to ease the regulatory burdens 
of designated critical habitat for its members and to work with the 
Service toward the eventual recovery of the Arkansas River Shiner. The 
Coalition represents several agricultural and ranching associations, 
water service providers, groundwater conservation districts, and other 
groups in Texas, Oklahoma, and New Mexico. It is the intent of the 
Coalition to develop an Arkansas River Shiner management plan that 
addresses the conservation needs of the Arkansas River Shiner and to 
submit their plan to us during a public comment period for 
consideration in the final critical habitat determination. If we 
receive a plan from the Coalition we will evaluate the conservation 
measures being provided to or planned for the Arkansas River Shiner 
when making our final determination of critical habitat, and we may 
exclude areas pursuant to section 4(b)(2) of the Act if we find that 
the benefits of their exclusion outweigh the benefits of their 
inclusion.
    There are two areas within the proposed designation that are within 
the historic range of Arkansas River Shiner, have been determined to be 
essential to the conservation of Arkansas River Shiner, currently 
contain one or more of the primary constituent elements for Arkansas 
River Shiner, and have been identified for future recovery actions that 
may include augmentation of existing populations or reestablishment of 
populations. These areas are the Beaver/North Canadian River and the 
Arkansas River.
    Recovery activities for Arkansas River Shiner likely will include 
augmenting and restablishing Arkansas River Shiner populations in the 
Beaver/North Canadian or the Arkansas River. We believe that the best 
way to achieve this objective will be to use the authorities under 
section 10(j) of the Act to reestablish the Arkansas River Shiner as 
experimental populations within areas

[[Page 59871]]

of its historic range. Considering the Arkansas River Shiner may be 
extirpated or that existing occurrences may be so small they may not be 
viable from these reaches and natural repopulation appears unlikely 
without human assistance, we believe that designation of the area to be 
repopulated using section 10(j) of the Act is the appropriate tool to 
utilize in future restoration efforts and to encourage future 
conservation actions. Any future recovery efforts, including 
reintroduction of the species to areas of its historic range, must be 
conducted in accordance with NEPA and the Act.
    In our critical habitat designation we use the provisions outlined 
in section 4(b)(2) of the Act to evaluate those specific areas 
essential to the conservation of the species to determine which areas 
to propose and subsequently finalize (i.e., designate) as critical 
habitat. On the basis of our initial evaluation, we believe that the 
benefits of excluding the Beaver/North Canadian River in Oklahoma and 
the lower Arkansas River in Kansas from the designation of critical 
habitat for Arkansas River Shiner outweighs the benefits of their 
inclusion, and we are proposing to exclude these lands from final 
designation pursuant to section 4(b)(2) of the Act. We note that 
additional areas may also be considered for exclusion in the final rule 
and that any exclusions made in the final rule will be the result of a 
reanalysis of new information received, including consideration of all 
comments received and the findings of the economic and NEPA analyses. 
In this regard, we have specifically requested public comment on this 
issue (see ``Public Comments Solicited'' section above), and we provide 
our preliminary rationale below to further assist the public in 
commenting on this issue.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
federally funded or authorized activities in such habitat requires 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification or 
destruction of critical habitat. In the absence of designated critical 
habitat in these unoccupied reaches, consultation on federally funded 
or authorized activities would not occur. However, few consultations, 
all informal, were conducted within these river reaches prior to 
vacature of the previously designated critical habitat. Some 25 
consultations have been conducted on the Beaver/North Canadian River 
since April 4, 2001, but none of those consultations reached the point 
of adverse modification. On the Arkansas River in Kansas, we anticipate 
even less consultation activity. Since designation of critical habitat 
in 2001, only nine informal consultations have been conducted and none 
of those reached the point of adverse modification.
    In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 
2001), the Fifth Circuit Court of Appeals stated that the 
identification of habitat essential to the conservation of the species 
can provide informational benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The court 
also noted that heightened public awareness of the plight of listed 
species and their habitats may facilitate conservation efforts. We 
agree with these findings; however, we believe that there would be 
little additional informational benefit gained from including the 
Beaver/North Canadian or the Arkansas River within the final 
designation of critical habitat because they were included in the 
previous designation, are included in this proposed rule, and will be 
discussed in the final rule. Consequently, we believe that the 
informational benefits are already provided even though we intend to 
exclude these areas from the final designation.
(2) Benefits of Exclusion
    Recovery activities for Arkansas River Shiner likely will include 
augmenting and restablishing Arkansas River Shiner populations in the 
Beaver/North Canadian or the Arkansas River. We believe that the best 
way to achieve this objective will be to use the authorities under 
section 10(j) of the Act to reestablish the Arkansas River Shiner as 
experimental populations within areas of its historic range. 
Considering the Arkansas River Shiner may be extirpated or that 
existing occurrences may be so small they may not be viable from these 
reaches and natural repopulation appears unlikely without human 
assistance, we believe that designation of the area to be repopulated 
using section 10(j) of the Act is the appropriate tool to utilize in 
future restoration efforts and to encourage future conservation 
actions. Any future recovery efforts, including reintroduction of the 
species to areas of its historic range, must be conducted in accordance 
with NEPA and the Act. An overview of the process to establish an 
experimental population under section 10(j) of the Act is described 
below.
    Section 10(j) of the Act enables us to designate certain 
populations of federally listed species that are released into the wild 
as ``experimental.'' The circumstances under which this designation can 
be applied are the following: (1) The population is geographically 
separate from non-experimental populations of the same species (e.g., 
the population is reintroduced outside the species' current range but 
within its probable historic range); and (2) we determine that the 
release will further the conservation of the species. Section 10(j) is 
designed to increase our flexibility in managing an experimental 
population by allowing us to treat the population as threatened, 
regardless of the species status elsewhere in its range. In situations 
where we have experimental populations, certain section 9 prohibitions 
(e.g., harm, harass, capture) that apply to endangered and threatened 
species may no longer apply, and a special rule can be developed that 
contains the prohibitions and exceptions necessary and appropriate to 
conserve that species. This flexibility allows us to manage the 
experimental population in a manner that will ensure that current and 
future land, water, or air uses and activities will not be 
unnecessarily restricted and the population can be managed for recovery 
purposes.
    We strongly believe that, in order to achieve recovery for the 
Arkansas River Shiner, we would need the flexibility provided for in 
section 10(j) of the Act to help ensure the success of augmenting and 
reestablishing Arkansas River Shiner populations in the Beaver/North 
Canadian or the Arkansas River. Use of section 10(j) is meant to 
encourage local cooperation through management flexibility. Critical 
habitat is often viewed negatively by the public since it is not well 
understood and there are many misconceptions about how it affects 
private landowners (Patlis 2001). We believe it is important for 
recovery of this species that we have the support of the public when we 
move toward the development and implementation of a recovery plan. It 
is critical to the recovery of the Arkansas River Shiner that we 
reestablish the species in areas outside of its current occupied range.
    When we designate a population as experimental, section 10(j) of 
the Act requires that we determine whether that population is either 
essential or nonessential to the continued existence of the species, on 
the basis of the best available information. Nonessential experimental 
populations located outside National Wildlife Refuge System or National 
Park System lands are treated, for the purposes of section 7 of the 
Act, as if they are proposed for

[[Page 59872]]

listing. Thus, for nonessential experimental populations, only two 
provisions of section 7 would apply outside National Wildlife Refuge 
System and National Park System lands: section 7(a)(1), which requires 
all Federal agencies to use their authorities to conserve listed 
species, and section 7(a)(4), which requires Federal agencies to 
informally confer with us on actions that are likely to jeopardize the 
continued existence of a proposed species. Section 7(a)(2) of the Act, 
which requires Federal agencies to ensure that their activities are not 
likely to jeopardize the continued existence of a listed species, would 
not apply except on National Wildlife Refuge System and National Park 
System lands. Experimental populations determined to be essential to 
the survival of the species would remain subject to the consultation 
provisions of section 7(a)(2) of the Act.
    In order to establish an experimental population, we must issue a 
proposed regulation and consider public comments on the proposed rule 
prior to publishing a final regulation. In addition, we must comply 
with NEPA. Also, our regulations require that, to the extent 
practicable, a regulation issued under section 10(j) of the Act 
represent an agreement between us, the affected State and Federal 
agencies, and persons holding any interest in land that may be affected 
by the establishment of the experimental population (see 50 CFR 
17.81(d)).
    As discussed above, we believe the flexibility provided for in 
section 10(j) of the Act is necessary to help ensure the success of 
augmenting and restablishing Arkansas River Shiner populations in the 
Beaver/North Canadian or the Arkansas Rivers. The flexibility gained by 
establishment of an experimental population through section 10(j) would 
be of little value if a designation of critical habitat overlaps it. 
This is because Federal agencies would still be required to consult 
with us on any actions that may adversely modify critical habitat. In 
effect, the flexibility gained from section 10(j) would be rendered 
useless by the designation of critical habitat. In fact, section 
10(j)(2)(C)(ii) of the Act states that critical habitat shall not be 
designated under the Act for any experimental population determined to 
be not essential to the continued existence of a species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Through the development of this proposal, we have identified lands 
that we believe to be essential to the conservation of the Arkansas 
River Shiner. Based on our initial analysis above and our analysis and 
treatment of these lands in our previous designation of critical 
habitat for the Arkansas River Shiner, we believe that the benefits of 
excluding these lands from the final critical habitat designation, as 
allowed under section 4(b)(2) of the Act, outweigh the potential 
benefits of including these lands. Further, we have determined that 
excluding these areas will not result in the extinction of the Arkansas 
River Shiner, as the core distribution of the Arkansas River Shiner 
would remain within areas proposed for critical habitat designation and 
section 7(a)(2) (consultation requirements) and section 9 (prohibitions 
against take) of the Act still apply to activities affecting the 
Arkansas River Shiner. Publication of this proposed rule would help 
accomplish the educational benefits of critical habitat by informing 
the public of the importance of the Beaver/North Canadian River in 
Oklahoma, and the Arkansas River in Kansas to recovery of the Arkansas 
River Shiner.

Effects of Critical Habitat Designation

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat 
only if their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to insure that their actions are not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. This requirement 
is met through section 7 consultation under the Act. Our regulations 
define ``jeopardize the continued existence of'' as to engage in an 
action that reasonably would be expected, directly or indirectly, to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of the 
critical habitat for both the survival and recovery of the species (50 
CFR 402.02). Such alterations include, but are not limited to, adverse 
changes to the physical or biological features, i.e., the primary 
constituent elements, that were the basis for determining the habitat 
to be critical. We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    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 Federal agencies in eliminating conflicts 
that may be caused by their proposed actions. The conservation measures 
in a conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If 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,

[[Page 59873]]

that are consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that the Service's Regional Director believes would avoid 
the likelihood of jeopardizing the continued existence of listed 
species or resulting in the destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including 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 a 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.
    Federal activities that may affect the Arkansas River Shiner or its 
critical habitat will require consultation under section 7. Activities 
on private, State, or county lands, or lands under local jurisdictions 
requiring a permit from a Federal agency, such as Federal Highway 
Administration or Federal Emergency Management Act funding, or a permit 
from the Corps under section 404 of the Clean Water Act, will continue 
to be subject to the section 7 consultation process. Federal actions 
not affecting listed species or critical habitat, and actions on non-
Federal lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of Arkansas River Shiner is appreciably reduced. We note that such 
activities also may jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat for the Arkansas River Shiner include, but are not 
limited to:
    (1) Actions that significantly and detrimentally alter the minimum 
flow or the natural flow regime of any of the proposed stream segments, 
including activities that cause barriers or deterrents to dispersal, 
inundates or drains habitat, or significantly converts habitat. 
Possible actions would include groundwater pumping, impoundment, water 
diversion, and hydropower generation. We note that such flow reductions 
that result from actions affecting tributaries of the proposed stream 
reaches also may destroy or adversely modify critical habitat.
    (2) Actions that significantly and detrimentally alter the 
characteristics of the riparian zone in any of the proposed stream 
segments. Possible actions would include vegetation manipulation, 
timber harvest, road construction and maintenance, prescribed fire, 
livestock grazing, off-road vehicle use, powerline or pipeline 
construction and repair, mining, and urban and suburban development. 
Some of these activities, when planned and implemented appropriately, 
can prove beneficial to the species and its habitat.
    (3) Actions that significantly and detrimentally alter the channel 
morphology of any of the stream segments listed above. Possible actions 
would include channelization, impoundment, road and bridge 
construction, deprivation of substrate source, destruction and 
alteration of riparian vegetation, reduction of available floodplain, 
removal of gravel or floodplain terrace materials, reduction in stream 
flow, discharge of dredged or fill material and excessive sedimentation 
from mining, livestock grazing, road construction, timber harvest, off-
road vehicle use, and other watershed and floodplain disturbances.
    (4) Actions that significantly and detrimentally alter the water 
chemistry in any of the proposed stream segments. Possible actions 
would include intentional or unintentional release of chemical or 
biological pollutants into the surface water or connected groundwater 
at a point source or by dispersed release (non-point).
    (5) Introducing, spreading, or augmenting non-native aquatic 
species in any of the proposed stream segments. Possible actions would 
include fish stocking for sport, aesthetics, biological control, or 
other purposes; release of live bait fish; aquaculture; construction 
and operation of canals; and interbasin water transfers.
    All lands proposed as critical habitat are within the geographical 
area currently occupied by the species and are necessary for the 
conservation of the Arkansas River Shiner. Federal agencies already 
consult with us on actions that may affect the Arkansas River Shiner to 
ensure that their actions do not jeopardize the continued existence of 
the species. Thus, we do not anticipate substantial additional 
regulatory protection will result from critical habitat designation.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Oklahoma Ecological Services Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and plants and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Division of Threatened 
and Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87102 
(telephone 505/248-6920; facsimile 505/248-6922).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
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.
    We are preparing an analysis of the economic impacts of proposing 
critical habitat for the Arkansas River Shiner that complies with the 
ruling by the Tenth Circuit Court of Appeals in New Mexico Cattle 
Growers Association et al. v. U.S. Fish and Wildlife Service. We will 
announce the availability of the draft economic analysis as soon as it 
is completed, at which time we will seek public review and comment. 
When published, copies of the draft economic analysis will be available 
for downloading from the Internet at http://ifw2es.fws.gov/Oklahoma, or 
by contacting the Oklahoma Ecological Services Office directly (see 
ADDRESSES section).

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert

[[Page 59874]]

opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of this review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
public comment period on this proposed rule as we prepare our final 
rulemaking. Accordingly, the final designation may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. We intend to hold three public hearings, one in 
southwestern Kansas, one in the Texas Panhandle and one in Central 
Oklahoma. We will schedule public hearings on this proposal and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.

Clarity of the Rule

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

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 adversely affect the economy in a material way. 
Due to the timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. The 
Service is preparing a draft economic analysis of this proposed action. 
The Service will use this analysis to meet the requirement of section 
4(b)(2) of the Act to determine the economic consequences of 
designating the specific areas as critical habitat. This economic 
analysis also will be used to determine compliance with Executive Order 
12866, Regulatory Flexibility Act, Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 12630.
    The draft economic analysis will be made available for public 
review and comment before we finalize this designation. At that time, 
copies of the analysis will be available for downloading from the 
Oklahoma Ecological Services Office's Internet Web site at http://ifw2es.fws.gov/Oklahoma or by contacting the Oklahoma Ecological 
Services Office directly (see ADDRESSES section).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an 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 effects 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 Regulatory Flexibility Act (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. However, the SBREFA does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities are affected by this proposed designation, the following 
analysis considers the relative number of small entities likely to be 
impacted in an area.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the Act 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and provide for 
a public comment period on the proposed designation. The Service will 
include with the notice of availability, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. The 
Service has concluded that deferring the RFA finding until completion 
of the draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that the Service makes a sufficiently informed determination 
based on adequate economic information and provides the necessary 
opportunity for public comment.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))

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

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
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. 
This proposed rule to designate critical habitat for the Arkansas River 
Shiner is considered a significant regulatory action under Executive 
Order 12866 as it may raise novel legal and policy issues. However, 
this designation is not expected to significantly affect energy 
supplies, distribution, or use because

[[Page 59875]]

there are few pipelines and no distribution facilities, power grid 
stations, etc. within the boundaries of proposed critical habitat. 
Therefore, this action is not a significant energy-related action and 
no Statement of Energy Effects is required. We will, however, further 
evaluate this issue as we conduct our economic analysis and, as 
appropriate, review and revise this assessment as warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Service makes the following findings:
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. However, as discussed above, these actions are currently 
subject to equivalent restrictions through the listing protections of 
the species, and no further restrictions are anticipated. We will, 
however, further evaluate this issue as we conduct our economic 
analysis and, as appropriate, review and revise this assessment as 
warranted.
    (b) 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, or permits or who 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 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 
onto State governments.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. A takings implication assessment is not required. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding, 
assistance, or 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. 
Due to current public knowledge of the species' protections, the 
prohibition against take of the species both within and outside of the 
proposed areaswe do not anticipate that property values will be 
affected by the critical habitat designation. However, we have not yet 
completed the economic analysis for this proposed rule. Once the 
economic analysis is available, we will review and revise this 
preliminary assessment as warranted.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policies, we requested information from and coordinated 
development of this proposed critical habitat designation with 
appropriate State resource agencies in Kansas, New Mexico, Oklahoma, 
and Texas.
    The proposed designation of critical habitat in areas currently 
occupied by the Arkansas River Shiner imposes no additional significant 
restrictions beyond those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The proposed designation of critical habitat may have some benefit to 
the State and local resource agencies in that the areas essential to 
the conservation of this species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the 
conservation of this species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist 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 Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate 
critical habitat in accordance with the provisions of the Endangered 
Species Act. The rule uses standard property descriptions and 
identifies the primary constituent elements within the proposed areas 
to assist the public in understanding the habitat needs of the Arkansas 
River Shiner.

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

    This proposed rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

[[Page 59876]]

National Environmental Policy Act

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)). However, when the range of the species 
includes States within the Tenth Circuit (the States of Colorado, 
Kansas, Nebraska, New Mexico, Oklahoma, Utah, and Wyoming), such as 
that of the Arkansas River Shiner, pursuant to the Tenth Circuit ruling 
in Catron County Board of Commissioners v. U.S. Fish and Wildlife 
Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis 
for critical habitat designation. Accordingly, we will be conducting an 
environmental assessment and providing that document for public review 
and comment. In our previous designation, we prepared an environmental 
assessment and finding of no significant impact on the designation of 
critical habitat for the Arkansas River Shiner.

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 the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis.
    We recognize that we must carry out our responsibilities under the 
Act in a manner that harmonizes the Federal trust responsibility to 
Tribes and Tribal sovereignty while striving to ensure that Native 
American Tribes do not bear a disproportionate burden for the 
conservation of listed species. This proposed designation of critical 
habitat for the Arkansas River Shiner currently includes tribal lands. 
Tribal lands within the proposed designation primarily exist as 
scattered, fragmented tracts that are generally held privately by the 
individual tribal member or are held in trust for the tribe by the 
Bureau of Indian Affairs. We are soliciting information from the Native 
American Tribes and will schedule meetings, as requested, with them 
during the comment period regarding potential impacts to the Tribes or 
their resources that may result from the critical habitat designation, 
and to discuss whether they have or would like to prepare conservation 
plans that address the Arkansas River Shiner on their lands. We will 
continue to work with the Tribes on these issues and provide 
assistance, if requested, on the development of management and 
conservation plans, conservation agreements, grants and other 
cooperative projects that could contribute to the recovery of the 
Arkansas River Shiner.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Oklahoma Ecological Services Office 
(see ADDRESSES section).

Author

    The primary authors of this notice are staff located at the 
Oklahoma Ecological Services Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend Sec.  17.95(e), by revising critical habitat for the 
Arkansas River shiner (Notropis girardi) Sec.  to read as follows:


17.95  Critical habitat---fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Arkansas River Shiner (Notropis girardi)
    (1) Critical habitat units are depicted for Clark, Comanche, Meade, 
and Seward Counties, Kansas; Quay County, New Mexico; Beaver, Blaine, 
Caddo, Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Harper, 
Hughes, Kingfisher, Logan, Major, McClain, McIntosh, Pittsburg, 
Pontotoc, Pottawatomie, Roger Mills Seminole, Woods and Woodward 
Counties, Oklahoma; and Hemphill, Oldham, and Potter Counties, Texas, 
on the maps and as described below.
    (2) Critical habitat includes the stream channels within the 
identified stream reaches indicated on the map below, and includes a 
lateral distance of 91.4 m (300 ft) on each side of the stream width at 
bankfull discharge. Bankfull discharge is the flow at which water 
begins to leave the channel and move into the floodplain and generally 
occurs with a frequency of every 1 to 2 years.
    (3) Within these areas, the primary constituent elements include, 
but are not limited to, those habitat components that are essential for 
the primary biological needs of foraging, sheltering, and reproduction. 
These elements include the following--
    (i) A natural, unregulated hydrologic regime complete with episodes 
of flood and drought or, if flows are modified or regulated, a 
hydrologic regime characterized by the duration, magnitude, and 
frequency of flow events capable of forming and maintaining channel and 
instream habitat necessary for particular Arkansas River shiner life-
stages in appropriate seasons;
    (ii) A complex, braided channel with pool, riffle (shallow area in 
a streambed causing ripples), run, and backwater components that 
provide a suitable variety of depths and current velocities in 
appropriate seasons;
    (iii) A suitable unimpounded stretch of flowing water of sufficient 
length to allow hatching and development of the larvae;
    (iv) A river bed of predominantly sand, with some patches of gravel 
and cobble;
    (v) Water quality characterized by low concentrations of 
contaminants and natural, daily and seasonally variable temperature, 
turbidity, conductivity, dissolved oxygen, and pH;
    (vi) Suitable reaches of aquatic habitat, as defined by primary 
constituent elements described in paragraphs (3)(i) through (v) above, 
and adjacent riparian habitat sufficient to support an abundant 
terrestrial, semiaquatic, and aquatic invertebrate food base; and
    (vii) Few or no predatory or competitive non-native fish species 
present.
    (4) The minimum mapping unit for this designation of critical 
habitat for the Arkansas River shiner does not exclude all developed 
areas, such as buildings, roads, bridges, parking lots, railroad 
tracks, other paved areas, the lands that support these features, and 
other lands unlikely to contain the

[[Page 59877]]

primary constituent elements. Federal actions limited to these areas 
would not trigger a section 7 consultation, unless they affect 
protected or restricted habitat and one or more of the primary 
constituent elements in adjacent critical habitat.
    (5) Kansas (Sixth Principal Meridian (SPM)), New Mexico (New Mexico 
Principal Meridian (NMPM)), Oklahoma (Cimarron Meridian (CM) and Indian 
Meridian (IM)), and Texas (geographic coordinates): Areas of land and 
water as follows (physical features were identified using USGS 7.5' 
quadrangle maps; river reach distances were derived from digital data 
obtained from USGS National Atlas data set for river reaches, roads, 
and county boundaries.
    (6) Critical habitat units for the Arkansas River shiner are 
described below.
    (i) Unit 1a. Canadian River--approximately 248 kilometers (km) (154 
miles (mi)) from U.S. Highway 54 bridge near Logan, Quay County, New 
Mexico (NMPM, T. 13 N., R. 33 E., NW\1/4\ Sec. 14) downstream to the 
confluence with Coetas Creek, Potter County, Texas (35[deg] 30'N 26'' 
N, 101[deg]46'37'' W).
    (ii) Unit 1b. Canadian River--approximately 642 km (399 mi), 
extending from U.S. Highway 60/83 bridge near Canadian, Hemphill 
County, Texas (35[deg]56'02'' N, 100[deg]22'00'' W) downstream to 
Indian Nation Turnpike bridge northwest of McAlester, Oklahoma (IM T. 8 
N., R. 13 E., SE\1/4\ SW\1/4\ SE\1/4\ Sec. 23).
    (iii) Unit 2. Beaver/North Canadian River, Texas, Beaver, Harper, 
Ellis, Woodward, and Major Counties, Oklahoma--approximately 340 km 
(211 mi) of river extending from Optima Dam in Texas County, Oklahoma 
(CM, T. 2 N., R. 18 E., NW\1/4\ SE\1/4\ SE\1/4\ Sec. 5) downstream to 
U.S. Highway 60/281 bridge in Major County, Oklahoma (IM, T. 20 N., R. 
16 W., west boundary Sec. 28).
    (iv) Unit 3. Cimarron River--approximately 460 km (286 mi), 
extending from U.S. Highway 54 bridge in Seward County, Kansas (SPM, T. 
33 S., R. 32 W., Sec. 25) downstream to U.S. Highway 77 bridge in Logan 
County, Oklahoma (IM, T. 17 N., R. 2 W., Sec. 29).
    (v) Unit 4. Arkansas River, Barton, Cowley, Pawnee, Reno, Rice, 
Sedgwick, and Sumner Counties, Kansas--approximately 313 km (194 mi) of 
river extending from confluence with Pawnee River near Larned, Pawnee 
County, Kansas (SPM, T. 22 S., R. 16 W., Sec. 5) downstream to Kansas/
Oklahoma State line in Cowley County, Kansas (SPM, T. 35 S., R. 5 E., 
southern boundary Sec. 18).
    (iv) Note: Map of critical habitat units follows:
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[[Page 59878]]

[GRAPHIC] [TIFF OMITTED] TP06OC04.016

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[[Page 59879]]

* * * * *

    Dated: September 30, 2004.
Julie MacDonald,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-22396 Filed 10-5-04; 8:45 am]
BILLING CODE 4310-55-P