[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:
BILLING CODE 4310-55-U
[[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