See the SUPPLEMENTARY INFORMATION provided in the direct final rule located in the Rules and Regulations direct final rule section of this Federal Register for the applicable SUPPLEMENTARY INFORMATION on this action.

See the SUPPLEMENTARY INFORMATION provided in the direct final rule located in the final rule section of this Federal Register for the applicable supplementary information on this action.

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2004-19262; Directorate Identifier 2004-NM-54-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that, during a scheduled maintenance period, an operator found the drain line of the fuel feed shroud riding on the power feeder cables of the auxiliary power unit (APU) on a Model MD-11 airplane. Inspections of the operator's fleet revealed that the majority of the airplanes had the same condition. Further investigation revealed that many of the clamps, brackets, and fuel feed drain lines were distorted and bent from the original delivered condition, causing chafing damage to the power feeder cables of the APU. This chafing could result in electrical arcing to adjacent structure and consequent fire in the airplane.

The subject area on certain McDonnell Douglas Model MD-11F airplanes is identical to that on the affected McDonnell Douglas Model MD-11 airplanes. Therefore, all of these airplanes may be subject to the same unsafe condition.

We have reviewed Boeing Alert Service Bulletin MD11-28A119, including Appendix A, dated June 3, 2003. The service bulletin describes procedures for inspecting the power feeder cables of the APU for chafing damage, and related corrective action. The related corrective action includes repairing or replacing the power feeder cables if any damage is found that is outside the limits specified in the service bulletin.

The service bulletin also describes procedures for modifying the drain line of the fuel feed shroud of the horizontal stabilizer.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

In this proposed AD, the “inspection” specified in the referenced service bulletin is referred to as a “general visual inspection.” We have included the definition for a general visual inspection in a note in the proposed AD.

This proposed AD would affect about 195 airplanes worldwide and 85 airplanes of U.S. registry.

The proposed inspection would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $5,525, or $65 per airplane.

The proposed modification would take about 3 work hours per airplane (including the functional test), at an average labor rate of $65 per work hour. Parts cost would be minimal. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $16,575, or $195 per airplane.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

For further information, please see the information provided in the direct final action, Virginia's Approval of NO X RACT Determinations for Washington Gas Company, that is located in the “Rules and Regulations” section of this Federal Register publication.

The Environmental Protection Agency (EPA) proposes to approve the New York State Department of Environmental Conservation's (New York's) NO X RACT State Implementation Plan (SIP) revision. The following table of contents describes the format for this SUPPLEMENTARY INFORMATION section.

EPA proposes to approve a revision to New York's ground level ozone State Implementation Plan (SIP) which New York submitted on February 18, 2004. The SIP revision includes amendments to the following two regulations: Subpart 227-2 entitled “Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NO X )” of Part 227 entitled, “Stationary Combustion Installation;” and Subpart 201-3 entitled, “Exemptions and Trivial Activities,” of Part 201 entitled, “Permits and Registration,” all of which are part of Title 6 of the New York Codes of Rules and Regulations. These amended rules were adopted on January 9, 2004. New York submitted the regulations in order to strengthen its one-hour ozone SIP. New York amended Subpart 227-2 for the purpose of reducing additional emissions of NO X in response to emission reduction shortfalls identified by EPA (64 FR 70364; December 16, 1999) for attainment of New York's one-hour ozone standard. New York amended Subpart 201-3 to be consistent with amendments to Subpart 227-2. EPA proposes that New York's submittal is fully approvable as a SIP strengthening measure for New York's one-hour ground level ozone SIP and has determined that it meets New York's commitment to adopt a control measure for additional NO X reductions to close the shortfall needed to attain the one-hour ozone standard.

EPA is proposing this action to:

• Give the public the opportunity to submit comments on EPA's proposed action, as discussed in the ADDRESSES section,

• Approve a control measure which reduces NO X emissions, a precursor of ozone formation, to help attain the one-hour national ambient air quality standard (NAAQS) for ozone,

• Fulfill New York's and EPA's requirements under the Clean Air Act (the Act),

• Make New York's NO X RACT regulations federally enforceable and available for emission reduction credit in the SIP.

The Act requires certain states to develop RACT regulations for major stationary sources of NO X and to provide for the implementation of the required measures as soon as practicable but no later than May 31, 1995. Under the Act, the definition of major stationary source is based on the tons per year (tpy) air pollution a source emits and the classification of the air in the area in which the source is located. New York is within the Northeast ozone transport region established by section 184(a) of the Act. In ozone transport regions, attainment/unclassified areas as well as marginal and moderate ozone nonattainment areas, a major stationary source for NO X is considered to be one which emits or has the potential to emit 100 tpy or more of NO X and is subject to the requirements of a moderate nonattainment area. New York has defined a major stationary source of NO X as a source which has the potential to emit 25 tpy in the New York City and lower Orange County metropolitan areas and 100 tpy in the rest of the State. Consequently, all major stationary sources of NO X within the State of New York are required to implement RACT no later than May 31, 1995. For detailed information on the Act requirements for NO X RACT see the Technical Support Document prepared for today's action.

Section 182 of the Act specifies the required SIP submissions and requirements for areas classified as nonattainment for ozone and when these submissions and requirements are to be submitted to EPA by the states. The specific requirements vary depending upon the severity of the ozone problem. The New York—Northern New Jersey—Long Island area is classified as a severe ozone nonattainment area. Under section 182, severe ozone nonattainment areas were required to submit demonstrations of how they would attain the one-hour ozone NAAQS. EPA approved New York's attainment demonstration on February 4, 2002 (67 FR 5170) based on New York adopting additional volatile organic compound (VOC) and NO X emission reductions. This proposal addresses the NO X reductions to which New York committed. Moreover, the emission reduction provided by this control measure will also be necessary for attainment of the 8-hour ozone NAAQS.

In a related matter, the Ozone Transport Commission (OTC) developed potential control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing these model rules. These model rules were designed for use by states in developing their own regulations to achieve additional emission reductions to close emission shortfalls. New York used the OTC model rule for additional NO X reductions as the basis for the regulations which EPA is acting upon in this proposal.

New York's additional NO X RACT requirements were proposed on July 16, 2003 and the State accepted written comments until the end of the public comment period on September 12, 2003. New York held public hearings on the proposed amendments on August 19, 21 and 23, 2003. The State adopted the amended NO X RACT requirements on January 9, 2004. New York's SIP revision was submitted to EPA on February 18, 2004. On May 13, 2004 EPA determined the submittal to be administratively and technically complete.

The following is a summary of EPA's finding of New York's February 18, 2004 SIP submittal consisting of revisions to Subparts 227-2 and 201-3. These revisions go beyond the Act requirements for RACT at facilities that emit NO X . New York previously submitted SIP revisions which addressed the NO X RACT requirements and for which EPA approved as SIP revisions on April 28, 2000 (65 FR 24875). The State also developed a NO X Budget Trading Program (Part 204) which EPA approved on May 22, 2001 (66 FR 28059).

New York revised Subpart 227-2 to further reduce emissions of NO X in three principal ways. First, New York revised Subpart 227-2 by lowering the presumptive NO X emission limits for stationary internal combustion engines (IC Engines). The new NO X emission limits, expressed as grams NO X per brake horsepower hour, range from 1.5 to 2.3 depending upon the type IC Engine and the fuel combusted which will result in additional NO X reductions ranging from 25 percent to approximately 78 percent. Secondly, New York revised Subpart 227-2 by lowering the applicability from 225 horsepower to 200 horsepower for IC Engines which not only are located in the severe one-hour ozone nonattainment area but also provide primary power or are used in peak shaving generation. In New York State, the severe one-hour ozone nonattainment area includes the New York City metropolitan area and the lower Orange County metropolitan area. For the remainder of the State, the applicability for IC Engines remains unchanged at 400 horsepower. Third, owners or operators of IC Engines have the option of complying either by meeting the new presumptive NO X emission limits or by meeting an emission limit which reflects at least 90 percent NO X reduction from its 1990 baseline emissions, if available. Affected sources must be in compliance with the new Subpart 227-2 requirements by April 1, 2005. The amendments to Subpart 227-2 do not include any new emission limit requirements for source categories other than IC Engines.

The provision at section 227-2.5(c) allows an owner or operator of a source subject to this rule who can adequately demonstrate to New York that the new emission limits are not technically or economically feasible, even through fuel switching, selective catalytic reduction (SCR) or system wide averaging, to apply for a less stringent case-by-case RACT emission limit. The requirement to consider SCR technology is a new criteria added to this provision. This provision is also available to owners or operators of newly regulated IC Engines. Any alternative RACT emission limit must be approved by New York and submitted to EPA as a SIP revision in accordance with the SIP approved compliance option at section 227-2.5(c) of Subpart 227-2.

In addition, New York revised Subpart 227-2 to require owners or operators of affected IC Engines and any source that previously received a case-by-case alternative RACT emission limit pursuant to section 227-2.5(c) to submit to New York either a permit application or a permit modification which includes updated versions of compliance and operating plans. Owners or operators must comply with this new requirement by July 1, 2004.

New York made the following additional revisions to Subpart 227-2: deletion, throughout Subpart 227-2, of the NO X RACT compliance date requirement of May 31, 1995; revisions to section 227-2.3 [previously entitled “Compliance plan and deadlines”] including deletion of compliance milestone dates for certain compliance plan and permitting requirements; and revisions to section 227-2.6(b) for certain sources required to submit Continuous Emission Monitoring System (CEMS) compliance plans by May 31, 1995. These revisions remove intermediate compliance steps whose effective dates have passed and the final compliance date which has also passed. The revisions do not affect the applicable requirements and are not a relaxation of SIP requirements. The deletion of the previous rule's effective date in no way relieves any source who was required to comply by that effective date. Should it become necessary to enforce against an owner or operator of sources that were required to be in compliance with any NO X RACT provision, pursuant to its authority under the Act, and the SIP in effect at the time of the violation, EPA will use the May 31, 1995 compliance date in the SIP approved version of Subpart 227-2 (66 FR 28059; May 22, 2001), or in the SIP as approved by this action, whichever is deemed appropriate.

New York revised Subpart 201-3 for the purpose of regulatory consistency with the new revisions to Subpart 227-2. New York revised Subpart 201-3 to exempt the following sources from permitting requirements at non-title V permitting facilities, however these sources must now be included in title V permitting applications: (1) Diesel or natural gas powered IC Engines, located within the severe one-hour ozone nonattainment area, which have applicability limits lowered from 225 brake horsepower to 200 brake horsepower; and (2) emergency power generating IC Engines and engine test cells at engine manufacturing facilities which are utilized for research and development, reliability performance testing, or quality assurance performance testing. It should be noted that there is a minor discrepancy in terminology used in Subparts 227-2 and 201-3 when referring to the engine size applicability limit (“horsepower” vs “brake horsepower” respectively). Therefore, EPA recommends that, at its next opportunity, New York clarify this discrepancy by revising Subpart 227-2 by changing the engine size applicability term “horsepower” to the term “brake horsepower (bhp)” so that it is consistent with the term used in the exemption section of Subpart 201-3. For additional details the reader is referred to the Technical Support Document prepared for today's action.

EPA expects that the revisions to Subpart 227-2 will result in additional reductions of NO X emissions to help New York meet the emission reduction shortfall and attain the one-hour ozone standard. New York has stated to EPA that once all six control measures have been adopted, it will update the projection inventories of NO X and VOC emissions to establish an accurate estimate of the emission reductions. New York will release the revised projection inventories for public comment and submit them to EPA for approval.

EPA has evaluated New York's NO X RACT SIP submittal and proposes to find it approvable. The February 18, 2004 SIP submittal will strengthen New York's SIP for reducing ground level ozone by providing additional NO X reductions beginning on April 1, 2005.

EPA completed a detailed analysis and evaluation to determine the approvability of New York's February 18, 2004 SIP revision. EPA's evaluation of the RACT submittal is detailed in a document entitled “Technical Support Document-NO X RACT SIP Revision-State of New York.” A copy of that document is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document or the Technical Support Document can be viewed at http://docket.epa.gov/rmepub/ .

EPA has evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. The proposed new control measures will strengthen the SIP by providing additional NO X emission reductions. Accordingly, EPA is proposing to approve the revision to Subpart 227-2, as adopted on January 9, 2004, into New York's ozone SIP. At a later date, EPA will act on Subpart 201-3, as adopted by New York on January 9, 2004.

In revising Subpart 227-2, New York deleted the final compliance date applicable to sources because the date had passed, and sources are now expected to be in compliance. EPA believes that the deletion made it less clear to sources obligated to comply with the May 31, 1995 compliance date in the Statute and in the previously approved SIP that they are obliged to have complied by that date. However, deletion of the date does not eliminate the effective date from the prior SIP approved rule or from the Statute and thus does not impact on the State and EPA's authority to enforce. In the event EPA needs to take enforcement action, it will base penalties for noncompliance on the final compliance date in effect at the time of the violation.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

In the proposed rule of August 4, 2004 (69 FR 47051) (FRL-7368-7), the Agency included a list of those who may be potentially affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

This document extends the public comment period established in the Federal Register proposed rule issued on August 4, 2004 (69 FR 47051). In that document, EPA sought comment on a rule which proposed to revoke, remove, modify, and establish tolerances, and revise tolerance commodity terminologies. Recently, the Agency received a request from the U.S. Department of Commerce on behalf of the People's Republic of China to extend the public comment period for a brief period of time. EPA is hereby extending the public comment period for the proposed rule of August 4, 2004, identified by docket ID number OPP-2004-0154, from October 4, 2004, to October 18, 2004.

Regulatory Impact: Because this action withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or other Executive Orders and statutes that generally apply to rulemakings.

In consideration of the foregoing, the Notice of Proposed Rulemaking, OARM Docket No. 2002-0001, as published in the Federal Register on January 22, 2003 (68 FR 51737), is hereby withdrawn.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposal are hereby solicited. We particularly seek public comment on whether we have appropriately identified all areas essential for the conservation of Atriplex coronata var. notatior, and on the appropriateness of excluding lands within the Western Riverside MSHCP from designation as critical habitat. Because all areas essential for the conservation of the taxon occur within the MSHCP, the result is that no lands will be proposed for designation as critical habitat for A. coronata var. notatior. If new information indicates that areas excluded from critical habitat should be designated or that there are additional areas essential for the conservation of the taxon, we may designate critical habitat as appropriate (50 CFR 424.12(g)). Comments are also sought concerning:

(1) The reasons any habitat 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 resulting from the designation;

(2) Specific information on the amount and distribution of Atriplex coronata var. notatior habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in essential habitat areas and their possible impacts on the subject areas;

(4) Any foreseeable economic, national security, or other potential impacts resulting from the proposal and, in particular, any impacts on small entities; and

(5) 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 Internet comments to FW1CFWO_SJVC@fws.gov in ASCII file format and avoid the use of special characters or any form of encryption. Please also include “Attn: San Jacinto Valley crownscale” 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 Carlsbad Fish and Wildlife Office at phone number 760/431-9440. Please note that the Internet address FW1CFWO_SJVC@fws.gov will be closed 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.

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. Additionally, we have also found that comparable conservation can be achieved by implementation of laws and regulations obviating the need for critical habitat. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

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 36 percent (445 species) 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 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 State 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.

We have been overwhelmed with lawsuits regarding designation of 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), all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Herein we discuss only those topics directly relevant to the identification and designation of critical habitat for Atriplex coronata var. notatior. For more information on the taxon, refer to the final listing rule published in the Federal Register on October 13, 1998 (63 FR 54975).

Atriplex coronata var. notatior is restricted to highly alkaline, silty-clay soils in association with the Willows soil series and to a lesser extent, the Domino, Traver, Waukena, and Chino soils series (Service 1994, Knecht 1971). A. coronata var. notatior occupies seasonal wetlands, including floodplains and vernal pools that receive seasonal inundation, and within areas dominated by alkali playas, alkali scrub, and alkali grassland (Bramlet 1993, Roberts 1993). Seasonal wetlands that the species occupies are dependent upon adjacent transitional wetlands and marginal wetlands within the watershed (Service 1994).

Atriplex coronata var. notatior relies upon a hydrologic regime that includes sporadic flooding in combination with slow drainage in alkaline soils and habitats. The duration and extent of flooding or ponding can be extremely variable from one year to the next. Seasonal flooding is an important process that allows habitat to be maintained in a successional state, restores disturbed alkali habitats, and helps to disperse seed. These processes form a dynamic matrix that allows A. coronata var. notatior to colonize favorable sites and retreat from less favorable sites in response to disturbance and variations in annual rainfall (Service 1994).

This bushy, erect annual is monoecious (both male and female reproductive organs occur on the same plant), with the staminate and pistillate flowers occurring in mixed clusters (Munz 1974, Taylor and Wilken 1993). Atriplex coronata var. notatior is a prolific seeder (Ogden Environmental and Energy Services Corporation (OEESC) 1993). Preliminary studies indicate that A. coronata var. notatior seeds retain a relatively high viability for at least several seasons (OEESC 1993). A viable seed bank may exist in the soil of a known site even if plants are removed or fail to germinate for a season (OEESC 1993). A. coronata var. notatior produces floating seeds (June 4, 2004, A. Sanders, University of California, Riverside, pers. comm. to S. Brown, U.S. Fish and Wildlife Service). Seasonal flooding is necessary for seed dispersal (Service 1994). The floating seeds are likely dispersed during seasonal flooding by slow-moving flows within the floodplains and vernal pools where A. coronata var. notatior occurs. A. coronata var. notatior will generally germinate in the spring as flows recede (Service 1994). The species usually flowers in April and May, and sets fruit by May or June (Bramlet 1992). Other sources indicate that the flowering period may extend to August (California Native Plant Society 2001, Munz 1974). The number of A. coronata var. notatior plants in a population complex varies in response to rainfall, extent of winter flooding, and temperature (Service 1998).

Atriplex coronata var. notatior is endemic to western Riverside County, California. The species has not been studied extensively. Population estimates can vary greatly from year to year (Amec Earth and Environmental, Inc. 2001). Between 1990 and 1994, approximately 78,000 individuals of this taxon were located (Service 1998). In the 1998 final rule listing the species, we estimated the total occupied habitat consisted of approximately 400 ac (161.9 ha) of alkali habitats within a range of approximately 8,200 ac (3,318 ha) in western Riverside County (Service 1998). At the time of listing, approximately 75 percent of the known plants were associated with three population centers found in the San Jacinto Wildlife Area/Mystic Lake, the San Jacinto River floodplain between Lakeview and Nuevo, and the upper Salt Creek Vernal Pool Complex in the Hemet area. Recent surveys identified approximately 83,741 individual plants occupying an aggregate total of 236.5 ac (95.71 ha) within a 6,000-ac (2,428 ha) survey area within the San Jacinto River between the Ramona Expressway and the mouth of Railroad Canyon (Glen Lukos Associates, Inc. 2000). The estimated range-wide population of approximately 106,000 plants is based on expected populations of 7,470 plants in the San Jacinto Wildlife Area, 15,000 plants in the Upper Salt Creek Vernal Pool Complex, and 84,000 plants along the San Jacinto River between the Ramona Expressway and the mouth of Railroad Canyon (Glenn Lukos Associates, Inc. 2000).

Atriplex coronata var. notatior is currently known from four general occurrence complexes: (1) The floodplain of the San Jacinto River at the San Jacinto Wildlife Area/Mystic Lake; (2) the floodplain of the San Jacinto River between the Ramona Expressway and Railroad Canyon Reservoir; (3) the Upper Salt Creek Vernal Pool Complex in the west Hemet area; and (4) the floodplain of Alberhill Creek north of Lake Elsinore. Most of the known occurrences of A. coronata var. notatior are on private land, and no occurrences are known from Federal lands. The taxon occurs on State land within the San Jacinto Wildlife Area (California Natural Diversity Data Base (CNDDB) 2003), on land owned by the Riverside County Habitat Conservation Agency (Roberts and McMillan 1997), and on the Upper Salt Creek Wetland Preserve which is owned and managed by Metropolitan Water District (Amec Earth and Environmental, Inc. 2001).

San Jacinto Wildlife Area/Mystic Lake: Atriplex coronata var. notatior occurs on approximately 4,500 ac (1,800 ha) of alkali sink habitat including both undisturbed alkali grassland and degraded areas with dense stands of non-native weed species (Bramlet 1996, Roberts and McMillan 1997) within the San Jacinto Wildlife Area/Mystic Lake area. About 700 ac (280 ha) of this habitat has been inundated by Mystic Lake, and another 470 ac (190 ha) is devoted to duck ponds that are flooded through much of the growing season of A. coronata var. notatior (Roberts and McMillan 1997). Within this area, about 2,865 ac (1,146 ha) of habitat is conserved within the San Jacinto Wildlife Area, however, about 250 ac (100 ha) is devoted to duck ponds with proposed expansions to 550 ac (220 ha) (Roberts and McMillan 1997). At least 36 separate occurrences and as many as 27,000 individual plants, have been reported within the San Jacinto Wildlife Area/Mystic Lake area (Roberts and McMillan 1997). While some of these occurrences (including CNDDB element occurrence 12, with 20,400 individuals) are outside the San Jacinto Wildlife Area, all of the known occurrences in this area are proposed to be conserved within the Western Riverside MSHCP Additional Reserve Lands (Dudek and Associates 2003).

Floodplain of the San Jacinto River between the Ramona Expressway and Railroad Canyon Reservoir: In 1996, Bramlet estimated the habitat for Atriplex coronata var. notatior in this area to be approximately 3,820 ac (1,546 ha). In 2000, Glenn Lukos Associates surveyed 6,000 ac (2,428 ha) of habitat within the 100-year floodplain of the San Jacinto River between the Ramona Expressway and Railroad Canyon Reservoir. They observed 83,741 individuals on 237 ac (95.7 ha) of habitat (Glenn Lukos Associates, Inc. 2000). Approximately 90 percent of the individuals observed occurred between the Ramona Expressway and Interstate 215. Alkali playa habitat in this area has been greatly reduced in extent in recent years due to agricultural conversion to irrigated crops and alfalfa farming, as well as discing for weed abatement and sheep grazing (Bramlet 1996, Glenn Lukos Associates, Inc. 2000).

In this area, Atriplex coronata var. notatior is conserved on a 60-ac (24-ha) parcel owned by the Riverside County Habitat Conservation Agency (Roberts and McMillan 1997). The remainder of the habitat in this area is privately owned. The Western Riverside MSHCP is to include the conservation of habitat for A. coronata var. notatior within the floodplain of the San Jacinto River, and the maintenance of floodplain processes along the river in order to provide for the distribution of the species to shift over time as hydrologic conditions and seed bank sources change. In addition, the MSHCP identifies specific activities that will be covered under the Plan (i.e., covered activities) that are authorized under the MSHCP. Pursuant to Section 7.3.7 of the MSHCP, the San Jacinto River Flood Control Project is a Covered Activity that would authorize the Riverside County Flood Control and Water Conservation District to design and implement flood control measures (including channelization or some other form or forms of engineered flood control) on the San Jacinto River between the Ramona Expressway and the mouth of Railroad Canyon (“San Jacinto River Project”). In addition to the flood control project, other covered activities within the vicinity of the San Jacinto River include Ramona Expressway bridge and culvert, Nuevo Road bridge, San Jacinto Avenue crossing, I-215 bridge and levee, Case Road bridge, Burlington Northern Santa Fe Railroad bridge, Goetz Road bridge, Ethanac Road bridge, Perris Valley Storm Drain Channel and Romoland Channel. This coverage is contingent upon complying with the criteria described for the San Jacinto River Project in the MSHCP. Included in the first criterion is the requirement that the future flood control project “[c]onserve lands (‘Mitigation Lands’) and [provide for] the hydrology” of the 8 Covered Species, which includes A. coronata var. notatior.

Upper Salt Creek Vernal Pool Complex: The Upper Salt Creek Vernal Pool Complex in and west of Hemet contains large areas of alkali grassland with alkali playa and vernal pool communities. This region includes around 1,200 ac (485.6 ha) of alkali habitat (Bramlet 1996). The approximately 40-ac (16.2-ha) Upper Salt Creek Wetland Preserve is located on the western edge of this complex. This preserve was purchased and conserved in perpetuity for native species and habitats to offset the effects of the Eastside Pipeline Project (June 1, 2004, W. Wagner, pers. comm. to S. Brown, U.S. Fish and Wildlife Service). Extensive population studies have been conducted over multiple years with varying environmental conditions within the preserve. In 1996, the Atriplex coronata var. notatior population was estimated at 16,500 individuals within the preserve. In 1997, the population was estimated at 6,200 individuals. In 1998, the population was estimated at 20,800 individuals, and in 2001, the population was estimated at 136,948 individuals (Amec Earth and Environmental, Inc. 2001). The remainder of the habitat in this area is privately owned, however, the MSHCP proposes the conservation of at least 6,900 acres of suitable habitat for the species within the San Jacinto River, Mystic Lake and Salt Creek areas. This conservation is to include the floodplain of an unnamed tributary to Salt Creek, and the MSHCP requires that floodplain processes be maintained along the tributary to provide for the distribution of the species to shift over time as hydrologic conditions and seed bank sources change.

Alberhill Creek: This location of 185 plants was noted in 1997 and mapped southeast of Nichols Road and west of Alberhill Creek (CNDDB 2003). More populations may occur in adjacent playa habitat (CNDDB 2003). Though this population is on private lands, however, the MSHCP proposes to conserve these lands within its Additional Reserve Lands (Dudek and Associates 2003).

Atriplex coronata var. notatior is declining throughout its range due to habitat destruction and fragmentation resulting from urban and agricultural development, pipeline construction, alteration of hydrology and floodplain dynamics, excessive flooding, channelization, off-road vehicle activity, trampling by cattle and sheep, weed abatement, fire suppression practices (including discing and plowing), and competition from non-native plant species (Bramlet 1993, Roberts and McMillan 1997, Service 1998).

The conservation needs of Atriplex coronata var. notatior include conservation and management of occurrences to provide for long-term survival of the species within the larger context of the vernal playa community and its supporting hydrology. The spatial distribution of A. coronata var. notatior shifts over time as environmental conditions and the seed bank distribution change (Service 1998). A. coronata var. notatior lives in seasonal wetland habitat that is dependent on adjacent transitional wetlands and marginal wetlands within the watershed (Service 1994).

Please see the final listing rule Atriplex coronata var. notatior for a description of previous Federal actions through October 13, 1998 (63 FR 54975). At the time of the final rule, the Service determined designation of critical habitat was not prudent because such designation would not benefit the species.

On November 15, 2001, a lawsuit was filed against the Department of the Interior (DOI) and the Service by the Center for Biological Diversity and California Native Plant Society, challenging our “not prudent” determinations for eight plants including Atriplex coronata var. notatior ( CBD, et al. v. Norton, No. 01-CV-2101 (S.D. Cal.)). A second lawsuit asserting the same challenge was filed against DOI and the Service by the Building Industry Legal Defense Foundation (BILD) on November 21, 2001 ( BILD v. Norton, No. 01-CV-2145 (S.D. Cal.)). The parties in both cases agreed to remand the critical habitat determinations to the Service for additional consideration. In an order dated July 1, 2002, the U.S. District Court for the Southern District of California directed us to reconsider our not prudent finding and publish a proposed critical habitat rule for A. coronata var. notatior, if prudent, on or before January 30, 2004. In a motion to modify the July 1, 2002 order, the DOI and the Service requested that the due date for the proposed rule for A. coronata var. notatior be extended until October 1, 2004. This motion was granted on September 9, 2003. This proposal complies with the court's ruling.

In 2004, the Service completed a Biological and Conference Opinion in accordance with section 7 of the Act, regarding the issuance of an incidental take permit in connection with the Western Riverside County MSHCP pursuant to section 10(a)(1)(B) of the Act (Service 2004). The MSHCP establishes a multi-species conservation program to minimize and mitigate the expected loss of habitat values and the incidental take of “covered species.” The intent of the MSHCP is to minimize incidental take of covered animals species in the Plan Area and to provide avoidance, minimization, and mitigation measures for the impacts of proposed activities on covered species and their habitats. The MSHCP Plan Area encompasses approximately 1.26 million ac (509,900 ha) in western Riverside County, including the entire known range of Atriplex coronata var. notatior. A. coronata var. notatior is a covered species under the MSHCP. In its Biological and Conference Opinion, the Service concluded that the MSHCP would not jeopardize the continued existence of A. coronata var. notatior (Service 2004). The MSHCP is discussed in greater detail in the section entitled “Relationship of Critical Habitat to the Western Riverside Multiple Species Habitat Conservation Plan (MSHCP).”

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.

To be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Occupied habitat may be included in critical habitat only if the essential features thereon may require special management or protection. 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.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271) and our U.S. Fish and Wildlife Service Information Quality Guidelines (2002) provide criteria, establish procedures, and provide guidance to ensure that our decisions represent the best scientific and commercial data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Critical habitat designations do not signal that habitat outside the designation is unimportant to Atriplex coronata var. notatior. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1), and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

As required by section 4(b)(2) of the Act, we used the best scientific and commercial data available in determining the areas that are essential to the conservation of Atriplex coronata var. notatior. These included data from research and survey observations published in peer-reviewed articles, regional Geographic Information System (GIS) vegetation, soil, and species coverages (including layers for Riverside County), and data compiled in the CNDDB. We also reviewed available information that pertains to the habitat requirements (i.e., primary constituent elements) of this taxon such as material included in reports submitted during section 7 consultations.

After all the information about the known occurrences of Atriplex coronata var. notatior was compiled, we created maps indicating the essential habitat associated with each of the occurrences. We used the information outlined above to aid in this task. The essential habitat was mapped using GIS and refined using topographical and aerial map coverages. These essential habitat areas were further refined by discussing each area with Fish and Wildlife Service biologists familiar with each area. After creating GIS coverage of the essential areas, we created legal descriptions of the essential areas. We used a 100-meter grid to establish Universal Transverse Mercator (UTM) North American Datum 27 (NAD 27) coordinates which, when connected, provided the boundaries of the essential areas.

The areas of essential habitat were then analyzed with respect to special management considerations or protection and the provisions of section 4(b)(2) of the Act. Applicable and appropriate exclusions were made based on section 4(b)(2).

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations and protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific biological and physical features, otherwise referred to as the primary constituent elements, which comprise Atriplex coronata var. notatior habitat are based on specific components that provide for the essential biological requirements of the species as described below.

Atriplex coronata var. notatior occupies seasonal wetlands, including vernal pools and floodplains that receive seasonal inundation (Service 1994). The species occurs within alkali playas, alkali scrub, and alkali grassland, where these habitats occur in association with the Willows soil series, and to a lesser extent, the Domino, Traver, Waukena, and Chino soils series (Service 1994, Knecht 1971). Seasonal wetlands that the species occupies are dependent upon adjacent transitional wetlands and marginal wetlands within the watershed (Service 1994). These areas do not occur in great abundance, and in recent years have been degraded and lost to agriculture, off-road vehicle use, grazing, flood control projects, and development, including pipeline projects, transportation projects, and residential development projects (Service 1994).

The four locations where the taxon is known to occur are no longer pristine and undisturbed. However, these wetlands and associated hydrology continue to provide essential biological and physical features necessary for this species in all four locales. All remaining occurrence complexes have been impacted by agricultural activities (Bramlet 1993, CNDDB 2003, Roberts and McMillan 1997, Service 1998). The taxon is also affected by non-agricultural related clearing activities (Bramlet 1993, CNDDB 2003, Roberts and McMillan 1997, Service 1998). Some of the lands that make up the San Jacinto Wildlife Area were agricultural lands, and some farming continues today. The occurrence complex that occupies the floodplain of the San Jacinto River between the Ramona Expressway and the mouth of Railroad Canyon has been severely degraded during recent years by agriculture, including irrigated crops and alfalfa farming. Habitat at the Salt Creek Vernal Pool Complex has been degraded as a result of dry land farming. The occurrence at Alberhill Creek is adjacent to a plowed field.

Atriplex coronata var. notatior can persist in the seed bank within disturbed lands, including agricultural areas. Restoration of these disturbed areas is essential for the conservation of this taxon. A. coronata var. notatior is expected to re-establish itself from the seed bank once lands that were previously cleared or are being used for agriculture are restored.

Atriplex coronata var. notatior requires a hydrologic regime that includes sporadic flooding in combination with slow drainage in alkaline soils and habitats. The duration and extent of flooding or ponding can be extremely variable from one year to the next. Seasonal flooding is an important process that allows habitat to be maintained in a successional state, restores disturbed alkali habitats, and helps to disperse seed. These processes form a dynamic matrix that allows A. coronata var. notatior to colonize favorable sites and retreat from less favorable sites in response to disturbance and variations in annual rainfall (Service 1994). Irreversible actions that alter the hydrology of the seasonal wetlands or infringe upon the wetlands may threaten the survival of A. coronata var. notatior .

The San Jacinto Wildlife Area/Mystic Lake occurrence complex and the occurrence complex located between the Ramona Expressway and the mouth of Railroad Canyon depend upon the San Jacinto River for their hydrology and seasonal flooding. The occurrence at Alberhill Creek depends upon the creek for its hydrology and seasonal flooding. The occurrence at the Upper Salt Creek Vernal Pool Complex is located in part within the floodplain of an unnamed tributary to Salt Creek. The natural floodplain processes of these waterways must be maintained as discussed in the Western Riverside MSHCP to allow for the conservation of these occurrence complexes.

The Upper Salt Creek Vernal Pool Complex is in a natural depression and rainfall from the surrounding area flows across the land and pools within the complex. While some of the runoff is from undeveloped hillsides, providing the complex with a needed source of minerals, much of the watershed has been developed, and the flows traveling to the vernal pools include a large amount of urban runoff. The maintenance of clean, seasonal flows from the surrounding watershed is necessary for the conservation of this vernal pool complex.

Seasonal flooding, as indicated above, is important for the reproduction, germination, and seed dispersal of Atriplex coronata var. notatior . The natural process of seasonal flooding allows habitat to be maintained in a successional state, restores disturbed alkali habitats, and helps to disperse seed. This flooding allows A. coronata var. notatior to colonize favorable sites and retreat from less favorable sites in response to disturbance and variations in annual rainfall (Service 1994). A. coronata var. notatior produces floating seeds (June 4, 2004, A. Sanders, University of California, Riverside, pers. comm. to S. Brown, U.S. Fish and Wildlife Service). Seasonal flooding is necessary for seed dispersal (Service 1994). The floating seeds are likely dispersed during seasonal flooding by slow-moving flows within the floodplains and vernal pools where A. coronata var. notatior occurs. Natural floodplain processes are integral to the biotic processes this species uses to disperse and reproduce.

The San Jacinto Wildlife Area/Mystic Lake occurrence complex and the occurrence complex located between the Ramona Expressway and the mouth of Railroad Canyon depend upon the seasonal flooding from the San Jacinto River for seed dispersal and for the maintenance of sites where seeds can germinate. The occurrence at Alberhill Creek depends upon the seasonal flooding of the creek for seed dispersal and for the maintenance of sites where seeds can germinate. The occurrence complex at the Upper Salt Creek Vernal Pool Complex depends upon the seasonal inundation of the pools from a combination of sheet flow from the surrounding watershed and the seasonal flooding of an unnamed tributary to Salt Creek for seed dispersal and the maintenance of sites where seeds can germinate. These natural hydrological processes must be maintained to allow for the reproduction and dispersal of the species within this occurrence complex.

Pursuant to our regulations (50 CFR 424), we are required to identify the known physical and biological features, i.e. , primary constituent elements, essential to the conservation of Atriplex coronata var. notatior , 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 elements determined to be essential to the conservation of A. coronata var. notatior are:

Atriplex coronata var. notatior has a narrow geographic distribution. Within its range, the taxon has specialized habitat requirements, including hydrology, vegetation communities, and soils. The areas that provide these specialized habitat requirements do not occur in great abundance and have been degraded and lost in recent years. The known range of the species is limited to four occurrence complexes within western Riverside County. The four occurrence complexes are: (1) Floodplain of the San Jacinto River at the San Jacinto Wildlife Area/Mystic Lake; (2) Floodplain of the San Jacinto River between the Ramona Expressway and Railroad Canyon Reservoir; (3) Upper Salt Creek Vernal Pool Complex; and (4) Alberhill Creek. Each of these four occurrence complexes is essential to the conservation of the species. (Not all known populations of A. coronata var . notatior are considered essential for the conservation of the species, but all are conserved as part of the Western Riverside MSHCP). The significance of each occurrence complex is described in detail in the Background section. These complexes are mapped as three units in Map 1: Unit 1—San Jacinto River; Unit 2—Salt Creek (Hemet); and Unit 3—Alberhill.

Unit 1—San Jacinto River includes the first two occurrence complexes (the floodplain of the San Jacinto River at the San Jacinto Wildlife Area/Mystic Lake and the floodplain of the San Jacinto River between the Ramona Expressway and Railroad Canyon Reservoir) and comprises 12,046 acres, 6,535 ac (2,645 ha) of which are privately owned and 5,511 ac (2,230 ha) of which are owned by the California Department of Fish and Game. Between the mouth of the Railroad Canyon to the southwest and the Ramona Expressway, this unit is defined by the written criteria in the MSHCP. From the Ramona Expressway down to Interstate 215, these criteria closely follow the combined boundary of the mapped suitable soils and 100-year floodplain. South of I-215, the unit is constrained at the point where the Perris Valley Storm Drain enters the San Jacinto River from the North. The San Jacinto River is proposed to be channelized here. This will affect approximately 10 percent of the remaining Atriplex coronata var. notatior (a rough estimate, as the populations fluctuate greatly with rainfall). North of the Ramona Expressway, within the San Jacinto Wildlife Area, the unit follows the 100-year floodplain of the San Jacinto River (excluding a small strip of heavily farmed agricultural land) east to Bridge Street. Along the eastern boundary, the unit follows the edge of the 100-year floodplain (where it meets the hills). A private dairy and a duck club on the eastern side are not included in this unit. The boundary follows the combined edge of the soils and 100-year floodplain around Mystic Lake on the northern end, and then roughly follows the combined edge of the soils and 100-year floodplain along the west side next to the Bernasconi Hills. Here the line bows out from the floodplain/soils line toward the edge of the hills to include a mapped occurrence of A. coronata var. notatior .

Unit 2—Salt Creek (Hemet) includes the third occurrence complex (Upper Salt Creek Vernal Pool Complex) and comprises 3,154 ac (1,277 ha), all of which are privately owned. To the south, this unit is bound by a tributary to Salt Creek that provides hydrology to part of the complex. To the west, the boundary follows the ridgeline that defines the watershed up to the northern extent of the Heartland Development (the Service has a Memorandum of Understanding that Heartland will ensure clean water flows continue to the south from their detention basin). To the southeast, the boundary includes part of the vernal pool complex, then bows in to avoid the Hemet Auto Mall, and back out to the northeast extent where it picks up the outflow of the Seattle Channel, which provides water to part of the complex by sheet flow across the land. To the northeast, the project is bound by the Tres Cerritos Hills, which also constitute part of the watershed. Unit 2 gets its water from a combination of the tributary to the south and the watershed to the north.

Unit 3—Alberhill includes the fourth occurrence complex and comprises 32.3 ac (13.1 ha), all of which are privately owned. The Unit occurs within the floodplain of Alberhill Creek in a small pocket of willows soils. The edges of the unit are defined by the edge of the soil pocket. The north boundary is defined by Nichols Road. The south boundary is defined by a large stand of riparian vegetation.

When designating critical habitat, we assess whether the areas determined to be essential for conservation may require special management considerations or protection. Each of the four occurrence complexes of Atriplex coronata var. notatior faces existing threats that require special management and/or protection (Bramlet 1993, Roberts and McMillan 1997, Service 1998). The occurrence complex that occupies the floodplain of the San Jacinto River between the Ramona Expressway and Railroad Canyon Reservoir is threatened by non-agriculture related clearing, agricultural activity, including irrigated crops and alfalfa farming, and a proposed flood control project (Bramlet 1996, Roberts and McMillan 1997, Dudek and Associates 2003). The occurrence complex that occupies the San Jacinto Wildlife Area/Mystic Lake is threatened by invasive and weedy plant species introduced as food sources for waterfowl and also remaining from historical agricultural production (Bramlet 1996). Alteration of habitat for duck ponds (Roberts and McMillan 1997) and off-road vehicle activity (CNDDB 2003) are also management concerns in this area. The occurrence complex located within the Salt Creek Vernal Pool Complex is threatened by agricultural activities, including dry-land farming, weed abatement and fire suppression practices, grazing, invasion of non-native plant species, alteration of hydrology, fragmentation, and a proposed road realignment project (CNDDB 2003, Bramlet 1996, Roberts and McMillan 1997, Dudek and Associates 2003). The occurrence complex at Alberhill Creek is located in a rapidly urbanizing area and is subject to the threat of increased human-associated disturbance. Actions that alter habitat suitable for the species or affect the natural hydrologic processes upon which the species depends could threaten the species in this area.

Special management and/or protection for these occurrence complexes includes: (1) Protection of habitat by the Western Riverside MSHCP; (2) protection of floodplain processes by species-specific criteria in the MSHCP; (3) reduction of land conversion to agriculture by the MSHCP; and (4) land acquisition that will allow restoration of lands that have already been converted to agriculture.

We evaluated all four habitat areas (occurrence complexes) essential for the conservation of Atriplex coronata var. notatior for exclusion from critical habitat pursuant to section 4(b)(2) of the Act. All four essential habitat areas are within the conservation area of the approved Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) in Riverside County. On the basis of our evaluation of the conservation measures afforded A. coronata var. notatior under the MSHCP, we have concluded that the benefit of excluding the lands covered by this MSHCP outweighs the benefit of including them as critical habitat (see discussion in section entitled “Exclusions Under Section 4(b)(2) of the Act”). Thus, we are excluding the lands covered by this MSHCP from the designation of critical habitat for this taxon, pursuant to section 4(b)(2) of the Act. Because we have excluded all essential habitat areas from the proposal, we are not proposing to designate any critical habitat for A. coronata var. notatior.

No critical habitat is being designated for Atriplex coronata var. notatior. The following is a general discussion of the section 7 consultation process for designated critical habitat.

Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.2, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to: Alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” We are currently reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency ensures that the permitted actions do not jeopardize the continued existence of the species or destroy or adversely modify critical habitat.

When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

Even in the absence of critical habitat designation, activities on Federal lands that may affect Atriplex coronata var. notatior will require section 7 consultation. Activities lands that may affect A. coronata var. notatior on private or State lands requiring a permit from a Federal agency, such as a permit from the Army Corps under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding (e.g., Federal Highway Administration or Federal Emergency Management Agency funding), will also continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on non-Federal and private lands that are not federally funded, authorized, or permitted do not require section 7 consultation.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. If critical habitat for Atriplex coronata var. notatior were to be designated, then activities that may destroy or adversely modify critical habitat would include those that appreciably reduce the value of critical habitat to the taxon. We note that such activities may also jeopardize the continued existence of the species.

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat to the listed species.

Federal agencies already consult with us on activities in areas currently occupied by the species to ensure that their actions do not jeopardize the continued existence of the species. These Federal actions include, but are not limited to:

(1) Removing, thinning, or destroying Atriplex coronata var. notatior habitat, whether by burning, mechanical, chemical, or other means (e.g., plowing, grubbing, grading, grazing, woodcutting, construction, road building, mining, mechanical weed control, herbicide application, etc.);

(2) Activities that appreciably degrade or destroy Atriplex coronata var. notatior habitat could include, but are not limited to, livestock grazing, clearing, disking, farming, residential or commercial development, introducing or encouraging the spread of nonnative species, off-road vehicle use, and heavy recreational use;

(3) Activities that appreciably diminish habitat value or quality through indirect effects (e.g., edge effects, invasion of exotic plants or animals, or fragmentation); and

(4) Any activity, including the regulation of activities by the Corps of Engineers under section 404 of the Clean Water Act or activities carried out by or authorized by the Environmental Protection Agency (EPA), that could alter watershed or soil characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain Atriplex coronata var. notatior habitat. These activities could include, but are not limited to, altering the natural fire regime; development, including road building and other direct or indirect activities; agricultural activities, livestock grazing, and vegetation manipulation such as clearing or grubbing in the watershed upslope from A. coronata var. notatior.

(5) Road construction and maintenance, right-of-way designation, and regulation of agricultural activities, or any activity funded or carried out by the Department of Transportation or Department of Agriculture that results in discharge of dredged or fill material, excavation, or mechanized land clearing of Atriplex coronata var. notatior habitat;

(6) Sale or exchange of lands by a Federal agency to a non-Federal entity;

(7) Licensing of construction of communication sites by the Federal Communications Commission;

(8) Funding of construction or development activities by the U.S. Department of Housing and Urban Development; and

(9) Funding and implementation of disaster relief projects by the FEMA and the Natural Resource Conservation Service's Emergency Watershed Program, including erosion control, flood control, and stream bank repair to reduce the risk of loss of property.

Federal agencies already consult with us on activities in areas currently occupied by the species or if the species may be affected by the action to ensure that their actions do not jeopardize the continued existence of the species.

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species.

In our critical habitat designations, we have used the provisions outlined in section 4(b)(2) of the Act to evaluate lands essential to the conservation of the subject species for possible exclusion from proposed critical habitat. Lands which we have either excluded from or not included in critical habitat based on those provisions include those covered by: (1) Legally operative HCPs that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (i.e., pending HCPs); (3) Tribal conservation plans that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (4) State conservation plans that provide assurances that the conservation measures for the species will be implemented and effective; and (5) Service National Wildlife Refuge System Comprehensive Conservation Plans that provide assurances that the conservation measures for the species will be implemented and effective.

As described above, section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. Development of a Habitat Conservation Plan (HCP) is a prerequisite for the issuance of an incidental take permit pursuant to section 10(a)(1)(B) of the Act. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take.

HCPs vary in size and may provide for incidental take coverage and conservation management for one or many federally listed species. Additionally, more than one applicant may participate in the development and implementation of an HCP. Large regional HCPs expand upon the basic requirements set forth in section 10(a)(1)(B) of the Act because they reflect a voluntary, cooperative approach to large-scale habitat and species conservation planning. Many of the large regional HCPs in southern California have been, or are being, developed to provide for the conservation of numerous federally listed species and unlisted sensitive species and the habitat that provides for their biological needs. These HCPs address impacts in a planning area and create a preserve design within the planning area. Over time, areas in the planning area are developed according to the HCP, and the area within the preserve is acquired, managed, and monitored. These HCPs are designed to implement conservation actions to address future projects that are anticipated to occur within the planning area of the HCP, in order to reduce delays in the permitting process.

The Western Riverside MSHCP was in development from 1993 to this year. Participants in this HCP include 14 cities, the County of Riverside (including the Riverside County Flood Control and Water Conservation Agency, Riverside County Transportation Commission, Riverside County Parks and Open Space District, and Riverside County Waste Department), the California Department of Parks and Recreation, and the California Department of Transportation. The Western Riverside MSHCP is a subregional plan under the State's NCCP and was developed in cooperation with the California Department of Fish and Game. The MSHCP establishes a multi-species conservation program to minimize and mitigate the expected loss of habitat values and the incidental take of “covered species.” The intent of the MSHCP is to minimize incidental take of these species in the Plan Area and to provide avoidance, minimization, and mitigation measures for the impacts of proposed activities on covered species and their habitats. Within the 1,260,000 ac (510,000 ha) Plan Area of the MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are to be conserved. The proposed conservation of 153,000 ac (62,000 ha) will complement other existing natural and open space areas (e.g., State Parks, Forest Service, and County Park Lands). The MSHCP Plan Area encompasses the entire known range of Atriplex coronata var. notatior .

Atriplex coronata var. notatior is a covered species under the MSHCP. The taxon occurs on State land within the San Jacinto Wildlife Area, on land owned by the Riverside County Habitat Conservation Agency, and on the Upper Salt Creek Wetland Preserve which is owned and managed by Metropolitan Water District. These conserved lands, which were identified as Public-Quasi Public (PQP) lands in the Western Riverside MSHCP, will be monitored and managed pursuant to the plan. Moreover, the Western Riverside MSHCP proposes the conservation and management of additional habitat for the species within the San Jacinto River, Mystic Lake, and Salt Creek areas. Based on our estimate of the extent of the PQP lands together with the additional lands (i.e., Additional Reserve Lands) of conservation proposed by the MSHCP, only a small portion of essential habitat occurs outside of our estimate of the Conservation Reserve Design for the MSHCP, as summarized in Table 9-2 of the MSHCP. These acres are essential because they provide for the hydrological processes affecting its wetland habitat. However, the MSHCP “will maintain alluvial processes (floodplain hydrology and flooding) upon which this species depends” and commits to not altering adversely existing runoff from adjacent lands (see Section 6.1.4 of the MSHCP). As stated in Table 9-2 of the Western MSHCP: “Conservation for this species will be achieved by inclusion of at least 6,900 acres of suitable Conserved Habitat and the locality at Alberhill Creek near Lake Elsinore and the three core localities (Mystic Lake, the San Jacinto River and the upper Salt Creek drainage) within large blocks of Habitat in the MSHCP Conservation Area. In addition, implementation of Objective 3 for this species will provide new data to guide Reserve Assembly, management and monitoring. Implementation of Objectives 4 and 5 for this species will maintain alluvial processes (floodplain hydrology and flooding) upon which this species depends.” Under the MSHCP, Reserve Managers are also responsible for preventing alteration of hydrology and floodplain dynamics, farming, fire, and fire suppression activities, off-road vehicle use, and competition from non-native plant species (Dudek and Associates 2003).

The remaining occurrences of Atriplex coronata var. notatior are located on private lands. The MSHCP provides for the conservation of most of the occurrences within all 4 occurrence complexes. Under the MSHCP, the species is anticipated to persist within 80 percent of its modeled habitat (Service 2004).

In 2004, the Service completed a Biological and Conference Opinion, in accordance with section 7 of the Act, regarding the issuance of an incidental take permit for implementation of the Western Riverside County MSHCP pursuant to section 10(a)(1)(B) of the Act (Service 2004). The Service concluded that the MSHCP would not jeopardize the continued existence of Atriplex coronata var. notatior (Service 2004). Several covered activities discussed under the MSHCP have the potential to impact populations within these conserved areas, including the San Jacinto River Flood Control Project and the State Route 79 Realignment Project. These projects will require additional consultation with our agency under section 7 of the Act (Dudek and Associates 2003). While the outcome of future section 7 consultations is not known, we anticipate that the application of the jeopardy standard will ensure that actions funded, authorized, or carried out by a Federal agency will not jeopardize the continued existence of A. coronata var. notatior . Thus, the exclusion of the essential habitats from critical habitat under section 4(b)(2) of the Act will not result in the extinction of the species.

The following discussion presents our rationale for excluding from critical habitat designation the areas of essential habitat for Atriplex coronata var. notatior within the Western Riverside MSHCP.

The principal benefit of any designated critical habitat is that federally funded or authorized activities in such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. Where HCPs are in place, our experience indicates that this benefit is small or nonexistent. Currently approved and permitted HCPs are designed to ensure the long-term survival of covered species within the plan area. In an approved HCP, lands we ordinarily would define as critical habitat for covered species will normally be protected in reserves and other conservation lands by the terms of the HCP and its IA. These HCPs and IAs include management measures and protections for conservation lands designed to protect, restore, and enhance their value as habitat for covered species, and thus provide benefits well in excess of those that would result from a critical habitat designation. In the instance of the Western Riverside MSHCP, Atriplex coronata var. notatior is a covered species. The MSHCP establishes a multi-species conservation program to minimize and mitigate the expected loss of habitat values and the incidental take of “covered species.” The intent of the MSHCP is to minimize incidental take of these species in the Plan Area and to provide avoidance, minimization, and mitigation measures for the impacts of proposed activities on covered species and their habitats. We do not believe that designation of MSHCP-covered lands as critical habitat will appreciably benefit A. coronata var. notatior beyond the protection already afforded the species under the Act. The Service, in its 2004 Biological and Conference Opinion, concluded that the MSHCP would not jeopardize the continued existence of A. coronata var. notatior (Service 2004).

The benefits of excluding lands within HCPs from critical habitat designation include carrying out the assurances provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP, including relieving them of the additional regulatory burden that might be imposed by critical habitat. Many HCPs, particularly large regional HCPs take many years to develop and, upon completion, become regional conservation plans that are consistent with the recovery objectives for listed species that are covered within the plan area. Additionally, many of these HCPs provide conservation benefits to unlisted, sensitive species. Imposing an additional regulatory review after an HCP is completed solely as a result of the designation of critical habitat may undermine conservation efforts and partnerships in many areas. In fact, it could result in the loss of species' benefits if participants abandon the voluntary HCP process because it may result in additional regulations requiring more of them than other parties who have not voluntarily participated in species conservation. Designation of critical habitat within the boundaries of approved HCPs could be viewed as a disincentive to those entities currently developing HCPs or contemplating them in the future.

A related benefit of excluding lands within HCPs from critical habitat designation is the unhindered, continued ability to seek new partnerships with future HCP participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within HCP plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly large, regional HCPs that involve numerous participants and address landscape-level conservation of species and habitats. By preemptively excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.

Furthermore, an HCP application must itself be consulted upon. While this consultation will not look specifically at the issue of adverse modification to critical habitat, unless critical habitat has already been designated within the proposed plan area, it will determine if the HCP jeopardizes the species in the plan area. The jeopardy analysis is similar to the analysis of adverse modification to critical habitat. In addition, Federal actions not covered by the HCP in areas occupied by listed species would still require consultation under section 7 of the Act. HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs and assure the long-term protection and management of a covered species and its habitat, and funding for such management through the standards found in the 5 Point Policy for HCPs (64 FR 35242). Such assurances are typically not provided by section 7 consultations which, in accordance with the Provisions of the Act, are limited to requiring that the specific action being consulted upon not jeopardize the continued existence of the species. Thus, a consultation typically does not accord the lands it covers the extensive benefits an HCP provides. The development and implementation of HCPs provide other important conservation benefits, including the development of biological information to guide the conservation efforts and assist in species conservation, and the creation of innovative solutions to conserve species while allowing for development.

The Western Riverside MSHCP seeks to accomplish the goals of protecting, restoring, monitoring, managing, and enhancing the habitat to benefit the conservation of Atriplex coronata var. notatior through the implementation of specific conservation objectives. Excluding non-Federal lands within the MSHCP from the proposed critical habitat will provide benefits, as follows: (1) Exclusion of the lands from the final designation will allow us to continue working with the participants in a spirit of cooperation and partnership; (2) other jurisdictions, private landowners, and other entities will see the benefit of working cooperatively with us to develop HCPs, which will provide the basis for future opportunities to conserve species and their essential habitat.

The Western Riverside MSHCP includes Atriplex coronata var. notatior as a covered species. The educational benefits of critical habitat, including informing the public of areas that are essential for the long-term survival and conservation of the species is still accomplished from material provided on our Web site and through public notice and comment procedures required to establish the Western Riverside MSHCP. We have also received input from the public through the public participation that occurs in the development of the Western Riverside MSHCP. For these reasons, we believe proposing critical habitat has little additional benefit in areas covered by the Western Riverside MSHCP. Therefore, we are excluding these lands from critical habitat. We do not believe that this exclusion would result in the extinction of the species because the essential habitat will be conserved in accordance with the provisions of the Western Riverside MSHCP.

An analysis of the economic impacts of possible designation of critical habitat for Atriplex coronata var. notatior is being prepared. 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. At that time, copies of the draft economic analysis will be available for downloading from the Internet at http://carlsbad.fws.gov/ or by contacting the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section).

In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate independent specialists regarding this determination. The purpose of such review is to ensure that our decision on critical habitat is based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposal 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 determination regarding critical habitat.

We will consider all comments and information received during the comment period on this proposal, and the final decision may differ from this proposal.

The Act provides for one or more public hearings on this determination, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register . Such requests must be made in writing and be addressed to the Field Supervisor (see ADDRESSES section). We will schedule public hearings on this determination, if any are requested, 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.

Executive Order 12866 requires each agency to write regulations 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, and so forth) aid or reduce its clarity? (4) Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the decision? (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: Exsec@ios.doi.gov .

In accordance with Executive Order 12866, this document is significant in that it may raise novel legal and policy issues, but it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the tight timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed this rule. We are preparing a draft economic analysis of this proposed action. We 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.

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.

At this time, we lack 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, we will publish a notice of availability of the draft economic analysis of the proposed designation and reopen the public comment period for the proposed designation for an additional 60 days. We 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. We have 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 we make a sufficiently informed determination based on adequate economic information and provides the necessary opportunity for public comment.

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 Atriplex coronata var. notatior is a significant regulatory action under Executive Order 12866 in that it may raise novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

Critical habitat, if designated, does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) We do not believe that this rule will significantly or uniquely affect small governments because no areas are proposed for critical habitat. We will, however, further evaluate this issue as we conduct our economic analysis and revise this assessment if appropriate.

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 we 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.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with DOI policy, we requested information from, and coordinated development of, this proposal with appropriate State resource agencies in California. The exclusion of critical habitat in areas currently occupied by Atriplex coronata var. notatior imposes no additional restrictions to those currently in place and, therefore, has no incremental impact on State and local governments and their activities. The exclusion may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have excluded critical habitat in accordance with the provisions of the Endangered Species Act. This proposal uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Atriplex coronata var. notatior.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.

It is our position 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 position 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).

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 have determined that there are no Tribal lands essential for the conservation of Atriplex coronata var. notatior.

A complete list of all references cited in this rulemaking is available upon request from the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section).

The primary author of this package is the staff of the Carlsbad Fish and Wildlife Office.

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

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:

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, r2arshinerch@fws.gov 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.

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.

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.

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.

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 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.

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 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 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.

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′ 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 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.

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.

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).

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° Celsius (32.7 to 98.2° 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 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).

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

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.

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 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.

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.

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.

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.

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. 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 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 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.

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.

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 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.

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.

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 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.

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.

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, 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).

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).

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

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.

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: Exsec@ios.doi.gov.

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).

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.

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.

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 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.

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.

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.

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).

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.

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.

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.

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.

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).

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

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