[Federal Register Volume 69, Number 143 (Tuesday, July 27, 2004)]
[Rules and Regulations]
[Pages 44736-44770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16646]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Final Designation of
Critical Habitat for the Topeka Shiner; Final Rule
Federal Register / Vol. 69, No. 143 / Tuesday, July 27, 2004 / Rules
and Regulations
[[Page 44736]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI20
Endangered and Threatened Wildlife and Plants; Final Designation
of Critical Habitat for the Topeka Shiner
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Topeka shiner (Notropis topeka) pursuant to
the Endangered Species Act of 1973, as amended (Act). We are
designating as critical habitat a total of 83 stream segments,
representing 1,356 kilometers (km) (836 miles (mi)) of stream in the
States of Iowa, Minnesota, and Nebraska. We exclude from designation
all previously proposed critical habitat in the State of Missouri under
authority of sections 3(5)(A) and 4(b)(2) of the Act, and in the States
of Kansas and South Dakota under authority of section 4(b)(2) of the
Act. Critical habitat is not designated on the Fort Riley Military
Installation in Kansas under authority of section 4(a)(3) of the Act.
DATES: This rule becomes effective August 26, 2004.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours at
the Kansas Ecological Services Field Office, U.S. Fish and Wildlife
Service, 315 Houston Street, Suite E, Manhattan, Kansas 66502. Copies
of the final rule, final economic analysis, and final environmental
assessment are available by writing to the above address or by
connecting to the Service Internet Web site at http://mountain-prairie.fws.gov/topekashiner/ch.
FOR FURTHER INFORMATION CONTACT: Vernon Tabor, Kansas Ecological
Services Field Office, at the above address; telephone: (785) 539-3474;
facsimile: (785) 539-8567; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of conservation resources. The Service's present system for designating
critical habitat has evolved since its original statutory prescription
into a process that provides little real conservation benefit, is
driven by litigation and the courts rather than biology, limits our
ability to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs. The
Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 445 species (36 percent)
of the 1,244 listed species in the United States under jurisdiction of
the Service, have designated critical habitat. We address the habitat
needs of all 1,244 listed species through conservation mechanisms such
as listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent to sue relative to critical habitat, and to comply
with the growing number of adverse court orders. As a result, listing
petition responses, the Service's own proposals to list critically
imperiled species, and final listing determinations on existing
proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with almost no ability to provide for additional public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the critical habitat designation include
legal costs, the cost of preparation and publication of the
designation, the analysis of the economic effects and the cost of
requesting and responding to public comment, and in some cases the
costs of compliance with the National Environmental Policy Act. None of
these costs result in any benefit to the species that is not already
afforded by the protections of the Act enumerated earlier, and they
directly reduce the funds available for direct and tangible
conservation actions.
Background
The Topeka shiner is found in small to mid-sized prairie streams of
the central prairie regions of the United States with relatively high
water quality and cool to moderate temperatures. Many of these streams
exhibit perennial flow, although some become intermittent during summer
or periods of prolonged drought. The Topeka shiner's historic range
includes portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and
South Dakota. The species continues to exist in these States, but in
most areas its range is greatly reduced.
The following additional information on the distribution of the
species in South Dakota has recently been made available to us. Few
historical data were available regarding the distribution of
[[Page 44737]]
the Topeka shiner in South Dakota; at the time this species was
proposed for listing in 1997, only five locations were known. The South
Dakota Department of Game, Fish, and Parks (SDDGFP) initiated surveys
in 1997 to determine current occupation of known historical sites and
investigate other possible waterways for the species' presence. These
surveys indicated that the species was more widespread in South Dakota
than previously thought. In 1999, a number of agencies began working
closely with the South Dakota State University Cooperative Research
Unit (SDSU Coop Unit) in Brookings to delineate where Topeka shiners
existed in South Dakota. Those surveys found many new streams that were
occupied by Topeka shiners as well as populations in six of eight of
the historical locations. Of the remaining two historical locations,
one is on a stream that is expected to have Topeka shiners but
resources have limited the ability to conduct surveys, while the other
historical location was in the outlet of a lake that has not been
surveyed due to its uncharacteristic habitat for Topeka shiners. Since
then, several studies have been initiated by South Dakota Department of
Transportation (SDDOT) and Natural Resource Conservation Service (NRCS)
through the SDSU Coop Unit that have further expanded the list of known
occupied streams and general knowledge of the species in South Dakota.
For more information on the Topeka shiner, refer to the proposed
critical habitat rule published in the Federal Register on August 21,
2002 (67 FR 54262) and the final listing rule published in the Federal
Register on December 15, 1998 (63 FR 69008).
Previous Federal Actions
We published a final rule in the Federal Register (63 FR 69008) on
December 15, 1998, listing the Topeka shiner as an endangered species
under the Act. In that document, we also determined that designation of
critical habitat was not prudent for the species. In an April 4, 2001,
court settlement of the case, Biodiversity Legal Foundation et al. v.
Ralph Morgenweck et al. (C00-D-1180), we agreed to reconsider our
prudency determination and, if prudent, to propose critical habitat for
the Topeka shiner by August 13, 2002, and to finalize our designation
of critical habitat by August 13, 2003.
On August 21, 2002, we published a proposed rule in the Federal
Register (67 FR 54262) proposing the designation of Topeka shiner
critical habitat. The proposed designation included 3,766 km (2,340 mi)
of stream in the States of Iowa, Kansas, Minnesota, Nebraska, and South
Dakota as critical habitat. We also proposed to exclude from
designation Topeka shiner habitat in the State of Missouri and on the
Fort Riley Military Installation, Kansas, under the authority of
section 3(5)(A) of the Act. Concurrent with the publication of the
proposed rule, we opened a 60-day public comment period. We held one
public meeting in each of the six affected States during September
2002. Due to budgetary constraints, we did not finalize the designation
of critical habitat by August 13, 2003. We petitioned the court to
extend this deadline until July 17, 2004, and in an order dated
February 10, 2004, the court granted us this extension. This order was
upheld by the court on June 21, 2004.
In the August 2002 proposed rule for designation of critical
habitat for the Topeka shiner, we indicated our intention not to
include critical habitat in Missouri and on Fort Riley, Kansas, in the
critical habitat designation. This was based upon our interpretation of
the definition of critical habitat found in section 3(5)(A) of the Act.
Section 3(5)(A)(i) of the Act defines critical habitat as areas on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections. In order to give meaning to
the last clause of the definition, we have considered that if an area
was already adequately managed, there would be no requirement for
special management considerations or protection. A management plan is
considered adequate when it meets the following three criteria--(1) the
plan provides a conservation benefit to the species (i.e., the plan
must maintain or provide for an increase in the species' population, or
the enhancement or restoration of its habitat within the area covered
by the plan); (2) the plan provides assurances that it will be
implemented (i.e., those responsible for implementing the management
plan are capable of accomplishing the objectives, have an
implementation schedule, and/or adequate funding for the management
plan); and (3) the plan provides assurances the management plan will be
effective (i.e., it identifies biological goals, has provisions for
reporting progress, and is of a duration sufficient to implement the
plan and achieve the plan's goals and objectives).
The National Defense Authorization Act for Fiscal Year 2004 (Public
Law 108-136, adopted November 24, 2003) amended the Act by adding new
language to section 4(a)(3), which prohibits the Service from
designating as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an Integrated Natural Resources Management
Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary of the Interior determines in writing that such
plan provides a benefit to the species for which critical habitat is
proposed for designation. The Sikes Act Improvement Amendment of 1997
requires each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an INRMP. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found there. Each INRMP includes an assessment of the ecological needs
on the installation, including needs to provide for the conservation of
listed species; a statement of goals and priorities; a detailed
description of management actions to be implemented to provide for
these ecological needs; and a monitoring and adaptive management plan.
The Service consults with the military on the development and
implementation of INRMPs for installations with listed species.
On March 17, 2004, we published in the Federal Register (69 FR
12619) a revision to our proposed rule, notice of availability for the
draft economic analysis and the draft environmental assessment (EA),
and notice of a 30-day reopening of the public comment period for the
designation of critical habitat for the Topeka shiner. In this
document, we reevaluated our previous intention to exclude from
designation habitat in Missouri and on Fort Riley under section 3(5)(A)
of the Act. We explained our intent to exclude habitat on Fort Riley
under the new provisions of section 4(a)(3). We proposed critical
habitat within the State of Missouri, including 12 stream segments
representing 148 km (92 mi) of stream, and proposed to exclude these
areas from designation under section 4(b)(2). We also proposed an
additional 24-km (15-mi) stream reach in the State of South Dakota due
to new information on distribution of the species, obtained after
publication of the original critical habitat proposal. Finally, we
stated our intention to consider excluding critical habitat proposed in
the States of Kansas and South Dakota from designation, under section
4(b)(2). This consideration was due to ongoing
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management actions, the development and implementation of State
management plans for the species, State protections, and other
conservation activities related to the species occurring in these two
States.
Summary of Comments and Recommendations
In the August 21, 2002, proposed rule, we requested that all
interested parties submit comments or information concerning the
designation of critical habitat for the Topeka shiner. A 60-day comment
period closed on October 21, 2002. We contacted interested parties
(including elected officials; Federal, State, and county governments;
media outlets; and local interest groups) through a press release and
related faxes, mailed announcements, telephone calls, and e-mails. On
March 17, 2004, the Service opened an additional 30-day comment period
on the revised proposal, draft economic analysis, draft EA, and
original proposed rule.
Newspaper notices inviting public comment on the proposal and
announcing the public comment period and series of public meetings were
published in the following newspapers--in Iowa, Des Moines Register and
Ft. Dodge Messenger; in Kansas, Emporia Gazette, Manhattan Mercury,
Topeka Capital-Journal, and Wichita Eagle; in Minnesota, Minneapolis
Star-Tribune and Pipestone County Star; in Missouri, Kansas City Star,
Columbia Missourian, and Harrison County Advisor; in Nebraska, Omaha
World Herald and Norfolk News; and in South Dakota, Sioux Falls Argus-
Leader, Mitchell Daily Republic, and Huron Plainsman. The Service held
six public meetings between September 4 and 12, 2002, in Manhattan,
Kansas; Bethany, Missouri; Fort Dodge, Iowa; Pipestone, Minnesota;
Madison, Nebraska; and Sioux Falls, South Dakota. In conjunction with
our revised proposal for critical habitat in Missouri, we held an
additional public meeting on April 13, 2004, in Booneville, Missouri,
to allow for additional public input into the final designation.
In the 2002 comment period, a total of 34 comments were received by
the Service's Kansas Field Office--13 supported the proposed critical
habitat; 14 opposed the proposed critical habitat; and 7 expressed
neither support nor opposition. During the 2004 comment period, we
received a total of 14 comments--5 supporting designation and opposing
any exclusion; 4 supporting the Missouri exclusion; 3 opposing
designation in South Dakota and supporting a South Dakota exclusion;
and 2 that neither supported nor opposed the proposed designation, but
provided specific comments on the designation. Generally, comments
received posed questions on the proposed action, procedural issues, and
the economic analysis, questioned the Service's information and
conclusions on the species, provided additional information for the
proposed listing, suggested alternatives, and/or simply stated support
or opposition to the designation. In total, comments were received from
13 Federal and State agencies or officials, 5 local agencies or
officials, and 30 private organizations, companies, and individuals.
All comments received during the comment period are addressed in the
following summary. Comments of a similar nature are grouped into a
number of general issues.
Peer Review Comments
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited the expert opinions of five independent
specialists regarding this rule. The purpose of such review is to
ensure that decisions are based on scientifically sound data,
assumptions, and analyses. We sent these peer reviewers, who are all
fisheries scientists, copies of the proposed rule immediately following
publication in the Federal Register. Two of the peer reviewers
responded, providing comments that we have incorporated into the final
rule. Both reviewers were supportive of the proposed rule.
Responses to Public Comments
(1) Comment: Several comments opposed designation of critical
habitat because of concerns that designation would severely delay,
restrict, or eliminate State and local government's ability to
construct and maintain roads and bridges due to restrictions on
construction in stream channels during the Topeka shiner spawning
period.
Our Response: Since the listing of the Topeka shiner in December
1998, road and bridge maintenance and construction with a Federal
connection (i.e., using Federal funds, requiring a Federal permit, or
sponsored by a Federal agency) are already being reviewed for impacts
to the Topeka shiner under the consultation provisions of section 7 of
the Act. This review, in most cases, involves the implementation of
best management practices to reduce harm to fish and its habitat,
including the avoidance of instream work during the spawning period.
The designation of critical habitat will have little, if any,
additional impact to these existing restrictions. State and local
activities with no Federal nexus have no Federal consultation
requirement.
(2) Comment: The designation of critical habitat will severely
delay, restrict, or eliminate State and local government's ability to
construct and maintain roads and bridges due to the additional cost of
changing the methods and timing of construction and maintenance, and
incorporating best management practices, to reduce impacts to the
Topeka shiner.
Our Response: Some additional costs are anticipated for State,
county, and local governments maintaining and constructing roads and
bridges. The Economic Analysis forecasts that over the next 10 years
$8.7 million in project modification costs will be incurred (Industrial
Economics, Inc. 2004). In this final designation, we are excluding
critical habitat in the States of South Dakota, Missouri, and Kansas.
The project modification costs in the remaining States of Iowa,
Minnesota, and Nebraska are an estimated $6 million over 10 years
(Industrial Economics, Inc. 2004). Project modifications include
restrictions on instream construction, construction of longer or higher
bridges, culvert restrictions, construction of alternative temporary
crossings, spawning season restrictions, and surveys for the Topeka
shiner. For a more complete discussion of potential impacts associated
with road and bridge construction and maintenance, see Section 4 of the
Economic Analysis (Industrial Economics, Inc. 2004).
(3) Comment: Comments from South Dakota stated the estimate for
project modifications for third parties (South Dakota Department of
Transportation) identified in the Economic Analysis appears to be low.
Our Response: The project modifications reported in the Economic
Analysis for South Dakota Department of Transportation (SDDOT) road and
bridge construction and maintenance projects include stream surveys.
The SDDOT believes that it may need to survey streams when work occurs
in or around areas of Topeka shiner habitat. The cost associated with a
survey was estimated to be $3,800 per effort (Industrial Economics,
Inc. 2004). This estimate is based on a recent survey conducted by the
SDDOT on the Vermillion River (Personal communication with Dave Graves,
Office of Project Development, SDDOT, October 8, 2002).
(4) Comment: Negative economic impacts will occur to schools and
rural residents because of the need to drive additional miles due to
construction
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delays resulting from spawning date restrictions. Crop harvest also
could be delayed or hampered due to spawning date restrictions that
apply to construction projects.
Our Response: Consultations on construction projects that have been
occurring since the species was listed in 1998 include spawning date
restrictions already. The designation of critical habitat will create
little additional impact due to spawning date restrictions beyond what
is already being incurred.
(5) Comment: The designation of critical habitat and the resulting
section 7 consultations will delay the implementation of soil and water
conservation practices and result in less conservation, more
bureaucratic regulation, and further economic hardship for private
landowners.
Our Response: Most soil and water conservation activities are not
likely to affect Topeka shiners or their habitat, and are not
encumbered by the consultation process.
(6) Comment: Designation of critical habitat may cause land
adjacent to designated streams to be taken out of crop production or
cause production practices to be altered. This will result in less
profit to the producer and severely affect his/her ability to farm or
ranch.
Our Response: Designation of critical habitat will not impact a
farmer's right to farm nor dictate production practices. If a private
producer plans actions with Federal sponsorship that may affect the
Topeka shiner or adversely modify critical habitat, that Federal agency
is required to consult with the Service regarding the potential impact
to the species or its habitat. If there is no Federal nexus, there is
no consultation requirement, whether critical habitat is designated or
not. These consultation provisions have been in place since the listing
of the species in 1998. Little new regulatory burden will result from
designation of critical habitat because all designated areas are
occupied habitat. Impacts in these areas already require consultation.
(7) Comment: The designation of critical habitat and the
implementation of the future recovery plan (see Comment 8) will
interrupt or prohibit livestock grazing and feeding in and near areas
of critical habitat. Livestock operations have been present in these
areas for more than 100 years and it is apparent that Topeka shiners
and livestock operations can coexist.
Our Response: If a livestock producer plans actions with Federal
sponsorship that may affect the Topeka shiner, that Federal agency is
required to consult with the Service regarding the potential impact to
the species or its habitat. These consultation provisions have been in
place since the listing of the species in 1998. Little new regulatory
burdens will result from the designation of critical habitat because
all designated areas are occupied. Activities that may adversely affect
the Topeka shiner already require consultation.
(8) Comment: The Topeka Shiner Recovery Plan should have been
released before, or concurrently with, the designation of critical
habitat and the economic analysis, so that all aspects of the
conservation efforts for the species could be thoroughly analyzed by
agricultural producers and the general public.
Our Response: We agree that the finalization of the recovery plan
prior to or concurrently with the critical habitat designation would
have been optimal. A technical draft recovery plan was under internal
review at the time of the release of our proposed rule for critical
habitat (August 21, 2002). Because of court-approved deadlines and the
development of the critical habitat designation received priority over
the completion of the recovery plan. Following completion of the
critical habitat designation, we plan to restart work on the recovery
plan. On completion of the draft recovery plan, we will provide an
opportunity for interested parties to comment.
(9) Comment: Topeka shiner populations are in decline, and failure
to designate critical habitat in South Dakota will lead to their
extirpation. Healthy populations in the waters of South Dakota will
benefit not only aquatic and riparian wildlife species, but the human
population as well.
Our Response: We believe that, with the development and
implementation of the South Dakota Management Plan for the Topeka
Shiner and the ongoing conservation actions underway by private
landowners in the State, the benefits of excluding critical habitat in
that State exceed the benefits of designation. In addition, since the
time of the species' listing in 1998, the Topeka shiner has been found
to be much more widely distributed in South Dakota than previously
believed. The best scientific information, at this time, indicates that
exclusion of critical habitat will in no way cause the extirpation of
the species from South Dakota, or the extinction of the species across
its range as a whole.
(10) Comment: Topeka shiner critical habitat should extend beyond
the habitat proposed for designation and include all of the surrounding
watersheds as well. With the limited amount of habitat proposed, Topeka
shiners do not have enough room to recover to suitable levels.
Our Response: In proposing and designating critical habitat for the
Topeka shiner, we used the best scientific information available to
determine the primary constituent elements (habitat components)
required by the species; where these components exist within the range
of the species; and what areas are essential to the conservation of the
species. The information sources we compiled included the technical
draft of the recovery plan, State conservation and recovery plans,
conservation plans for localized areas, species status surveys,
research efforts concerning the species, and habitat models. If Topeka
shiner populations expand beyond the areas designated as critical
habitat, the protections of the Act (i.e., section 7 consultation,
section 9 ``take'' provisions) afforded listed species will protect
these ``new'' or expanded populations as well. Watershed-based recovery
actions improving habitat, as outlined in the conservation and recovery
plans, will encourage expansion to these areas by Topeka shiners.
(12) The maps of the proposed critical habitat in Iowa are
inadequate. It is difficult to determine if the areas proposed are on
drainage ditches or natural streams.
Our Response: The critical habitat maps were created as a graphical
representation of Topeka shiner critical habitat. The maps and GIS
files used to create the critical habitat maps are not the definitive
source of determining the critical habitat boundaries. The reaches
proposed for designation were coded to specific legal descriptions of
the habitat, which are included in the amendatory language of this
rule. These specific legal descriptions are the definitive source of
determining critical habitat boundaries. Larger-scale maps are
available for inspection at the Kansas Field Office (see ADDRESSES).
(13) Comment: Recent studies have shown that the Topeka shiner is
doing very well in South Dakota due to the effective management
practices being implemented by agricultural producers. Both further
study of the Topeka shiner and implementation of the State management
plan inappropriately waste time and State resources. The species needs
no management in South Dakota.
Our Response: Surveys since the Topeka shiner was listed indicate
that the species is present in South Dakota in each of the three
watersheds where it was known to exist historically (the Big Sioux,
James, and Vermillion River
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watersheds) as well as in nearly all of the historically known occupied
streams. Additionally, the Topeka shiner has been documented in more
streams in South Dakota than previously known, and evidence of its
persistence has been documented in some areas where repeated sampling
has occurred. The reasons for this are not entirely clear, but may be
due to a variety of factors, including lack of tributary impoundments
and associated stocking of predatory fish species, low numbers of
channelized streams, and lack of instream gravel-mining practices.
These activities have been implicated in the decline of the Topeka
shiner's status in other States. We believe the Topeka Shiner
Management Plan for the State of South Dakota, which outlines many of
the practices currently ongoing in the State via cooperation with
Federal, State, and local governments as well as private landowners,
provides significant benefit to the species, and we encourage the State
and its numerous partners to continue implementing the actions outlined
in the Plan.
(14) Comment: Critical habitat designation offers little or no
benefit beyond that of the protections afforded the species when it was
listed. When a species is listed as endangered, actions are
automatically taken that limit activities around their habitat. The
addition of critical habitat forces overly strict land use constraints
and creates contention among various interest groups. Missouri already
has a management plan for the species, and the State can handle
recovery efforts without additional involvement from the Service.
Our Response: This rule recognizes the benefits of the Missouri
Action Plan for the Topeka Shiner and believe the benefits of excluding
designation in Missouri exceed the benefits that designation would
provide. The Service will continue to be involved in the conservation
of the species in Missouri, including section 7 consultation,
enforcement of section 9 provisions, conservation and recovery actions
sponsored by the Service on private lands, and the continued
development of the range-wide recovery plan for Topeka shiner that
includes Missouri.
(15) Comment: In Missouri a management plan already is being
successfully implemented. This plan is based on partnerships between
the Missouri Department of Conservation (MDC) and private landowners.
Designating critical habitat in Missouri would severely damage these
partnerships and greatly diminish the chances the Topeka shiner will
recover and eventually be taken off the endangered species list.
Our Response: We recognize the benefits of the Missouri Action Plan
for the Topeka Shiner, including the partnerships between private
landowners and the MDC. We conclude that the benefits of excluding
designation in Missouri exceed the benefits that designation would
provide. We recognize that recovery of the species is dependent on
solid relationships and partnerships between conservation agencies and
private landowners.
(16) Comment: The Missouri Action Plan for the Topeka Shiner
mentions tasks required for recovery that are to be completed by other
State agencies, including the Missouri Department of Natural Resources
(MDNR). To date there has been no formal transmittal of the Action Plan
to the MDNR. The MDNR does not have time, money, or personnel to
complete these tasks as envisioned in the Action Plan.
Our Response: Although other agencies are identified in the State
Action Plan, all identified tasks attributable to such entities are
voluntary. Most of the items in the plan pertaining to the MDNR are
actions that the agency regularly performs (e.g., Clean Water 401
certification, review of National Pollution Discharge Elimination
System permits). Because such tasks were already being performed by
MDNR staff, the MDC saw no need at the time to formally transmit the
action plan to MDNR. The MDNR continues to provide funding and
personnel for various tasks identified in the State action plan.
(17) Comment: The Missouri Action Plan for the Topeka Shiner was
unilaterally developed by the MDC. MDNR, which was assigned tasks in
the plan, and citizen's groups were not involved in development of the
plan. The plan was conceived and developed by MDC personnel, with
minimal involvement from other entities, including the Service.
Our Response: The Service was an active participant and consultant
to the team that developed the State action plan. The MDC plans to
update the State action plan for the Topeka shiner within the current
calendar year and will solicit input on its development and
implementation from other potential partners, including MDNR.
(18) Comment: Protections afforded a listed species under the
section 7 consultation provisions vary between the ``jeopardy''
standard and the ``adverse modification'' standard. For example, if no
critical habitat is designated in Missouri and a Federal action is
proposed that the Service finds, in a biological opinion, could
jeopardize the continuing existence of the species, the action agency
could proceed with the project without modifications, even with the
jeopardy opinion. This is not the case if critical habitat is
designated. An objection by the Service would halt the project and the
action agency could not proceed until substantial modifications are
incorporated into the project.
Our Response: Section 7(a)(2) of the Act requires Federal agencies
to satisfy two standards in carrying out their programs. Federal
agencies must ensure that their activities are not likely to--(1)
jeopardize the continued existence of any listed species, or (2) result
in the destruction or adverse modification of designated critical
habitat. These two standards (i.e., jeopardy and adverse modification)
are separate but equal determinations. In other words, determining that
a project would adversely modify designated critical habitat does not
have more regulatory weight than determining that the project would
jeopardize the continued existence of a species. Although Federal
agencies can choose to implement a project after receiving a biological
opinion finding jeopardy or adverse modification, any take which
results from the action is not exempt from the provisions of section 9
of the Act. Additionally, failure to explain in the administrative
record how the agency addressed the Service's biological opinion can
expose the action agency to a judicial challenge under both the Act and
the Administrative Procedure Act.
(19) Comment: The Missouri Action Plan for the Topeka Shiner
depends primarily on voluntary cooperation for its implementation.
Our Response: We recognize that the Missouri Action Plan is
voluntary in regard to the implementation of conservation tasks. The
primary agency responsible for this ``voluntary implementation'' is the
MDC. The MDC has a long and distinguished record involving conservation
activities related to the Topeka shiner, dating back prior to Federal
listing, and has consistently committed personnel and funding to these
tasks.
(20) Comment: The Missouri Action Plan has failed. Since it came
into effect in 1999 Topeka shiner populations have continued to decline
in Missouri. The Bonne Femme Creek population of Topeka shiners has
likely disappeared since the plan's inception. While there are many
aspects of the plan that are laudable, it is clear that recovery has
not resulted, or even progressed. This voluntary action plan should not
be
[[Page 44741]]
allowed to take the place of Federal designation of critical habitat
and an enforceable Federal plan to assure recovery.
Our Response: We disagree that the Missouri Action Plan for the
Topeka Shiner has failed. While it is true some Missouri populations of
the Topeka shiner have continued to decline since the action plan was
finalized in 1999, it should be recognized that recovery of the species
will not occur rapidly. The impacts that now affect the species are
generally the result of decades of land-use and land-cover changes that
cannot be remedied or corrected in a short period of time. The Missouri
plan is being implemented and conservation actions completed,
contributing toward achieving the goal of recovery. The action plan
does not replace the Service's regulatory authorities under the Act.
These authorities, under both sections 7 and 9, will continue into the
future. We believe the benefits of excluding critical habitat in
Missouri from our designation exceed the benefits of including it. The
recovery of Topeka shiner will require a combination of voluntary
actions and regulatory oversight.
(21) Comment: All of the proposed habitat in Missouri should be
designated, plus other habitat where the Topeka shiner once existed.
Protection of this unoccupied habitat will be essential for the
recovery of the species. It also is likely that additional populations
still exist in other areas of the species' Missouri range. According to
knowledgeable fisheries biologists, the Topeka shiner still may occur
in Slate Creek. Additional surveys should be conducted to identify
these sites, and this habitat should be designated as well.
Our Response: We recognize that recovery of the Topeka shiner in
Missouri will likely require the reintroduction to, or recolonization
of, additional habitat. However, until the recovery plan is completed,
we cannot identify all potential reintroduction sites. We also may
identify an experimental population through section 10(j) of the Act. A
nonessential, experimental population could provide more regulatory
flexibility in managing reintroduced populations. The Act prohibits the
Service from designating critical habitat for an experimental
population, so it has been the Service's practice not to designate
critical habitat where an experimental population is contemplated.
The MDC continues to sample suitable habitat in hopes of locating
additional Topeka shiner populations. The last known records of Topeka
shiner from Slate Creek were from 1962. In 2003, Jemerson and Hart
Creeks, both tributaries to Slate Creek, were sampled and no Topeka
shiners were found (Kerns, pers. comm. 2004). Additional sampling in
this watershed is planned for this year. However, at this time, we have
not found the species in the Slate Creek watershed or confirmed any
specimens.
(22) Comment: Contrary to the Service's assertion, critical habitat
provides added benefit to listed species. The Service is in possession
of at least two studies, Rachlinski (1997) and Taylor et al. (2003),
which demonstrate that listed species with critical habitat are
significantly less likely to decline and more likely to improve than
species without critical habitat. Designation helps to protect
unoccupied habitat that is essential to the recovery of the species. In
addition, there are two different standards for consultation under
section 7. For species that are listed without critical habitat, a
Federal agency must only consider whether their action jeopardizes the
continuing existence of the species (in other words, whether it will
increase the risk of extinction). For species with critical habitat,
the agency also must consider whether the action will destroy or
adversely modify critical habitat (in other words, whether it will
impede recovery). Several Federal Circuit Courts have recognized this
(Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434, 441-42,
5th Cir. 2001; Greenpeace v. National Marine Fisheries Service, 55 F.
Supp. 2d 1248, 1265, W.D. Wash. 1999; Conservation Council for Hawaii
v. Babbitt, 2 F. Supp. 2d 1280, 1287, D. Haw. 1998).
Our Response: Under section 7 of the Act, Federal agencies must
consult with us on activities they undertake, fund, or permit that may
affect critical habitat and lead to its destruction or adverse
modification. However, the Act prohibits unauthorized take of listed
species and requires consultation for activities that may affect them,
including habitat alterations, regardless of whether critical habitat
has been designated. This is why we have found that the designation of
critical habitat provides little additional protection to most listed
species.
(23) Comment: The Service misapplies the section 4(b)(2) standard
in excluding critical habitat. Throughout the proposed designation, the
Service relies on State management plans in Missouri, Kansas, and South
Dakota as justifications for excluding areas of critical habitat.
However, under section 4(b)(2), the Secretary may only exclude critical
habitat from designation if the benefits of exclusion outweigh the
benefits of inclusion (16 U.S.C. 1533(b)(B)(2)). By relying on these
management plans, the Service has based its decision on something other
than the balancing of costs and benefits. Management plans are not
sufficiently beneficial to the species as to outweigh the benefits of
including the areas they cover in the final critical habitat
designation. Section 4(b)(2) does not address other management plans as
the ultimate deciding factor for excluding critical habitat
designation. Since the Service asserts that there is no additional
protection over existing benefit to designating critical habitat, they
are ultimately balancing a zero benefit against overestimated costs and
concluding that the costs outweigh the benefits. Thus, the Service
never adequately weighed the benefits of designation against the risk
of designation as required by statute.
Our Response: Pursuant to section 4(b)(2) of the Act, we are
required to take into consideration the economic impact, impact on
national security, and any other relevant impact of specifying any
particular area as critical habitat. We also may exclude any area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, provided that the failure to designate such area will not
result in the extinction of the species. We use information from our
economic analysis, or other sources such as public comments, management
plans, etc., to conduct this analysis. A decision to exclude an area is
at the discretion of the Secretary. However, for us to consider
excluding an area from the designation, we are required to determine
that the benefits of the exclusion outweigh the benefits (i.e.,
biological or conservation benefits) of including the specific area in
the designation. This is not simply a monetary cost/benefit analysis,
however. This is a policy analysis, and can include consideration of
the impacts of the designation, the benefits to the species from the
designation, as well as policy considerations such as national
security, tribal relationships, impacts on conservation partnerships,
and other public policy concerns. This evaluation is done on a case-by-
case basis for particular areas based on the best available scientific
and commercial data. In the case of Topeka shiner, we are not only
considering the State management plans, we are also considering our
partnerships with the States and with private landowners. These
partnerships have been critically
[[Page 44742]]
important to the conservation of the Topeka shiner, and could be
jeopardized through a designation. We have concluded that benefit of
exclusion outweighs the benefit of inclusion for Kansas, Missouri, and
South Dakota.
(24) Comment: The Economic Analysis overestimates costs in
Missouri, particularly in the Bonne Femme Creek Watershed.
Our Response: The Economic Analysis relies on information from a
variety of sources, including the action agencies conducting,
permitting, or funding projects, such as the U.S. Army Corps of
Engineers (Corps) and the Natural Resources Conservation Service (NRCS)
in the Department of Agriculture, to determine the expected activities
within each watershed likely to be impacted by conservation measures
associated with the Topeka shiner.
Based on the high rate of conversion of agriculture and forest
lands into residential, commercial, golf course, and hobby farm
development, the Corps estimates that over the next 10 years the Bonne
Femme Creek watershed is likely to experience growth resulting in up to
twice as many projects as were permitted over the previous 10 years
(Industrial Economics, Inc. 2004). The population of Boone County is
expected to increase approximately 14 percent from 2005 to 2015,
compared to the State of Missouri, which is forecast to increase
approximately 5 percent over the same time period (Industrial
Economics, Inc. 2004).
Though there have been no consultations on agriculture and ranching
activities for the Topeka shiner in the past, based on historical
program participation in the watersheds concerned, the NRCS anticipates
future consultations. The NRCS expects pond construction to be an issue
over the next 10 years (of all the watershed practices that may impact
the Topeka shiner, pond construction is the most common) (Industrial
Economics, Inc. 2004). Both the Service and NRCS anticipate completing
a programmatic consultation on all NRCS program activities within the
next year. Therefore, the Economic Analysis indicates that it is
reasonable, given currently available information, to anticipate
consultation regarding agriculture in the next 10 years regarding the
Topeka shiner in these watersheds (Industrial Economics, Inc. 2004).
In addition, a comment noted that the amount reported for ``other''
forecast costs in Appendix B of the Economic Analysis includes possible
water quality monitoring. The comment stated that this is inaccurate as
the Environmental Protection Agency (EPA) does not undertake water
quality sampling. The forecast costs reported as ``other,'' in Appendix
B of the Economic Analysis, include two informal consultation efforts
by the State of Missouri to revise water quality standards and do not
include EPA water quality monitoring costs.
Summary of Changes From the Proposed Rule
In preparation for development of our final designation of critical
habitat for the Topeka shiner, we reviewed comments received on the
proposed designation of critical habitat and those received on the
revised proposal we published in early 2004. In addition to minor
modifications and corrections of legal descriptions, we have made three
revisions to our critical habitat designation, as follows:
(1) We have excluded from designation the proposed critical habitat
units in the State of Kansas under the authority of section 4(b)(2) of
the Act. Kansas has a State Endangered Species Act that provides for
special management and state designation of critical habitat, which is
more extensive than what the Service originally proposed under the
Federal Endangered Species Act. Therefore, we have concluded that
adequate management for the Topeka shiner is already in place, and that
the benefits of exclusion outweigh the benefits of designating critical
habitat in the State.
(2) We have excluded from designation the proposed critical habitat
units in the State of Missouri under the authority of sections 3(5)(A)
and 4(b)(2) of the Act. Missouri has had a management plan for the
Topeka shiner since 1999. We have concluded that adequate management
for the Topeka shiner is already in place, and that the benefits of
exclusion outweigh the benefits of designating critical habitat in the
State.
(3) We have excluded from designation the proposed critical habitat
units in the State of South Dakota under the authority of section
4(b)(2) of the Act. South Dakota completed a State-wide management plan
for the Topeka shiner in 2003, and we find that the benefits of
exclusion outweigh the benefits of designating critical habitat in the
State.
(4) We did not designate critical habitat on the Fort Riley
Military Reservation in Kansas because the installation has an approved
INRMP containing special management considerations for the Topeka
shiner. We consider the Topeka shiner conservation measures to be
adequate and are thus prohibited from designating critical habitat on
the installation in accordance with section 4(a)(3) of the Act.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring an endangered or threatened species to the
point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions authorized, funded, or carried
out by a Federal agency. Section 7 of the Act also requires conferences
on Federal actions that are likely to result in the destruction or
adverse modification of proposed critical habitat.
To be included in a critical habitat designation, the habitat must
first be ``essential to the conservation of the species.'' Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life cycle needs of the species (i.e., areas on which are
found the primary constituent elements, as defined at 50 CFR
424.12(b)). Occupied habitat may be included in critical habitat only
if the essential features thereon may require special management or
protection.
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographic area occupied by the species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, impacts to national security, and any other
relevant impact of
[[Page 44743]]
designating any particular area as critical habitat. We may exclude
areas from critical habitat designation when the benefits of exclusion
outweigh the benefits of including the areas within critical habitat,
provided the exclusion will not result in extinction of the species.
Our Policy on Information Standards under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
and our U.S. Fish and Wildlife Service Information Quality Guidelines
(2002) provide criteria, establish procedures, and provide guidance to
ensure that our decisions represent the best scientific and commercial
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge.
This critical habitat designation does not signal that habitat
outside the designation is unimportant to the Topeka shiner. Areas
outside the critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1), and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 take prohibition, as determined on the basis
of the best available information at the time of the action. We
specifically anticipate that federally funded or assisted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining the areas
essential to the conservation of the Topeka shiner. We reviewed the
overall approach to the conservation of the species undertaken by
local, State, Tribal, and Federal agencies and private individuals and
organizations since the species' listing in 1998. We solicited
information and recommendations from knowledgeable biologists and
members of the Topeka Shiner Recovery Team. The Topeka Shiner Recovery
Team is composed of species experts from academia and industry, State
natural resource agency personnel with knowledge of the species, and
Service staff. It has completed an agency technical draft Recovery
Plan, which we used, in part, to develop this final critical habitat
designation. We reviewed the available information pertaining to
habitat requirements of the species received during the listing
process.
We have reviewed available information that pertains to the habitat
requirements of this species, including information from the final rule
listing the species as endangered (63 FR 69008). In addition, the
following studies address the habitat requirements and other biological
and physical needs of the Topeka shiner and serve as the best available
information in determining critical habitat for the species--Barber
1986; Blausey 2001; Cross 1967; Cross 1970; Cross and Collins 1975;
Cross and Collins 1995; Deacon and Metcalf 1961; Gelwicks and
Bruenderman 1996; Hatch 2001; Hatch and Besaw 2001; Katula 1998; Kerns
1983; Leopold et al. 1992; Michels 2000; Michl and Peters 1993;
Minckley and Cross 1959; Pflieger 1975; Pflieger 1997; Rosgen 1996;
Shranke et al. 2001; Stark et al. 1999; U.S. Fish and Wildlife Service
1993; Wall et al. 2001.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we must consider those physical and biological features
(primary constituent elements (PCEs)) that are essential to the
conservation of the species, and that may require special management
considerations or protection. These include, but are not limited to:
Space for individual and population growth, and for normal behavior;
food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, and rearing (or development) of offspring; and habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species. The
area designated as critical habitat for the Topeka shiner is within the
geographical area presently occupied by the species and contains the
physical or biological features (PCEs) essential for the conservation
of the species.
The specific PCEs required for Topeka shiner habitat are derived
from the biological needs of the Topeka shiner as described here.
Topeka shiners are typically found in small, low order, prairie streams
with good water quality, relatively cool temperatures, and low fish
diversity (Minckley and Cross 1959; Cross 1967; Barber 1986; Cross and
Collins 1995; Pflieger 1997; Blausey 2001). Although Topeka shiners can
tolerate a range of water temperatures, cooler, spring-maintained
systems are considered optimal (Cross and Collins 1995; Pflieger 1997).
These streams generally maintain perennial flow but may become
intermittent during summer or periods of drought. Evermann and Cox
(1896) reported on surveys from the Nebraska portion of the Big Blue
River watershed, and noted that Topeka shiners occurred in ``pond-like,
isolated portions of streams which dry up in parts of their course
during dry weather.'' Minckley and Cross (1959) found Topeka shiners
``almost exclusively in quiet, open pools of small, clear streams that
drain upland prairies.'' They also noted that when these streams
approach intermittency, the pools are maintained at fairly stable
levels by percolation through the gravel or by springs. Similar habitat
characteristics are described for populations in Missouri by Pflieger
(1997). In South Dakota, Blausey (2001) found that runs were the
dominant macrohabitat type associated with Topeka shiner presence,
although higher densities of the species were collected in pools. While
characteristic of pools with stable water levels and cooler
temperatures, Topeka shiners appear to be well adapted to periodic
drought conditions common to prairie streams and are able to endure
acute periods of high water temperatures. For example, Kerns (1983)
found that even though mortality of several fish species was high in
desiccating pools, juvenile Topeka shiners seemed especially drought-
resistant.
In Kansas and Missouri, Topeka shiners typically occur in streams
with clean gravel, cobble, or sand bottoms (Pflieger 1975; Kerns 1983;
Barber 1986; Cross and Collins 1995; Pflieger 1997; Blausey 2001).
However, bedrock and clay hardpan covered by a thin layer of silt are
not uncommon (Minckley and Cross 1959). In western Kansas pools
containing Topeka shiners, Stark et al. (1999) determined the primary
substrate to be coarse sand overlain by silt and
[[Page 44744]]
detritus. Similarly, Michl and Peters (1993) reported the collection of
Topeka shiners from a Nebraska stream having a sand and detritus
substrate.
While main channel areas may be typical of Kansas, Missouri, and
South Dakota populations, Topeka shiners in Minnesota and Iowa appear
more abundant in off-channel oxbows and side channels than in the main
channels (Menzel pers. comm. 1999; Hatch 2001). These seasonally
flooded habitats also appear to have a connection with the water table,
enabling temperature and dissolved oxygen to stay within tolerance
levels of the species during dry, hot periods. It also suggests that
the groundwater connection may prevent complete freezing of these pools
in winter. Groundwater availability was a primary predictor of Topeka
shiner presence in South Dakota (Blausey 2001). While the species has
recently been found in some stream sites with excessive sedimentation,
it is unknown whether it uses these locations year-round, for portions
of the year, or during periods of dispersal. In much of the range of
Topeka shiner, moderate-sized mainstem streams likely provide
occasional dispersal corridors for the species (Cunningham, Eco-
Centrics, Inc., Omaha, Nebraska, pers. comm. 1999; Menzel pers. comm.
2001). In most cases these larger streams do not provide habitat
conditions suitable for the species to complete its necessary life
cycle requirements, but in the Iowa and Minnesota range of the species,
oxbow and other off-channel habitats adjacent to these mainstems do
provide these requirements (Menzel pers. comm. 2001; Hatch 2001). In
these cases, the primary constituent elements of critical habitat are
present in the off-channel areas, but not in the larger, mainstem
streams themselves, even though they likely provide corridors for
dispersion to other areas of suitable habitat.
Topeka shiners are a short-lived species, rarely surviving to their
third summer in the wild (Minckley and Cross 1959; Cross 1967; Kerns
1983; Cross and Collins 1995; Pflieger 1997; Hatch 2001). The species
typically matures at 12-14 months of age (Kerns 1983; Cross and Collins
1995; Pflieger 1997). Based on ovarian development, Hatch (2001)
suggested that Topeka shiners are multiple-clutch spawners. Topeka
shiners spawn in pool habitats, over green sunfish (Lepomis cyanellus)
and orangespotted sunfish (L. humilis) nests, from late May to August
in Kansas and Missouri (Kerns 1983; Cross and Collins 1995; Pflieger
1997). Stark et al. (1999) observed Topeka shiners spawning on the
periphery of green sunfish nests and suggest that the habitats provided
by these nests are important to the reproductive success of Topeka
shiners. These same authors reported aggregations of Topeka shiners in
close association with fathead minnow (Pimephales promelas) and
orangespotted sunfish nests, but observed no spawning activities. In
Minnesota, Hatch (2001) found that Topeka shiners used rubble, boulder,
and concrete rip-rap at the margins of pools and slow runs. Several
authors reported the defense of small territories by breeding male
Topeka shiners (Kerns 1983; Pflieger 1997; Katula 1998; Stark et al.
1999; Hatch 2001). In Jack Creek, Chase County, Kansas, Mammoliti
(Kansas Department of Wildlife and Parks, pers. comm. 1999) observed
two male Topeka shiners defending a longear sunfish (Lepomis megalotis)
nest as the male sunfish loafed nearby. Other authors have noted
upstream movement as reproductive behavior in Topeka shiners (Minckley
and Cross 1959; Kerns 1983, Barber 1986).
The Topeka shiner is primarily a schooling fish and found
throughout the water column. Pflieger (1997) noted that the species
schooled with other cyprinids in mid-water or near the surface. Other
studies have reported Topeka shiners schooling in the lower portion of
the water column with central stonerollers (Campostoma annomalum)
(Kerns 1983; Stark et al. 1999). While typical of small, headwater
streams, occasionally the species has been captured in larger streams,
downstream of known populations. Barber (1986) noted variation in
mobility within a population of Topeka shiner based on sex and age
class. In the spring, as precipitation and water temperatures
increased, adult males tended to move upstream or downstream. In many
instances, the fish moved back to their original pool. Young-of-the-
year fish tended to move downstream in the fall. Others have reported
displacement of fish downstream during periods of high flow (Cross,
University of Kansas, pers. comm. 1994; Tabor pers. comm. 1994).
Although it is evident that the species has some capacity to disperse,
at present the degree of dispersal and the species' ability to
``tributary hop'' is unknown. It has been suggested that populations
found in short, direct tributaries to the Missouri River were evidence
of a historic dispersal eastward by ``tributary hopping.'' However,
Deacon and Metcalf (1961) found the Topeka shiner to be one of several
fishes with a low capacity for dispersal following drought conditions.
In addition, Michels (2000) conducted a rangewide genetic analysis of
different populations of Topeka shiner and suggested that successful
migration, even between adjacent populations, is rare and that movement
over long distances is unlikely.
Earlier researchers (Kerns 1983; Cross and Collins 1995) reported
that Topeka shiners are benthic insectivores that feed primarily on
midges (Chironomids), true flies (Dipterans), and mayflies
(Ephemeropterans), with zooplankton (Cladocerans and Copepods) also
contributing to their diet. More recent studies have found Topeka
shiner feeding at a variety of trophic levels and on diverse foods.
Stark et al. (1999) observed Topeka shiners consuming eggs from fathead
minnow nests in Willow Creek, Wallace County, Kansas. In Minnesota,
food included several kinds of zooplankton, a variety of immature
aquatic insects, larval fish, algal and vascular plant matter,
including seed capsules (Hatch and Besaw 1998). These authors suggest
that Topeka shiners function both as benthic (bottom) and nektonic
(water column) feeders, and propose that the species also may feed from
the surfaces of aquatic plants.
The primary constituent elements for the Topeka shiner consist of:
1. Streams most often with permanent flow, but that can become
intermittent during dry periods;
2. Side-channel pools and oxbows either seasonally connected to a
stream or maintained by groundwater inputs, at a surface elevation
equal to or lower than the bankfull discharge stream elevation. The
bankfull discharge is the flow at which water begins leaving the
channel and flowing into the floodplain; this level is generally
attained every 1 to 2 years. Bankfull discharge, while a function of
the size of the stream, is a fairly constant feature related to the
formation, maintenance, and dimensions of the stream channel;
3. Streams and side-channel pools with water quality necessary for
unimpaired behavior, growth, and viability of all life stages. The
water quality components can vary seasonally and include--temperature
(1 to 30[deg]Centigrade), total suspended solids (0 to 2000 ppm),
conductivity (100 to 800 mhos), dissolved oxygen (4 ppm or greater), pH
(7.0 to 9.0), and other chemical characteristics;
4. Living and spawning areas for adult Topeka shiner with pools or
runs with water velocities less than 0.5 meters/second (approx. 20
inches/second) and depths ranging from 0.1 to 2.0 meters (approximately
4 to 80 inches);
5. Living areas for juvenile Topeka shiners with water velocities
less than 0.5 meters/second (approx. 20 inches/
[[Page 44745]]
second) with depths less than 0.25 meters (approx. 10 inches) and
moderate amounts of instream aquatic cover, such as woody debris,
overhanging terrestrial vegetation, and aquatic plants;
6. Sand, gravel, cobble, and silt substrates with amounts of fine
sediment and substrate embeddedness that allows for nest building and
maintenance of nests and eggs by native Lepomis sunfishes (green
sunfish, orangespotted sunfish, longear sunfish) and Topeka shiner as
necessary for reproduction, unimpaired behavior, growth, and viability
of all life stages;
7. An adequate terrestrial, semiaquatic, and aquatic invertebrate
food base that allows for unimpaired growth, reproduction, and survival
of all life stages;
8. A hydrologic regime capable of forming, maintaining, or
restoring the flow periodicity, channel morphology, fish community
composition, off-channel habitats, and habitat components described in
the other primary constituent elements; and
9. Few or no nonnative predatory or nonnative competitive species
present.
Criteria Used To Identify Critical Habitat
We are designating critical habitat in areas we have determined are
essential to the conservation of the Topeka shiner. These areas have
the primary constituent elements described above. According to the best
available information, they are all occupied by the species or provide
critical links or corridors between occupied habitats.
Critical habitat should already have, or have the potential for
developing in the near future, many or all of the features and habitat
characteristics that are necessary to sustain the species. We do not
speculate about what areas might be found to be essential if better
information were available, or what areas may become essential over
time. Within the geographic area occupied by the species, we will not
designate areas that do not now have the primary constituent elements
that provide essential life cycle needs of the species, as defined at
50 CFR 424.12(b). Furthermore, we recognize designation of critical
habitat may not include all habitat eventually determined as necessary
to recover the species. For these reasons, areas outside the critical
habitat designation will continue to be subject to conservation actions
that may be implemented under section 7(a)(1) and the regulatory
protections afforded by the section 7(a)(2) jeopardy standard and the
section 9 take prohibition, as determined on the basis of the best
available information at the time of the action. We specifically
anticipate that federally funded or assisted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available to those
planning efforts calls for a different outcome.
The designated critical habitat described below constitutes our
best assessment of areas needed for the conservation of Topeka shiner
and is based on the best scientific and commercial information
available. The designated areas are essential to the conservation of
the species because they currently support populations of Topeka shiner
or provide critical links or corridors to other habitat for the
species. The stream segments designated as critical habitat in this
final rule are consistent with the preliminary agency technical draft
recovery plan first recovery criterion, which states that recovery of
the species will be recognized as achieved when all naturally occurring
populations within recovery units are determined to be stable or
increasing over a period of 10 years.
Important considerations in selection of areas designated in this
rule include factors specific to each geographic area, watershed, and
stream segment, such as stream size and length, connectivity, and
habitat diversity, as well as rangewide recovery considerations, such
as genetic diversity and representation of major portions of the
species' historical range. The designated critical habitat reflects the
need for habitat complexes and individual stream reaches of sufficient
size to provide habitat for Topeka shiner populations large enough to
be self-sustaining over time, despite fluctuations in local conditions.
Habitat complexes contain interconnected waters so that Topeka
shiners can move between areas, at least during certain flows or
seasons. The ability of the fish to repopulate areas where they are now
depleted or extirpated is vital to the species' conservation. Some
complexes may include stream reaches with minimal instream habitat, but
which provide migration corridors for Topeka shiners. These corridors
play a vital role in the dispersal of the species and the overall
functioning of the aquatic ecosystem and, therefore, the integrity of
upstream and downstream habitats.
The designation includes representatives of all known populations
of the species so as to conserve and protect the genetic diversity of
the species. Information on the Topeka shiner indicates a high degree
of genetic differentiation among many of the remnant populations
(Michels 2000) making conservation of as many of these populations as
possible important to efforts to preserve genetic diversity.
There are streams with some recent association with Topeka shiners
that may not be proposed for designation. These could include streams
with records of one-time captures of Topeka shiner; streams for which
habitat conditions are unknown; streams with imprecise, generalized, or
questionable capture locations; and streams with severely altered
habitat, lacking the primary constituent elements (e.g., drainage
ditches).
We used the best scientific information and data available in
making our determination of which stream segments to designate as
critical habitat. We compiled information on the species and its
habitat to create proposed maps of potentially suitable stream reaches.
We then consulted species experts in academia, members of the Topeka
Shiner Recovery Team, and biologists from State natural resource and
fish and wildlife agencies familiar with the species or the watersheds
in areas with the Topeka shiner. We also consulted biologists from
other Service offices in the species' range. We asked for their review
of the stream reaches identified on the proposed maps, and for any
suggested changes or additions. We opened two public comment periods
and held seven public meetings to solicit input and additional
information from the public and other interested parties or groups. We
also solicited peer review from five fisheries scientists.
Factors considered in determining specific stream segments
included--streams with occupancy and habitat information for the
species; stream reaches with all or some of the primary constituent
elements for Topeka shiners, including those able to attain them in the
foreseeable future; habitat models; information on the species' ecology
and biology; stream morphology and hydrology information; regional
habitat use by the species, such as use of side-channel pools in Iowa
and Minnesota; major habitat alterations, such as channelization and
dams; and information on the mobility of Topeka shiner in reference to
connectivity of adjacent stream reaches and to home
[[Page 44746]]
range and dispersal characteristics. Information and suggested changes
provided by the individuals and agencies that reviewed the proposed
maps were carefully considered and implemented where they were
consistent with the Service's criteria for designating critical
habitat.
The designation includes 83 stream segments, encompassing 1,356 km
(836 mi) of stream in Iowa, Minnesota, and Nebraska. This includes
adjacent off-channel pool habitats in Iowa and Minnesota. The stream
segments are within five major watersheds in the States of Iowa,
Minnesota, and Nebraska. These 83 designated stream segments encompass
8 stream complexes (2 or more connecting stream segments) and 2
individual, isolated streams. All habitat previously proposed for
designation in Kansas, Missouri, and South Dakota is excluded from
designation as critical habitat for Topeka shiner (see Exclusions from
Critical Habitat).
Designated critical habitat includes the stream channels within the
identified stream reaches and off-channel pools and oxbows in Minnesota
and Iowa. Side-channel pools and oxbows that are proposed for
designation are typically either seasonally connected to a stream or
have waters maintained by groundwater inputs. The defining stream
elevation for determining the lateral extent of proposed critical
habitat in stream channels and off-channel or oxbow pools is the
elevation equal to the bankfull discharge stream elevation. The
bankfull discharge is the flow at which water begins leaving the
channel and flowing into the floodplain (Rosgen 1996). This level is
generally attained every 1 to 2 years (Leopold et al. 1992). Bankfull
discharge, while a function of the size of the stream, is a fairly
constant feature related to the formation, maintenance, and dimensions
of the stream channel (Rosgen 1996).
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protection. Primary threats and special
management considerations are described below on a unit-by-unit basis
(see Critical Habitat Unit Descriptions). Overall, major threats to
this species include sedimentation caused by agricultural practices,
ditch maintenance, and road construction, as described in the final
listing rule. Measures to improve habitat include grass waterways,
riparian fencing, and best management practices for construction
projects and ditch maintenance (63 FR 69008).
Critical Habitat Designation
Tables 1 and 2 summarize the location and extent of designated
critical habitat. We provide general descriptions of the boundaries of
designated critical habitat units below.
Table 1.--Number of Stream Segments and Total Stream Mileage Being
Designated as Critical Habitat for Topeka Shiner, by State
------------------------------------------------------------------------
Number of Total
State stream stream
segments mileage
------------------------------------------------------------------------
Iowa.......................................... 25 225
Minnesota..................................... 57 605
Nebraska...................................... 1 6
--------------
Total....................................... 83 836
------------------------------------------------------------------------
Table 2.--Number of Stream Segments and Total Stream Mileage Being
Designated as Critical Habitat for Topeka Shiner, by County
------------------------------------------------------------------------
Number of
County stream Stream
segments mileage
------------------------------------------------------------------------
Iowa:
Calhoun..................................... 8 68
Carroll..................................... 2 7
Dallas...................................... 3 3
Greene...................................... 8 87
Hamilton.................................... 1 1
Lyon........................................ 3 16
Osceola..................................... 1 5
Sac......................................... 4 12
Webster..................................... 1 9
Wright...................................... 3 16
Minnesota:
Lincoln..................................... 4 27
Murray...................................... 2 19
Nobles...................................... 14 115
Pipestone................................... 21 196
Rock........................................ 25 247
Nebraska:
Madison..................................... 1 6
------------------------------------------------------------------------
Note: Many stream segments occur in more than one county, thus
inflating the total number per State, if totaled.
Critical Habitat Unit Descriptions
We are designating the following areas as critical habitat for the
Topeka shiner. These areas constitute our best assessment at this time
of the areas essential for the conservation of the Topeka shiner that
may require special management. All of these units are essential for
the conservation of Topeka shiners because the overall water quality,
substrate, and stream flow characteristics can support healthy
populations of the species when recovery efforts are implemented. In
accordance with our conservation strategy for this species, it is
important to provide special management to all stream reaches that we
know are occupied.
Iowa
Raccoon River Watershed
1. North Raccoon River Complex (19 stream segments), Calhoun,
Carroll, Dallas, Greene, Sac, and Webster Counties, Iowa--Multiple
tributary streams and some of their adjacent off-channel pool habitats
in this complex have recent collection records for Topeka shiners.
While some habitat in these tributaries has been altered (primarily by
channelization and sedimentation), current habitat conditions provide
most or all of the PCEs consistent with designation as critical
habitat. Off-channel pool habitats adjacent to the mainstem of the
North Raccoon River also have been discovered to be Topeka shiner
habitat, and we designate these areas as well. However, records of
Topeka shiners are lacking from the mainstem of the North Raccoon River
itself. It is likely that the mainstem provides an important dispersal
corridor for the species between tributary streams and off-channel
pools adjacent to the mainstem, particularly during high-flow events,
but the habitat components within the mainstem itself do not provide
the PCEs necessary for proposing it for designation as critical
habitat. Primary threats to the Topeka shiner that require special
management in this watershed include agricultural practices and
channelization that increase sedimentation and other water quality
impacts. Special management for the Topeka shiner in this watershed
would include grass waterways and terracing to reduce erosion, and
implementation of best management practices for ditch maintenance. In
this unit, we are proposing 19 stream segments within portions of the
following tributaries and their qualifying, adjacent off-channel
habitat for designation--Indian Creek, Ditch 57, and Outlet Creek; Camp
Creek and West Fork Camp Creek; Prairie Creek; Lake Creek; Purgatory
Creek; Cedar Creek, West Cedar Creek, and East Cedar Creek; Short
Creek; Hardin Creek; Buttrick Creek, West Buttrick Creek, and East
Buttrick Creek; and Elm Branch and Swan Lake Branch. Additionally,
qualifying off-channel pool habitat (as described in the section on
Primary
[[Page 44747]]
Constituent Elements) adjacent to the mainstem of the North Raccoon
River is proposed for designation.
Boone River Watershed
2. Eagle Creek (one stream segment), Hamilton and Wright Counties,
Iowa--Eagle Creek has several recent collections of Topeka shiner even
though a large portion of its upper basin has been severely altered by
stream channelization and drainage ditch construction. The lower
reaches of Eagle Creek still retain much of its natural stream
morphology, including meanders and pool habitat. We propose the lower
reach of Eagle Creek and qualifying, adjacent off-channel pool habitats
for designation. The upper, channelized, portions of Eagle Creek are
not proposed for designation. Primary threats to the Topeka shiner that
require special management in this watershed include agricultural
practices and channelization that increases sedimentation and other
water quality impacts. Special management for the Topeka shiner in this
watershed would include grass waterways and terracing to reduce
erosion, and implementation of best management practices for ditch
maintenance.
3. Ditch 3 and Ditch 19 Complex (two stream segments), Wright
County, Iowa--The proposed reach of Ditch 3 extends from its confluence
with the Boone River, upstream to the Humboldt County line. Ditch 19
also extends upstream from its confluence with Ditch 3 to the Humboldt
County line. While the general map descriptions of these streams are
termed ``ditches'' due to channelization activities in the past, both
streams have reestablished much of their natural morphology and
instream habitat conditions in the recent past, including meanders and
pool habitats. Habitat components within these streams are consistent
with the PCEs necessary for designation as critical habitat downstream
from the Humboldt County line. Topeka shiners have been recently
captured from both streams. Qualifying off-channel pool habitat also is
proposed. Habitat upstream from the Humboldt County line is highly
modified by channelization and is not proposed for designation. Primary
threats to the Topeka shiner that require special management in this
watershed include agricultural practices and channelization that
increases sedimentation and other water quality impacts. Special
management for the Topeka shiner in this watershed would include grass
waterways and terracing to reduce erosion, and implementation of best
management practices for ditch maintenance.
Rock River Watershed
4. Rock River Complex (two stream segments in Iowa), Lyon County,
Iowa--The Rock River Complex is comprised of 2 stream segments in Iowa
and 28 stream segments in Minnesota. Topeka shiners have recently been
captured throughout much of the Rock River watershed, both from streams
and adjacent off-channel pools and oxbows. We propose the reach of the
Rock River from its confluence with Kanaranzi Creek upstream to the
border with Minnesota, and Kanaranzi Creek from the confluence with the
Rock River upstream to the Minnesota border. Adjacent, qualifying off-
channel pool habitats along both stream segments also are proposed.
Primary threats to the Topeka shiner that require special management in
this watershed include agricultural practices and channelization that
increases sedimentation and other water quality impacts. Special
management for the Topeka shiner in this watershed would include grass
waterways and terracing to reduce erosion, and implementation of best
management practices for ditch maintenance.
5. Little Rock River Complex (one stream segment in Iowa), Lyon and
Osceola Counties, Iowa--The Little Rock River Complex is comprised of
one stream segment in Iowa and two stream segments in Minnesota. Topeka
shiners have recently been captured in portions of the Little Rock
River watershed, both from streams and adjacent off-channel pools and
oxbows. We propose the reach of the Little Rock River from near the
town of Little Rock, Iowa, upstream to the Minnesota border, including
qualifying, adjacent off-channel pool habitat. Primary threats to the
Topeka shiner that require special management in this watershed include
agricultural practices and channelization that increases sedimentation
and other water quality impacts. Special management for the Topeka
shiner in this watershed would include grass waterways and terracing to
reduce erosion, and implementation of best management practices for
ditch maintenance.
Minnesota
Big Sioux River Watershed
1. Medary Creek Complex (two stream segments in Minnesota), Lincoln
County, Minnesota--This complex is comprised of two stream segments in
Minnesota. Topeka shiners recently have been captured from several
localities in this complex. We propose portions of Medary Creek and an
unnamed tributary, and adjacent off-channel pool habitat for
designation. Primary threats to the Topeka shiner that require special
management in this watershed include agricultural practices and channel
maintenance that increases sedimentation and other water quality
impacts. Special management for the Topeka shiner in this watershed
would include grass waterways and riparian fencing to reduce erosion.
2. Flandreau Creek Complex (four stream segments in Minnesota),
Lincoln and Pipestone Counties, Minnesota--This complex is comprised of
four stream segments in Minnesota and one in South Dakota. Topeka
shiners have been recently captured from several localities in this
complex. We propose portions of Flandreau Creek and an unnamed
tributary, East Branch Flandreau Creek, Willow Creek, and adjacent off-
channel pool habitat for designation. Primary threats to the Topeka
shiner that require special management in this watershed include
agricultural practices and channel maintenance that increases
sedimentation and other water quality impacts. Special management for
the Topeka shiner in this watershed would include grass waterways and
riparian fencing to reduce erosion.
3. Split Rock/Pipestone/Beaver Creek Complex (18 stream segments in
Minnesota), Pipestone and Rock Counties, Minnesota--This complex is
comprised of 18 stream segments in Minnesota and 7 in South Dakota. The
streams and some of their adjacent off-channel pool habitats in this
complex have recent collection records for the Topeka shiner. While
some habitat in these tributary streams has been altered, primarily by
channelization and sedimentation, current habitat conditions provide
most or all of the PCEs consistent with designation as critical
habitat. We propose for designation portions of Pipestone Creek and two
unnamed tributaries; North Branch Pipestone Creek and an unnamed
tributary; and Split Rock Creek and five unnamed tributaries; Beaver
Creek and two unnamed tributaries; Little Beaver Creek; Springwater
Creek; and adjacent off-channel pool habitat. Primary threats to the
Topeka shiner that require special management in this watershed include
agricultural practices and channelization that increases sedimentation
and other water quality impacts. Special management for the Topeka
shiner in this watershed would include grass waterways and terracing to
reduce erosion, and implementation of best management practices for
ditch maintenance.
[[Page 44748]]
Rock River Watershed
4. Rock River Complex (28 stream segments in Minnesota), Murray,
Nobles, Pipestone, and Rock Counties, Minnesota--The Rock River Complex
is comprised of 28 stream segments in Minnesota and 2 stream segments
in Iowa. Many streams in this complex have been impacted by
channelization and sedimentation to varying degrees. These streams are
characterized by predominantly natural morphology, instream pools, and
a number of off-channel and oxbow pools, with some short reaches of
channelization. Topeka shiners have recently been captured throughout
much of the Rock River watershed, from both streams and adjacent off-
channel pools and oxbows. We propose portions of the following stream
reaches, along with adjacent off-channel pool habitat for designation--
the Rock River from Minnesota/Iowa border, upstream to near Holland,
Minnesota, and six unnamed tributaries; East Branch Rock River and an
unnamed tributary; Kanaranzi Creek, East Branch Kanaranzi Creek, and
three unnamed tributaries; Norwegian Creek and an unnamed tributary;
Ash Creek; Elk Creek and an unnamed tributary; Champepadan Creek and
three unnamed tributaries; Mound Creek; Poplar Creek and an unnamed
tributary; and Chanarambie Creek and North Branch Chanarambie Creek.
Primary threats to the Topeka shiner that require special management in
this watershed include agricultural practices and channelization that
increases sedimentation and other water quality impacts. Special
management for the Topeka shiner in this watershed would include grass
waterways and terracing to reduce erosion, and implementation of best
management practices for ditch maintenance.
5. Little Rock River Complex (two stream segments in Minnesota),
Nobles County, Minnesota--The Little Rock River Complex is comprised of
two stream segment in Minnesota and one stream segment in Iowa. Topeka
shiners have recently been captured in portions of the Little Rock
River watershed, both from streams and adjacent off-channel pools and
oxbows. We propose the reaches of the Little Rock River from the
Minnesota/Iowa border, upstream to near Rushmore, Minnesota, and
portions of Little Rock Creek, including adjacent off-channel pool
habitat. Primary threats to the Topeka shiner that require special
management in this watershed include agricultural practices and channel
maintenance that increases sedimentation and other water quality
impacts. Special management for the Topeka shiner in this watershed
would include grass waterways and terracing to reduce erosion, and
implementation of best management practices for ditch maintenance.
6. Mud Creek Complex (three stream segments), Rock County,
Minnesota--This complex is comprised of three stream segments. We
propose portions of Mud Creek and two unnamed tributaries, and adjacent
off-channel pool habitat for designation. Primary threats to the Topeka
shiner that require special management in this watershed include
agricultural practices and channel maintenance that increases
sedimentation and other water quality impacts. Special management for
the Topeka shiner in this watershed would include grass waterways and
riparian fencing, and implementation of best management practices for
ditch maintenance.
Nebraska
1. Taylor Creek (one stream segment), Elkhorn River Watershed,
Madison County, Nebraska--A small population of Topeka shiners exists
in this stream, with two recent captures of the species. This is the
only stream in Nebraska with capture records for the species since
1989, and is the only proposed critical habitat in the greater Platte
River watershed. Taylor Creek is somewhat modified in portions of its
watershed, but retains several of the PCEs necessary for designation as
critical habitat, including stream morphology, pools, and instream
habitat. The proposed reach of Taylor Creek is upstream from its
confluence with Union Creek, near Madison, Nebraska. Primary threats to
the Topeka shiner that require special management in this watershed
include agricultural practices and channel maintenance that increases
sedimentation and other water quality impacts. Special management for
the Topeka shiner in this watershed would include grass waterways,
grazing management plans and riparian habitat protection projects to
reduce erosion.
Land Ownership
The vast majority (approximately 99 percent) of proposed critical
habitat is in private ownership. Private lands are primarily used for
grazing and agriculture, but also include some urban, suburban, and
industrial areas. The remaining one percent of lands are owned by
State, county and local governments, and are used for public
recreation, flood control projects and bridge crossings.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist the
agency in eliminating conflicts that may be caused by the proposed
action. The conservation recommendations in a conference report are
advisory. If a species is listed or critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
action agency ensures that the permitted actions do not destroy or
adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
[[Page 44749]]
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
an opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect the Topeka shiner or
its critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the Army Corps under section 404 of the Clean Water
Act, a section 10(a)(1)(B) permit from the Service, or some other
Federal action, including funding (e.g., Federal Highway Administration
(FHA) or Federal Emergency Management Agency funding), will also
continue to be subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat and actions on
non-Federal and private lands that are not federally funded,
authorized, or permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that appreciably reduce the value of critical
habitat to the Topeka shiner. We note that such activities may also
jeopardize the continued existence of the species.
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Significantly and detrimentally altering the minimum flow or
the natural flow regime of any of the designated stream segments from
impoundment, groundwater pumping, and water diversion that would cause
the elimination or reduction of scouring flows; prolonged release of
high flows; and habitat fragmentation. These impacts threaten
maintenance of pool habitat needed for Topeka shiner survival and
successful reproduction. Groundwater pumping and water diversion
threaten water availability to the species and can reduce water quality
impacting reproductive success. We note that flow reductions that
result from actions affecting tributaries of the proposed stream
reaches also may destroy or adversely modify critical habitat;
(2) Significantly and detrimentally altering the characteristics of
the riparian zone in any of the designated stream segments resulting in
increased sedimentation of Topeka shiner spawning habitat and decreased
water quality. Possible actions would include vegetation manipulation,
timber harvest, road construction and maintenance, livestock grazing,
off-road vehicle use, powerline or pipeline construction and repair,
mining, and urban and suburban development;
(3) Significantly and detrimentally altering the channel morphology
of any of the stream segments listed above that would cause elimination
of pool habitat, degradation of Topeka shiner spawning habitat, and
decreased water quality effecting the species' reproduction and
survival. Possible actions include channelization, impoundment, road
and bridge construction, deprivation of substrate source, destruction
and alteration of riparian vegetation, reduction of available
floodplain, removal of gravel or floodplain terrace materials,
reduction in stream flow, and excessive sedimentation from mining,
livestock grazing, road construction, timber harvest, off-road vehicle
use, and other watershed and floodplain disturbances;
(4) Significantly and detrimentally altering the water chemistry in
any of the designated stream segments that reduces water quality
thereby impacting reproductive success and recruitment of young fish
into the adult population. Possible actions include release of chemical
or biological pollutants into the surface water or connected
groundwater at a point source or by dispersed release (non-point); and
(5) Introducing, spreading, or augmenting nonnative aquatic species
in any of the designated stream segments that increases predation, and
competition for habitat and food. Possible actions include fish
stocking for sport, aesthetics, biological control, or other purposes;
use of live bait fish; aquaculture; construction and operation of
canals; and interbasin water transfers.
We consider all of the units we are designating as critical habitat
to be occupied by the Topeka shiner. We are not designating habitat in
the unoccupied historic range of the species. We are designating some
stream segments with no records of capture that possess the primary
constituent elements of Topeka shiner habitat and connect occupied
stream segments. These likely harbor the species during certain flow
conditions. Federal agencies consult with us on activities in areas
currently occupied by the species or if the species may be affected by
the action to ensure that their actions do not jeopardize the continued
existence of the species.
Previous Section 7 Consultations
A small number of section 7 consultations for Federal actions
affecting the Topeka shiner and its habitat have preceded this critical
habitat designation. The action agencies have included the Corps, EPA,
FHA, and NRCS. Since the Topeka shiner was listed on December 15, 1998,
we have conducted more than 26 informal and 3 formal consultations
involving the species. These consultations addressed a range of
actions, including bridge construction, highway maintenance, stream
bank stabilization, and water quality discharge permits. The
designation of critical habitat will have no impact on private
landowner activities that do not require Federal funding or permits.
Determinations regarding adverse modification of critical habitat are
only applicable to activities approved, funded, or carried out by
Federal agencies.
If you have questions regarding whether specific activities will
likely constitute destruction or adverse modification of critical
habitat, contact the Field Supervisor, Kansas Ecological Services Field
Office (see ADDRESSES). Requests for copies of the regulations on
listed wildlife and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Division of Endangered
Species, P.O. Box 25486, Denver, Colorado 80225 (telephone 303-236-
7400; facsimile 303-236-0027).
[[Page 44750]]
Application of Section 3(5)(A) and Section 4(b)(2) of the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations and protection. Therefore, areas within the
geographic area occupied by the species that do not contain the
features essential for the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographic
area occupied by the species that do not require special management
also are not, by definition, critical habitat. To determine whether an
area requires special management, we first determine if the essential
features located there generally require special management to address
applicable threats. If those features do not require special
management, or if they do in general but not for the particular area in
question because of the existence of an adequate management plan or for
some other reason, then the area does not require special management.
We consider a current plan to provide adequate management or
protection if it meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat within the area covered by
the plan); (2) the plan provides assurances that the conservation
management strategies and actions will be implemented (i.e., those
responsible for implementing the plan are capable of accomplishing the
objectives, and have an implementation schedule or adequate funding for
implementing the management plan); and (3) the plan provides assurances
that the conservation strategies and measures will be effective (i.e.,
it identifies biological goals, has provisions for reporting progress,
and is of a duration sufficient to implement the plan and achieve the
plan's goals and objectives).
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact of specifying any
particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area as critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species.
We have completed an analysis of the economic impacts of
designating specific areas as Topeka shiner critical habitat. The
economic analysis was conducted in a manner that is consistent with the
ruling of the 10th Circuit Court of Appeals in N.M. Cattle Growers
Ass'n v. USFWS, 248 F.3d 1277 (2001). It was available for public
review and comment during the comment periods for the proposed rule.
In our evaluation of potential critical habitat, our consideration
of economic factors included: (1) Costs to us and Federal action
agencies from increased workload to conduct consultations under section
7 of the Act and technical assistance associated with critical habitat;
(2) costs of modifying projects, activities, or land uses resulting
from consultations involving critical habitat; (3) costs of delays from
increased consultations involving critical habitat; (4) costs of
reduced property values or income resulting from increased regulation
of critical habitat designation; (5) potential offsetting economic
benefits associated with critical habitat.
Other relevant impacts considered in this evaluation included: (1)
The willingness of landowners and land managers to work with natural
resource agencies and participate in voluntary conservation activities
that directly benefit the Topeka shiner and other threatened or
endangered species, including such cooperative partnerships as Safe
Harbor Agreements; (2) the implementation of various cooperative
conservation measures agreed to through various State and local
partnerships, such as those outlined in the action or management plans
or through similar collaborative efforts; (3) management or regulatory
flexibility, such as the establishment of nonessential experimental
populations under section 10(j) of the Act, to recover Topeka shiners
through reintroductions; and (4) opportunities and interest of
landowners to participate in various incentive and assistance programs
offered by the Service and other Federal, State, and local agencies
that restore habitats and improve water quality in watersheds
containing Topeka shiners.
The economic analysis, along with the analysis of other relevant
beneficial and detrimental impacts, serve as the basis of our analysis
under section 4(b)(2) and our determination of exclusions from critical
habitat. This final rule contains our analysis of economic factors and
other relevant impacts of designating critical habitat, and our
consideration of comments received during the public comment periods.
As a result, we have identified certain areas that are excluded from
the final critical habitat designation.
In our critical habitat designations, we use both the provisions
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those
specific areas that we are considering proposing designating as
critical habitat as well as for those areas that are formally proposed
for designation as critical habitat. Lands we have found do not meet
the definition of critical habitat under section 3(5)(A) or have
excluded pursuant to section 4(b)(2) include those covered by the
following types of plans if they provide assurances that the
conservation measures they outline will be implemented and effective:
(1) Legally operative HCPs that cover the species; (2) draft HCPs that
cover the species and have undergone public review and comment (i.e.,
pending HCPs); (3) Tribal conservation plans that cover the species;
(4) State conservation plans that cover the species; (5) National
Wildlife Refuge System Comprehensive Conservation Plans; and (6) other
conservation efforts by State and local governments and groups that
provide the necessary conservation benefits for the species, and which
may cease if critical habitat is designated.
In this designation of critical habitat for the Topeka shiner, we
exclude all proposed critical habitat in the State of Missouri pursuant
to section 3(5)(A) and 4(b)(2), and all proposed critical habitat in
the States of Kansas and South Dakota pursuant to section 4(b)(2) of
the Act. These States have all completed management or recovery plans
for the species, which are in various stages of implementation. No HCPs
that include Topeka shiners are under development or completed.
Kansas
We previously proposed 63 stream segments encompassing 945 km (587
mi) of stream in the State of Kansas as Federal critical habitat for
Topeka shiner. In our March 17, 2004, Federal Register notice (69 FR
12619), we notified the public that we were considering excluding the
previously proposed stream segments in Kansas from designation as
critical habitat for Topeka shiner under section 4(b)(2) of the Act.
We have evaluated the Recovery Plan for the Topeka Shiner in Kansas
(Kansas Plan), developed by the Kansas Department of Wildlife and Parks
(KDWP); the protections afforded the species and its habitat under the
Kansas Nongame and Endangered Species
[[Page 44751]]
Conservation Act of 1975 (Kansas Act); and the associated Topeka shiner
conservation actions that have been completed, ongoing, or planned in
Kansas against the three criteria to determine whether lands require
``special management considerations or protections.'' The Kansas Plan
and Kansas Act clearly provide conservation benefits to the species.
The Kansas Plan and Kansas Act provide assurances that conservation
efforts will be implemented because KDWP has authority to implement the
Kansas Plan and Kansas Act, has demonstrated a history of funding and
staffing the Kansas Act, has funded and staffed conservation activities
for Topeka shiner in the past, and has completed or begun work on many
significant elements of the Kansas Plan. The Kansas Plan and efforts of
KDWP are effective because they include biological goals, restoration
objectives, and monitoring consistent with a Service agency technical
draft recovery plan. The regulatory purview provided by the Kansas Act,
and the essential elements of the Kansas Plan, provide for special
management of the Topeka shiner. We have determined that adequate
special management and protection are provided by State-designated
critical habitat and a legally-operative plan that addresses the
maintenance and improvement of essential habitat elements and that
provides for the long-term conservation of the species, as measured by
the three criteria listed in the introductory paragraphs of this
section of the preamble.
In Kansas, the Topeka shiner historically occurred in small,
headwater streams throughout much of the State, including the Kansas,
Big Blue, Smoky Hill, Saline, Republican, Arkansas, and Cottonwood
Rivers watersheds. The Topeka shiner has been a focal species for
planning and conservation efforts in the State since the early 1990s.
In December 1999, the KDWP listed the Topeka shiner as a threatened
species under the Kansas Act, and designated State critical habitat for
the species as required by the Kansas Act. Shortly afterwards KDWP
formed the Topeka Shiner Advisory Committee, a 12-member group with
representatives from academia, watershed districts, State and local
agencies, and private interest groups, to work with KDWP to provide
input into the recovery planning effort and disseminate information to
the public and private landowners on a local scale. The Recovery Plan
for the Topeka Shiner in Kansas is expected to be finalized by the KDWP
in 2004 and will designate more habitat in the State for the Topeka
shiner than we proposed.
The objectives of the Kansas Plan are to: (1) Stabilize, protect,
and enhance existing populations of Topeka shiner and its habitat in
Kansas; (2) identify unoccupied areas of historic habitat capable of
supporting, or capable of being restored to support the species, and
reintroduce populations to these areas; (3) downlist (to Species In
Need of Conservation status) and delist the species as identified by
State recovery criteria. The Kansas Plan identifies four separate and
distinct recovery units based on watershed boundaries, genetic
variability between units, and degree of geographic isolation. Each
recovery unit supports known populations and contains habitat features
that provide the physiological, behavioral, and ecological requirements
essential for the species.
The recovery criteria established in the Kansas Plan for
downlisting are: (1) All naturally-occurring populations within the
Kansas, Big Blue, and Cottonwood recovery units are determined to be
stable or increasing for 10 years; (2) a minimum of eight
reintroduction efforts have been implemented and monitored for 3 years
in the above recovery units; and (3) the natural population in the
Upper Smoky Hill recovery unit is stable or increasing for 10 years,
and a minimum of two reintroductions in that recovery unit has occurred
and been monitored for 3 years. The delisting criterion is considered
met when all populations (natural and introduced) are determined stable
or increasing for a period of 10 years. Provisions for statistically
sound, long-term monitoring of Topeka shiner populations in Kansas are
included in the Kansas Plan.
The Kansas Plan contains a narrative outline, which briefly
describes each recovery action needed for the recovery of the Topeka
shiner in Kansas. The KDWP also provides an implementation schedule for
these actions. Of the 29 tasks listed in the schedule, 13 are ongoing.
There are presently three Service-sponsored (section 6 funding)
research efforts involving Topeka shiners funded in the State. The KDWP
are partners, along with the Service and three different watershed
districts, in three individual conservation agreements for the Topeka
shiner.
The Kansas Act protects State and federally listed species in
Kansas. The Kansas Act was implemented to protect State-listed species
classified as threatened, endangered, or ``species in need of
conservation'' within Kansas. The Kansas Act places the responsibility
for identifying and undertaking appropriate conservation measures for
State threatened and endangered species directly upon KDWP through
Kansas Administrative Regulations. The KDWP also must undertake efforts
to conserve listed species and pursue increasing their populations and
improving their habitats to the point that they are no longer listed
under the Kansas Act.
Kansas Administrative Regulations require the KDWP to issue special
action permits for activities that affect species listed as threatened
or endangered, where an action is defined as ``an activity resulting in
the physical alteration of a listed species' critical habitat, physical
disturbance of a listed species, or destruction of individuals of a
listed species.'' These activities must be publicly funded, State or
federally assisted, or require a permit from another State or Federal
government agency to be included as activities that fall under KDWP's
regulatory purview where action permits could be required. Critical
habitat as defined under the Kansas Act is--(1) Specific areas
documented as currently providing essential physical and biological
features and supporting a self-sustaining population of a listed
species; or (2) specific areas not documented as currently supporting a
listed species, but determined essential for the listed species by the
Secretary (of KDWP). Operationally, documentation relies on occurrence
records of the species or identification of the essential habitat
requirements as obtained through field assessment and scientific
studies conducted by KDWP, State universities, and other qualified
individuals or organizations. State critical habitat is designated by
the KDWP.
The KDWP's Environmental Services Section (ESS) is responsible for
reviewing proposed activities that fall under KDWP's regulatory
purview. The ESS personnel conduct environmental reviews of these
projects, including potential effects to threatened and endangered
species and State-designated critical habitats. The ESS personnel issue
action permits for activities that will affect listed species or their
critical habitats. Special conditions are incorporated into the action
permits to help offset negative effects to listed species or critical
habitats. Permit conditions can limit where and when (e.g., spawning
date restrictions) construction activities occur and require
restoration, creation, and perpetual protection of existing habitats.
The KDWP can refuse to issue an action permit for activities that
affect listed species and critical habitats if these activities cannot
be adequately
[[Page 44752]]
mitigated to offset the negative effects to a listed species and its
critical habitats.
Each calendar year, ESS personnel conduct environmental reviews for
approximately 750 new proposed activities that fall under KDWP's
regulatory purview. Since the Topeka shiner was listed by the State of
Kansas on November 11, 1999, through December 31, 2003, ESS staff have
conducted environmental reviews for 2,814 new proposed activities, of
which 59 included the Topeka shiner. Of the 59 projects, 5 required
action permits be issued by KDWP.
The KDWP presently has 68 stream segments designated as State
critical habitat for the Topeka shiner, representing over 1,046 km (650
mi) of stream. The Service previously proposed 63 stream segments
representing 945 km (587 mi) of stream as Federal critical habitat.
In our March 17, 2004, Federal Register notice (69 FR 12619), we
stated that we were considering excluding the previously proposed
stream segments in Kansas from designation as critical habitat for
Topeka shiner under section 4(b)(2) of the Act. In our evaluation of
potential critical habitat sites in Kansas, we conducted an analysis of
the economic impacts and other relevant impacts of designating critical
habitat. We provide the following 4(b)(2) analysis of the benefits of
inclusion and the benefits of exclusion in assessing this exclusion of
critical habitat in Kansas.
(1) Benefits of Inclusion
The principal benefit of designating critical habitat is that
federally funded or authorized activities that adversely affect
critical habitat must undergo consultation under section 7 of the Act.
Consultations on Federal actions involving critical habitat ensure that
habitat needed for the survival and recovery of a species is not
destroyed or adversely modified, in addition to the jeopardy standard
applied to all listed species.
(2) Benefits of Exclusion
The benefits of excluding Kansas from designated critical habitat
include--maintenance of effective working partnerships to promote the
conservation of the Topeka shiner and its habitat; establishment of new
partnerships; providing benefits from the Kansas Plan to the Topeka
shiner and its habitat which exceed those that would be provided by the
designation of critical habitat; avoiding added administrative costs to
the Service, Federal agencies, and applicants; and future regulatory
flexibility for the Service and landowners by maintaining the ability
to reintroduce the Topeka shiner to formerly occupied streams in Kansas
by experimental populations under section 10(j) of the Act.
Recovery of listed species is often achieved through partnerships
and voluntary actions. Through previous conservation actions (e.g.,
conservation agreements with watershed districts), the KDWP has gained
the cooperation of some local governmental entities and landowners and
has been successful in developing voluntary conservation partnerships.
Cooperators, with the assistance of KDWP, are implementing conservation
measures for the Topeka shiner and its habitat in accordance with
management objectives outlined in the Kansas Plan. These actions range
from allowing access to private lands for surveys and site visits to
rehabilitation of habitat and implementation of measures to control
erosion and sedimentation. The partners have committed to conservation
measures benefiting the Topeka shiner that are greater than the
benefits of designating critical habitat. Excluding these areas from
the designation will send a positive message to our partners and
reinforce their commitment to shiner conservation.
The Economic Analysis of Critical Habitat Designation for the
Topeka Shiner determined that the total potential economic costs for
Kansas range from $2.3 million to $5.1 million over 10 years
(Industrial Economics, Inc. 2004).
In summary, we view the continued application of the regulatory
authority of State-designated critical habitat, the implementation of
the Kansas Plan, and the cooperative conservation partnerships with
landowners to be essential for the conservation of the Topeka shiner in
Kansas. We conclude that the benefits of including Federal critical
habitat in Kansas are small due to KDWP's regulatory purview over State
critical habitat and the ongoing implementation of conservation
actions, as identified in the Kansas Plan, and that the benefits of
excluding Kansas areas from Federal critical habitat exceed the limited
benefits of including them. Furthermore, we determine that exclusion
from critical habitat in this State will not result in the extinction
of the Topeka shiner. In accordance with section 4(b)(2) of the Act, we
determine that the benefits of excluding critical habitat in Kansas
outweigh the benefits of designating critical habitat, and exclude
areas in Kansas containing primary constituent elements from the
critical habitat designation.
Missouri
In the proposed rule, we proposed not to include stream segments in
the State of Missouri in proposed critical habitat, based on our
interpretation of section 3(5)(A) of the Act (67 FR 54261). In our
March 17, 2004, Federal Register notice (69 FR 12619), we also proposed
excluding Missouri under Section 4(b)(2) of the Act.
We have evaluated the Action Plan for the Topeka Shiner in Missouri
(Action Plan) and associated Topeka shiner conservation actions that
have been completed, are ongoing, or are planned in Missouri, against
the three criteria to determine whether lands require ``special
management considerations or protections.'' The Action Plan clearly
provides conservation benefits to the species; the Action Plan provides
assurances that conservation efforts will be implemented because MDC
has authority to implement the plan, has put in place the funding and
staffing necessary to implement the Plan, and has completed or begun
work on many significant elements of the Plan; and the Action Plan and
efforts of MDC will be effective because they include biological goals,
restoration objectives, and monitoring consistent with a Service
preliminary draft recovery plan. The Missouri Action Plan provides for
special management of the Topeka shiner under the definition of
critical habitat in section 3(5)(A) of the Act.
In Missouri, the Topeka shiner historically occurred in small,
headwater streams in northern portions of the State, within the
Missouri/Grand River Watershed. The Topeka shiner has been a focal
species for planning and conservation efforts in the State since the
mid-1990s. In 1995, the MDC established a 5-member Topeka Shiner
Working Group, and a 16-member Advisory Group to direct, implement, and
facilitate Topeka shiner recovery actions in Missouri. In 1996, the
MDC, with approval of the Conservation Commission of Missouri
(Conservation Commission), listed the Topeka shiner as an endangered
species under the State's Wildlife Code (Conservation Commission 2001).
In 1999, the Conservation Commission established the Private Lands
Services Division within the MDC. Eighty-three MDC staff were
redirected to private land conservation throughout the State, including
a minimum of 16 Private Lands Service personnel with responsibility for
the counties with Topeka shiner habitat. Duties of personnel within
this division include the facilitation of conservation efforts on
private property throughout
[[Page 44753]]
Missouri for all federally listed species, including the Topeka shiner.
Additionally, there are at least 86 fisheries, forestry, natural
history, protection, and wildlife staff delivering services to private
landowners as a routine aspect of their job within the Missouri/Grand
River Watershed.
In January 1999, the MDC adopted and approved an Action Plan for
the Topeka shiner in Missouri (MDC 1999). The Action Plan identifies
comprehensive conservation measures and programs necessary to achieve
recovery of the Topeka shiner in Missouri. Implementation of recovery
efforts for the Topeka shiner in Missouri, as outlined in the Action
Plan, is ongoing. The current status of recovery tasks outlined in the
Action Plan is described in Table 3 below:
Table 3.--Status of Tasks in the Action Plan for the Topeka Shiner in
Missouri
------------------------------------------------------------------------
Item Status
------------------------------------------------------------------------
Establishment of the Missouri Topeka Shiner Complete & Ongoing.
Working Group.
Development & ongoing implementation of the Complete (1999) & Ongoing.
Action Plan.
Establishment of permanent sampling sites & Annual Monitoring--Ongoing/
standardized monitoring of Missouri's Initiated (began in 2000)
Topeka shiner populations & completion of Statewide Surveying--
recent Statewide survey for the species. Complete & Ongoing.
Initiation of artificial propagation of Complete & Ongoing.
Topeka shiners, including the development
& refinement of captive rearing techniques.
Completion of genetic analysis of different Complete.
populations of Topeka shiners in Missouri.
Incorporation of Topeka shiner recovery & Complete & Ongoing.
conservation efforts in State strategic
planning documents on several different
levels.
Development & dissemination of public Complete & Ongoing.
outreach & education materials throughout
Missouri & elsewhere.
Completion & dissemination of several Ongoing/Initiated.
ecological & life history studies on
Topeka shiner.
Securing matching funds from the Service to Complete & Ongoing.
conduct surveys & ecological studies, &
for various habitat restoration &
enhancement activities.
Revision of the Action Plan that will Planned.
include actions not yet completed since
1999 & those uncompleted actions
identified in the Service's preliminary
draft recovery plan.
Implementation of a landowner incentive Completed (Confined Animal
program & completion of a study on the Feeding Operations study)
potential impacts of Confined Animal Ongoing/Initiated
Feeding Operations within the Moniteau (landowner incentive
Creek Watershed. program).
Development of 10-year fish monitoring Complete--Plan developed
plans for Moniteau, Bonne Femme, & Sugar with initial sampling
Creek Watersheds. conducted in 2000 & annual
sampling since.
Development & implementation of Sugar Creek Complete & Ongoing.
subbasin management plan.
Development & implementation of a Three Complete & Ongoing.
Creeks Conservation Area management plan.
Protection & management of Bonne Femme Complete & Ongoing.
Creek by establishing these watersheds as
Missouri Department of Natural Resources'
Non-point Source Pollution Special Area
Land Treatment watersheds.
Reestablishment or restoration of riparian Initiated/Ongoing.
corridors through tree plantings, natural
regeneration, fencing to restrict
livestock use of stream banks, creation of
alternative livestock watering sources,
establishment of warm season grass buffer
strips, stream bank stabilization
activities, & actions outlined in grazing
plan developed for private landowners
within the Bonne Femme, Moniteau, & Sugar
Creek Watersheds.
------------------------------------------------------------------------
Assurances that the Action Plan will be implemented and
conservation of the Topeka shiner will be achieved in Missouri are
demonstrated by the following actions. Between January 1999 and
December 31, 2003, at least $351,100 was spent on recovery actions for
the Topeka shiner in Missouri, and that total is likely to increase to
at least $600,000 within the next 10 years. Eighty percent (i.e., 12 of
15) of the priority 1 tasks (i.e., those actions deemed necessary to
prevent extinction of the species) identified and outlined in the
implementation schedule of a Service preliminary draft recovery plan
have either been completed or are currently being implemented (this
includes 20 percent of tasks that are 100 percent completed, 47 percent
of tasks that are 50 percent or greater completed, and 33 percent of
tasks that are 25 percent or less completed) by the MDC in cooperation
with us, the Topeka Shiner Recovery Team, and other Federal, State, and
private entities.
The Private Land Services Division within MDC greatly facilitates
the implementation of recovery actions on private property where the
species currently exists or where the species may be reintroduced. The
planned expansion of our Partners for Fish and Wildlife Program within
Topeka shiner--occupied habitat will benefit an additional 10 to 15
landowners at an estimated cost of $100,000 within the next 5 years
(Kelly Srigley Werner, Missouri Private Lands Coordinator, pers.
comm.). The MDC Fisheries and Natural History Division staffs have
committed to help coordinate and implement Topeka shiner recovery
efforts between the MDC and Federal, State, and private entities, and
MDC's Topeka Shiner Recovery Coordinator. The MDC is actively
participating in the Topeka Shiner Recovery Team. The MDC's revisions
to the Action Plan, scheduled for completion in 2004, will focus on
incorporating any of the recovery actions outlined in a Service
preliminary draft recovery plan that are currently not addressed. The
scientific soundness of the MDC's Action Plan was further validated by
the Recovery Team when the Action Plan's monitoring protocol and
recommendations for reducing and eliminating threats to the Topeka
shiner were incorporated, in part, into a Service preliminary draft
recovery plan. In addition, the MDC, in implementing the Action Plan,
has established cooperative working relationships with private
landowners. These relationships have allowed for the implementation of
conservation programs for the benefit of the Topeka shiner.
We have concluded that Topeka shiner habitat in Missouri does not
meet the definition of critical habitat as
[[Page 44754]]
outlined in section 3(5)(A) of the Act because there is adequate
special management or protection already in place. Therefore, these
areas are not included in this critical habitat designation.
In our March 17, 2004, Federal Register notice (69 FR 12619), as a
consequence of the court's decision in Center for Biological Diversity
v. Norton, we described the previously-excluded segments in Missouri
and clarified the basis for proposing to exclude these areas from the
critical habitat designation for Topeka shiner under section 4(b)(2) of
the Act. In our evaluation of potential critical habitat sites in
Missouri, we conducted an analysis of the economic impacts and other
relevant impacts of designating critical habitat. We provide the
following 4(b)(2) analysis of the benefits of inclusion and the
benefits of exclusion in assessing this exclusion of critical habitat
in Missouri.
(1) Benefits of Inclusion
The principal benefit of designating critical habitat is that
federally funded or authorized activities that adversely affect
critical habitat must undergo consultation under section 7 of the Act.
Consultations on Federal actions involving critical habitat ensure that
habitat needed for the survival and recovery of a species is not
destroyed or adversely modified, in addition to the jeopardy standard
applied to all listed species.
(2) Benefits of Exclusion
The benefits of excluding Missouri from designated critical habitat
include--maintenance of effective working partnerships to promote the
conservation of the Topeka shiner and its habitat; establishment of new
partnerships; providing benefits from the Action Plan to the Topeka
shiner and its habitat which exceed those that would be provided by the
designation of critical habitat; avoiding added administrative costs to
the Service, Federal agencies, and applicants; and future regulatory
flexibility for the Service and landowners by maintaining the ability
to reintroduce the Topeka shiner to formerly occupied streams in
Missouri as experimental populations under section 10(j) of the Act.
Recovery of listed species is often achieved through partnerships
and voluntary actions. Through the Action Plan, the MDC has gained the
cooperation of landowners and has been successful in developing
voluntary conservation partnerships with these landowners. Cooperators,
with the assistance of MDC, are implementing conservation measures for
the Topeka shiner and its habitat in accordance with management
objectives outlined in the Action Plan. These actions range from
allowing access to private lands for surveys and site visits to
rehabilitation of habitat and implementation of measures to control
erosion and sedimentation. The partners have committed to conservation
measures benefiting the Topeka shiner that are greater than the
benefits of designating critical habitat
The Final Economic Analysis of Critical Habitat Designation for the
Topeka Shiner determined that Bonne Femme and Moniteau Creeks in
Missouri are potentially the most costly units of critical habitat
based on costs per river mile (Industrial Economics, Inc. 2004).
Together, these two units would cost an estimated $6.3 million over a
10-year period based on the expectation that approximately 500 section
7 consultations would result from Topeka shiner listing and critical
habitat in these units (Industrial Economics, Inc. 2004). An additional
$0.9 million in section 7 costs associated with listing and critical
habitat in the Sugar Creek Watershed, Missouri, would be expected over
the same period (Industrial Economics, Inc. 2004).
In summary, we view the continued implementation of the Action Plan
and the associated cooperative conservation partnerships with
landowners to be essential for the conservation of the Topeka shiner in
Missouri. We believe that the benefits of including critical habitat in
Missouri would be only small additions to the currently ongoing
successful conservation actions, as identified in the Action Plan,
through multiple partnerships. We believe the benefits of excluding
Missouri areas from critical habitat greatly exceed the limited
benefits of including them. Furthermore, we believe that exclusion from
critical habitat in this State will not result in the extinction of the
Topeka shiner. In accordance with section 4(b)(2) of the Act, we
believe that the benefits of excluding critical habitat in Missouri
outweigh the benefits of designating critical habitat, and exclude
areas in Missouri containing primary constituent elements from the
critical habitat designation.
South Dakota
We have evaluated the Topeka Shiner Management Plan for the State
of South Dakota (SD Plan) and associated Topeka shiner conservation
actions that have been completed, are ongoing, or are planned in South
Dakota, against the three criteria to determine whether lands require
``special management considerations or protections.'' The SD Plan
provides conservation benefits to the species. It provides assurances
that conservation efforts will be implemented because the State of
South Dakota has authority to implement the plan, has put in place the
funding and staffing necessary to implement the Plan, and has completed
or begun work on many significant elements of the Plan. It is effective
because the SD Plan and other efforts by the State of South Dakota
include biological goals, restoration objectives, and monitoring
consistent with a Service preliminary draft recovery plan. The SD Plan
and other cooperative efforts in South Dakota provide for special
management of the Topeka shiner.
In our August 21, 2002, proposed rule, we identified 40 stream
segments for designation in South Dakota. We proposed one additional
segment in our revision to the proposal published March 17, 2004 (69 FR
12619). Before the original proposal was published, the South Dakota
Department of Game, Fish, and Parks (SDDGFP) requested that we consider
a State-wide exclusion from designation based on the authority given
the Service under section 3(5)(A) and/or 4(b)(2) of the Act.
Prior to the 2002 proposal to designate critical habitat, SDDGFP
and the South Dakota Department of Agriculture, the South Dakota
Department of Environment and Natural Resources (SDDENR), and the SDDOT
developed the Topeka Shiner Management Plan for the State of South
Dakota (SD Plan). The development of the SD Plan was a cooperative
effort that also involved Federal agencies, private individuals,
agricultural groups, and academia. The SD Plan was completed and signed
in June 2003 by the four State agencies with management
responsibilities for actions that can influence Topeka shiner streams.
This commitment by the lead regulatory and management agencies within
State government to the SD Plan is a unique approach to cooperative
Topeka shiner conservation within the range of this species.
The goals of the SD Plan are to--(1) maintain habitat integrity in
Topeka shiner streams; and (2) establish a point-based management goal
for the State of South Dakota in contribution toward national recovery
efforts. The SD Plan states specific objectives to meet the plan goals,
including: (1) Management actions that address stream hydrology,
geomorphology, and water quality; (2) establishment of a monitoring and
assessment protocol to evaluate South Dakota's point-based recovery
goal; and
[[Page 44755]]
(3) development of public outreach and education strategies to inform
all entities involved about Topeka shiner management in South Dakota.
The SD Plan provides conservation benefits to the species by
implementation of on the ground actions undertaken through partnership
efforts and conservation strategies. The SD Plan provides assurances
that conservation efforts will be implemented because the State of
South Dakota has authority to implement the plan and has put in place
the funding and staffing necessary to implement the Plan. In addition,
there is a long history of implementation of strategies in the SD Plan
that have had positive effects on Topeka shiners. The SD Plan, and
efforts by the State of South Dakota, have been and will continue to be
effective because they address the threats to the species in South
Dakota and include biological goals, restoration objectives, and
monitoring consistent with, or superior to, a Service preliminary draft
recovery plan that has been developed (U.S. Fish and Wildlife Service
2002).
Implementation of recovery efforts for the Topeka shiner in South
Dakota, are planned or ongoing. The current status of tasks in the SD
Plan is described in Table 4 below:
Table 4.--Status of Tasks in the Topeka Shiner Management Plan for the
State of South Dakota
------------------------------------------------------------------------
Action item Status
------------------------------------------------------------------------
Establish the South Dakota Complete and Ongoing.
Topeka shiner working group.
Develop and implement the Complete (2003) and Ongoing.
State Plan.
Conduct surveys to determine Complete and Ongoing.
extent of Topeka shiner range
in South Dakota.
Design long term monitoring Complete.
and assessment plan.
Develop an education and Ongoing.
outreach program to provide
information on the Topeka
shiner and watershed health.
Develop and maintain a Topeka Complete and Ongoing.
shiner website for
information on this species.
Complete genetic analyses of Complete.
different Topeka shiner
populations in South Dakota.
Incorporation of Topeka shiner Ongoing.
recovery and conservation
efforts in State strategic
planning documents on
different levels.
Secure matching funds from the Complete and Ongoing.
Service and others to conduct
surveys and ecological
studies and for various
habitat restoration and
enhancement activities.
Conduct research in Ongoing.
relationship to stream
hydrology and Topeka shiner
habitat.
Provide technical and Complete and Ongoing.
financial assistance to
landowners interested in
creating or restoring wetland
areas.
Provide landowner incentives Complete and Ongoing.
to increase native vegetative
cover.
Work with government agencies Complete and Ongoing.
to develop best management
practices that minimize
erosion.
Provide financial and Complete and Ongoing.
technical assistance to
landowners to reestablish
native vegetation along
riparian zones.
Provide technical and Complete and Ongoing.
financial assistance to
landowners and other agencies
interested in restoring
habitat in degraded stream
reaches.
Review projects that may Complete and Ongoing.
adversely alter Topeka shiner
streams.
Continue working with the Ongoing.
Service to provide
information and assistance on
section 7 consultation issues.
Continue working with section Ongoing.
6 funds to further identify
Topeka shiner areas and
strategy for long-term
conservation.
Provide technical assistance Complete and Ongoing.
to urban, residential and
development planners to
improve water quality from
water discharge systems.
Work with NRCS to have Topeka Complete and Ongoing.
shiner streams get higher
priority for EQIP and WHIP
funding.
Provide incentives for Complete and Ongoing.
landowners to establish
riparian buffers or filter
strips along agricultural
fields with high runoff
potential.
Continue technical assistance Ongoing.
for permitting and designing
confined animal feeding
operations.
Continue routine inspections Ongoing.
of sewage treatment
facilities to ensure
compliance with water quality
standards.
------------------------------------------------------------------------
Assurances that the SD Plan will be implemented and conservation of
the Topeka shiner will be achieved in South Dakota are demonstrated by
the following actions. Between January 1999 and December 31, 2003, at
least $700,000 was expended on recovery actions and habitat improvement
for the Topeka shiner by the State of South Dakota, and that total is
likely to increase to at least $3 million over the next 10 years (Dowd
Stukel and Shearer, SDDGFP, pers. comm. 2004; Graves, SDDOT, pers.
comm. 2004; SDDENR Web site 2004). All of the tasks identified in the
SD Plan that have definite end points have been completed. Remaining
tasks, such as project reviews to minimize adverse impacts to Topeka
shiners, implementation of projects to enhance Topeka shiner streams,
and Topeka shiner surveys will be ongoing.
Overall, 86 percent (i.e., 12 of 14) of the priority 1 tasks (i.e.,
those actions deemed necessary to prevent extinction of the species)
identified and outlined in the implementation schedule of a Service
preliminary draft recovery plan have either been completed or are
currently being implemented. Of two remaining priority 1 tasks, one
involves ``determining impacts of sedimentation on habitat quality.''
South Dakota recognizes that sedimentation may impair habitat for
Topeka shiner and has instituted aggressive provisions to minimize
erosion from activities they may undertake or permit. One example is
the development of stringent erosion control measures and spawning
season restrictions that the SDDOT includes for all projects crossing
Topeka shiner streams.
The other priority 1 task involved evaluation of piscivorous fish
within Topeka shiner habitat. This task was included in the rangewide
draft Recovery Plan because some fish, particularly largemouth bass,
have been documented to be damaging to Topeka shiner populations. The
information for South Dakota does not show much overlap between Topeka
shiner populations and largemouth bass. Therefore, while this is an
important issue in parts of the Topeka shiner range, it is not believed
to be problematic in South Dakota.
In addition to two Topeka shiner studies initiated by SDDOT through
the SDSU Coop Unit, SDDOT has committed to extensive management
practices to minimize adverse effects of
[[Page 44756]]
road and highway stream crossing projects on Topeka shiner streams.
These provisions are among the most rigorous in the species' range.
SDDOT has also conducted a programmatic formal section 7 consultation
with the Service for construction projects that involve all SDDOT road
crossings of Topeka shiner streams.
SDDGFP and SDDENR also routinely review projects to ensure impacts
to Topeka shiners and its habitat are minimized. In South Dakota,
SDDENR has assumed the section 401 water quality program from EPA and
issues certification for all section 404 permits authorized by the U.S.
Army Corps of Engineers. This State program ensures discharges do not
compromise water quality in the receiving water bodies.
The SDDGFP has been an active partner in cooperation with us, the
Topeka Shiner Recovery Team, and other Federal, State, and private
entities. The SD Plan greatly facilitates the implementation of
recovery actions on private property where the species currently exists
or where potential habitat for the species exists.
The SDDGP Habitat Program recently developed a series of
implementation guidelines for wetland projects proposed within Topeka
shiner watersheds. The guidelines provide field staff with an early
screening process to identify any potential conflict habitat projects
may create in Topeka shiner streams. This screen also allows selection
of management tools that can provide specific benefits to water
quality.
The SDDGFP staff has committed to help coordinate and implement
Topeka shiner recovery efforts between the State of South Dakota and
Federal, State, and private entities. The SDDGFP is actively
participating in the Topeka Shiner Recovery Team. In addition, the
SDDGFP and other State signatory agencies have established cooperative
working relationships with private landowners. These relationships have
allowed for the implementation of conservation programs for the benefit
of the Topeka shiner.
The SDDENR also has upgraded numerous reaches of Topeka shiner
streams to a fisheries classification for Clean Water Act purposes
(Snyder, SDDENR, pers. comm. 2004). This includes all areas proposed
for critical habitat designations in South Dakota. This is important,
since some areas where Topeka shiners have been found in recent years
have been on streams or portions of streams that are intermittent and
were previously not classified as a fishery water body. With SDDENR
reclassification of these streams to a fishery, the full suite of water
quality standards apply to that water body when evaluating a National
Pollution Discharge Elimination System permit. A fishery classification
to a stream is an important upgrade that the State has undertaken as
part of their Triennial Review Process of water quality standards.
The State of South Dakota developed a general permit in 1998 to
address animal waste resulting from concentrated animal feeding
operations (CAFOs). Since development of this permit, the State has
regulated 64 CAFOs in the Topeka shiner range in South Dakota. There
are an additional 55 CAFOs in the Topeka shiner range going through the
permitting system to be authorized under the general permit. This can
include existing operations being brought into compliance as well as
new or expanded facilities. This important regulatory measure requires
strict adherence to provisions of the general permit that allows no
discharge of animal waste to streams or rivers from livestock waste
management facilities. This regulatory requirement has resulted in
significant upgrades to animal waste disposal systems in the range of
the Topeka shiner. Significant partnerships between landowners and
programs such as the Environmental Quality Incentive Program (EQIP)
funds have resulted and are being used to bring existing CAFOs into
compliance.
South Dakota has worked with agencies to prioritize expenditures of
funds towards actions that would benefit Topeka shiner. For example,
through efforts by the resource agencies, the NRCS has modified their
ranking criteria such that projects funded by the Environmental Quality
Incentives Program (EQIP) and the Wildlife Habitat Incentives Program
(WHIP) receive additional points, and thus higher ranking, if benefits
to Topeka shiners will result from a proposed project. The SDDENR
through their implementation of the 319 program, in concert the
Environmental Agency Program, provides incentives to undertake actions
that benefit water quality of Topeka shiner streams. SDDGFP and others
have cooperated to attain federal grants that prioritize Topeka shiner
watersheds with projects that benefit water quality and stream
hydrology. Designation of critical habitat would not be expected to
appreciably enhance the prioritization efforts that have already
occurred and those that are ongoing.
The State also believes that the SD Plan will lay the groundwork
for a future Habitat Conservation Plan (HCP) that may be developed by
the State. The SD Plan is recognized to be an important component of a
future HCP, and provides an indication of South Dakota's ongoing
efforts to develop an HCP for Topeka shiners.
In our evaluation of potential critical habitat sites in South
Dakota, we conducted an analysis of the economic impacts and other
relevant impacts of designating critical habitat. We provide the
following 4(b)(2) analysis of the benefits of inclusion and the
benefits of exclusion in assessing this exclusion of critical habitat
in South Dakota.
(1) Benefits of Inclusion
The principal benefit of designating critical habitat is that
federally funded or authorized activities that adversely affect
critical habitat must undergo consultation under section 7 of the Act.
Consultations on Federal actions involving critical habitat ensure that
habitat needed for the survival and recovery of a species is not
destroyed or adversely modified, in addition to the jeopardy standard
applied to all listed species.
(2) Benefits of Exclusion
The benefits of excluding South Dakota from designated critical
habitat include continued participation of State agencies to neutralize
threats to Topeka shiner, maintenance of effective working partnerships
to promote the conservation of the Topeka shiner and its habitat;
establishment of new partnerships; providing benefits from the SD Plan
to the Topeka shiner and its habitat which exceed those that would be
provided by the designation of critical habitat; and avoiding added
administrative costs to the Service, Federal agencies, and permit
applicants.
Recovery of listed species that occur primarily on or adjacent to
private lands is often best achieved through partnerships, voluntary
actions, and incentives. Through the SD Plan, the State of South Dakota
has gained the cooperation of landowners and has been successful in
developing voluntary conservation partnerships with these landowners.
Cooperators, with the assistance of partners identified in the SD Plan,
are implementing conservation measures for the Topeka shiner and its
habitat in accordance with management objectives outlined in the SD
Plan. The broad engagement of the many diverse groups and individuals
that developed the SD Plan lends strength to both the SD Plan as well
as our belief that its partnership and cooperative concepts have
conservation value. The monitoring plan that the SD Plan has undertaken
will provide annual data to track the status of the species. Section
4(a)(3)(B) allows us to revisit critical
[[Page 44757]]
habitat designations. If in the future the currently healthy population
declines, we retain the ability to designate CH in the State at a later
date.
In summary, we view the continued implementation of the SD Plan
with its threat abatement and cooperative conservation partnerships
with landowners to be essential for the conservation of the Topeka
shiner in South Dakota. We believe that the benefits of including
critical habitat in South Dakota are negligible compared to benefits of
the conservation actions identified in the SD Plan. Finally, we believe
that exclusion from critical habitat in South Dakota will not result in
the extinction of the Topeka shiner nor adversely impact the species.
In accordance with section 4(b)(2) of the Act, we believe that the
benefits of excluding critical habitat in South Dakota outweigh the
benefits of designating critical habitat in the State, and exclude
areas in South Dakota containing primary constituent elements from the
critical habitat designation.
Application of Section 4(a)(3) of the Act
Section 318 of fiscal year 2004 the National Defense Authorization
Act (Public Law No. 108-136) amended the Endangered Species Act to
address the relationship of INRMPs to critical habitat by adding a new
section 4(a)(3)(B). This provision prohibits the Service from
designating as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an INRMP prepared under section 101 of the
Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines
in writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation. Fort Riley, Kansas, has
an INRMP in place that provides a benefit for the Topeka shiner (see
Application of Section 4(a)(3) of the Act). All Topeka shiner habitat
suitable for designation on the Fort Riley Military Installation,
Kansas, also is not included in this designation under the authority of
section 4(a)(3) of the Act.
Fort Riley, Kansas
In our August 21, 2002, proposed rule, we proposed not to include
stream segments on the Fort Riley Military Installation, Kansas, as
critical habitat, on the basis of our interpretation of section 3(5)(A)
of the Act. Due to the Federal District Court decision (Center for
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB, D. Ariz., Jan.
13, 2003) and the amendment to section 4(a)(3) of the Act, we now
clarify the basis for not designating stream segments on Fort Riley. As
discussed above, Section 4(a)(3) of the Act now prohibits the Secretary
of the Department of the Interior from designating critical habitat on
Department of Defense lands if an adequate INRMP is in place.
The Topeka shiner has been a focal species for planning and
conservation efforts on Fort Riley since the early 1990s, with numerous
stream surveys occurring from this time to the present. Fort Riley
initiated development of management guidelines for the species in 1994.
The first Endangered Species Management Plan for Topeka Shiner on Fort
Riley was formalized in 1997. This management plan was revised and
incorporated into Fort Riley's INRMP 2001-2005, which was formalized
July 30, 2001 (Keating, Ft. Riley Natural Resources Division, pers.
comm. 2002). This management plan outlines and describes conservation
goals; management prescriptions and actions; a monitoring plan;
estimates of time, cost, and personnel needed; a checklist of tasks;
and an annual report (U.S. Department of the Army 2001).
We evaluated the Fort Riley Endangered Species Management Plan for
Topeka Shiner and the Fort's associated Topeka shiner conservation
actions that have been completed, ongoing, or planned, and find that it
provides a benefit to the species under section 4(a)(3).
The primary benefit of proposing critical habitat is to identify
lands essential to the conservation of the species, which, if
designated as critical habitat, would require consultation with the
Service to ensure that activities would not adversely modify critical
habitat. As previously discussed, Fort Riley has a completed final
INRMP that provides for sufficient conservation management and
protection for the Topeka shiner. Moreover, this INRMP has already
undergone section 7 consultation with the Service prior to its final
approval. Further, activities authorized, funded, or carried out by the
military or Federal agencies in these areas that may affect the Topeka
shiner will still require consultation under section 7 of the Act,
based on the requirement that Federal agencies ensure that such
activities not jeopardize the continued existence of listed species.
This requirement applies even without critical habitat designation on
these lands.
The requirements of section 4(a)(3) of the Act are satisfied in
relation to Topeka shiner habitat on Fort Riley. Therefore, we do not
include these stream segments in the designation as critical habitat
for Topeka shiner.
Iowa, Minnesota and Nebraska
We have designated occupied critical habitat on a number of streams
in Iowa, Minnesota and Nebraska because, although these States are
implementing conservation actions that benefit Topeka shiners, there
are currently no ``legally operative'' conservation plans proposed or
in place that we can weigh against the three criteria we use to address
special management needs. Federal actions that adversely affect
critical habitat must undergo consultation under section 7 of the Act.
Consultations on Federal actions involving critical habitat ensure that
habitat needed for the survival and recovery of a species is not
destroyed or adversely modified.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on March 17, 2004 (69 CFR 12619). We
accepted comments on the draft analysis until April 16, 2004.
Our economic analysis evaluated the potential future effects
associated with the listing of the Topeka shiner as endangered under
the Act, as well as any potential effect of the critical habitat
designation above and beyond those regulatory and economic impacts
associated with listing. The following discussion presents the
potential economic effects of the proposed critical habitat
designation. However, in this final critical habitat rule, we are
excluding lands owned by Fort Riley and the States of Kansas, Missouri,
and South Dakota from the areas designated as critical habitat for the
Topeka shiner. Therefore, because our economic analysis included
impacts of areas that are subsequently excluded from the final critical
habitat, the values presented below and in the economic analysis are
likely significant overestimates of the potential economic
[[Page 44758]]
effects resulting from this critical habitat rule for the Topeka
shiner.
The categories of potential costs considered in the analysis
included the costs associated with: (1) Conducting section 7
consultations due to the listing or the critical habitat, including
reinitiated consultations and technical assistance; (2) modifications
to projects, activities, or land uses resulting from the section 7
consultations; and (3) potential offsetting beneficial costs connected
to critical habitat including educational benefits.
We conclude that the designation of critical habitat would not
result in a significant economic impact. Our economic analysis
estimates that the potential economic effects over a 10-year period
would range from $16.7 million to $37.0 million using a 7 percent
discount rate (Industrial Economics, Inc. 2004). Road and bridge
construction and maintenance, agriculture, and ranching-related
activities account for 66 percent of these costs (Industrial Economics,
Inc. 2004).
Agriculture and ranching are the main activities in Topeka shiner
critical habitat. However, our analysis indicates that economic impacts
to farmers and ranchers will likely be minimal as the consultations
that are expected to arise from farming and ranching-related activities
are not likely to result in costly additional project modifications
because they primarily involve Federal assistance for conservation
programs (i.e., the Conservation Reserve Program) (Industrial
Economics, Inc. 2004). The administrative costs of consultation and
technical assistance efforts account for over 80 percent of the
projected costs of this designation, with project modifications
representing the remaining 20 percent (Industrial Economics, Inc.
2004).
The economic impacts associated with the proposed critical habitat
designation would be manifest primarily as increased operating costs
for Federal, State, and local agencies in Iowa, Minnesota, Missouri,
Kansas, Nebraska, and South Dakota. Federal, State, and local agencies
would bear 70 percent of these costs, with private entities incurring
the remainder (Industrial Economics, Inc. 2004). Because we are
excluding Missouri, Kansas, and South Dakota and because most of the
costs of this rule are borne by governmental agencies rather than
private businesses or landowners, secondary impacts to the region are
expected to be minimal (Industrial Economics, Inc. 2004).
Although we do not find the economic costs to be significant, they
were considered in balancing the benefits of including and excluding
areas from critical habitat.
We received four comments on the draft economic analysis of the
proposed designation. Two of the comments identified that some of the
costs attributed to transportation and sand and gravel operations were
overstated, while one stated that estimated third party costs for
transportation projects in South Dakota appeared to be low. One
commenter requested that the analysis include benefits and incremental
costs. Following the close of the comment period, the economic analysis
was finalized. We made no revisions or additions to the draft economic
analysis.
A copy of the final economic analysis and a description of the
exclusion process with supporting documents are included in our
administrative record and may be obtained by contacting our Kansas
Ecological Services Field Office (see ADDRESSES).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Because
of the Court-ordered deadline for publication in the Federal Register,
formal Office of Management and Budget (OMB) review was not undertaken.
We prepared an economic analysis of this action to meet the requirement
of section 4(b)(2) of the Endangered Species Act to determine the
economic consequences of designating the specific areas as critical
habitat. The draft economic analysis was made available for public
comment and we considered those comments during the preparation of this
rule. The costs of the final designation are estimated to be between
$8.84 to $13.66 million. The economic analysis indicates that this rule
will not have an annual economic effect of $100 million or more or
adversely affect any economic sector, productivity, competition, jobs,
the environment, or other units of government.
Under the Act, critical habitat may not be destroyed or adversely
modified by a Federal agency action; the Act does not impose any
restrictions related to critical habitat on non-Federal persons unless
they are conducting activities funded or otherwise sponsored or
permitted by a Federal agency. Because of the potential for impacts on
other Federal agencies' activities, we reviewed this action for any
inconsistencies with other Federal agency actions. Based on our
economic analysis and information related to implementing the listing
of the species such as conducting section 7 consultations, we believe
that this designation will not create inconsistencies with other
agencies' actions or otherwise interfere with an action taken or
planned by another agency, nor will it materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
On the basis of information in our final economic analysis, we have
determined that a substantial number of small entities are not affected
by the critical habitat designation for Topeka shiner. Therefore, we
are certifying that the designation will not have a significant effect
on a substantial number of small entities. The factual basis for
certifying that this rule will not have a significant economic impact
on a substantial number of small entities is as follows.
Small entities include small organizations, such as independent
nonprofit organizations, and small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents, as well as small businesses. The RFA/SBREFA
requires that agencies use the Small Business Administration's
definition of ``small business'' that has been codified at 13 CFR
121.201. Small businesses include manufacturing and mining concerns
with fewer than 500 employees, wholesale trade entities with fewer than
100 employees, retail and service
[[Page 44759]]
businesses with less than $5 million in annual sales, general and heavy
construction businesses with less than $27.5 million in annual
business, special trade contractors doing less than $11.5 million in
annual business, and agricultural businesses with annual sales less
than $750,000. The RFA/SBREFA does not explicitly define either
``substantial number'' or ``significant economic impact.''
Consequently, to assess whether a ``substantial number'' of small
entities is affected by this designation, this analysis considers the
relative number of small entities likely to be impacted in an area. In
addition, Federal courts and Congress have indicated that an RFA/SBREFA
is properly limited to impacts to entities directly subject to the
requirements of the regulation (Service 2002). Therefore, entities not
directly regulated by the listing or critical habitat designation are
not considered in this section of the analysis. The RFA/SBREFA defines
``small governmental jurisdiction'' as the government of a city,
county, town, school district, or special district with a population of
less than 50,000. Although certain State agencies may be affected by
this critical habitat designation, State governments are not considered
small governments, for the purposes of the RFA. The SBREFA further
defines ``small organization'' as any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.
Even where the requirements of section 7 might apply due to
critical habitat, based on our experience with section 7 consultations
for all listed species, virtually all projects, including those that,
in their initial proposed form, would result in jeopardy or adverse
modification determinations under section 7, can be implemented
successfully with, at most, the adoption of reasonable and prudent
alternatives. These measures by definition must be economically
feasible and within the scope of authority of the Federal agency
involved in the consultation.
The designation of critical habitat for the shiner is not expected
to result in a significant economic impact on a substantial number of
small entities. Approximately 12 to 22 percent ($1 million to 3
million) of the forecast total costs of $8.84 to $13.66 million will be
borne by Federal agencies. The majority (approximately 80 to 90
percent) of the remaining costs ($7.8 million to $10.6 million) are
largely associated with transportation-related activities.
Specifically, approximately 60 to 80 percent of the forecast total
costs, or $7.1 million to $8.2 million, are associated with road/bridge
construction and maintenance projects. These costs will primarily be
borne by State DOT and various action agencies. Agriculture makes up
the remaining five to 13 percent of forecast total costs ($450,000 to
$1,750,000) and recreation and conservation activities three to seven
percent of forecast total costs ($250,000 to $975,000). Third parties
may be impacted by consultations regarding agriculture activities
(e.g., critical area planting, nutrient management, multiple purpose
dams, and structures for water controls) and recreation projects (e.g.,
boat docks), however, project modifications are anticipated to be
minimal. The Service expects these costs will be relatively small to
the individual operator and therefore will not generate significant
economic impacts on a substantial number of small entities.
For these reasons, we are certifying that the designation of
critical habitat for Topeka shiner will not have a significant economic
impact on a substantial number of small entities. Therefore, a
regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act
Under the SBREFA (5 U.S.C. 801 et. seq.), this rule is not a major
rule. Based on the effects identified in the economic analysis, we
believe that this critical habitat designation will not have an effect
on the economy of $100 million or more, will not cause a major increase
in costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based enterprises to
compete with foreign-based enterprises. Our detailed assessment of the
economic effects of this designation is described in the economic
analysis.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (Executive
Order 13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
As this final rule is not expected to significantly affect energy
supplies, distribution, or use, this action is not a significant energy
action and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate
[[Page 44760]]
in a voluntary Federal aid program, the Unfunded Mandates Reform Act
would not apply; nor would critical habitat shift the costs of the
large entitlement programs listed above on to State governments.
(b) The economic analysis that was prepared in support of this
rulemaking fully assesses the effects of this designation on Federal,
State, local, and tribal governments, and to the private sector, and
indicates that this rule will not significantly or uniquely affect
small governments. As such, Small Government Agency Plan is not
required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property Rights,''
March 18, 1988; 53 FR 8859), we have analyzed the potential takings
implications of the designation of critical habitat for Topeka shiner.
The takings implications assessment concludes that this final rule does
not pose significant takings implications. A copy of this assessment
can be obtained by contacting the Kansas Field Office (see ADDRESSES).
Federalism
In accordance with Executive Order 13132, the rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of the Interior policy, we
requested information from, and coordinated development of, this
critical habitat designation with, appropriate State resource agencies
in Iowa, Kansas, Minnesota, Missouri, Nebraska, and South Dakota. The
designation of critical habitat in areas currently occupied by Topeka
shiner imposes no additional restrictions to those currently in place
and, therefore, has little additional impact on State and local
governments and their activities.
The designation may have some benefit to these governments in that
the areas essential to the conservation of the species is more clearly
defined, and the PCEs of the habitat necessary to the conservation of
the species are specifically identified. While making this definition
and identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have designated critical habitat in accordance with
the provisions of the Act. The rule uses standard property descriptions
and identifies the PCEs within the designated area to assist the public
in understanding the habitat needs of the Topeka shiner.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which OMB approval under the Paperwork Reduction Act is required.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid OMB
Control Number.
National Environmental Policy Act
Our position is that, outside the Tenth Circuit, we do not need to
prepare environmental analyses as defined by the National Environmental
Policy Act in connection with designating critical habitat under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244). This
assertion was upheld in the courts of the Ninth Circuit (Douglas County
v. Babbitt, 48 F .3d 1495 (Ninth Cir. Ore. 1995), cert. denied 116 S.
Ct. 698 (1996)). However, when the range of the species includes States
within the Tenth Circuit, pursuant to the Tenth Circuit ruling in
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service,
75 F .3d 1429 (Tenth Cir. 1996), we will complete a National
Environmental Policy Act analysis. The range of Topeka shiner includes
States within the Tenth Circuit; therefore, we completed a draft
environmental assessment and made it available for public review and
comment. A final environmental assessment and Finding of No Significant
Impact have been prepared for this designation and are available from
the Kansas Field Office (see ADDRESSES).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
readily acknowledge our responsibility to communicate meaningfully with
recognized Federal Tribes on a government-to-government basis. We are
required to assess the effects of critical habitat designation on
Tribal lands and Tribal trust resources. We believe that no Tribal
lands or Tribal trust resources are essential for the conservation of
Topeka shiner.
References Cited
A complete list of all references cited herein is available upon
request from the Kansas Field Office (see ADDRESSES).
Author
The primary author of this rule is Vernon Tabor, Kansas Ecological
Services Field Office (see ADDRESSES).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h), by revising the entry for ``Shiner, Topeka''
under ``FISHES'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 44761]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species When critical special
---------------------------------------------- Historic range Vertebrate population where -------------------------------------------------------
Common name Scientific name endangered or threatened Status Listed Habitat Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES
* * * * * * *
Shiner, Topeka............. (Notropis topeka U.S.A. (IA, KS, Entire......................... E......... 654 17.95(e)........ N/A
= tristis). MN, MO, NE, SD).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(e) by adding critical habitat for the Topeka
shiner (Notropis topeka) in the same alphabetical order as this species
occurs in 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes. * * *
Topeka Shiner (Notropis topeka)
(1) Critical habitat is depicted for Calhoun, Carroll, Dallas,
Greene, Hamilton, Lyon, Osceola, Sac, Webster, and Wright Counties,
Iowa; Lincoln, Murray, Nobles, Pipestone, and Rock Counties, Minnesota;
and Madison County, Nebraska, on the maps and as described below.
(2) Critical habitat includes all stream channels up to the
bankfull discharge elevation. Additionally, in Iowa and Minnesota, the
off-channel, side-channel, and oxbow pools at elevations at or below
the bankfull discharge elevation. Bankfull discharge is the flow at
which water begins to leave the channel and move into the floodplain
and generally occurs with a frequency of every 1 to 2 years.
(3) The primary constituent elements of critical habitat for the
Topeka shiner consist of:
(i) Streams most often with permanent flow, but that can become
intermittent during dry periods;
(ii) Side-channel pools and oxbows either seasonally connected to a
stream or maintained by groundwater inputs, at a surface elevation
equal to or lower than the bank-full discharge stream elevation. The
bankfull discharge is the flow at which water begins leaving the
channel and flowing into the floodplain; this level is generally
attained every 1 to 2 years. Bankfull discharge, while a function of
the size of the stream, is a fairly constant feature related to the
formation, maintenance, and dimensions of the stream channel;
(iii) Streams and side-channel pools with water quality necessary
for unimpaired behavior, growth, and viability of all life stages. (The
water quality components include--temperature, turbidity, conductivity,
salinity, dissolved oxygen, pH, chemical contaminants, and other
chemical characteristics.);
(iv) Living and spawning areas for adult Topeka shiner with pools
or runs with water velocities less than 0.5 meters/second (approx. 20
inches/second) and depths ranging from 0.1-2.0 meters (approx. 4-80
inches);
(v) Living areas for juvenile Topeka shiner with water velocities
less than 0.5 meters/second (approx. 20 inches/second) with depths less
than 0.25 meters (approx. 10 inches) and moderate amounts of instream
aquatic cover, such as woody debris, overhanging terrestrial
vegetation, and aquatic plants;
(vi) Sand, gravel, cobble, and silt substrates with amounts of fine
sediment and substrate embeddedness that allow for nest building and
maintenance of nests and eggs by native Lepomis sunfishes (green
sunfish, orangespotted sunfish, longear sunfish) and Topeka shiner as
necessary for reproduction, unimpaired behavior, growth, and viability
of all life stages;
(vii) An adequate terrestrial, semiaquatic, and aquatic
invertebrate food base that allows for unimpaired growth, reproduction,
and survival of all life stages;
(viii) A hydrologic regime capable of forming, maintaining, or
restoring the flow periodicity, channel morphology, fish community
composition, off-channel habitats, and habitat components described in
the other primary constituent elements; and
(ix) Few or no nonnative predatory or nonnative competitive species
present.
Critical Habitat Map Units
(4) Critical habitat was identified using the Fifth Principal
Meridian in Iowa and Minnesota; the Sixth Principal Meridian in
Nebraska; U.S. Geological Survey 30- x 60-minute (1:100,000) quadrangle
maps; the National Hydrography Dataset (1:100,000) for hydrology; and
Digital Line Graph (1:2,000,000) for county and State boundaries.
(5) Unit 1: North Raccoon River Watershed--Calhoun, Carroll,
Dallas, Greene, Sac and Webster Counties, Iowa.
(i) Reach 1a. Indian Creek from its confluence with the North
Raccoon River (T87N, R35W, Sec. 24), upstream through T87N, R35W, Sec.
29.
(ii) Reach 1b. Tributary to Indian Creek (Ditch 57), from their
confluence (T87N, R35W, Sec. 23), upstream to the confluence with the
outlet creek from Black Hawk Lake (T86N, R36W, Sec. 1).
(iii) Reach 1c. Outlet Creek from Black Hawk Lake from its
confluence with Ditch 57 (T86N, R36W, Sec. 1), upstream to lake outlet
(T87N, R35W, Sec. 35).
(iv) Reach 2a. Camp Creek from its confluence with the North
Raccoon River (T86N, R34W, Sec. 7), upstream through T87N, R34W, Sec.
8.
(v) Reach 2b. West Fork Camp Creek from its confluence with Camp
Creek (T87N, R34W, Sec. 8), upstream through T88N, R34W, Sec. 32.
(vi) Reach 3. Prairie Creek from its confluence with the North
Raccoon River (T86N, R34W, Sec. 16), upstream through T87N, R34W, Sec.
35.
(vii) Reach 4. Lake Creek from its confluence with the North
Raccoon River (T86N, R34W, Sec. 23), upstream through T87N, R33W, Sec.
25.
(viii) Reach 5. Purgatory Creek from its confluence with the North
Raccoon River (T84N, R33W, Sec. 11), upstream through T86N, R32W, Sec.
17.
(ix) Reach 6a. Cedar Creek from its confluence with the North
Raccoon River (T85N, R32W, Sec. 33), upstream to the confluence of West
Cedar Creek and East Cedar Creek (T87N, R31W, Sec. 31).
(x) Reach 6b. West Cedar Creek from its confluence with East Cedar
Creek (T87N, R31W, Sec. 31), upstream through T87N, R31W, Sec. 18.
(xi) Reach 6c. East Cedar Creek from its confluence with West Cedar
Creek (T87N, R31W, Sec. 31), upstream through T87N, R31W, Sec. 9.
[[Page 44762]]
(xii) Reach 7. Short Creek from its confluence with the North
Raccoon River (T84N, R31W, Sec. 33), upstream through T84N, R31W, Sec.
28.
(xiii) Reach 8. Hardin Creek from its confluence with the North
Raccoon River (T83N, R30W, Sec. 23), upstream through T85N, R31W, Sec.
27.
(xiv) Reach 9a. Buttrick Creek from its confluence with the North
Raccoon River (T83N, R30W, Sec. 26), upstream to the confluence of West
Buttrick Creek and East Buttrick Creek (T84N, R30W, Sec. 25).
(xv) Reach 9b. West Buttrick Creek, from its confluence with East
Buttrick Creek (T84N, R30W, Sec. 25), upstream through T86N, R30W, Sec.
3.
(xvi) Reach 9c. East Buttrick Creek, from its confluence with West
Buttrick Creek (T84N, R30W, Sec. 25), upstream through T85N, R29W, Sec.
20.
(xvii) Reach 10a. Elm Branch from its confluence with the North
Raccoon River (T81N, R28W, Sec. 28), upstream to its confluence with
Swan Lake Branch T81N, R28W, Sec. 28.
(xviii) Reach 10b. Swan Lake Branch from its confluence with Elm
Branch (T81N, R28W, Sec. 28), upstream through T80N, R28W, Sec. 4.
(xix) Reach 11. Off-channel and side-channel pools (that meet the
previously described criteria) adjacent to the North Raccoon River from
U.S. Highway 6 (T79N, R27W, Sec. 32), upstream to U.S. Highway 20
(T88N, R36W, Sec. 24).
(6) Note: Unit 1 (Map 1) follows.
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(7) Unit 2: Boone River Watershed--Wright and Hamilton Counties,
Iowa.
(i) Reach 12. Eagle Creek from its confluence with the Boone River
(T89N, R25W, Sec. 6), upstream through T91N, R25W, Sec. 30.
Ditch 3 and Ditch 19 Complex
(ii) Reach 13a. Ditch 3 from its confluence with the Boone River
(T91N, R26W, Sec. 32), upstream through T91N, R26W, Sec. 30.
(iii) Reach 13b. Ditch 19 from its confluence with Ditch 3 (T91N,
R26W, Sec. 31), upstream through T91N, R26W, Sec. 31.
(8) Note: Unit 2 (Map 2) follows.
[[Page 44765]]
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[[Page 44766]]
(9) Unit 3: Rock River Watershed--Lyon and Osceola Counties, Iowa.
Rock River Complex
(i) Reach 14. Rock River from its confluence with Kanaranzi Creek
(T100N, R45W, Sec. 28), upstream to the Iowa/Minnesota State border
(T100N, R45W, Sec. 8).
(ii) Reach 15. Kanaranzi Creek from its confluence with the Rock
River (T100N, R45W, Sec. 28), upstream to the Iowa/Minnesota State
border (T100N, R45W, Sec. 11).
Little Rock River Complex
(iii) Reach 16. Little Rock River from State Highway 9 (T100N,
R43W, Sec. 34), upstream to the Iowa/Minnesota State border (T100N,
R42W, Sec. 7).
(10) Note: Unit 3 (Map 3) follows.
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[[Page 44767]]
(11) Unit 4: Big Sioux River Watershed--Lincoln, Pipestone and
Rock, Counties, Minnesota; and Rock River Watershed--Murray, Nobles,
Pipestone and Rock Counties, Minnesota.
Medary Creek Complex
(i) Reach 1a. Medary Creek from the Minnesota/South Dakota State
border (T109N, R47W, Sec. 13), upstream through T110N, R46W, Sec. 21.
(ii) Reach 1b. Unnamed tributary to Medary Creek, from their
confluence (T109N, R46W, Sec. 18), upstream through T110N, R46W, Sec.
30.
Flandreau Creek Complex
(iii) Reach 2a. Flandreau Creek from the Minnesota/South Dakota
State border (T107N, R47W, Sec. 14), upstream through T109N, R45W, Sec.
31.
(iv) Reach 2b. Unnamed tributary to Flandreau Creek, from their
confluence (T108N, R46W, Sec. 11), upstream through T108N, R45W, Sec.
6.
(v) Reach 2c. East Branch Flandreau Creek from its confluence with
Flandreau Creek (T108N, R46W, Sec. 14), upstream through T108N, R45W,
Sec. 4.
(vi) Reach 2d. Willow Creek from its confluence with Flandreau
Creek (T107N, R46W, Sec. 6), upstream through T108N, R46W, Sec. 3.
Split Rock/Pipestone/Beaver Creek Complex
(vii) Reach 3a. Pipestone Creek from the Minnesota/South Dakota
State border (T106N, R47W, Sec. 23), upstream through T106N, R46W, Sec.
1.
(viii) Reach 3b. Unnamed tributary to Pipestone Creek, from their
confluence (T106N, R47W, Sec. 24), upstream through T106N, R46W, Sec.
19.
(ix) Reach 3c. Unnamed tributary to Pipestone Creek, from the
Minnesota/South Dakota State border (T105N, R47W, Sec. 2), upstream
through T105N, R46W, Sec. 1.
(x) Reach 3d. North Branch Pipestone Creek from its confluence with
Pipestone Creek (T106N, R46W, Sec. 5), upstream through T107N, R45W,
Sec. 4.
(xi) Reach 3e. Unnamed tributary to North Branch Pipestone Creek,
from their confluence (T107N, R45W, Sec. 4), upstream through T108N,
R45W, Sec. 23.
(xii) Reach 3f. Split Rock Creek from the Minnesota/South Dakota
State border (T103N, R47W, Sec. 2), upstream to Split Rock Lake Outlet
(T105N, R46W, Sec. 22).
(xiii) Reach 3g. Unnamed tributary to Split Rock Creek from the
Minnesota/South Dakota State border (T103N, R47W, Sec. 23), upstream
through T103N, R46W, Sec. 29.
(xiv) Reach 3h. Unnamed tributary to Split Rock Creek, from their
confluence (T103N, R47W, Sec. 2), upstream through T103N, R46W, Sec. 8.
(xv) Reach 3i. Unnamed tributary to Split Rock Creek, from their
confluence (T104N, R47W, Sec. 25), upstream through T104N, R46W, Sec.
19.
(xvi) Reach 3j. Pipestone Creek from its confluence with Split Rock
Creek (T104N, R47W, Sec. 22), upstream to the Minnesota/South Dakota
State border T104N, R47W, Sec. 23.
(xvii) Reach 3k. Unnamed tributary to Split Rock Creek, from their
confluence (T104N, R46W, Sec. 6), upstream through T105N, R46W, Sec.
36.
(xviii) Reach 3l. Split Rock Creek from the headwater of Split Rock
Lake (T105N, R46W, Sec. 15), upstream through T106N, R46W, Sec. 35.
(xix) Reach 3m. Unnamed tributary to Split Rock Creek, from their
confluence (T105N, R46W, Sec. 3), upstream through T105N, R46W, Sec. 2.
(xx) Reach 3n. Beaver Creek from the Minnesota/South Dakota State
border (T102N, R47W, Sec. 34), upstream through T104N, R45W, Sec. 20.
(xxi) Reach 3o. Springwater Creek from its confluence with Beaver
Creek (T102N, R47W, Sec. 34), upstream through T102N, R46W, Sec. 6.
(xxii) Reach 3p. Little Beaver Creek from its confluence with
Beaver Creek (T102N, R46W, Sec. 12), upstream through T103N, R45W, Sec.
9.
(xxiii) Reach 3q. Unnamed tributary to Beaver Creek, from their
confluence (T102N, R46W, Sec. 1), upstream through T103N, R46W, Sec.
35.
(xxiv) Reach 3r. Unnamed tributary to Beaver Creek, from their
confluence (T103N, R45W, Sec. 18), upstream through T104N, R46W, Sec.
36.
Rock River Complex
(xxv) Reach 4a. Rock River from the Minnesota/Iowa State border
(T101N, R45W, Sec. 36), upstream through T107N, R44W, Sec. 7.
(xxvi) Reach 4b. Kanaranzi Creek from the Minnesota/Iowa State
border (T101N, R44W, Sec. 33), upstream through T103N, R42W, Sec. 7).
(xxvii) Reach 4c. Norwegian Creek from its confluence with
Kanaranzi Creek (T101N, R44W, Sec. 25), upstream through T101N, R43W,
Sec. 21.
(xxviii) Reach 4d. Unnamed tributary to Norwegian Creek, from their
confluence (T101N, R44W, Sec. 20), upstream through T101N, R44W, Sec.
16.
(xxix) Reach 4e. East Branch Kanaranzi Creek from its confluence
with Kanaranzi Creek (T102N, R42W, Sec. 5), upstream through T102N,
R41W, Sec. 5.
(xxx) Reach 4f. Unnamed tributary to East Branch Kanaranzi Creek,
from their confluence (T102N, R42W, Sec. 9), upstream through T102N,
R42W, Sec. 22.
(xxxi) Reach 4g. Unnamed tributary to East Branch Kanaranzi Creek,
from their confluence (T102N, R42W, Sec. 5), upstream through T102N,
R42W, Sec. 5.
(xxxii) Reach 4h. Unnamed tributary to Kanaranzi Creek, from their
confluence (T102N, R43W, Sec. 31), upstream through T102N, R43W, Sec.
27.
(xxxiii) Reach 4i. Ash Creek from its confluence with the Rock
River (T101N, R45W, Sec. 24), upstream through T101N, R45W, Sec. 14.
(xxxiv) Reach 4j. Elk Creek from its confluence with the Rock River
(T102N, R45W, Sec. 36), upstream through T103N, R43W, Sec. 22.
(xxxv) Reach 4k. Unnamed tributary to Elk Creek, from their
confluence (T102N, R44W, Sec. 16), upstream through T102N, R44W, Sec.
9.
(xxxvi) Reach 4l. Champepadan Creek from its confluence with the
Rock River (T103N, R44W, Sec. 29), upstream through T104N, R43W, Sec.
14.
(xxxvii) Reach 4m. Unnamed tributary to Champepadan Creek, from
their confluence (T104N, R43W, Sec. 14), upstream through T104N, R43W,
Sec. 13.
(xxxviii) Reach 4n. Unnamed tributary to Champepadan Creek, from
their confluence (T103N, R44W, Sec. 23), upstream through T103N, R44W,
Sec. 24.
(xxxix) Reach 4o. Unnamed tributary to Champepadan Creek, from
their confluence (T103N, R44W, Sec. 23), upstream through T103N, R44W,
Sec. 12.
(xl) Reach 4p. Unnamed tributary to the Rock River, from their
confluence (T103N, R44W, Sec. 17), upstream through T104N, R44W, Sec.
26.
(xli) Reach 4q. Mound Creek from its confluence with the Rock River
(T103N, R44W, Sec. 30), upstream through T104N, R45W, Sec. 35.
(xlii) Reach 4r. Unnamed tributary to the Rock River, from their
confluence (T103N, R44W, Sec. 8), upstream through T104N, R45W, Sec.
33.
(xliii) Reach 4s. Unnamed tributary to the Rock River, from their
confluence (T104N, R44W, Sec. 28), upstream through T104N, R44W, Sec.
11.
(xliv) Reach 4t. Unnamed tributary to the Rock River, from their
confluence (T104N, R44W, Sec. 16), upstream through T104N, R44W, Sec.
10.
(xlv) Reach 4u. Poplar Creek from its confluence with the Rock
River (T104N,
[[Page 44768]]
R44W, Sec. 5), upstream through T105N, R45W, Sec. 32.
(xlvi) Reach 4v. Unnamed tributary to Poplar Creek, from their
confluence (T105N, R45W, Sec. 27), upstream through T105N, R45W, Sec.
9.
(xlvii) Reach 4w. Chanarambie Creek from its confluence with the
Rock River (T105N, R44W, Sec. 33), upstream through T105N, R43W, Sec.
8.
(xlviii) Reach 4x. North Branch Chanarambie Creek from its
confluence with Chanarambie Creek (T105N, R43W, Sec. 8), upstream
through T106N, R43W, Sec. 18.
(xlix) Reach 4y. Unnamed tributary to the Rock River, from their
confluence (T105N, R44W, Sec. 8), upstream through T106N, R45W, Sec.
36.
(l) Reach 4z. Unnamed tributary to the Rock River, from their
confluence (T106N, R44W, Sec. 33), upstream through T106N, R44W, Sec.
23.
(li) Reach 4aa. East Branch Rock River from its confluence with the
Rock River (T106N, R44W, Sec. 18), upstream through T107N, R44W, Sec.
27.
(lii) Reach 4bb. Unnamed tributary to East Branch Rock River, from
their confluence (T107N, R44W, Sec. 34), upstream through T107N, R44W,
Sec. 35.
Little Rock River Complex
(liii) Reach 5a. Little Rock River from the Minnesota/Iowa State
border (T101N, R42W, Sec. 35), upstream through T102N, R41W, Sec. 34.
(liv) Reach 5b. Little Rock Creek from its confluence with the
Little Rock River (T101N, R42W, Sec. 26), upstream through T102N, R42W,
Sec. 34.
Mud Creek Complex
(lv) Reach 6a. Mud Creek from the Minnesota/Iowa State border
(T101N, R46W, Sec. 34), upstream thru T101N, R46W, Sec. 11.
(lvi) Reach 6b. Unnamed tributary to Mud Creek, from their
confluence (T101N, R46W, Sec. 22), upstream through T101N, R46W, Sec.
24.
(lvii) Reach 6c. Unnamed tributary to Mud Creek, from their
confluence (T101N, R46W, Sec. 11), upstream through T101N, R46W, Sec.
1.
(12) Note: Unit 4 (Map 4) follows.
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(13) Unit 5: Elkhorn River Watershed--Madison County, Nebraska.
Taylor Creek from its confluence with Union Creek (T22N, R1W, Sec.
32), upstream through T22N, R2W, Sec. 22.
(14) Note: Unit 5 (Map 5) follows.
[GRAPHIC] [TIFF OMITTED] TR27JY04.004
* * * * *
Dated: July 16, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-16646 Filed 7-26-04; 8:45 am]
BILLING CODE 4310-55-C