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DEPARTMENT OF THE INTERIOR between Ute Reservoir and Lake and island habitat types (Polivka and Meredith are stable and not declining, Matthews 1997). Fish and Wildlife Service as presented in the proposed rule. This Cross (1967) believed that adults action will implement Federal preferred to orient into the current on 50 CFR Part 17 protection provided by the Act for the the ‘‘lee’’ sides of transverse sand ridges RIN 1018±AC62 ARS. We have determined that and feed upon organisms washed designation of critical habitat for the downstream. Researchers have only Endangered and Threatened Wildlife ARS is not prudent. recently described the feeding and Plants; Final Rule to List the EFFECTIVE DATE: December 23, 1998. preferences and diets of the ARS. In Arkansas River Basin Population of studies on the South Canadian River ADDRESSES: The complete file for this the Arkansas River Shiner (Notropis near Norman, Oklahoma, Polivka and rule is available for inspection, by girardi) as Threatened Matthews (1997) found that gut contents appointment, during normal business were dominated by sand/sediment and AGENCY: Fish and Wildlife Service, hours at the Oklahoma Ecological detritus (organic matter). Invertebrate Interior. Services Field Office, 222 South prey were only an incidental component ACTION: Houston, Suite A, Tulsa, Oklahoma Final rule. of the diet. Polivka and Matthews (1997) 74127–8909. SUMMARY: We, the U.S. Fish and concluded that the ARS is a generalist FOR FURTHER INFORMATION CONTACT: Wildlife Service, determine the Ken feeder in which no particular Arkansas River basin population of the Collins at the above address, telephone invertebrate dominated the diet. In the Arkansas River shiner (ARS) (Notropis 918/581–7458, or facsimile 918/581– Canadian River of Texas, the diet of girardi) to be a threatened species under 7467). ARS was dominated by detritus, aquatic the authority of the Endangered Species SUPPLEMENTARY INFORMATION: invertebrates, and sand and silt (Bonner et al. 1997). With the exception of the Act of 1973, as amended (Act). Background The ARS is a small fish found in the winter season when larval flies were Canadian River in New Mexico, A. I. Ortenburger discovered the consumed much more frequently than Oklahoma, and Texas and the Cimarron Arkansas River shiner (ARS) in 1926 in other aquatic invertebrates, no River in Kansas and Oklahoma, both the Cimarron River northwest of particular invertebrate taxa dominated rivers in the Arkansas River basin. A Kenton, Cimarron County, Oklahoma the diet. This led Bonner et al. (1997) to non-native, introduced population (Hubbs and Ortenburger 1929). The ARS similarly conclude that the ARS is a occurs in the Pecos River in New is a small, robust shiner with a small, generalized forager, feeding on both Mexico; however, we did not propose dorsally flattened head, rounded snout, items suspended in the water column listing of this population and are not and small subterminal mouth (Miller and items lying on the substrate. In the including it in this final rule. The and Robison 1973, Robison and Pecos River, fly larvae, copepods, Arkansas River basin population is Buchanan 1988). Adults attain a immature mayflies, insect eggs, and threatened by habitat destruction and maximum length of 51 millimeters (mm) seeds were the dominant items in the modification from stream dewatering or (2 inches (in)). Dorsal, anal, and pelvic diet of ARS (Keith Gido, University of depletion due to diversion of surface fins all have eight rays, and there is Oklahoma, in litt. 1997). water and groundwater pumping, usually a small, black chevron present The ARS spawns in July, usually construction of impoundments, and at the base of the caudal fin. Dorsal coinciding with flood flows following water quality degradation. Competition coloration tends to be light tan, with heavy rains (Moore 1944). However, with the non-indigenous Red River silvery sides gradually grading to white recent studies by Polivka and Matthews shiner (Notropis bairdi) contributed to on the belly. (1997) and Texas Tech University (Gene diminished distribution and abundance The ARS historically inhabited the Wilde, Assistant Professor, pers. comm. in the Cimarron River. Incidental main channels of wide, shallow, sandy- 1998) neither confirmed nor rejected the capture of the ARS during pursuit of bottomed rivers and larger streams of hypothesis that ARS spawn during rises commercial bait fish species may also the Arkansas River basin (Gilbert 1980). in the river stage. The ARS appears to contribute to reduced population sizes. Adults are uncommon in quiet pools or be in peak reproductive condition Drought and other natural factors also backwaters, and almost never occur in throughout the months of May, June and threaten the existence of the ARS. tributaries having deep water and July (Polivka and Matthews 1997) and We originally proposed to list the bottoms of mud or stone (Cross 1967). may actually spawn several times ARS as endangered. However, since Specifically, Polivka and Matthews during this period (Gene Wilde, pers. publication of the proposed rule for this (1997) found that the ARS in the South comm. 1998). Arkansas River shiner species, we decided to list this species Canadian River of central Oklahoma, eggs are non-adhesive and drift with the as threatened due to lesser immediacy like most fishes occurring in the highly swift current during high flows. and magnitude of threats to its variable environments of plains streams, The mean number of mature ova for existence. New information received used a broad range of microhabitat ARS in Texas varied between 120.8 and during the public comment period features. They also found only a weak 274.4, with some large females revealed that modifications to the Lake relationship between selected containing over 400 (Bonner et al. Meredith Salinity Control Project environmental variables and occurrence 1997). Hatching occurs within 24–48 resulted in streamflow reductions that of the species within the stream hours after spawning. The larvae are were less severe than originally channel. Water depth, sand ridge and capable of swimming within 3–4 days; projected in 1994. In addition, new midchannel habitats, dissolved oxygen, they then seek out backwater pools and information shows that the influence of and current were the environmental quiet water at the mouth of tributaries the High Plains Aquifer on streamflows variables most strongly associated with where food is more abundant (Moore in the Canadian River upstream of Lake the distribution of ARS within the 1944). Both Moore (1944) and Cross Meredith are less than originally channel. Juvenile ARS associated most (1967) inferred that this species will not believed and that the aggregations of strongly with current, conductivity spawn unless conditions are favorable Arkansas River shiners in the reach (total dissolved solids), and backwater to the survival of the larvae. Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64773

Maximum longevity is unknown, but County, and in 1956 from near Kismet, Kansas, based on the collection of only Moore (1944) speculated that the Seward County (William H. Busby, nine individuals since 1985. A non- species’ life span is likely less than 3 Kansas Biological Survey, University of native population of the ARS has years in the wild. The age structure of Kansas, in litt. 1990). In all, ARS become established in the Pecos River of ARS collected from the Pecos River in specimens exist from 17 counties and New Mexico within the last 20 years New Mexico included three, and eight rivers or streams, including several (Bestgen et al. 1989). The decline of this possibly four, age classes (Bestgen et al. tributaries of the Arkansas and species throughout its historical range 1989). The majority of the fish captured Cimarron rivers (Larson et al. 1991, may primarily be attributed to were juveniles (Age-0) and first-time Cross et al. 1985, William H. Busby, in inundation and modification of stream spawners (Age-I). Most of the fish in litt. 1990). discharge by impoundments, channel spawning condition were Age-I. Bestgen Records of occurrence for the ARS are desiccation (drying out) by water et al. (1989) thought mortality of post- most extensive from Oklahoma where diversion and excessive groundwater spawning fish was extremely high based the majority of the historical range pumping, stream channelization, and on the absence of Age-I and older fish occurs. Collections from as early as 1926 introduction of non-native species. from collections made after the exist for 43 counties (Luttrell et al. 1993, The ARS began to decline in the spawning period (late July and August). Larson et al. 1991, Pigg 1991, Hubbs and Arkansas River in western Kansas prior Historically, the ARS was widespread Ortenburger 1929). Records exist for the to 1950 due to increasing water and abundant throughout the western major rivers in the Arkansas River basin diversions for irrigation and completion portion of the Arkansas River basin in and many of the smaller tributaries. A of John Martin Reservoir in 1942 (Cross Kansas, New Mexico, Oklahoma, and record (one individual) also exists for et al. 1985). The Arkansas River Texas. In New Mexico, surveys and the Red River basin in Oklahoma (Cross between Coolidge to near Great Bend, collection records establish that the ARS 1970), possibly originating from a Kansas, is frequently dewatered (Cross historically inhabited the Canadian release of bait fish by anglers. et al. 1985). Habitat alteration following River from the Texas-New Mexico State Historically, the ARS inhabited over construction of Kaw and Keystone line as far upstream as the Sabinoso area 2,700 km (1,700 mi) of habitat in the reservoirs on the Arkansas River in in central San Miguel County, New larger rivers (e.g., Arkansas, Cimarron, Oklahoma, in conjunction with Mexico (Sublette et al. 1990), a distance North Canadian, and Canadian rivers) completion of the McClellan-Kerr of over 193 river-kilometers (river-km) plus an unknown amount in the smaller Navigation System in 1970, greatly (120 river-miles (river-mi)). The ARS tributaries. reduced ARS habitat in Oklahoma and also occurred in Ute and Revuelto Records from Arkansas are scarce. Arkansas. The ARS is no longer creeks and the Conchas River. There is one record of several specimens believed to occur in the Arkansas River In Texas, the Arkansas River shiner from the Arkansas River at the mouth of in Arkansas, Kansas, and Oklahoma, a occurred throughout the Canadian River Piney Creek in Logan County, Arkansas loss of over 1,240 km (770 mi) of from State line to State line, a distance (Black 1940, as cited in Robison and previously occupied habitat. of about 370 river-km (230 river-mi). Buchanan 1988). The ARS is presumed The ARS was once common The first reported captures of ARS from to have been extirpated from (become throughout the Cimarron River and its Texas were in 1954 (Cross et al. 1955, extinct in) Arkansas. tributaries (Pigg 1991). The abundance Lewis and Dalquest 1955). The species Researchers conducted of the ARS in the Cimarron River was captured at several sites extending comprehensive surveys for the ARS at declined markedly after 1964 (Felley from near the Texas-New Mexico State 155 localities within the Arkansas River and Cothran 1981). The Red River line at the Matador Ranch in Oldham basin from 1989 to 1991 (Larson et al. shiner, a small minnow endemic to the County downstream to the Texas- 1991). They collected fish at 128 of 155 Red River, was first recorded from the Oklahoma State line (Lewis and localities; the remaining 27 sites were Cimarron River in Kansas in 1972 (Cross Dalquest 1955). dry. The researchers captured 1,455 et al. 1985) and from the Cimarron in Arkansas River shiners (9 specimens) ARS from 23 localities—14 in Oklahoma in 1976 (Marshall 1978). were first reported from Kansas in 1926 Oklahoma, 5 in Texas, and 4 in New Cross et al. (1985) believed the Red from near Kinsley (Hubbs and Mexico. No ARS were captured in River shiner was first introduced into Ortenburger 1929), although fish Kansas. These data, plus related surveys the Cimarron River sometime between collection records from as early as 1884 from 1976 to 1997 (Kevin R. Bestgen, 1964 and 1972. Since that time, the Red exist. More extensive collections from Larval Fish Laboratory, Colorado State River shiner has essentially replaced the the mainstem Arkansas River first University, in litt. 1998; Polivka and ARS. Habitat alteration and resulting occurred in 1952 at Holcomb in Finney Matthews 1997; Bonner et al. 1997; Eric flow modification also have contributed County, Great Bend in Barton County, Berg, Wildlife Biologist, L.W. Reed to the decline of the species from the and Wichita in Sedgwick County (Cross Consultants, Inc., in litt. 1995; Luttrell et Cimarron River. A small, remnant et al. 1985). Arkansas River shiners al. 1993; Eric Altena, Fisheries population may still persist in the were present but scarce at all 3 sites— Biologist, Texas Parks and Wildlife Cimarron River. 41 specimens at Holcomb, 11 specimens Department (TPWD), in litt. 1993; Pigg The ARS was first reported from the at Great Bend, and 4 specimens at 1991; and Eugene Hinds, Regional North Canadian River drainage in 1926 Wichita. Cross et al. (1985) believed Director, Bureau of Reclamation (Hubbs and Ortenburger 1929). ARS inhabited the full length of the (Bureau), in litt. 1984), confirm that the Collections between 1947 and 1976 Arkansas River mainstem in Kansas at ARS has disappeared from over 80 indicated that the ARS occurred in large that time, a distance of over 640 river- percent of its historical range within the numbers in the river and some larger km (400 river-mi); although the species last 35 years. tributaries despite the construction of was already suspected to be in decline. The ARS is now almost entirely Optima and Canton reservoirs (Pigg In the Cimarron River basin of Kansas, restricted to about 820 km (508 mi) of 1991). This fish was still sporadically ARS were first reported from Crooked the Canadian River in Oklahoma, Texas, collected from the North Canadian River Creek, Meade County in 1941. Earliest and New Mexico. An extremely small until 1987. Several collection attempts records from the mainstem Cimarron population may still persist in the at 15 localities over the next 2 years were from 1955 near Ulysses, Grant Cimarron River in Oklahoma and failed to result in the capture of any 64774 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations

ARS (Pigg 1991). In 1990, four in relation to the remainder of the possibly the Rio Grande silvery minnow specimens were collected from the river species or subspecies to which it (Hybognathus amarus). Management of south of Turpin, Beaver County, belongs; the significance of the native Pecos River fishes will focus on Oklahoma (Larson et al. 1991; Jimmie population segment to the species or the preservation and restoration of Pigg, Oklahoma Department of subspecies to which it belongs; and the habitat conditions favored by these Environmental Quality, pers. comm., conservation status of the population species. Restoration of historic flow 1993). Commercial bait dealers were segment in relation to the Act’s conditions in the Pecos River and observed flushing their holding tanks in standards for listing. control of competitive, non-indigenous the vicinity of the site where the ARS Discreteness of the Population fishes, including the ARS, may be specimens were captured and may have Segment: According to our DPS policy, necessary in recovery efforts for the been responsible for the unintentional a population segment may be Pecos bluntnose shiner. While the non- release of this species back into the considered discrete if it satisfies either native, introduced Pecos River North Canadian River. The species has one of the following conditions: it is population of the ARS could be not been captured from the North markedly separated from other important in efforts to supplement Canadian River since 1990 (J. Pigg, pers. populations of the same taxon as a native populations of the ARS within comm., 1997), indicating a probable loss consequence of physical, physiological, the species’ historical range, protection of over 1,046 km (650 mi) of previously ecological, or behavioral factors; or it is of the Pecos River population would not occupied habitat. delimited by international governmental improve the status of the ARS within Historically, the species occurred in boundaries across which there is a the species’ historical range. the Canadian River from its confluence significant difference in control of with the Arkansas River near Sallisaw, exploitation, management of habitat, or Previous Federal Action Sequoyah County, Oklahoma as far conservation status. The Arkansas River We included the ARS in our upstream as the Sabinoso area in central basin population is discrete based on September 18, 1985, Review of San Miguel County, New Mexico (Pigg natural, geographic isolation from the Vertebrate Wildlife (50 FR 37958) as a 1991, Sublette et al. 1990). Construction non-native, introduced population in category 2 candidate for listing. At that and operation of Ute and Conchas the Pecos River. time, category 2 comprised those taxa reservoirs in New Mexico, Lake Significance of the Population for which information indicated that a Meredith in Texas, and Eufaula Segment: Our DPS policy states that the proposal to list as endangered or Reservoir in Oklahoma altered or consideration of the significance of the threatened was possibly appropriate, eliminated sections of riverine habitat population segment to the taxon to but for which conclusive data on and diminished the range of ARS within which it belongs may include, but is not biological vulnerability and threats were the Canadian River. Eufaula Reservoir limited to, the following: persistence of not currently available to support the discrete population in an ecological isolated Canadian River populations proposed rules. Our January 6, 1989, setting unusual or unique for the taxon; from the Arkansas River and, in revised Animal Notice of Review (54 FR evidence that the loss of the discrete combination with Lake Meredith and 554) retained this status for the ARS. Ute Reservoir, confined ARS to two population segment would result in a We first received detailed information restricted segments of the Canadian significant gap in the range of a taxon; on the status of the species in 1989 (Pigg River—a 218-km (135-mi) section from evidence that the discrete population 1989). A partial status survey by Larson Ute Dam to the upper reaches of Lake segment represents the only surviving Meredith; and 601 river-km (373 river- natural occurrence of a taxon that may et al. (1990) was a source of additional mi) downstream of Lake Meredith (near be more abundant elsewhere; or information. We subsequently prepared Canadian, Texas) to the upper reaches of evidence that the discrete population a status report on this species (U.S. Fish Eufaula Reservoir in Oklahoma. The segment differs markedly from other and Wildlife Service 1990). Following reservoirs function as barriers, populations of the species in its genetic this report, Larson et al. (1991) and Pigg significantly inhibiting dispersal and characteristics. The Arkansas River (1991) provided comprehensive status interchange between the two segments. basin population is significant because survey information. In our November it represents the only surviving natural 21, 1991, Animal Candidate Review for Consideration as a ‘‘Species’’ Under the occurrence of the taxon. Listing as Endangered or Threatened Act Because it is both discrete and Species (56 FR 58804), we reclassified Section 3(15) of the Act defines significant, the Arkansas River basin the ARS as a category 1 candidate. At ‘‘species’’ to include ‘‘any subspecies of population of the ARS qualifies as a that time, category 1 comprised taxa for fish or wildlife or plants, and any distinct population segment under the which we had substantial information distinct population segment of any Act. Although it is discrete, the Pecos on biological vulnerability and threats species of vertebrate fish or River population of the ARS is not to support proposals to list the taxa as wildlife . . .’’ On February 7, 1996, the significant because it is an introduced endangered or threatened. Fish and Wildlife Service and the population located outside of the In the August 3, 1994, Federal National Marine Fisheries Service species’ historic range and, at this time, Register, we published a proposed rule published a joint policy (DPS policy) is not essential for recovery of the to list the Arkansas River basin (61 FR 4722) to clarify our interpretation species within its historic range. population of the ARS as endangered of the phrase ‘‘distinct population Therefore, the Arkansas River basin and invited public comment (59 FR segment of any species of vertebrate fish population of the ARS is a listable entity 39532). We based the proposal primarily or wildlife’’ for the purposes of listing, under the Act, and the non-native, on status information from reports to the delisting, and reclassifying species introduced Pecos River population is Oklahoma Department of Wildlife under the Act. The policy identifies the not a listable entity under the Act. Conservation (ODWC). We also used following three elements to be Furthermore, protection of the non- collections and observations made by considered in deciding whether to list a native Pecos River population of the Dr. Frank Cross, Mr. Jimmie Pigg, the possible DPS as endangered or ARS would conflict with the TPWD, and the Bureau and our own threatened under the Act: The preservation of the Pecos bluntnose collections and observations in discreteness of the population segment shiner (Notropis simus pecosensis) and preparing the proposed rule. Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64775

The enactment of Public Law 104–6 requested all interested parties to three letters containing numerous in April, 1995, and subsequent series of submit factual reports or information signatures opposing listing of the ARS. continuing resolutions from October 1, that might contribute to the We address written and oral 1995, through April 26, 1996, development of a final rule. The original comments received during the comment established a moratorium on issuing public comment period closed on periods in the following summary. final listings or critical habitat October 3, 1994, but we reopened it Comments from all respondents, designations. During that time, we were from January 6, 1995, to February 3, including the invited peer reviewers, are prohibited from making final 1995 (60 FR 2070) to accommodate combined. These comments addressed a determinations on listing proposals. three public hearings. We reopened the diversity of economic, social, and Following this delay, we reopened the comment period a second time from political issues. Because multiple comment period on the proposal to list December 5, 1997 to January 5, 1998 (62 respondents offered similar comments the ARS on December 5, 1997 (62 FR FR 64337). We contacted numerous in some cases, comments of a similar 64337), to solicit any new relevant data Federal and state agencies, county nature are grouped. Most comments and to allow the public to review and governments, municipalities, scientific opposed listing or favored delaying the comment on data we had obtained since organizations, knowledgeable listing. Of those actually stating a publication of the proposed rule. individuals, and other interested parties position, 380 specifically opposed Since publication of the proposed rule and requested them to comment during listing and 8 supported listing. The for the ARS, we have determined that the comment periods. We published remainder, while not specifically stating the Arkansas River basin population of newspaper notices during all comment a position on the rule, often expressed the Arkansas River shiner, which we periods in the Dodge City Globe (KS), concerns over what impact the listing proposed to list as endangered, should the Hutchinson News Herald (KS), the would have on various activities. Some be listed as threatened due to a lesser Quay County Sun (Tucumcari, NM), the comments were non-substantive or dealt immediacy and magnitude of threats to Daily Oklahoman (Oklahoma City, OK), with matters of opinion or legal history, its existence. New information received the Tulsa World (OK), Woodward News which are not relevant to the listing during the comment period revealed (OK), and the Amarillo Globe (TX), decision. The substantive comments that modifications to the Lake Meredith inviting general public comment and and our responses, grouped by issue Salinity Control Project resulted in attendance at public hearings. In category, are as follows: streamflow reductions that were less addition, we published a notice in the Issue 1: Procedural Concerns severe than originally projected in 1994. Lubbock Avalanche-Journal (TX) Also, the influence of the High Plains announcing the reopening of the Comment: Thirty commenters noted Aquifer on streamflows in the Canadian comment period on December 5, 1997. that the Act expired in 1992 and has not River upstream of Lake Meredith is less We received 114 requests for public yet been reauthorized, leaving us than originally believed. In addition, we hearings—46 from interested parties in without authority from Congress to discovered that the aggregations of ARS Kansas, 40 from Oklahoma, and 28 from implement it. These commenters in the reach between Ute Reservoir and Texas. We received 16 other requests for believed that, therefore, we should Lake Meredith are stable and not public hearings after the 45-day period either postpone listing or take no action declining, as presented in the proposed for requesting hearings had expired. We until the Act has been reauthorized. rule. The most recent information on the held public hearings on January 23, Service Response: The Act remains in status of the ARS is discussed in the 1995, in Meade, Kansas; January 24, place unless unfunded in the annual ‘‘Summary of Factors Affecting the 1995, in Woodward, Oklahoma; and Congressional appropriations process. Species’’ section. January 25, 1995, in Amarillo, Texas. With the exception of the recision of The processing of this final rule In Meade, 154 people attended and 25 listing funds described earlier, Congress conforms with our listing priority commented; in Woodward at least 45 has continued to fund the Act. We guidance published in the Federal attended and 29 commented; and in prepared this final rule using funds Register on May 8, 1998 (63 FR 25503). Amarillo 381 attended and 27 specifically appropriated by Congress This guidance further clarifies the order commented. Thirty-seven individuals at for conducting the Act’s listing in which we will process the remaining the Amarillo hearing did not have an activities. backlog of rulemakings resulting from opportunity to make oral comments Comment: Seven commenters the 1995–1996 moratorium. The because of time limitations. However, believed that we fail to use common guidance calls for giving highest priority many of these individuals did submit sense in implementing the Act, relying to handling emergency situations (Tier written comments at the conclusion of on regulation instead of innovation, 1) and second highest priority to the hearing. In addition, the High Plains leaving landowners with no incentive to resolving the listing status of Underground Water Conservation protect listed species and their habitat. outstanding proposed listings, resolving District Number One sponsored a public Service Response: By Federal Register the conservation status of candidate meeting in which an unknown number notice on July 1, 1994 (59 FR 34272), the species, processing petitions, and of individuals attended. The District Secretaries of the Interior and delisting or reclassifications (Tier 2). provided a video tape and transcript of Commerce set forth an interagency The guidance assigns the lowest priority this meeting containing the comments policy to minimize social and economic (Tier 3) to processing of proposed or of 25 individuals. impacts of the Act consistent with final designations of critical habitat. We received a total of 734 comments timely recovery of listed species. Processing of this final rule is a Tier 2 (letters and oral testimony) from Federal Therefore, we will work closely with action. (12) and State (45) agencies/elected stakeholders throughout the Arkansas officials, local governments (62), and River basin to accommodate economic Summary of Comments and private organizations, companies, and and recreational activities to the extent Recommendations individuals (615) during the comment possible while ensuring the continued In the August 3, 1994, proposed rule periods. The total number of entities survival and recovery of the ARS. (59 FR 39532), associated notifications, providing comments was 671, with Comment: One commenter stated that and in subsequent notices to extend or several individuals submitting more we do not have the authority to list the reopen the public comment period, we than one comment. We also received ARS in only a portion of the species’ 64776 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations known range. Another individual stated this listing, including data, survey Subsequently, we mailed 355 separate that if we can exclude listing of the results, analyses, supporting notifications of the public hearing to Pecos River population, we could information, and public comments, are species experts, other interested exclude listing of the ARS population included in the administrative record individuals, and Federal, State, county upstream of Lake Meredith. and are available for review by the and city government entities. We Service Response: As described public by appointment, during normal directly notified all interested parties previously, our policy published in the business hours, at the Oklahoma Field known to us. We continually updated Federal Register on February 7, 1996 Office. Appointments can be made by the mailing list to include all parties (61 FR 4721), established that to qualify contacting the Field Supervisor (see who had expressed interest in the as a distinct population segment, the ADDRESSES section). rulemaking or had requested to be population must be both discrete in In several instances, we provided added to the mailing list. Our mailing relation to the remainder of the species copies of referenced material, including list currently contains 1,153 separate to which it belongs, and significant to information on Red River shiners, in entities. We believe our notification the species to which it belongs. In the response to requests from the public. process fully satisfied the requirements case of the ARS, the Arkansas River Also, in accordance with the Act and its of the Act. basin population is clearly separate implementing regulations, the We first contacted the TPWD from the Pecos River population and Administrative Procedure Act, and the concerning the status of the ARS by represents the only surviving natural Freedom of Information Act (5 U.S.C. letter dated May 7, 1993. We sent copies occurrence of the species. Thus the § 552), we provided copies of of this letter to Andrew Sansom, the Arkansas River basin population documents to members of the public Executive Director; Larry McKinney, segment is both discrete and significant. who requested such information. then Director of the Resource Protection With respect to the Canadian River We prepared Fact Sheets and Division, and David Diamond, segment upstream of Lake Meredith, we distributed them to the public in Coordinator of the Natural Heritage do not believe it would be prudent to conjunction with notification letters for Program. We received a response from consider these aggregations of ARS as a the public hearings. We also distributed David Bowles, Endangered Species distinct population segment. Although copies of the Fact Sheets to the public Biologist with TPWD. We also contacted Lake Meredith is a human-made barrier at the three public hearings. Any the Federal Congressional delegation to dispersal, the ARS aggregations individual who was not on our mailing and the commissioners and judges upstream of Lake Meredith are not list at the time of the hearings or did not within the counties encompassing the markedly separated from those in the attend the public hearings did not ARS historic range during the remainder of the Arkansas River basin. receive copies of the Fact Sheets. We notification process. Subsequent to this Comment: Eighteen commenters would have provided this material to initial mailing, we received over 200 requested a longer comment period or anyone requesting it; however, we have requests for additions to the mailing list. stated that we did not give adequate no record of any specific requests for the Included in these additions were Texas time for public comment. Five Fact Sheets following conclusion of the Senator Teel Bivins, Texas commenters thought we were unwilling public hearing process. Representatives Warren Chisum and to disclose pertinent information or Comment: Three commenters felt that David Counts, and the cities of denied access to materials which the we had already reached a decision prior Brownfield, Canadian, Hereford, rule was based on. One commenter to receiving public comment and did Plainview, and Slaton, Texas. requested that all data, information, and not value public participation in the Comment: Some respondents were results of investigations, including decision-making process. Ten disappointed with the quality of the information on occurrence of Red River commenters stated that we had not hearings, and thought we deliberately shiners in the Canadian River, be adequately notified the public regarding misled the public. Others believed the available for review by interested the hearings or the proposed rule. hearings were inadequate to obtain full parties. Another felt we provided ‘‘Fact Commenters specifically stated that we public input on the proposal or that we Sheets’’ only to select individuals. did not contact the TPWD, Texas State had deliberately tried to limit the Service Response: Regulations at 50 elected officials, and affected municipal number of individuals who were CFR 424.16(c)(2) require us to allow a governments and that newspaper allowed to comment. minimum of 60 days for public notices were inadequate. Service Response: We are obligated to comment on proposed rules. The first Service Response: We reviewed and hold at least one public hearing on a comment period on the ARS proposed evaluated all written and oral listing proposal if requested to do so rule was open for 60 days. We also comments, as recorded in the public within 45 days of publication of the provided two additional comment hearing transcripts, before making a proposal (16 U.S.C. 1533(b)(5)(E)). periods, encompassing a total of 59 final determination on the proposed Considering the number of requests days. We believe that the comment rule. We have addressed all substantive received and the geographic distribution periods provided were adequate and comments in this section. Based on the of the species, we decided that holding fulfilled the requirements of the Act. comments we received, we revised the a single public hearing in each State, The proposed rule contained a status of the shiner and incorporated excluding New Mexico, would be complete summary of the information new information into this final rule. adequate and would not cause undue available to us regarding the status of We conducted an extensive inconvenience to those wishing to the ARS and sources of that notification process to make the public attend. We selected the locations and information. The cited material was aware of the proposal. In addition to times of the public hearings to be available to the pubic through a variety newspaper and Federal Register notices convenient to most citizens living of sources. We have incorporated new (see discussion at beginning of this within the affected area. We reviewed information on the occurrence of the section), we mailed 153 separate and considered all oral comments Red River shiner in the Arkansas River notifications of the proposed rule to presented at the public hearings. In one basin into this rule and the Federal, State, county and city instance, we had to limit oral administrative record. All documents, governments, species experts, and other comments; however, all persons were records, and correspondence relating to individuals to solicit their input. allowed to submit written comments, Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64777 which receive equal consideration to such determination.’’ Neither the Act competition with native fish fauna, it is oral comments. nor implementing regulations allows us valuable in restoration efforts, habitat in Comment: Two respondents wanted to consider the recovery potential or the Pecos River is optimal for to know if information in the proposed recovery cost for a species in maintaining a thriving population, and rule had been peer reviewed. determining whether a species should the Act requires protection of the ARS Service Response: The information be listed. and does not authorize eradication of used in determining to propose listing We solicit active participation by the this population. One individual the ARS has been peer reviewed (see scientific community, local, State, and questioned whether the ARS population ‘‘Peer Review’’ section). Federal agencies, Tribal governments, in the Pecos River was truly an anomaly Comment: One commenter stated that and other interested parties in the or if it was actually a natural event. we must prepare an Environmental development and implementation of Another respondent stated that the Impact Statement (EIS), pursuant to the recovery plans (59 FR 34270). We agree historic range should be expanded to National Environmental Policy Act that local community support and the include the Pecos River. Conversely two (NEPA), on this rule. cooperation of private landowners is commenters stated that our description Service Response: For the reasons set essential to fully protect and recover of the Pecos River population was out in the NEPA section of this listed species, and we will work closely accurate. Twenty respondents believed document, we have determined that the with stakeholders in the management the Arkansas River Basin population of rules issued pursuant to section 4(a) of and recovery of the ARS to ensure that the ARS should not be listed because the Act do not require the preparation the concerns of local governments, the species is abundant, robust, and of an EIS. The Federal courts have held citizens, and others are considered. thriving in the Pecos River of New in Pacific Legal Foundation v. Andrus, Section 4(f) of the Act authorizes us Mexico and its habitat is stable and 657 F2d. 829 (6th Circuit 1981) that an to develop and implement recovery optimal for spawning. Two other EIS is not required for listing under the plans for listed species. A recovery plan commenters stated that the Arkansas Act. The Sixth Circuit decision noted delineates reasonable actions which are River basin population should not be that preparing an EIS on listing actions believed to be required to recover and/ listed if recovery of the Pecos bluntnose does not further the goals of NEPA or or protect listed species and may shiner is more important than the Act. address measures specifically conservation of the ARS. Comment: One respondent believed mentioned during the comment period. Service Response: In the we were being pressured to list the ARS Recovery plans do not, of themselves, ‘‘Background’’ section of this rule we in response to pending litigation. commit personnel or funds nor obligate included a discussion of the Pecos River Service Response: We classified the an agency, entity, or person to population of the ARS that addresses ARS as a category 1 candidate species implement the various tasks listed in most of these comments. As we independent of any litigation, meaning the plan. Once we develop a recovery explained in that section, the Act clearly that we had substantial information on plan for the ARS, the plan will be authorizes us to list distinct population biological vulnerability and threats to available for public review and segments of vertebrate species. support a proposal to list the taxon as comment prior to adoption. The occurrence of the ARS in the endangered or threatened. Our decision Pecos River is not a natural event. to propose the ARS for listing was based Issue 3: Critical Habitat Researchers examined fish collections on the mandates of the Act and not any Comment: We received many housed at Eastern New Mexico ‘‘pressures’’ from litigants. comments regarding the designation of University in Portales and at the critical habitat. Numerous (110) University of New Mexico for evidence Issue 2: Recovery Planning and commenters expressed concern of any historical occurrence of ARS in Implementation regarding the economic implications of the Pecos River. Two collections from Comment: Many comments were critical habitat designation and often near Ft. Sumner in 1977 and 20 received regarding our recovery stated that such designation would collections from the reach extending planning process. Twenty-four severely limit a number of land and from near Santa Rosa to the vicinity of commenters felt that we should not list water uses or affect residents’ quality of McMillan Reservoir between the years the species because recovery of the life and economic growth potential. 1974 to 1977 did not contain ARS. A species is too costly and recovery is not Seventeen commenters requested we collection taken in September of 1978 guaranteed by listing or through the involve stakeholders in any economic downstream of Sumner Dam contained recovery process or that we should analysis conducted during identification 16 specimens. This led Bestgen et al. provide details, costs, and recovery of critical habitat. Eleven others urged (1989) to conclude that the initial goals of the recovery program before us to designate critical habitat at the release of ARS into the Pecos River proceeding with the listing. Seventeen same time the species is proposed for occurred in 1978 and that the Pecos commenters requested that we involve listing. A few (3) suggested locations River population is artificial and not stakeholders in meetings and in the that should or should not be included within the historic range of the ARS. We development of recovery actions. Sixty- as critical habitat. concur with this assessment. six respondents suggested potential Service Response: We have The purpose of the Act is to conserve recovery actions or focus areas for determined that designation of critical threatened and endangered species and recovery, or expressed concern habitat is not prudent (see ‘‘Critical the ecosystems on which they depend. regarding implementation of Habitat’’ section). Non-native, introduced populations, unfavorable recovery actions. while possibly useful in recovery/ Service Response: Regulations at 50 Issue 4: Pecos River Population restoration efforts, are not a viable CFR 424.11(b) require the Secretary of Comment: We received a variety of substitute for species conservation in the Interior to make listing decisions comments relating to the Pecos River native ecosystems. We do not believe based on ‘‘the best available scientific population of the ARS. Fifteen listing or active conservation of the and commercial information regarding a commenters questioned the need to introduced Pecos River population is species’ status, without reference to eradicate the Pecos River population appropriate nor is such conservation possible economic or other impacts of stating that it is not in direct adverse required by the Act. 64778 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations

We agree that the Pecos River water resources will help to provide a Service Response: We agree that population could serve as a source of necessary resource for future various species of phreatophytes have individuals for transplantation into generations of people and maintain a invaded stream channels within the suitable, unoccupied, historic habitat. healthy aquatic ecosystem for fish and western regions of the Arkansas River Consequently, we do not currently wildlife. basin and that they have the potential to intend to aggressively pursue Comment: Eighteen commenters use large quantities of water when eradication of the ARS from the Pecos stated that extinction of the ARS is a growth is extensive. Stinnett et al. River. However, we do not intend to natural, evolutionary process and we (1988) documented the effects of manage the Pecos River as a refugium should not interfere with the process of vegetation encroachment within the for the ARS. The feasibility of using natural selection. Canadian River (see factor A in ARS from the Pecos River in restoration Service Response: We concur that ‘‘Summary of Factors Affecting the efforts in the Arkansas River basin will extinction and the dynamic processes of Species’’ section). be fully evaluated during the recovery natural selection, fitness, and evolution Comment: One respondent stated that process. are natural, ecological phenomena. when the Eastern New Mexico Water Numerous natural, including Supply Project is completed in the year Issue 5: Ecological and Economic Value catastrophic, events over geologic time 2000 (or later), diversions from Ute of the ARS have resulted in the extinction of many Reservoir would occur, reducing the Comment: Several (21) commenters species. However, evolutionary changes frequency and amount of water released questioned the economic or ecological rarely occur at rates comparable to those from Ute Reservoir. value of the ARS, including its use as an induced by human environmental Service Response: The Bureau has indicator of the health of ecosystems, its alteration. Congress clearly recognized preliminarily evaluated the feasibility of benefit to society, its value for human-caused increases in the rate of minimum streamflow releases (2 cubic medicinal purposes, its importance in species extinctions and passed the Act feet per second (cfs)) downstream of Ute comparison with other species, and its in an attempt to decrease the rate at Reservoir as a component of the Eastern importance in comparison to the which human-caused extinction occurs. New Mexico Water Supply Project. economic benefits of agriculture. Such releases would likely preclude Issue 6: Threats Another eight individuals believed the dewatering of the Canadian River below shiner was here to be used as humans Comment: Forty-six commenters were Ute Reservoir, provided the State of deemed necessary. concerned that corporate swine farms New Mexico does not appropriate all of Service Response: In section 2 of the pose a threat to the ARS due to their the remaining unappropriated water in Act (Findings, Purposes, and Policy), high usage of surface and ground water the Canadian River downstream of Ute Congress found that numerous species which could reduce streamflows in the Dam. We will work with the Bureau of fish, wildlife, and plants had become affected rivers. These same commenters pursuant to section 7 to ensure that the extinct, and that other species had were concerned that waste application needs of the ARS are adequately become so depleted in numbers that from confined swine, poultry, and dairy addressed by this project. these species were in danger of, or, operations has the potential to Comment: Twenty-five commenters threatened with, extinction due to a lack contaminate surface and groundwater, were concerned that we considered of concern for their conservation. constituting a threat to the ARS. agricultural conservation practices a Furthermore, Congress found that these Conversely, one commenter stated that threat to the ARS and would discourage species of fish, wildlife and plants are we have no information to indicate that practices such as planting of intrinsically valuable to the Nation and commercial livestock operations have shelterbelts, conservation farming (e.g., its people for reasons of aesthetic, impacted the ARS. no-till planting and conservation reserve ecological, educational, historical, Service Response: We concur that program grass plantings), and recreational, and scientific value water use and waste application or a construction of terraces, waterways, (section 2(a)(3)). These findings are the spill from waste holding facilities stockwater ponds, and watershed dams. basis of the Endangered Species Act, the represents a potential threat to ARS. Many included specific information purpose of which is to conserve Since 1990, the number of swine in relating to these practices. Another 13 threatened and endangered species and Oklahoma has increased from 200,000 specifically were concerned about the the ecosystems on which they depend. to 1.7 million animals, making effect of listing on flood control To that end, the Act requires the Oklahoma the eighth largest pork reservoirs. Department of Interior to maintain a list producer in the Nation (‘‘State Service Response: All of the of endangered and threatened species. Legislators Expecting Vote on Hog Farm conservation practices mentioned in The Act requires that listing decisions Bill,’’ Mick Hinton, The Daily this comment, although very effective at be based on the best available scientific Oklahoman, Oklahoma City, February reducing run-off, are specifically and commercial information regarding a 11, 1998). The Oklahoma panhandle designed to minimize soil erosion and species’ status, without reference to contains almost one-half of these control sedimentation. Without these possible economic or other impacts of animals. However, we have no data practices in place, increased siltation such determination. Although a variety documenting the effects of concentrated would likely occur in rivers and streams of opinions likely exist as to a particular livestock operations on water quality or of the Arkansas River basin. species’ contribution to society, this quality specifically relating to the ARS. Construction of terraces, shelterbelts, issue is not among the five factors upon Comment: Four respondents grassed waterways, and other vegetative which a listing determination is based. suggested that salt cedar (Tamarix sp.), planting for conservation are not likely While we cannot consider the intrinsic Russian olive (Eleagnus angustifolia), to significantly impact streamflows and value of species when making a listing mesquite (Prosopis sp.), and other habitat or threaten the survival of the determination under the Act, we believe phreatophytes (i.e., deep rooted plants ARS. that protecting these species has a that obtain water from the water table or The effects of construction of stock positive effect on society. Society, like the zone just above it) have invaded ponds and flood water retention the ARS, depends upon reliable river basins and use water, causing structures and other small dams on supplies of clean water. Conserving streamflows to decline. tributary streams are likely to have a Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64779 much different effect on streamflows. either by consumption of forage or by educational purposes. Federal The primary goal of most small trampling vegetation (Menzel 1984). protection of the ARS also will help to watershed projects is to provide Restriction of livestock grazing is one of reduce illegal and inappropriate take. drainage and relief from flooding in the principal management tools used for Arkansas River shiners are thought to rural areas. Channelization (e.g. channel white-tailed deer on public lands. spawn communally (Cross et al. 1985) modification or ‘‘improvement’’) is often Additionally, the dietary preferences of but are not known to make basin-wide used to provide drainage and flood deer and livestock generally do not migrations to a few traditional spawning relief, while watershed dams and levees overlap to a significant extent. Deer are areas where large numbers of primarily provide flood relief. The opportunistic feeders, consuming a individuals would be susceptible to a effects of these activities are discussed wide variety of plant species (Jackson single collection event. Additionally, in the ‘‘Summary of Factors Affecting (1961) as cited in Menzel (1984)), and ARS may spawn several times during the Species’’ section. cattle forage almost exclusively on the course of the spawning season and The Natural Resource Conservation grasses and forbs. Consequently, we do even widespread scientific collecting Service (NRCS) Small Watershed Project not believe that deer exert the same during this period would not likely program is subject to the provisions of influence on the riparian zone as do eliminate the entire reproductive effort section 7 of the Act and any planned cattle and do not consider use of for the year. projects must first be examined for riparian zones by deer to be a threat to Comment: Numerous (115) impacts to listed species before ARS. commenters stated that irrigation and construction may proceed. Private Comment: Two individuals were groundwater pumping are not a threat to actions, such as construction of a farm concerned that the Federal government, the ARS because water levels have pond, would generally be exempt from through construction of reservoirs and stabilized, primarily due to conservation the regulatory provisions of the Act support of soil and water conservation and more efficient irrigation systems, unless the actions involve Federal funds practices, was responsible for the and the effect on streamflow, where it or Federal authorization, or if the action decline of the ARS. Three other occurs, is limited. Similarly, 58 would result in take of ARS. The term respondents stated that agriculture was commenters stated that we have no ‘‘take’’ means to harass, harm, pursue, singled out as a threat, even though evidence to support the assumption that hunt, shoot, wound, kill, trap, capture, Federal reservoirs were known to have irrigation and pumping from the High or collect, or to attempt to engage in any an impact on ARS. Plains (Ogallala) aquifer has diminished such conduct. A private party could Service Response: We acknowledge flow in the Canadian River or has seek a section 10(a)(1)(B) incidental take that some Federal actions are, in part, affected habitat conditions for the ARS. permit to legally take ARS incidental to responsible for the threats facing the Two commenters stated that we have otherwise lawful activities. Arkansas River basin population of the new information regarding the influence Comment: Two commenters ARS. As a result of listing, those of groundwater on flows in the expressed concern that we considered ongoing Federal actions will be subject Canadian River basin. Six others stated open-range grazing a threat to the ARS to consultation under section 7 of the that springflow is not reliable or has not due to water quality concerns. Two Act. been affected by groundwater pumping. other commenters implied that white- We did not intentionally single out Service Response: We agree that water tailed deer have access to streamside agriculture as the primary threat to conservation efforts have had a zones, have abundant populations, and survival of the ARS. We believe a significant effect on reducing the would cause similar impacts on riparian number of threats collectively imperil amount of water used. These efforts zones as do domestic livestock. the ARS, and no single threat likely have reduced the rate of depletion of the Service Response: We believe well- poses a sufficient threat to the ARS to High Plains aquifer in Texas. However, managed livestock grazing is compatible justify listing. When making a listing groundwater depletion continues within with viable ARS populations and that determination, we assess the potential the Central Regional Subdivision of the certain types of grazing in riparian impact of all threats, including High Plains aquifer. Although certain zones likely have minimal impacts on agriculture, to the species. Although underground water conservation the ARS. In fact, low to moderate agricultural activities can impact the districts have recently shown stabilized grazing and seasonal or rotational ARS in various ways, we do not believe groundwater levels within their districts grazing practices are compatible with agriculture is the primary threat to the or have shown that average depletions many natural resource objectives. ARS. over the past several years have been However, negative effects of overgrazing Comment: Two commenters stated reduced to less than 10 centimeters (cm) remain a concern (see ‘‘Summary of that overcollection for scientific (4 in), these statistics are not indicative Factors Affecting the Species’’ section). purposes, particularly during spawning of the entire western region of the Although white-tailed deer typically periods, is a threat. Arkansas River basin. Dugan and Sharpe inhabit lowland and riparian areas in Service Response: We have no (1996) state that water level declines in the Central and Southern Plains (Menzel information indicating that collecting the Central High Plains subregion from 1984), the overall impacts of deer and for scientific or educational purposes 1980 to 1994 were the largest, both in other native ungulates on riparian zones poses a significant threat to the ARS. area and magnitude of decline, of any in are less than that of livestock. Livestock However, take by private and the entire High Plains. A nearly do not forage, herd, or move in the same institutional collectors could pose a continuous area including much of manner as native ungulates. Deer do not threat, if left unregulated. With the southwestern Kansas, portions of the tend to concentrate in large numbers exception of the States of Texas and Oklahoma Panhandle, and much of the and do not remain in riparian areas for Arkansas, the ARS is listed as an northern Panhandle of Texas has shown long periods of time as do cattle. Deer endangered or threatened species by a decline of more than 3 meters (m) (10 typically do not trample vegetation and States within its historical range and feet (ft))(see factor A in ‘‘Summary of streambanks to the same extent as cattle. take is prohibited without a valid State Factors Affecting the Species’’ section). Where cattle have access to streamside collecting permit. Such provisions Regarding the influence of water level zones, they generally reduce the should minimize the threat of declines on streamflow, specific, suitability of the riparian zone for deer, overcollecting for scientific or regionwide data are lacking. We concur 64780 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations that groundwater pumping has likely Comment: One respondent stated that a smaller secondary sewage source had a minimal effect on streamflow in the threat analysis is incorrect because occurred at a site approximately 30 the Canadian River upstream of Lake very little surface water is diverted from river-km (18 river-mi) downstream of Meredith. We evaluated new the Canadian River in Texas. that site. Although ARS were not information provided during the public Service Response: We agree that very collected during that study, fish comment period and concluded that little diversion of stream surface water communities in these reaches did not pumping has reduced spring flow but occurs in the Canadian River of Texas. appear to be significantly depressed by the overall effect on flow in the However, surface water is diverted from urbanization (Matthews and Gelwick Canadian River between Ute Reservoir Lake Meredith via the Canadian River 1990). and Lake Meredith has been relatively Project. Diversion of surface water also Advancements in waste water minor. This new information has been occurs within other Arkansas River treatment facilities and reductions in incorporated into this rule (see factor A tributaries. Our threat analysis includes other sources of pollution have occurred in ‘‘Summary of Factors Affecting the threats occurring in other portions of the since passage of the Clean Water Act in Species’’ section). Arkansas River basin, not just those in 1972. Species which are less tolerant of Information on the contribution of Texas. degraded conditions would generally springs to flow in the Canadian River Comment: Seven commenters not occur in stream reaches affected by below Lake Meredith and the effects of expressed opposing views concerning urbanization. Where water quality groundwater pumping on this the influence of predation on the ARS. degradation has dramatically altered springflow is generally unavailable. Four individuals stated that predation is ARS habitat, we would agree that such However, we believe that, based on the a threat and three commenters did not events have played a role in the decline predevelopment discharge from the believe that existing information of this species. However, we have very aquifer within the Arkansas River basin suggested that predation was a threat. little specific information documenting Service Response: Studies on the (Luckey and Becker 1998), continuing the effects of poor water quality on ARS impact of disease or predation upon the groundwater depletion will affect and cannot conclude that these types of ARS have not been conducted and the streamflow in the Arkansas River basin. pollution are a significant factor significance of these threats is Comment: Seven commenters stated contributing to the decline of the ARS. unknown. While neither disease nor The effects of changes in turbidity or that, based on the rate at which water predation are thought to be a significant moves through the High Plains aquifer, salinity on the ARS are unknown. threat to a healthy ARS population, they Comment: Three commenters stated the aquifer would not contribute to could, in certain localized areas, occur that drought is the main threat to the streamflow. Similarly, one respondent more frequently or have a more ARS and is responsible for its decline; stated that water level contour maps of significant impact and hinder recovery twelve others stated that minnows the aquifer show that water only moves of the ARS. This threat is addressed in inhabiting plains streams are adapted to toward the river within the area more detail under factor C in the withstand a variety of harsh conditions, described as the ‘‘breaks.’’ ‘‘Summary of Factors Affecting the such as dewatered and drought Service Response: The rate at which Species’’ section. conditions, and lack of streamflow is water moves through the aquifer has no Comment: One commenter stated that not a threat. bearing on the contribution of the illegal dumping of oil field brines in the Service Response: Arkansas River aquifer to streamflow. The aquifer is an 1960s caused fish kills, and fish shiners evolved under natural cycles of underground body of water that populations never recovered. Two flooding and drought, and are adapted resembles a ‘‘reservoir;’’ the water commenters stated that a major threat to to a wide variety of physical and bearing strata are a mixture of gravel the ARS and other aquatic species was chemical conditions. Fish populations and sands. A withdrawal from one end water quality degradation. Two others in such systems tend to be cyclic in of the ‘‘reservoir’’ affects water levels in stated that we have no information that nature, responding to such natural the entire reservoir. Water within the any chemical has been introduced into factors as weather events, disease, and aquifer exists in balance with the rate of ARS habitat. One commenter stated that predation. Natural events, however, recharge, that is, natural discharge to changes in turbidity and salinity were including long-term drought or extreme streams equals recharge, at least under not threats to the ARS. rainfall, have less of a negative effect predevelopment conditions. Pumping Service Response: Dumping of oil overall on a species when that species from the aquifer essentially represents field brines was suspected to have is widely and continuously distributed. an artificial discharge from the aquifer. partially accounted for the decline of Where populations are small, When this artificial discharge exceeds the ARS from the North Canadian River fragmented, or isolated by various recharge, natural discharges must in the vicinity of Oklahoma City, human-related factors, they are more decline accordingly. Oklahoma (Pigg et al. 1997a). Nutrient vulnerable to extirpation by naturally Comment: Five commenters stated enrichment from municipal waste water occurring or random events and that the Canadian River was below the effluent, particularly in the North cumulative effects. elevation of the High Plains aquifer and Canadian River, also may have Construction of mainstream dams thus not connected. contributed to degradation of water hinder natural expansion and Service Response: We partly agree quality. Pigg et al. (1992) stated that 64 contraction of populations, preventing with this comment. The Canadian River municipal sewage treatment plants, 34 fish from recolonizing dewatered has cut below the elevation of the industries, and 2 electric power plants reaches when flows return. This may Ogallala formation upstream of the discharge into the North Canadian have contributed to the extirpation of Hutchinson-Roberts County line in River. Matthews and Gelwick (1990) aggregations of the ARS. Drought also Texas (Dugan and Sharpe 1996). examined fish communities within a accentuates the effect of human-caused Downstream of this point the Canadian highly urbanized reach of the North events (Matthews 1998), such as River is confined within the sediments Canadian River in Oklahoma City that overallocation of streamflows and of the Ogallala formation (see factor A received concentrated feedlot runoff and overdraft of groundwater resources. in ‘‘Summary of factors Affecting the secondary treated sewage effluent. Stream dewatering combined with long- Species’’ section). Dumping of construction materials and term drought could result in permanent Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64781 elimination of ARS from a large part of impoundments were a threat to the Reservoirs function as barriers, the Arkansas River drainage. Although ARS. Four of these individuals stated significantly inhibiting dispersal and the species as a whole has persisted to that construction and operation of John interchange between populations. date, we do not believe remaining Martin Reservoir in Colorado had Reservoirs also have inundated, populations are secure. Considering the affected streamflow within the Arkansas dewatered, or otherwise directly altered species’ ability to withstand harsh River in Kansas. Conversely, one considerable sections of riverine habitat conditions within prairie streams, the individual stated that the threat from once inhabited by ARS (see factor A in fact that this species has disappeared John Martin Reservoir is speculative and ‘‘Summary of Factors Affecting the from over 80 percent of its historical inconclusive. One individual stated that Species’’ section). It is possible that, range suggests that the effects of natural construction of Medford Dam was a under certain conditions, fragmentation events are exacerbated by human threat. Another stated that construction of ARS habitat by reservoirs could help influences. of Forgan Reservoir on the Cimarron reduce the probability that a release of Comment: Two commenters thought River was no longer a threat. Four Red River shiners would impact all ARS introductions of non-native species was individuals stated that reservoirs were aggregations within a river basin. a primary reason for the disappearance beneficial and that we should consider However, such protection is minimal of the ARS. Five individuals stated that these benefits in the analysis. Two considering the popularity of introductions of Red River shiner did others stated that our assessment of the recreational fishing in the basin and the not affect aggregations of ARS because impacts of dams was inconsistent. One lack of specific regulations prohibiting the species had already declined and individual asked if we had considered bait-bucket releases of non-native fishes. the Red River shiner simply replaced the effects of releases from Keystone We believe that the known adverse the ARS. Two others stated that reduced Reservoir on ARS spawning effects of reservoirs far outweigh any flows or drought, not introductions of requirements. Conversely, one such potential small benefit. non-native fishes, was the primary individual stated that flood pulses still We have not evaluated the threat. Six commenters stated that occur below dams and reproduction implications of releases from Keystone introductions of Red River shiners only should still occur. Five individuals Dam on ARS reproduction. The specific affected a small portion of the historical stated that damming has diminished spawning requirements of ARS are not range and thus are not a primary threat habitat but the effects are short-term and yet known. However, we suspect that to remaining populations. the river will stabilize allowing these releases are not compatible with Service Response: The introduction of populations to persist. Another ARS spawning requirements and that the Red River shiner represents a individual stated that streamflows these flow modifications are largely potentially serious threat to the ARS; following impoundment have stabilized responsible for the decline of ARS however, we do not believe and are not going to decline. One below the reservoir. We anticipate that introductions of the Red River shiner individual stated that Lake Meredith once reproductive requirements are have had a detrimental effect on any was the primary threat. known, we will initiate discussions ARS aggregations other than those in the Service Response: Cross et al. (1985) with the Tulsa District of the Army Cimarron River. The primary threat to stated that irrigation diversions and Corps of Engineers (Corps) to evaluate ARS aggregations is streamflow flow regulation by John Martin whether releases from the reservoir alterations due to reservoir construction Reservoir led to declines in several could be modified to benefit ARS. and water withdrawals (see ‘‘Summary species of fish in western Kansas, We agree that flood pulses necessary of Factors Affecting the Species’’ including ARS. They found that the to support reproduction by ARS still section). initial effect of impoundment by John occur below some impoundments. Comment: Seven respondents stated Martin Reservoir was a moderation of Reproducing populations of ARS persist that the ARS is not likely to be affected flow extremes (e.g., reduction peak downstream of Lake Meredith and Ute by commercial bait harvest. One flows and increase in minimum flows) Reservoir; however, neither of these commenter stated that using ARS as fish between 1943 and 1965. After 1965, impoundments provide regular bait should be illegal. streamflow generally ceased after July downstream releases. Runoff and Service Response: We agree that and did not resume until January or tributary inflow during precipitation abundance of the ARS is not likely to be February. Although these declining events within these river segments seriously impacted by commercial streamflow conditions cannot be provide stage rises sufficient to induce harvest of bait fish. The ARS is not a entirely attributed to John Martin spawning in these populations. In the highly prized bait fish, and it is not Reservoir, this reservoir definitely eastern regions of the Arkansas River selectively harvested as bait. Arkansas contributed to flow alterations in the basin, reservoir releases often cause River shiners may occasionally be western portion of the Arkansas River. streamflows to fluctuate on a daily basis captured incidental to capture of other We could not verify the existence of which is not conducive to spawning by commercial bait fishes (see factor B in a Medford Dam and cannot address this ARS. ‘‘Summary of Factors Affecting the comment. Flow fluctuations caused by releases Species’’ section). The ARS is already In its Northwest Oklahoma Water from reservoirs tend to attenuate or listed as threatened or endangered in Supply Study (Bureau 1991), the Bureau dampen with distance downstream of the States of Kansas, New Mexico, and proposed the construction of Forgan the dam. Thus, at some point, the effects Oklahoma, and collection is prohibited Reservoir, to be located near the Kansas- of such releases on the aquatic without a valid permit. The greatest Oklahoma State line on the Cimarron community would be minor and potential threat to the ARS from River. This reservoir would impound reproduction could occur. However, in commercial bait operations is the about 8 km (5 mi) of the Cimarron River. the absence of sufficient river length or possible accidental release of non- Although this reservoir has not been without modification of existing indigenous fishes into the Arkansas authorized, and planning has been releases, regulated flows rarely mimic River basin. deferred, we consider this reservoir a those which occurred prior to Comment: Twenty-two commenters potential threat to the ARS. impoundment. Under these conditions, requested clarification or We disagree that reservoirs have had reproduction will not occur, and documentation that reservoirs and a beneficial effect on the ARS. populations will not likely persist. 64782 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations

We agree that Lake Meredith has Issue 7: Sufficiency of Information through E in the ‘‘Summary of Factors exerted the greatest influence over ARS Comment: Eighty commenters Affecting the Species’’ section. aggregations in Texas. However, Lake questioned why we were listing the We have summarized all of the available life history information in this Meredith is not the primary threat to ARS, either rangewide or within the rule. We agree that many aspects of the ARS. The decline of the ARS is due to State of Texas. Few of these commenters biology of this species are unknown and a variety of factors, many of which act provided substantive new information need further study. This is true for most synergistically. The cumulative and relevant to making risk assessments or species of fishes, including common synergistic effects of all of the identified assessing the status of the species. species that have been studied threats are responsible for the present Forty-six commenters stated that the extensively. However, we are not and threatened destruction of ARS proposed rule contained inadequate, required to address all of the biological habitat and its diminished range. incomplete, inaccurate, or unclear and ecological requirements of the Comment: One respondent stated that information concerning the need to list minimal alterations of the flow regime species in order to list it. In fact, the ARS. Three commenters stated that delaying listing in order to complete a did not directly cause the ARS to the listing is premature and that the diminish in range and abundance, and large, long-term biological or ecological need for listing has not been fully research effort could seriously thus are of little consequence. researched. Two others believed that the Service Response: We agree that very compromise the survival of the listing should be postponed until more Arkansas River basin population of the minor alterations in streamflow are not information outlining why the species likely to be a significant threat to the ARS. continues to survive in the Canadian Comment: Four commenters were ARS. However, the commenter did not River has been obtained. One individual state what constitutes minimal concerned that we had not used all of felt that the listing should be delayed the available information in preparing streamflow alterations. As discussed until more studies have been completed under factor A of the ‘‘Summary of the proposed rule; specifically status on habitat requirements. Eighteen information from the TPWD and the Factors Affecting the Species’’ section, individuals requested that we provide Bureau, collections of commercial bait certain alterations of the natural flow life history information on the species dealers, and groundwater depletion regime are detrimental to the ARS. or conduct additional studies. records from underground water Comment: One commenter stated that Service Response: Section 4(b)(1)(A) conservation districts in Texas. a present threat must be demonstrated of the Act requires us to make listing Service Response: We examined data and asked to what extent reservoirs now determinations on the basis of the best from the TPWD (Lewis and Dalquist impact or threaten the ARS. scientific and commercial data 1955 and Eric Altena, in litt. 1993 ) and Service Response: The Act requires us available. Although we consider the Bureau (Eugene Hinds, in litt. 1984) to consider ‘‘the present or threatened historical habitat loss and rates of but did not specifically cite them in the destruction’’ of a species’ habitat or decline, we also consider many other proposed rule. We used harvest data range. The lack of streamflow factors, including current rates of from the commercial minnow dealers, to downstream of a reservoir would qualify decline, potential and imminent threats, the extent possible. However, this as a present, ongoing threat because if number and status of populations, and information is not always reliable (see streamflows were restored, downstream amount and quality of remaining factor B in ‘‘Summary of Factors populations could recolonize those habitat. We use historical habitat loss Affecting the Species’’ section). We used areas that are presently unsuitable. For and rates of decline to ascertain whether information available from the U.S. example, if releases were made from a species is undergoing a precipitous or Geological Survey (USGS) to document Lake Meredith, these flows, under gradual decline. Reduced abundance, groundwater depletion in the High certain conditions, could be beneficial loss of habitat, and extirpation of ARS Plains aquifer. During the comment and allow shiner aggregations which aggregations from a variety of causes period, we received additional exist downstream to recolonize the have been documented. This information on groundwater depletion entire reach of the river. Withholding information shows that the range of the from several underground water these releases prevents this from ARS in the Arkansas River basin has conservation districts. We also obtained occurring and is a present, ongoing been reduced by over 80 percent. additional information from the USGS. threat to ARS habitat downstream of the In preparing both the proposed and We have incorporated all of the reservoir, particularly in Texas. final rules on this listing, we have used information from these sources into this Similarly, where reservoir releases have information received from a variety of final rule. modified ARS habitat such that these sources including museum collections, Comment: One individual stated that reaches can no longer be inhabited, the knowledgeable biologists, groundwater there is currently more water in the present, ongoing operation of these hydrologists, and studies specifically Canadian River than there was before reservoirs prevents ARS from directed at gathering information on the the reservoir was constructed. recolonizing these stream reaches. distribution and threats to the ARS. This Service Response: This commenter Comment: One individual commented rule summarizes all of the available did not specify which portion of the that the decline of the ARS is due to information on the status of and threats Canadian River, above or below Lake channelization of the Cimarron River to the ARS. Meredith, now has more water. An below Tulsa for navigation. We have incorporated in this rule all analysis of streamflow records for the Service Response: We suspect this substantive new data, including an period of record up to 1963 (USGS commenter mistakenly referred to the investigation of ARS habitat 1963) above Lake Meredith, shows that Cimarron River instead of the Arkansas requirements, obtained since the species average annual discharge was 12.4 cubic River. The Cimarron River has not been was first proposed for listing in 1994. meters per second (cubic m/s) (439 cfs) modified to support navigation. We This new information caused us to as measured at the gage north of agree that modification of the Arkansas reassess our analysis of the nature and Amarillo. This measurement included River for navigation eliminated habitat immediacy of threats affecting the some regulation by Conchas Reservoir, for the ARS (see ‘‘Summary of Factors species. Specific justification for listing but was prior to construction of Ute Affecting the Species’’ section). the species is summarized in factors A Reservoir. Analysis of flows in the Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64783

Canadian River, as measured at Logan, sites, often by several individuals, over regulatory mechanisms do not currently New Mexico in 1961 (USGS 1961) several years. The protocols used in provide adequate protection for the shows that flows averaged 11.1 cubic m/ these surveys and in analyzing the data ARS. Additional discussion of existing s (392 cfs) prior to construction of are generally accepted by the scientific regulations can be found under factor D Conchas Reservoir and 7.6 cubic m/s community as appropriate for sampling of the ‘‘Summary of Factors Affecting (270 cfs) after construction. The average fish populations (Nielsen and Johnson The Species’’ section. annual discharge at Amarillo for the 1983, Schreck and Moyle 1990). Comment: Nineteen commenters period of record up to 1996 has been Comment: Seventeen commenters believed we did not adequately reduced to 8.1 cubic m/s (286 cfs). stated that a one-time introduction of demonstrate that the threats identified Streamflow records up to 1996, as Red River shiners would not constitute in the proposed rule were actually measured at Canadian, Texas, a catastrophic event sufficient to cause affecting ARS aggregations in the approximately 121 river-km (75 river- extirpation of the entire Arkansas River Arkansas River basin. One commenter mi) downstream of Lake Meredith, show basin population of the ARS. One other stated that ongoing activities within the that the average annual discharge was individual stated that the rangewide river basin were not likely to change in 15.5 cubic m/s (549 cfs) before Lake loss of an annual reproductive cycle is the foreseeable future. Meredith was built and 2.4 cubic m/s remote. Service Response: For the reasons (83.7 cfs) after the reservoir was built. Service Response: Lake Meredith is an explained in this rule, sufficient, Flow in both reaches of the river may effective artificial barrier to movement ongoing threats exist for us to justify now be perennial, due to seepage from of stream fishes and potentially could listing the Arkansas River basin Ute and Sanford dams, but there is not provide a small degree of protection to population of the ARS. Although more water in the river now compared ARS aggregations upstream of Lake specific studies documenting the to years prior to construction of Lake Meredith from introductions of non- influence of a particular threat on the Meredith. native fishes which might occur ARS may not have been conducted, Comment: One individual stated that downstream of the reservoir. However, sufficient information exists to the proposed rule was incorrect because aggregations of ARS upstream of Lake demonstrate that ARS are vulnerable to water quality improves rather than Meredith are much less numerous than the identified threats. We have declines as the river flows from Ute those in the remainder of the Canadian presented ample evidence for a Reservoir to Lake Meredith. River and the risk of extinction for the reasonable person to conclude that a Service Response: We recognize that entire Arkansas River basin population definite cause and effect relationship water quality for human consumptive would increase if Red River shiners exists. Under section 4 (b)(1) of the Act, purposes improves as the river flows became established downstream of Lake we must make listing decisions based into Lake Meredith because salinity Meredith. We have reassessed the on the best scientific and commercial concentrations are diluted by tributary vulnerability of the Arkansas River data available. We have met these inflows. The existing salinity levels in basin population of the ARS to a single, this section of the Canadian River do catastrophic event and no longer requirements in this listing decision. not appear to have an adverse effect on consider the entire population Comment: Nine respondents ARS populations. However, the susceptible to extinction from a single, questioned the influence of the proposed rule actually referred to water catastrophic event at this time. reproductive characteristics of the ARS quality within the entire Canadian River However, as the range and abundance of during the threat assessment. One in Texas, not just the segment upstream ARS continue to decline, the individual stated that southernmost of Lake Meredith (see factor A in vulnerability of the ARS to catastrophic populations of the ARS may spawn ‘‘Summary of factors Affecting the events and the likelihood that a repeatedly, giving them an advantage Species’’ section). catastrophic event would lead to over those populations in the northern Comment: Five commenters stated extinction of the species increases. portion of the range. Two individuals that additional surveys should be Comment: Thirteen individuals stated wanted to know how much water was conducted because one survey was not that existing Federal and State laws and necessary to ensure spawning by ARS. sufficient. Similarly, three individuals regulatory mechanisms are adequate to Another individual stated that the ARS stated that a complete census of the ARS protect the ARS. should persist because the species is should be conducted. Service Response: Although certain very fecund. One individual requested Service Response: We did not rely on laws and regulations provide some we explain how stream channelization one survey to document the status of the water quality and quantity benefits, they affects spawning of the ARS. Two ARS in the Arkansas River basin. We do not alleviate all of the identified individuals stated that data do not used data from the TPWD, Bureau, threats to the ARS. Flow modification demonstrate that flood pulses are University of New Mexico, Oklahoma below Federal dams is ongoing and needed to induce spawning. Two State University, University of Kansas, prevents ARS from recovering. Irrigation individuals stated that reproduction is University of Oklahoma, University of withdrawals have dewatered the Beaver not restricted to only Age-I fish. Michigan, Westark Community College, River in the Oklahoma Panhandle, as Service Response: There is no and the Oklahoma Department of well as considerable sections of the information in the scientific literature Environmental Quality in assessing the Arkansas River in Kansas. Existing which even speculates that reproductive current status of the ARS. regulations did not prevent these events potential varies among those ARS Complete census data for fishes are from occurring. Existing regulations also aggregations in the Arkansas River and extremely difficult, if not impossible, to were ineffective in preventing the those from the Canadian River. obtain with non-lethal survey introduction of non-native fishes into We do not know what specific flow techniques. Use of lethal techniques are the Cimarron River. With the exception regimes are necessary to trigger not appropriate for surveys of rare of the State of Kansas, none of the States spawning in the ARS. As previously species. Additionally, even lethal protect ARS habitat. The State of Texas discussed, the Act does not require us techniques, such as fish toxicants, are does not list the ARS as threatened or to address all of the biological and not 100 percent accurate. We often must endangered and provides no special ecological requirements of the species in rely on data collected from numerous protection. We believe that existing order to list it. 64784 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations

Cross et al. (1985) stated that female the number of adult fish in the affected population. We met with ARS develop 1,500 to 3,500 eggs of stream reach. representatives of the Arkansas Game uniform size. Carlander (1969) reported All of the information published prior and Fish Commission, Kansas the number of ova for several species of to 1997 concluded that flood pulses Department of Wildlife and Parks minnows in the genus Cyprinella and were the primary environmental cue (KDWP), New Mexico Department of Notropis. The number of eggs varied that triggered the onset of spawning by Game and Fish (NMDGF), ODWC, and from 98–2,600 per individual. Although ARS. None of these studies, however, TPWD in March of 1997 to discuss the several of these species have documented how much of a rise in river merits and feasibility of developing a reproductive strategies which differ stage was necessary to induce spawning. conservation agreement. Unfortunately, from ARS, the values presented do not We still lack specific data to determine not all States could commit to such an indicate that the ARS is significantly how much of a flood pulse is needed to agreement due to fiscal and personnel more fecund than other species of induce spawning. Recent studies constraints. However, listing of the minnows. Regardless of their fecundity, (Polivka and Matthews 1997, Bonner species does not preclude the future ARS were unable to maintain et al. 1997), have failed to show that development of habitat conservation populations in several Arkansas River reproduction in ARS is entirely plans or other conservation agreements basin rivers and streams. Fecundity of dependent upon these flood pulses. with private individuals or agencies. ARS is not sufficient to maintain robust Flows, however, are important to Because the ARS occurs primarily on populations where adequate water to maintaining habitat conditions within private property, we fully realize that support populations no longer exists. the stream channel and for hatching of recovery of this species will depend Stream channelization affects fish the eggs once a spawn occurs. We upon local support and the voluntary populations indirectly by altering the believe streamflow is a crucial cooperation of private landowners, and structural, physical, and chemical component of suitable ARS habitat even we welcome them as cooperators in the characteristics of the stream (Simpson et though large flood pulses may not be recovery effort. We will work to provide al. 1982). Direct impacts include injury required to induce spawning. technical assistance to those property The proposed rule did not state that or mortality during the actual owners and land managers who wish to reproduction was entirely restricted to construction of the channel. The implement conservation measures for Age-I individuals. Age-I individuals, specific spawning requirements of ARS this species. however, do provide most of the annual are unknown, and we cannot reproductive effort. The loss of a single Issue 9: Abundance and Range specifically describe the influence of year class would significantly reduce Comment: Numerous (249) channelization on reproduction of ARS. the chances of survival of the ARS commenters stated that the ARS is Based on known impacts of because the Age-I year class is so abundant in Texas and populations are channelization, we can predict, with a important to the success of each year’s stable and that, therefore, listing is not fairly high degree of accuracy, how ARS reproductive effort (see factor E in warranted. In addition, the TPWD does reproduction could be affected. The ‘‘Summary of Factors Affecting the not believe that the ARS should be preferred habitat, including presumed Species’’ section). listed in Texas and is opposed to the microhabitat for spawning, of the ARS listing. is found in wide, relatively shallow, Issue 8: Conservation Agreement Service Response: A considerable sandy bottomed rivers and larger Comment: Eight respondents urged us amount of variation can occur in streams. Channelization would to consummate a conservation samples of fish community structure eliminate this preferred habitat. Shallow agreement or seek local attempts to between sites, years, and sampling water habitat would then exist in conserve the species without the need to effort, that makes trends difficult to minute quantities and would be list. Seven commenters encouraged us determine. However, data collected by restricted to nearshore areas. Production to follow a voluntary approach to various researchers (e.g., TPWD, of microscopic plant material by conservation as fostered in the draft Oklahoma State University, Bureau, and photosynthesis would be limited to the Memorandum of Understanding Texas Tech University) between 1953 shallow near shore zones. Consequently, submitted to us by the TPWD and the and 1998 from identical, readily productivity of the stream would ODWC. identified locations (e.g., major highway decline. Channelization also would Service Response: Candidate crossings) document trends in ARS reduce or eliminate invertebrates and conservation agreements are formal abundance in Texas. In Hemphill other food resources needed to ensure agreements between us and one or more County, the numbers of ARS collected successful reproduction and survival of parties (i.e., land owners, land between 1954 and 1990 declined by 67 the larvae. managers, or State fish and wildlife percent. In Hutchinson County, the Channelization also alters the agencies) to address the conservation number of ARS collected declined by 99 morphology of the channel by creating needs of proposed or candidate species. percent over this same time period. fairly uniform steep sided channels, The participants take on the Upstream of Lake Meredith, in Potter eliminating habitat diversity. Alteration responsibility of developing the and Oldham counties, collection records of the channel morphology also would agreement, and voluntarily commit to document similar declines at one of two alter water velocities, which would in implementing specific actions that will sites. At the U.S. Highway 87/287 turn affect hatching of the fertilized remove or reduce threats. This can crossing north of Amarillo, Texas, the eggs, assuming any would be produced. contribute to stabilizing or restoring the numbers of ARS collected have declined If ARS prefer to spawn in shallow species, thereby precluding or removing by 46 percent. However, in Oldham waters, channelization would reduce the need to list. County, at the U.S. Highway 385 the amount of habitat available for In order to remove the need for listing crossing near Tascosa, Texas, the spawning. All of these alterations that the ARS, a significant number of numbers of ARS collected have occur as a result of channelization candidate conservation agreements increased by about 38 percent. would likely seriously reduce the would have to be developed and An analysis of the amount of number of young fish that would be implemented throughout the four-State occupied habitat demonstrates that the produced, leading to overall declines in range of the Arkansas River Basin range of the ARS also has been reduced Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64785 in Texas. Historically, the Arkansas Kansas appears suitable. This segment from the Salt Fork of the Arkansas River River shiner occupied 370 km (230.0 of the Cimarron River is not separated in Oklahoma; 1,068 from the Cimarron mi) of the Canadian River in Texas. At from that portion of the Cimarron River River near Cleo Springs, Oklahoma; and present, the ARS occupies 265 river-km in Oklahoma where other individuals 2,122 specimens from the North (164.5 river-mi). This represents a loss have been collected since 1989. The Canadian River near Woodward of 28.5 percent of the historically extreme rarity of this species in the Oklahoma. At least 21 other voucher occupied habitat in Texas. Cimarron River makes it highly unlikely collections containing in excess of 200 As discussed previously, our policy that infrequent collection efforts from individuals from over 15 different sites on delineating distinct vertebrate one or two sites would locate this also exist in several museums. population segments requires that those species. Consequently, we believe the It is important to note that the ARS no segments be both discrete and ARS could still exist in very reduced longer occurs in the Canadian River significant. We do not believe that the numbers in the Cimarron River near the below Conchas Reservoir, the entire Salt ARS in Texas is discrete from the Kansas-Oklahoma State line. Fork of the Arkansas River, and the remainder of the Arkansas River basin Comment: Several commenters entire North Canadian River and is population. Thus, although the ARS in disagreed with our assessment of the almost extirpated from the Cimarron Texas may have declined less historical and current range of the ARS. River. We believe that these data precipitously than in other areas of the Three individuals stated that the ARS accurately document that the species species’ range (see factor A in had not disappeared from 80 percent of was historically widespread and ‘‘Summary of Factors Affecting the its historical range. Another individual abundant throughout most of the Species’’ section), we cannot consider stated that the occurrence of the ARS in Arkansas River basin and adequately the ARS in Texas separately from the Arkansas was an anomaly due either to document the decline in range and entire Arkansas River basin population. a flood or a misidentification. Similarly, abundance of the ARS. Based on the Comment: Three commenters stated one individual thought we had amount of currently occupied habitat that the historical range of the ARS did exaggerated the historical range in compared with the amount of not include Morton, Stevens, or Grant western Kansas and eastern Oklahoma. historically occupied habitat, either in counties, Kansas. Two individuals Another three individuals stated that we number of stream miles inhabited or stated that, based on the journals from reported the ARS to be historically percent of the drainage basin occupied, travelers using the Sante Fe Trail, water abundant and widespread without we believe the 80 percent figure is sufficient to support shiners was not providing sufficient data to support this accurate. available in the Cimarron River of position. Two other individuals stated The records from the eastern and western Kansas. that we provided no data to document western fringes of the species’ range are Service Response: Morton, Grant, and the change in abundance alluded to in both documented by voucher specimens Stevens counties, Kansas are within the the proposed rule. Six commenters deposited in natural history museums. historical range of the species. The ARS stated that the Arkansas River has been We have no information indicating that was first collected from the Cimarron permanently modified by the navigation the identification or capture locations of River, near Kenton, Oklahoma. This system and should not be included as any of these fish are in doubt. section of the Cimarron River is historical range for the species. Three Arkansas was likely the eastern upstream of the section that flows commenters stated that the Beaver/ periphery of the range for the ARS. The through Morton, Stevens, and Grant North Canadian River should be individuals collected from the mouth of counties. Hubbs and Ortenburger (1929) excluded from the current range of the Piney Creek were deposited as voucher state that ‘‘hundreds of paratypes’’ were shiner. One commenter stated that many specimens in the University of collected from several sites in Oklahoma small tributaries of the Arkansas River Michigan, Museum of Zoology (catalog and at Kinsley, Kansas. The species and its larger tributaries incorrectly number 128394) and are available for likely occurred throughout the Cimarron appear to be included as historical range inspection. In addition, Robison and River in 1926. In 1955, the species was of the ARS. Buchanan (1988) consider the ARS a collected from the Cimarron River south Service Response: The distribution valid member of the fish community of of Ulysses, Grant County, Kansas and abundance of ARS were determined Arkansas. (William H. Busby, in litt. 1990). There from collections of fish throughout the The range of the ARS in western are also two records from the Cimarron Arkansas River basin since the late Kansas extended at least as far west as National Grassland (Morton County), 1880s. The collection record establishes Holcomb, Finney County, Kansas based one in 1962 and one in 1987 (William that this fish occurred abundantly on collection of 41 individuals in 1952. H. Busby, in litt. 1990). Records from throughout most of the Arkansas River At that time, Cross et al. (1985) believed the Cimarron River in Kansas also exist basin with the exception of Colorado. A the species inhabited the full length of for Clark, Meade, and Seward counties. compilation of the museum records for the Arkansas River in Kansas. There are We suspect that the Santa Fe Trail the ARS is contained in Larson et al. no records from Colorado, thus the crossed the Cimarron River where (1991). These records, however, Arkansas River west of Garden City to crossing was most convenient and generally only contain a percentage of the Kansas State line was likely the easiest. People using the trail likely did the number of individuals collected western periphery of the range of ARS. not choose to cross at sites supporting because ichthyologists do not always Although the Arkansas River in ‘‘abundant’’ water. retain and catalog every individual extreme eastern Oklahoma and western Comment: Two commenters stated captured. Where possible, individuals Arkansas was not likely optimal habitat that we have inadequate evidence to captured in excess of those needed for for the ARS, this reach is established show that any populations of the ARS vouchers are released unharmed at the historic range of the ARS. Records for occur in Kansas. site of capture. Some of the larger the ARS exist for this section of the Service Response: We believe that vouchers include 533 specimens from Arkansas River prior to construction of ARS may indeed have been extirpated the Canadian River below Conchas the McClellan-Kerr Arkansas River from Kansas (see ‘‘Background’’ Reservoir in New Mexico; 827 Navigation System and impoundment section). However, habitat within the specimens from the Canadian River near by Keystone and Kaw reservoirs (Larson Cimarron River in Meade County, Norman, Oklahoma; 1,182 specimens et al. 1991). We agree that the ARS 64786 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations likely no longer occurs in the Beaver/ throughout the entire length of the Service Response: Under section North Canadian River. Arkansas River in Kansas, Oklahoma, 4(b)(1)(A) of the Act, we must base Some smaller tributaries supported and western Arkansas has been listing decisions solely on the basis of populations of the ARS, at least destroyed or degraded to the point that biological information using the best temporarily, based on verified collection the ARS no longer occurs. Likewise scientific and commercial data available records (Larson et al. 1991). These habitat in the North Canadian River, without considering possible economic tributaries, while not likely essential Salt Fork of the Arkansas River, and or other impacts. Because we are habitat for the ARS, are a vital many of the smaller tributaries, specifically precluded from considering component of the entire watershed and including Palo Duro Creek, no longer economic effects, either positive or are indirectly important to the survival supports ARS. The introduction of the negative, in a final decision on a of the ARS. These tributaries contribute Red River shiner, in combination with proposed listing, we did not evaluate or streamflow, sediments and other habitat loss and degradation has consider the economic effects of listing important habitat constituents; severely depleted the ARS in the this species. influence water quality; and supply Cimarron River. While economic effects, private nutrients to the larger tributaries and Comment: Two commenters stated property rights, and related concerns river mainstems. These inputs are that records on the periphery of the ARS cannot be considered in listing necessary to sustain the ecological historical range could be due to bait decisions, we intend to work closely integrity of the entire Arkansas River bucket introductions. with affected parties throughout the basin. Service Response: These records Arkansas River basin to accommodate Comment: One respondent stated that could be due to bait bucket economic and recreational activities to journals of the early explorers reported introduction. However, we believe this the extent possible while ensuring the the western region of the Arkansas River is very unlikely. Considering the size of continued survival and recovery of the basin to be devoid of water long before the human population in western ARS. By Federal Register notice on July the arrival of irrigation on the plains, Oklahoma and Kansas, the wide-spread 1, 1994 (59 FR 34272), the Secretaries of thus irrigation could not have affected distribution of the species, and the the Interior and Commerce set forth an habitat for the ARS. general lack of access to the technology interagency policy to minimize social Service Response: Historically, the and economic impacts consistent with necessary for transporting minnows western region of the Arkansas river timely recovery of listed species. We over long distances, we do not believe basin did not have an abundant supply will strive to balance any recovery populations in the Arkansas River were of surface water. Average annual actions for the ARS with social and established by bait bucket introductions. precipitation in this region varies from economic concerns. 40–61 cm (16–24 in) and pan Comment: Two individuals stated that Comment: Three commenters stated evaporation during the growing season the ARS is thriving in ponds and lakes that the High Plains aquifer exists to be varies from 25–38 cm (10–15 in) (e.g., Optima Reservoir) in Oklahoma. exploited for man’s benefit. Another (Johnson and Duchon 1995). Various Service Response: All of the existing respondent stated that once water periods of drought, generally lasting life history information indicates that supplies in the Texas Panhandle are from 3–5 years each, also have occurred the ARS is an obligate riverine species. gone, they cannot be easily replaced. (Johnson and Duchon 1995). Despite Flowing water is necessary to keep the Similarly, one respondent stated that these harsh conditions, ARS occurred at eggs suspended in the water column one of the Texas underground water a number of sites in the western basin until hatching and the larvae become conservation districts is involved in as early as 1926, which is prior to free-swimming. The few collection developing and implementing an extensive irrigation development (see records from reservoirs were obtained aquifer management plan. ‘‘Background’’ section). The general lack following a flood event, immediately Service Response: Listing will not of water reported by these explorers post-impoundment, or under similar preclude a landowner’s ability to utilize does not disagree with information in circumstances. A persistent, self- water which exists on or under his this rule and does not indicate that ARS perpetuating reservoir population has property, unless such use would result or their habitat were non-existent in this never been documented. in take of ARS pursuant to section 9 of region prior to extensive irrigation Issue 10: Socioeconomic Impacts the Act. A description of activities we development. believe would and would not likely Comment: Thirteen respondents Comment: Numerous (325) violate section 9 is presented in the stated that the ARS is abundant in the commenters stated that listing and the ‘‘Available Conservation Measures’’ Canadian River, Revuelto Creek, Palo regulations which follow will have a section. Duro Creek, and throughout its range. devastating effect on the economy of the If a landowner proposes to withdraw Service Response: Data available to region. Conversely, two commenters groundwater to an extent that taking of us, as presented in this rule, document stated that society will benefit when ARS would likely occur, the landowner that the ARS has decreased in habitat for threatened and endangered could seek a section 10(a)(1)(B) abundance and has been completely species is protected. One other incidental take permit to legally take eliminated from over 80 percent of its commenter stated that Federal listing of ARS incidental to otherwise lawful historical range. The number of fish the interior least tern (Sterna activities. We recognize the importance collected, an indication of the antillarum) has not affected landowners of the aquifer to the citizens of the abundance of the species, has declined economically. Fifty commenters region but also realize the importance of at numerous sites within the Canadian requested that we prepare an in-depth the aquifer to streamflow within the River (Larson et al. 1991). regional economic impact study basin. We believe that a region-wide In the Canadian River, habitat describing how listing will affect focus on conservation will ensure that upstream of Ute Reservoir and present and future economic growth and the aquifer can meet the needs of people downstream of Lake Meredith and metropolitan development. Forty-eight and the ARS simultaneously. Even at Eufaula Reservoir has been eliminated others believed that listing places the reduced pumping rates, the supply of or degraded to the point that this habitat needs of animals over the needs of the water within the aquifer is not no longer supports the ARS. Habitat people. unlimited. Many citizens realize this Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64787 and are diligently striving to conserve conservation recommendations in the The Lake Meredith National this resource. We support such efforts. biological opinion. Recreation Area is managed by the Comment: Eleven commenters wanted We are required to deliver a biological National Park Service. Consequently, to know how listing and section 7 of the opinion, which concludes consultation, the National Park Service has an Act would affect Federal agencies. One to the action agency within 135 days of obligation under section 7 of the Act to commenter was concerned that the receipt of a request for formal evaluate its activities for possible effects section 7 process would increase the consultation (50 CFR 402.14(e)). If the on listed species. Similarly, if a Federal costs of and delay affected projects. action agency incorporates consultation agency funds, authorizes, or carries out Seventeen commenters stated that into their planning process and a recreation program at Ute or Conchas listing the shiner would impact several consultation is initiated early, project Reservoir, that agency has an obligation existing or proposed water development delays are unlikely. Meetings with us, to evaluate its activities for possible projects in the Arkansas River Basin preparation of documents, and effects on listed species. We do not either by requiring downstream releases implementation of any reasonable and anticipate that recreational activities at or eliminating the ability to control prudent alternatives or measures the Lake Meredith National Recreation floodwaters. Similarly, seven identified in the biological opinion may Area, Ute Reservoir, or Conchas commenters stated that any change in result in some additional project costs. Reservoir will be altered as a result of operation of the upstream Federal Large water development projects these evaluations. reservoirs, which are operated to virtually always involve a Federal Comment: Eighty-four commenters maximize benefits to the McClellan-Kerr agency through funding, permitting, or contended that the listing of the ARS Arkansas River Navigation System, other action. Therefore, future will result in control of, or ‘‘taking’’ of would have a negative impact on construction and ongoing operation of private property (e.g., grazing and water navigation either by altering the uses, reservoirs will be evaluated for impacts rights), in clear violation of their rights benefits, and reliability of the navigation to the ARS, and, where impacts occur, within the Fifth, Tenth, and Fourteenth system or impacting operation and these actions would undergo Amendments to the U.S. Constitution. maintenance of the system. Three consultation under section 7 of the Act. Similarly, 25 others concluded that commenters stated that listing will If feasible, modifications to these property would be taken without extend the regulations of the Act to projects will be sought to ensure that the compensation or that listing would private land and impact all Federal ecosystems upon which this species impact ability to generate income. funds spent in the region. depends are conserved. However, if no Conversely, one individual stated that Service Response: Any action funded, adverse impacts would occur, or if the Federal listing of a fish, the leopard carried out, or authorized by a Federal darter (Percina pantherina), in affected habitat is unoccupied and agency that may affect a listed species southeastern Oklahoma did not result in unsuitable, such as in the McClellan- would be subject to the section 7 the loss of private land rights. Kerr Navigation System, further consultation process. The implications Service Response: Listing under the of the consultation process on the consultation under section 7 would be Act does not imply that private land various agencies would vary according unlikely. would be confiscated or taken without to the nature of the project. If a project Private actions, such as construction just compensation, and the Act itself was determined to adversely affect a of a private residence, would be exempt does not authorize ‘‘takings’’ of private listed species, the action agency would from the regulatory provisions of section lands. Many of the provisions of the Act initiate formal consultation with us. We 7, unless Federal funds were expended apply only to Federal agencies and would then prepare a biological or Federal authorization was required. Federal lands. However, section 9 of the opinion, pursuant to 50 CFR 402.14 (h) However, private actions that would Act prohibits taking of a listed species, and (i). If incidental take of a listed result in the taking of an ARS are not including the ARS, regardless of land species was involved, we would provide exempt. In the latter case, a private ownership. Recovery planning for the mandatory terms and conditions and party could seek a section 10(a)(1)(B) species may include recommendations recommended reasonable and prudent incidental take permit to legally take for land acquisition or easements measures in an incidental take ARS incidental to an otherwise lawful involving private landowners. These statement to minimize take and its activity. efforts would only be undertaken with effects. Under sections 7(b)(4) and Comment: Seven commenters stated the cooperation of the landowner. In the 7(o)(2), taking that is incidental to and that listing would affect recreational vast majority of cases, listing of a not intended as part of the agency action activities (fishing and trail rides) on the species does not preclude private is not considered taking within the Canadian River, at the Lake Meredith landowners from using their land as bounds of the Act, provided that such National Recreation Area, and at they always have. taking is in compliance with an Conchas and Ute reservoirs. We do not anticipate significant land incidental take statement in a biological Service Response: We believe that use restrictions, impacts to local opinion. normal, lawfully authorized recreational economies, or to the well-being of If we determined that a project would activities such as hiking, trail rides, citizens. The listing of the Arkansas jeopardize the continued existence of a camping, boating, hunting, and fishing, River Basin population of the ARS does listed species, we would seek to develop do not result in take of the ARS and not, in itself, restrict groundwater reasonable and prudent alternatives to would not be prohibited under section pumping or water diversions, does not avoid jeopardy. Such reasonable and 9 of the Act (see ‘‘Available in any way limit or usurp water rights, prudent alternatives might require Conservation Measures’’ section). These and does not violate State or Federal project modifications. Implementation activities do not generally impact or water law. Through section 7 of reasonable and prudent alternatives destroy the physical habitat for the ARS. consultations, extraction or use of water and terms and conditions are not However, recreational vehicle use that is funded, carried out, or authorized discretionary. Discretionary measures to within the river bed to the extent that by Federal agencies that might adversely minimize or avoid adverse effects of a habitat for the ARS is adversely affect the ARS could be modified proposed action on listed species or impacted could be a violation of section through reasonable and prudent critical habitat would be provided as 9. measures or alternatives in a biological 64788 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations opinion, as discussed previously. policy published in the Federal Register ranches. We have already determined However, compliance with section 7 or on July 1, 1994 (59 FR 34272), we have that certain conservation practices, such other provisions of the Act has never identified those activities that would or as terracing, would not likely result in resulted in the wrongful taking of would not constitute a violation of take of ARS (see ‘‘Available property. section 9 of the Act (see ‘‘Available Conservation Measures’’ section). Comment: Numerous (105) Conservation Measures’’ section). Comment: Ten commenters believed respondents expressed concern that Comment: Twenty-two commenters that listing would impact the Bureau’s listing would either reduce land and believed we intend to restrict grazing in Lake Meredith Salinity Control Project. property values or diminish or eliminate riparian zones to reduce damage by Seven commenters stated that this a property owner’s equity. Two other livestock. project is not a threat and would not commenters specifically stated that Service Response: We consider impact the ARS. listing will depress property values as livestock grazing to be one of many Service Response: We expect the shown in the Texas A&M University contributing factors affecting water effects of the Lake Meredith Salinity Real Estate Center’s study on the quality within the Arkansas River basin. Control Project on the ARS will be Edwards Aquifer. However, we do not envision minimal. Consequently, conservation of Service Response: The Act and recommending widespread fencing of the ARS will have little influence over regulations at 50 CFR 424.11(b) require riparian zones as a means of reducing the anticipated construction and the Secretary of the Interior to make water quality degradation within the operation of this project (see factor a in listing decisions based on the best basin. Excluding livestock from riparian ‘‘Summary of Factors Affecting the available scientific and commercial zones is just one means of preserving Species’’ section). information regarding a species’ status, water quality. Best grazing management Comment: Five commenters were without reference to possible economic practices, such as low to moderate concerned about the effect of the listing or other impacts of such determinations. grazing and seasonal or rotational on operation of Lake Meredith. However, we do not anticipate that grazing, are compatible with many Service Response: In 1968, the Bureau listing would result in reduced land and natural resource objectives and likely do turned operation and maintenance of property values or other significant not adversely modify the riparian zone. the reservoir over to the Canadian River impacts to the economy. The results of Comment: Two respondents stated Municipal Water Authority (CRMWA). one study, conducted by the that we would hamper activities of the However, until the cost of the reservoir Massachusetts Institute of Technology commercial minnow industry in order has been repayed to the Federal (Meyer 1995), show that endangered to protect the ARS. government, operation of the reservoir is species listings have not depressed State Service Response: We anticipate that still considered a Federal action. economic development activity as listing of the ARS would only have Arkansas River shiners are not known to measured by growth in construction minimal effects on the activities of the inhabit Lake Meredith. Arkansas River employment and gross State product. commercial minnow industry. At shiners prefer riverine environments; if Continuing depletion of the High Plains present, take of ARS in Kansas, New they occur in the reservoir, they would Aquifer and related reduction in the Mexico, and Oklahoma without a valid only occur in the upper reaches of the region’s water supply is likely to be an permit is already prohibited by State reservoir on a temporary basis. Existing equally important factor determining law. Federal listing will only increase literature on spawning requirements of future land and property values in the the penalties for unauthorized take. the ARS do not indicate that the species Region. Considering the ARS is not sought by could complete its entire life cycle Comment: Twelve individuals the commercial minnow industry, any within the confines of the reservoir. expressed concern regarding the take that occurs is incidental to capture Consequently, we do not anticipate any implications of section 9 of the Act and of other bait species and will likely be impacts to reservoir operation. either urged us to follow the minor. Collectors could minimize take Scheduled, downstream releases from interpretation of the ‘‘Sweet Home’’ of ARS by using nets having a larger Lake Meredith have not occurred since decision or expressed concern that mesh size. We will work with the States the reservoir was constructed. Water actions causing habitat alterations and the commercial minnow industry to releases could occur at three points, the would constitute take under section 9. reduce the threat to ARS from spillway, control gates, and river outlet Service Response: The Sweet Home recreational use of bait fish. We expect works. Water levels in the reservoir decision (Sweet Home Chapter of that any required changes in bait fish have never reached the elevation of the Communities for a Great Oregon v. collection practices would be minor. spillway. Releases could still occur from Babbitt, 17 F.3d 1463) found the harm Comment: Eight commenters were one of the other two points as long as regulation at 50 CFR 17.3 invalid concerned that, in order to increase the water surface elevation was above because our definition of harm exceeded streamflows, we would mandate which 868.6 m (2850 ft). Although lack of our statutory authority and was not a soil and water conservation practices releases from Lake Meredith has had a reasonable interpretation of the statute. could be applied on local farms and significant effect on ARS habitat below The definition of harm at 50 CFR 17.3 ranches. the reservoir, we do not believe releases includes ‘‘. . . significant habitat Service Response: The U.S. from Lake Meredith would provide any modification or degradation. . . .’’ In Department of Agriculture (USDA) has significant, long-term benefit to the this decision, the court found that harm already developed a list of approved soil ARS. The Canadian River floodplain does not include habitat modification. and water conservation practices. Under below Lake Meredith has been invaded However, on June 29, 1995, the section 7 of the Act, we would consult by salt cedar, mesquite, and other Supreme Court upheld our definition of with the USDA to determine which perennial woody vegetation such that a harm to include habitat modification. practices are likely to result in impacts single, one-time release would not likely The prohibition against take of listed to the ARS. Considering the number of result in significant improvements in species applies to Federal and non- practices that are available, we do not habitat for the ARS. This vegetation Federal lands without respect to believe that listing of the ARS would would likely consume a considerable whether critical habitat has been significantly affect the soil and water portion of the released water and designated. In accordance with our conservation options for local farms and prevent restoration to a wider, Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64789 unvegetated floodplain unless the with us to determine if a pesticide will determine when this occurs, not a fish density of the vegetation was reduced or likely jeopardize the continued or the Federal government. vegetation was removed prior to release. existence of any federally listed species. Service Response: The listing of the Likewise, we do not believe sufficient If we determine that the application of ARS does not, in itself, restrict precipitation occurs in this area to the chemical is likely to jeopardize a groundwater pumping or stream water support sufficient releases, either in species, we provide reasonable and diversions, does not in any way limit or duration or frequency, to improve prudent chemical application usurp water rights, and does not violate downstream aquatic habitat alternatives, if any, that would avoid the State or Federal water law. Likewise, we permanently. likelihood of jeopardy. These have no authority to regulate surface During the recovery process, we alternatives generally consist of some water or groundwater. However, intend to investigate the potential for type of application restriction to protect groundwater pumping or a surface water improving habitat below Lake Meredith the species (e.g., prohibit pesticide withdrawal that would dewater a stream with the Bureau, CRMWA, and TPWD. application within a prescribed distance or reduce base flows to the point that a If releases from Lake Meredith ever from an inhabited stream reach). Thus, take of ARS occurred would be a occur, we will work with responsible it is possible that we could require violation of section 9 of the Act. entities to ensure that ARS benefit to the restrictions on the use of a pesticide to We believe that groundwater pumping extent possible. avoid jeopardizing the ARS. at existing rates does not pose an Comment: Thirty-seven commenters Although there may be some added immediate threat to remaining ARS stated that listing would affect restrictions to pesticide use as a result aggregations in the Canadian River in municipal water systems. Two others of this listing, we believe that the Texas and Oklahoma, but that were concerned about the consequences resulting impacts to pesticide users will withdrawals at existing rates will of listing on municipal storm water be minimal. We have already assessed eventually deplete the aquifer to the drainage systems and waste water the stream reaches inhabited by the ARS point that streamflows will be reduced treatment facilities. that are populated with previously Service Response: Unless a city’s and ARS will be affected. Because listed species (interior least tern and withdrawals of groundwater and surface water supply system, storm water bald eagle (Haliaeetus leucocephalus)). water at current rates have already drainage system, or waste water Additionally, some pesticides reviewed reduced streamflows in other areas of treatment facility is funded, carried out, for registration are not believed to be the ARS historic range in western or authorized by a Federal agency, these harmful to fishes and no restrictions are Oklahoma and Kansas, northern Texas, projects would not be subject to the applied. If we find a pesticide to be and eastern New Mexico, continued requirements of section 7 (see other harmful to a species, pesticide users can withdrawals at current rates will further comment response under this issue for sometimes use other unrestricted, diminish streamflow and make habitat further discussion of the section 7 alternative chemicals to control the more unsuitable for ARS. In the consultation process). If these projects same pest. result in take of ARS, the provisions of Comment: Fifteen commenters stated currently occupied range of the ARS, section 9 would apply. As stated in the that listing the ARS would have the withdrawals will likely cause adverse ‘‘Available Conservation Measures’’ same implications for the High Plains effects in the foreseeable future unless section, existing discharges into waters aquifer as listing did for the Edwards mitigating actions are implemented. In supporting the species that are carried Aquifer. the long term, groundwater withdrawals out in accordance with existing Service Response: We do not expect must be reduced to the point that they regulations and permit requirements the implications to be the same because do not exceed recharge, or ARS habitat generally would not constitute a taking the two situations differ. The High in the western reaches of the Arkansas of ARS. Plains aquifer is not a porous limestone, River basin will ultimately be lost. A The States, with assistance from and karst aquifer, as is the Edwards Aquifer. recent report by the USGS (Luckey and oversight by the U.S. Environmental Recharge in the southern portions of the Becker 1998) demonstrates the Protection Agency (EPA), set water High Plains Aquifer is no more than 2.5 predevelopment influence of the High quality standards that are presumably cm (1 in) annually (Opie 1993). Plains aquifer on streamflows in the protective of aquatic life, including the Although discharge from the High western reaches of the Arkansas River ARS. If new information indicates that Plains Aquifer is important to basin. However, we recognize that current water quality criteria are streamflow in the western portions of groundwater pumping is not entirely insufficient to prevent the likelihood of the Arkansas River basin (Luckey and responsible for reduced streamflows and jeopardy to the ARS, new standards may Becker 1998), the ARS is not an obligate the demise of the ARS in the Arkansas be needed. In this instance, the EPA spring inhabitant. Several of the listed River basin. would consult with us under section 7 species occurring in the Edwards We intend to fully address the of the Act to determine appropriate Aquifer Region are entirely dependent implications of groundwater standards. However, we believe that no on spring discharge for habitat withdrawals and diversions of surface significant increase in regulatory burden maintenance or actually reside water during the recovery process. regarding waste water discharge permits underground within the aquifer. Generally, we will support and would result from listing of the ARS. Comment: Numerous (280) encourage the States in their efforts to Comment: Nineteen respondents commenters stated that listing or increase irrigation efficiency and wanted to know what impact this listing designation of critical habitat would improve conservation of groundwater would have on the use of agricultural result in the Federal government sources in the High Plains. Groundwater chemicals. Another was concerned that regulating or restricting the use of management districts in the Texas High listing would hinder ability to obtain surface/stream water and groundwater Plains have aggressively encouraged section 18 exemptions under the within the Arkansas River basin. implementation of water-saving Federal Insecticide, Fungicide and Similarly, one respondent stated that technologies that have minimized Rodenticide Act (FIFRA). although pumping from the aquifer may annual depletion. For example, low Service Response: The EPA, during its one day cease to be economically head, low pressure sprinkler (LEPA) pesticide registration process, consults feasible, the free enterprise system must systems have largely replaced high 64790 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations pressure sprinkler systems in the Texas 10 university scientists familiar with the known to us having expertise regarding High Plains. status of fishes in the Arkansas River the ARS. Additionally, the State fish Some other States do not have basin. We solicited their comments on and game agencies as well as the State underground water conservation life history, threats, and the need to water management agencies were districts or similar groups that propose this species under the Act. We requested to comment. The game and encourage water conservation to the received 13 responses. fish agencies in the States of Kansas, same extent. Unfortunately, conversion Of the 13 respondents, the National New Mexico, and Oklahoma supported to LEPA systems in other States has not Park Service, the Corps’ Tulsa District, listing. The TPWD opposed listing the been as widespread. Flood irrigation Kansas Water Office, and a fishery species in Texas. Various State water and high pressure center pivot and side scientist from Texas Tech University management agencies and the USGS roll systems are still often used in provided no new information. The provided information on threats to the western Oklahoma and Kansas. Bureau submitted information on the species. We considered all of these Conservation of the High Plains aquifer, Lake Meredith Salinity Control Project. comments in preparing this final rule. and the resulting benefits to streamflow The TPWD submitted known collection within the Arkansas River basin, will records and stated that the last recorded Summary of Factors Affecting the not occur without the participation of observation in Texas was from 1954. Species other States. We believe voluntary Two acknowledged scientific authorities After a thorough review and conservation of the groundwater and one research assistant from consideration of all information resource will be more effective in Oklahoma State University responded available, we have determined that the recovery efforts for the ARS than that the status and threats we presented Arkansas River basin population of the restricting or otherwise regulating were accurate and supported listing. A ARS is not in imminent danger of withdrawals. highly respected fisheries ecologist from extinction. However, we have Comment: Two commenters stated the University of Oklahoma commented determined that this population is likely that groundwater withdrawals in the that periodic scientific collecting would to become in danger of extinction extreme southern portion of the High not harm the species and stated that within the foreseeable future and, Plains aquifer do not influence modification of streamflow was the therefore, should be listed as a groundwater levels or streamflows in primary threat. A biologist employed by threatened species. the Canadian River basin and that we the State of Oklahoma, who has Section 4(a)(1) of the Act (16 U.S.C. mislead the public with these annually surveyed fish communities 1531 et seq.) and regulations (50 CFR statements. throughout the State since 1976, Part 424) promulgated to implement the Service Response: We agree that this submitted information relative to the listing provisions of the Act set forth the portion of the High Plains aquifer status of the species. Two of our offices, procedures for adding species to the appears to have little influence, if any, one in Kansas and one in New Mexico, Federal lists. A species may be over groundwater levels or streamflows also provided status information. Our determined to be an endangered or within the Canadian River basin in New Mexico Ecological Services Field threatened species due to one or more Texas. Office concurred that listing of the of the five factors described in section Comment: Four commenters stated Pecos River population of the ARS was 4(a). These factors and their application that listing might impose additional cuts not appropriate. The most extensive to the Arkansas River basin population on oil and gas development, causing comments were submitted by the New of the ARS (Notropis girardi) are as imports of foreign oil to rise. Mexico Interstate Stream Commission. follows: Service Response: The listing of the They did not express an opinion on the A. The present or threatened ARS will not, in itself, restrict oil and need to list but did provide considerable destruction, modification, or gas development. However, if such information on threats to the species. curtailment of its habitat or range. The development is funded, authorized, or We considered all of the information primary threat facing the ARS and its carried out by a Federal agency, that provided in preparing this rule. associated habitat is the destruction and agency has an obligation to evaluate it’s A July 1, 1994, policy on peer review modification of habitat by one or more activities for possible effects on listed (59 FR 34270) requires us to solicit peer of the following: stream channelization, species. If such activities may adversely review on our listing proposals from a reservoir construction, streamflow affect the ARS, then some conservation minimum of three independent peer alteration and depletion, and, to a lesser actions may be necessary. Use of water reviewers. We sent copies of the extent, water quality degradation. from the High Plains aquifer for proposed rule to 20 appropriate and Navigation improvements on the secondary oil recovery is not likely to be independent specialists who have Arkansas River by the Corps began in restricted as a result of this listing. We extensive knowledge or expertise in the Arkansas in 1832, 4 years before believe voluntary conservation of the life history, taxonomy, and ecology of Arkansas adopted statehood (Corps groundwater resource will be more the ARS. All of these specialists were 1989). Initially, constructed projects effective in recovery efforts for the ARS employed at universities within the generally consisted of small than restricting or otherwise regulating States affected by the proposed rule. We improvements, such as clearing and withdrawals. received one response which expressed snagging operations, until passage of the support for the proposed listing and River and Harbor Act in 1946 Peer Review provided additional insight into threats authorized construction of the We routinely solicit comments from affecting the species. The remaining McClellan-Kerr Arkansas River parties interested in, and knowledgeable reviewers did not respond to our Navigation System from the Mississippi of, taxa which have been proposed for request. We also met with USGS staff in River upstream to Catoosa, Oklahoma. listing as threatened or endangered Oklahoma to discuss threats affecting Project construction began in the 1950s species. On May 7, 1993, we mailed a this species. and intensified during the 1960s. Project summary of the available status We also requested and/or received segments from the Mississippi information on the ARS to 72 Federal comments on the proposed rule from a confluence upstream to Fort Smith, and State agencies, organizations, and variety of Federal, State, county, and Arkansas were completed by 1969. By knowledgeable individuals, including private individuals, including all parties 1970, the channel had been extended up Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64791 the Arkansas River as far as Muskogee, reservoirs. Water releases from of Kaw Reservoir in 1986 (Larson et al. Oklahoma and was essentially impoundments may be infrequent or 1991, Pigg 1991). complete. The project included non-existent in the western portions of On the Canadian River, Eufaula numerous bank stabilization and the Arkansas River basin causing Reservoir, Lake Meredith, Conchas channel rectification projects, 17 locks streams to be dewatered for Reservoir, and Ute Reservoir have and dams (12 in Arkansas), annual considerable distances downstream of impacted the ARS. Construction of channel maintenance, and port the reservoir. Conchas Reservoir in 1938 ultimately facilities. Several of the locks and dams In the eastern region of the basin, led to the extirpation of upstream are multipurpose facilities, providing sufficient water is released to maintain populations. Flows in the Canadian hydropower generation. The Corps downstream flows. However, these River prior to construction of Conchas maintains a minimum channel depth of releases generally alter the natural flow Reservoir, as measured at Logan, New 3 m (9 ft) and minimum width of 76 m regime for considerable distances Mexico (before Ute Reservoir was (250 ft). downstream of the impoundment, completed in 1963), averaged 11.1 cubic Channelization causes a variety of establishing a stream environment m/s (392 cfs). Flows declined to 7.6 changes in natural stream channels, unlike that which existed under pre- cubic m/s (270 cfs) after Conchas including altering the channel shape, impoundment conditions. Regulation of Reservoir was built. Flows at Logan form, and width, water depth, substrate streamflows has severely modified or declined to 1.1 cubic m/s (38 cfs) after type, stream gradient, streamflow, water eliminated natural cycles of flooding, construction of Ute Reservoir. velocity, and the hydroperiod (Simpson drought, and sediment transport. Prior to completion of Eufaula et al. 1982). Channelization of the Physical changes from these altered Reservoir, ARS were abundant in the Arkansas River has permanently altered flows may include modifications to Canadian River between the proposed and eliminated suitable habitat for the water velocity, wetted perimeter dam site and the Arkansas River (Pigg ARS and is largely responsible for the (amount of streambed exposed to water 1991). Arkansas River shiners have not extirpation of the ARS within the State at any given flow), water depth, been collected from this reach of the of Arkansas. This channelization has streambed and bank erosion, and Canadian River since the reservoir also contributed to the decline of the suspension and re-distribution of bed became operational in 1964. The species in Oklahoma. In the Arkansas and bank sediments. disappearance of ARS from the 43-km River downstream of Muskogee, Impoundments also function as (27-mi) section of the Canadian River Oklahoma, ARS were last observed in barriers, fragmenting populations and below Eufaula Reservoir has been 1985 (Pigg 1991). Buchanan (1976) habitat into smaller, more isolated units. attributed to rapid water level failed to collect any ARS specimens These fragmented sections are then fluctuations occurring during from the Arkansas River Navigation more likely to be affected by influences hydropower generation and altered System in Arkansas, and fish collections from external factors (e.g., localized conditions favoring an abundant between 1972 and 1988 from the drought, water withdrawals, permitted predatory fish population (Pigg 1991). Arkansas River near Fort Smith, and unpermitted wastewater Lake Meredith was constructed by the Arkansas also failed to produce any discharges). Once the habitats are Bureau in 1965 and conservation storage ARS specimens (Robison and Buchanan isolated, other aggregations of ARS can is presently managed by the CRMWA. 1988). no longer disperse into them and help Prior to construction of the reservoir, Reservoir construction is the most maintain or restore populations of ARS historical streamflow measured at widespread cause of habitat loss for the there. Canadian, Texas, 121 river-km (75 river- ARS. Numerous multipurpose In 1952, the ARS was believed to mi) below Lake Meredith, averaged 15.5 impoundments, including three inhabit the entire Arkansas River cubic m/s (549 cfs). Releases from Lake mainstem reservoirs on the Arkansas mainstem in Kansas, but was already Meredith are now infrequent to non- River (John Martin, Kaw, and Keystone) suspected to be declining due to the existent (Williams and Wolman l984) and four mainstem reservoirs on the construction of John Martin Reservoir and have considerably altered flows in Canadian River (Conchas, Ute, 10 years earlier on the Arkansas River the Canadian River downstream of the Meredith, and Eufaula) have been in Bent County, Colorado (Cross et al. reservoir. Annual discharge at constructed within the Arkansas River 1985). By 1960, the species had Canadian, Texas now averages only 2.4 basin. Other large mainstem disappeared from the Arkansas River cubic m/s (83.7 cfs). Principal sources of impoundments also have been mainstem west of Wichita, Kansas and water to the Canadian River below Lake constructed within the historical range was absent from the entire Kansas Meredith are wastewater discharges, of the ARS—Optima and Canton portion of the Arkansas mainstem by tributary inflows, and groundwater reservoirs on the North Canadian River, 1983 (Cross et al. 1985). discharges (Buckner et al. 1985). and Great Salt Plains Reservoir on the Arkansas River shiners were Although ARS persist in the Texas Salt Fork of the Arkansas River. All of apparently abundant in the Arkansas portion of the Canadian River some 121 these impoundments have inundated, River near Tulsa, Oklahoma prior to river-km (75 river-mi) downstream of dewatered, fragmented, or otherwise construction of Keystone Reservoir in Lake Meredith, remaining populations directly altered considerable sections of 1964 (Pigg 1991). Following addition of are small. riverine habitat once inhabited by ARS. hydropower at Keystone Dam in 1968, Reduced flows downstream of Lake Arkansas River shiner populations the resultant flow alterations severely Meredith, and to a lesser extent below persist only below Ute Reservoir in New depleted ARS populations. The ARS Ute Reservoir, have considerably altered Mexico and Lake Meredith in Texas was last observed from the section of the the morphology of the Canadian River (Bonner et al. 1997; Eric Altena, in litt. Arkansas River between Keystone and have reduced the extent of suitable 1993; Larson et al. 1991; Pigg 1991). Reservoir and Muskogee, Oklahoma, in habitat for ARS. Stinnett et al. (1988) Inundation following impoundment 1982. Kaw Reservoir, another Arkansas examined a 370-km stretch of the eliminated ARS spawning habitat, River mainstem impoundment, located Canadian River and associated 72,843 isolated populations, and favored upstream of Keystone Reservoir, became hectares (ha) (179,495 acres (ac)) of increased abundance of predators both operational in 1976. Arkansas River floodplain between the western upstream and downstream of these shiners were last observed downstream Oklahoma border and the western 64792 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations

Pottawatomie County line near Norman, water levels by as much as 31 m (102 River stream bed is below the elevation Oklahoma. Between 1955 and l984, the ft) have been recorded from the High of the High Plains aquifer. Induced amount of riverine wetlands (shoreline Plains Aquifer in Oklahoma (Oklahoma recharge of the High Plains aquifer by and open water) had decreased by about Water Resources Board 1980). In 1960, the Canadian River within this segment, 50 percent. Sandbar acreage alone had there were about 400 groundwater wells caused by a lowering of the water table, been reduced by 54 percent. Wetland in the Oklahoma panhandle; by 1974, is not likely to occur. The primary and associated floodplain changes were the number of wells had risen to 2,067 influence of the High Plains aquifer on principally the result of hydrological (Oklahoma Water Resources Board streamflow within this reach would be modifications due to the influence of 1980). By 1988, there were an estimated predominantly through spring flow and Lake Meredith (Stinnett et al. 1988). The 3,200 high capacity wells overlying the similar emissions (e.g., natural lack of significant scouring flows Ogallala Aquifer in western Oklahoma discharge) where the water table permitted the encroachment of alone (Oklahoma Water Resources intersects the land surface. vegetation into the channel, reducing Board 1990). Springs and seeps in the Canadian channel width by almost 50 percent In Texas, withdrawals of groundwater River basin of Texas issue largely from since 1955. Although ARS persist in the in the Canadian River Basin were as Ogallala sand, gravel, and caliche, and Canadian River downstream of Ute much as 33 times higher than the from Triassic sandstone (e.g. Dockum Reservoir and Lake Meredith, the annual natural recharge in 1980 and and Santa Rosa formations), with a few reduction in available habitat has likely irrigation return flows in the Basin are flowing from Permian dolomite (Brune suppressed shiner populations in negligible (Texas Department of Water 1981, Peckham and Ashworth 1993). affected reaches. Habitat alterations Resources 1984). From 1980 to 1994, Upstream of Lake Meredith, Brune associated with reduced flows Dugan and Sharpe (1996) documented a (1981) identified 57 springs or seeps downstream of Lake Meredith are nearly continuous area of decline from Oldham and Potter counties and considered to be a significant, ongoing exceeding 3 m (10 ft) in the Central High another 25 from Hutchinson County. In threat to the continued existence of the Plains subregion of the aquifer, his discussion of the importance of ARS within the Canadian River. including much of southwestern these water bearing formations and the Surface water withdrawals constitute Kansas, portions of the Oklahoma effects of groundwater withdrawal on a small percentage of the total water Panhandle, and much of the northern spring flow, Brune (1981) stated that the used within the western sections of the Panhandle of Texas. The water level water tables in the Ogallala and Dockum historical range of the ARS, primarily declines in the Central High Plains aquifers were rapidly being depleted because of the limited number of subregion were the largest, both in area and flow within the associated springs impoundments and elevated levels of and magnitude of decline, of any in the had declined or ceased to flow. chlorides. However, surface flows in the entire High Plains aquifer. Even However, the contribution of these Cimarron River upstream of Waynoka, precipitation that averaged about 5 cm springs and seeps to flow in the Oklahoma are affected by several (2 in) above normal from 1981–93 in the Canadian River upstream of Lake diversions for irrigation. Within the Central High Plains appeared to have a Meredith is relatively minor. western portion of the Arkansas River minimal effect on the large rate of water In 1937–38, prior to large scale basin, groundwater is an extremely level decline (Dugan and Sharpe 1996). development of the High Plains aquifer important water source due to limited Portions of this subregion also showed for irrigation, flow contributions from surface supplies and lack of evidence of a long-term decline in the 56 known springs in Oldham and Potter precipitation during the summer amount of irrigated cropland acreage counties were measured (Texas State months (Oklahoma Water Resources during this same period. Board of Water Engineers 1938a, 1938b). Board 1997, 1990, 1980; Kansas Water Streamflow is the largest natural Measured flows from these springs Office and Kansas Division of Water discharge from the aquifer and pumping totaled between 2 and 4 cfs. Prior to Resources 1992; Texas Water Resources from the aquifer has caused water level construction of Conchas Reservoir, New Board 1990; Stoner 1985; Texas declines and streamflow reductions Mexico in 1938, 2–4 cfs represented Department of Water Resources 1984). (Luckey and Becker 1998). The only about 0.5–1 percent of the average For example, withdrawals from western relationships between groundwater annual discharge in the Canadian River, Oklahoma aquifers account for about 80 pumping and river flow are as measured at Logan, New Mexico, and percent of the State’s total groundwater complicated. Generally, when less than one percent at Amarillo (USGS usage (Oklahoma Water Resources groundwater is pumped faster than it is 1961, 1963). Based on this information, Board 1990). Irrigation of croplands in restored, water tables drop, channel the influence of irrigation withdrawals the basin is the dominant use of this seepage ceases, and streams dry up. from the High Plains aquifer on water. Withdrawal from the High Plains Under these conditions, suitable habitat streamflows upstream of Lake Meredith aquifer and from alluvial and terrace to support ARS populations is non- appears to be insignificant, particularly deposits associated with the major river existent. compared to flow reductions caused by systems in conjunction with diversion The Canadian River appears to have impoundment of the Canadian River in of surface water has affected streamflow been affected the least by water New Mexico. in several of the major tributaries. withdrawals from the High Plains Downstream of Lake Meredith, the Kromm and White (1992) state that aquifer primarily because much of the Canadian River is below the elevation of streamflow has been dramatically Canadian River in Texas and New the High Plains aquifer in Hutchinson reduced by groundwater withdrawals in Mexico has cut below the water bearing County, but is confined within the western Kansas and has eliminated strata and the alluvium has not been sediments of the aquifer in Roberts and aquatic ecosystems in many areas of the significantly tapped as a source of Hemphill counties (John Ashworth, High Plains. water. Much of the land immediately Texas Water Development Board, in litt. During the period from 1950 to 1975, adjacent to the Canadian River in Texas 1995). Within Hutchinson County, as water tables receded from 3 m (10 ft) to is rangeland and relatively little within the segment above Lake more than 30 m (100 ft) over much of groundwater use occurs. Upstream of Meredith, contributions from springflow southwestern Kansas (Cross et al. 1985). the Hutchinson-Roberts county line, are the primary influence of the aquifer Between 1955 and 1980, declines in including Lake Meredith, the Canadian on streamflow. Unfortunately, we have Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64793 been unable to locate comparable working with the Bureau and the River as measured at the downstream historic spring flow information for the CRMWA to identify feasible measures end of the project and a 12–14 percent reach downstream of Lake Meredith. which would reduce the impacts of the reduction in average base flow as Brune (1981) provides information on proposed project. measured at the confluence of Revuelto flow from some 62 springs in Continued unmitigated groundwater Creek in New Mexico. The reduced Hutchinson, Hemphill, and Roberts withdrawal threatens to further reduce project is now anticipated to reduce counties. These springs generally have or eliminate baseflows in western flows by only 0.7 cfs, with a maximum relatively low flows, with only Spring sections of the Arkansas River basin. potential of 1.4 cfs. This represents an Lake Springs in Hutchinson County, Fortunately, improved conservation, estimated flow reduction of 8–15 Texas having a measured flow more efficient irrigation practices, and percent, with only minimal expectations exceeding 1 cfs (Brune 1981). However, improved technology have resulted in of ever operating the project above the these measurements were taken in 1977 less water demand over the last 5 years. anticipated pumping rate of 0.7 cfs. and 1978 after widespread irrigation However, precipitation and runoff Downstream of Revuelto Creek, the development had already had its contribute little recharge to the effects on streamflow from revised greatest effect on water levels in the underlying aquifers. In the Canadian project operation are expected to be no High Plain aquifer. Consequently, we River basin in Texas, water demand is more than 5 percent of average base cannot determine the influence of projected to decrease only slightly over flow. groundwater pumping on the observed the next 50 years primarily due to In addition, the CRMWA anticipates springflows with the available improvements in irrigation efficiency no additional surface water withdrawals information. Considering the small (Texas Water Development Board 1990). upstream of Lake Meredith, at least in contribution of springflow within this In Oklahoma, water use is projected to Texas, once the project is operational segment, we believe a reduction in increase statewide over the next 50 (J.C. Williams, CRMWA, in lit. 1997). spring flow is not likely to have had a years (Oklahoma Water Resources Board The State of New Mexico has expressed profound impact on streamflows or 1997). Municipal and industrial an intent to use Canadian River water habitat for the ARS. Certainly, any demands are expected to increase by below Ute Reservoir in conjunction with impact from a reduction or cessation of about 30 percent and agricultural the Eastern New Mexico Water Supply flows from these springs and seeps is demands by 29 percent. Streamflows Project (Bureau 1995). These considerably less significant than the will continue to diminish despite withdrawals would affect Canadian influence of Lake Meredith on existing declining agricultural demand in Texas River streamflows, particularly between streamflows. and basinwide decreases in the amount Ute Dam and the confluence of Revuelto of water used per irrigated acre. Creek. However, the future of this Downstream of the Hutchinson Depletion of the High Plains aquifer is project is unclear. A Special County segment, however, groundwater expected to continue to occur in Kansas, Environmental Report prepared by the moves toward the river where it New Mexico, Oklahoma and Texas. Bureau (1993) on this project eventually either discharges as spring When two below-average flow years recommends that base flows of the flow into the river or seeps into the occur consecutively, a short lived Canadian River below Ute Reservoir be alluvial deposits (John Ashworth, in litt. species such as the ARS can be severely maintained at a minimum of 2 cfs. Such 1995). The potential for groundwater affected, if not completely eliminated mitigation would preclude dewatering depletion to affect streamflows is much from portions of the river. Dewatering of the Canadian River below Ute greater in this segment of the Canadian and reduced base flows, due to Reservoir but would still result in River. For example, a proposed project groundwater and surface water streamflow reductions. Arkansas River adjacent to the Canadian River in withdrawals, is considered a significant, shiner populations in this 219-km (136- Roberts and Hutchinson counties, Texas ongoing threat to the ARS in mi) reach of the Canadian River are has the potential to reduce median southwestern Kansas, northwestern isolated from other populations by Ute streamflows over the 50-year life of the Oklahoma and the Texas panhandle and Meredith reservoirs. Any additional project by as much as 25 percent, as (Larson et al. 1991, Cross et al. 1985). flow reductions in this reach could measured at Canadian, Texas (Kathy The Bureau’s Lake Meredith Salinity severely deplete these populations. Peters, USGS, in litt. 1998). The Control Project is designed to control We believe that water quality proposed project would also dewater brine water seeping into the Canadian degradation within the Arkansas River White Deer Creek, a Canadian River River downstream of Ute Reservoir from basin can cause localized impacts to tributary, over much of its length. This a brine aquifer in New Mexico. The ARS populations, particularly in areas project ultimately would involve the Bureau completed a Final Supplemental with rapidly expanding urban pumping of some 1,200 cubic meters Environmental Assessment (EA) for the populations. Water quality in the (40,000 acre-feet) of groundwater salinity control project in September Canadian River in Texas generally annually (Bureau 1997). Currently, no 1995 (Bureau 1995). At that time, we declines as the river flows eastward. reliable means of augmenting were concerned with projected The Canadian River traverses oil and gas streamflows in White Deer Creek or the streamflow reductions as a result of the producing areas and receives municipal Canadian River have been identified. project. However, the Bureau has sewage effluent and manufacturing Occurrences of the ARS in the Canadian changed the scope of the salinity control return flows, all of which degrade River within the project are extremely project since they completed the EA and existing water quality (Texas rare. No ARS were reported from fish expects these changes to reduce the Department of Water Resources 1984). collections made by Texas Tech impacts of the project. Water quality within the Canadian River University, Bureau, and us from White As originally proposed, the salinity begins to improve as the river flows Deer Creek or the Canadian River in control project would have reduced through the sparsely populated counties 1998 (Shirley Shadix, Bureau, in litt. streamflow by 1.4 cfs, with a maximum in western Oklahoma. However, several 1998). Only three ARS were reported project potential streamflow reduction discharges influence water quality in captured by Texas Tech University at of 3.2 cfs. A reduction of 1.4 cfs the remainder of the Canadian River. Canadian, Texas in 1995 (Gene Wilde, represents about a 35 percent reduction The wastewater treatment facility for the in lit. 1997). However, we are currently in the average baseflow of the Canadian City of Norman is the largest single 64794 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations discharge into the Canadian River in B. Overutilization for commercial, percent in 1982 (Peterson and Weeks Oklahoma. recreational, scientific, or educational 1983) to 34 percent in 1996 (Wallace Poor water quality in the North purposes. We have no evidence that the 1997). The amount of fish taken varied Canadian River near Oklahoma City and ARS is being overutilized for from over 37,762 kg (83,252 lbs) in 1982 in the Arkansas River at Tulsa are also commercial, recreational, scientific, or to 17,663 kg (38,941 lbs) in 1996. The believed to have contributed to educational purposes. We speculate that lists of species harvested did not localized declines in ARS populations. the ARS may occasionally be collected include ARS. The North Canadian River from western for personal use as bait by individual The rapid establishment of the ARS in Oklahoma City downstream to Eufaula anglers. The States of Kansas, New the Pecos River, presumably from the Reservoir is considered to be the most Mexico, Oklahoma, and Texas allow the release of bait fish, indicates that a nutrient enriched stream in Oklahoma harvest of fish for personal use as bait. sufficient number of fish were released (Pigg et al. 1992). The ARS has not been The introduction of the ARS into the in a single event to establish a found in this section of the North Pecos River, presumably by anglers, reproducing population. If ARS occur Canadian River since 1975 (Jimmie Pigg, provides some evidence that ARS are at only occasionally in the commercial pers. comm. 1997). In 1997, there were least occasionally collected and used as harvest or are rarely used as bait, several 623 active National Pollution Discharge bait. A record also exists for the Red releases over a short period of time Elimination System (NPDES) permits in River system in Oklahoma that was would be required to ensure that a large Oklahoma. The majority of these are in presumed to have been a bait bucket enough population existed to facilitate the Arkansas River basin. release (Cross 1970). However, the rarity natural reproduction. In either instance, Some agricultural practices have of the ARS outside of the Canadian the evidence indicates that ARS may contributed to water quality degradation River would indicate that this fish is not occasionally occur in commercial in the Arkansas River basin, likely likely to occur in the retail trade or to catches in fairly large numbers or are resulting in impacts to ARS be collected for personal use very occasionally being harvested for bait. aggregations. Agriculture can be a key frequently. The capture of four individuals from the contributer of nutrients, sediments, Larson et al. (1991) reported that there North Canadian River in 1990 also chemicals, and other types of non-point is no evidence that the species has been suggests that ARS are occasionally being source pollutants, primarily due to adversely affected by the commercial used as bait fish. runoff from range and pastureland and harvest of bait fish. The reported Lists of fish species reported captured tilled fields. The EPA (1994, 1998) capture of predominantly large species by commercial bait dealers are not found that agricultural practices were (plains minnows (Hybognathus always accurate and likely fail to report the primary source of water quality placidus)) and the continued existence the capture of ARS. Based on the large impairment in both rivers and lakes and of the ARS in portions of the South percentage of golden shiners were responsible for the impairment of Canadian River was the primary (Notemigonus crysoleucas) reported 72 percent of the stream miles assessed evidence used in arriving at this captured by commercial bait dealers in nationwide in 1992 and 25 percent in conclusion. Larson et al. (1991) 1989, Larson et al. (1991) believed the 1996. The decline in 1996 was largely suggested that slender-bodied fishes lists to be suspect. River shiners are due to an expansion of the national such as ARS would constitute only a often one of the primary ‘‘species’’ estimate of total river miles to include small percentage of the commercial reported harvested by commercial bait nonperennial streams, canals, and harvest, assuming the commercial bait ditches, which essentially doubled the industry used large-mesh seines as the dealers. However, the river shiner total river miles surveyed since 1992 major mode of capture. However, other (Notropis blennius) has not been (EPA 1998). Siltation and nutrient evidence described below indicates that recorded from several of the rivers pollution were the leading causes of ARS, while perhaps not a highly sought where commercial minnows are water quality impairment in both commercial species, is being affected by harvested (Miller and Robison 1973). studies. Increased nutrients promote the commercial bait industry or is being Larson et al. (1991), in their survey for eutrophication of aquatic ecosystems, harvested for personal use as bait. ARS, also did not report capturing a including the growth of bacteria, algae, The greatest potential threat to ARS single river shiner from 128 sampling and nuisance aquatic plants, and lower from incidental collection occurs in the localities within the Arkansas River oxygen levels. State of Oklahoma. In 1985, the basin. We suspect that the term ‘‘river Overgrazing of riparian areas also can Cimarron and South Canadian rivers shiner’’ is used to represent all minnows affect ARS habitat. Overgrazing in produced over 55 percent of the bait fish captured, except for the plains minnow. riparian zones is likely to be locally harvested in Oklahoma, providing over The large numbers of fish collected detrimental and is one of the most 20,846 kilograms (kg) (45,958 pounds from the South Canadian River would common causes of riparian and water (lbs)) of fish (Peterson 1986). Plains imply that ARS could constitute a quality degradation (Kauffman and minnow, which may reach total lengths measurable percentage of the by-catch Krueger 1984). High livestock densities of 127 cm (5 in), was the primary taken during commercial harvest. While may result in excessive physical species reported harvested by the there is no conclusive evidence to disturbances, such as trampling, and commercial minnow dealers. In 1996, suggest that commercial harvest has changes in water quality. Trampling of the Cimarron and South Canadian rivers contributed to the decline of the ARS, pool margins and thinning of vegetation produced slightly less than 34 percent take of this species during commercial from overgrazing induce changes in the of the bait fish harvested in Oklahoma, bait harvest may be significant which plant community structure, species providing over 17,663 kg (38,941 lbs) of suggests that the effect of this factor composition, relative species fish (Wallace 1997). River shiners warrants further investigation. abundance, and plant density which are (species unreported) and plains The most significant threat to the ARS often linked to more widespread minnows were reported to be the from the commercial bait industry or changes in watershed hydrology. For primary species harvested. From 1980– bait collection for personal use is the example, soil compaction may increase 81 to 1996, the percent of the total potential for introduction of non- pasture runoff, leading to erosion and harvest taken from the South Canadian indigenous fishes into occupied ARS increased siltation in streams. and Cimarron rivers varied from 67 habitat (see factor E of this section). Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64795

C. Disease or predation. No studies permit is also required by the State of of their actions. The NEPA requires have been conducted on the impact of Kansas for public actions that have the Federal agencies to describe a proposed disease or predation upon the ARS; potential to destroy listed individuals or action, consider alternatives, identify therefore, the significance of these their critical habitat. Subject activities and disclose potential environmental threats upon existing populations is include any publicly funded or State or impacts of each alternative, and involve unknown. There is no direct evidence to federally assisted action, or any action the public in the decision making suggest that disease threatens the requiring a permit from any other State process. It does not require Federal continued existence of the species. or Federal agency. Violation of the agencies to select the alternative having Disease is not likely to be a significant permit constitutes an unlawful taking, a the least significant environmental threat except in isolated instances or Class A misdemeanor, and is punishable impacts. A Federal action agency may under certain habitat conditions, such by a maximum fine of $2,500 and decide to choose an action that will as crowding during periods of reduced confinement for a period not to exceed adversely affect listed or candidate flows, or episodes of poor water quality 1 year. Kansas does not permit the species provided these effects were (e.g., low dissolved oxygen or elevated commercial harvest of bait fish from known and identified in a NEPA nutrient levels). During these events, rivers and streams. document. stress reduces resistance to pathogens The State of New Mexico lists the The status and threats to the ARS and disease outbreaks may occur. ARS as a State endangered species. This reflect, in part, the inability of these Parasites and bacterial and viral agents listing prohibits the taking of the ARS laws and regulations to adequately are generally the most common causes without a valid scientific collecting protect and provide for the conservation of mortality. Lesions caused by injuries, permit but does not provide habitat of the ARS. Even listing as threatened or bacterial infections, and parasites often protection. The State of Oklahoma lists endangered by the States of Kansas, become the sites of secondary fungal the ARS as a State threatened species, New Mexico, and Oklahoma has not infections. but like New Mexico, this listing does reversed the decline of this species. Some predation of ARS by largemouth not provide habitat protection. The E. Other natural or manmade factors bass (Micropterus salmoides), green States of Arkansas and Texas provide no affecting its continued existence. The sunfish (Lepomis cyanellus), channel special protection for the species or its overall trend in the status of this species catfish (Ictalurus punctatus), and other habitat. is characterized by dramatic declines in fish species undoubtedly occurs, but the While Kansas, New Mexico, and numbers and distribution despite the extent is unknown. Predation by aquatic Oklahoma protect the ARS from take fact that this species evolved in rapidly birds (e.g., terns, herons, and egrets) and and/or possession, only Kansas fluctuating, harsh environments. The aquatic reptiles (e.g., snakes and turtles) addresses the problem of habitat occurrence of a single, catastrophic also may occur. Plains fishes have destruction or modification. Only New event, such as the introduction of evolved under adverse conditions of Mexico provides significant protection competitive species, or a prolonged widely fluctuating, often intermittent from the potential introduction of non- period of low or no flow, would flows, high summer temperatures, high native, competitive species. Licensed increase the likelihood of extinction. rates of evaporation, and high commercial bait dealers in New Mexico Arkansas River shiners are undoubtedly concentrations of dissolved solids. may sell bait minnows only within the capable of recovering from drought, These conditions are not favored by drainage where they have been collected provided other factors have not most large predaceous fish and tend to and cannot sell any State-listed fish irreparably degraded their habitat. The preclude existence of significant species. fragmentation and apparent isolation of populations of these species. However, The Kansas legislature can identify a self-sustaining populations of ARS alteration of historic flow regimes and minimum desirable streamflow for a renders the remaining populations construction of reservoirs have created stream as part of the Kansas Water Plan. vulnerable to any natural or manmade favorable conditions for some predatory The Chief Engineer is then required to factors that might further reduce species such as white bass (Morone withhold from appropriation the population size. Recolonization of some chrysops) and striped bass (M. saxatilis). amount of water necessary to establish reaches following a significant drought State and Federal fish and wildlife and maintain the minimum streamflow. or period of no flow will be management agencies, through New Mexico and Oklahoma water law considerably reduced by habitat cooperative efforts to develop sport does not include provisions for fragmentation, and may require human fisheries in these reservoirs, have acquisition of instream water rights for intervention. facilitated expansion of the distributions protection of fish and wildlife and their The introduction and establishment of of some predatory species. The impact habitats. However, Oklahoma indirectly the Red River shiner, a species endemic of predation to the species is likely to provides some protection of instream to the Red River drainage, into the be localized and insignificant, uses, primarily by withholding Cimarron River in Oklahoma and particularly where habitat conditions appropriations for flows available less Kansas has had a detrimental effect on upstream of mainstem reservoirs are not than 35 percent of the time. the ARS (Cross et al. 1983, Felley and favorable to the long-term establishment Section 404 of the Clean Water Act Cothran 1981). The Red River shiner of abundant predatory fish populations. (33 U.S.C. 1251–1376) is the primary was first recorded from the Cimarron D. The inadequacy of existing Federal law that could provide some River in Kansas in 1972 (Cross et al. regulatory mechanisms. Federal and protection for aquatic habitats of the 1983) and Oklahoma in 1976 (Marshall state laws and regulations can protect ARS, if the habitats are determined by 1978). The Red River shiner has since the ARS and its habitat to some extent. the Corps to be Federal jurisdictional colonized the Cimarron River and The State of Kansas lists the ARS as a areas (i.e., waters of the United States). frequently may be a dominant State endangered species. The KDWP Listing of the ARS will require the component of the fish community has designated portions of the mainstem Corps to consult and obtain our (Cross et al. 1983, Felley and Cothran Cimarron, Arkansas, South Fork concurrence prior to issuing any section 1981). The morphological Ninnescah, and Ninnescah rivers as 404 permit affecting ARS habitat. characteristics, population size, and critical habitat for the shiner (Kansas The NEPA requires Federal agencies ecological preferences exhibited by the Administrative Regulation 23–17–2). A to consider the environmental impacts Red River shiner suggest that it 64796 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations competes with the ARS for food and ARS appears to require precise flow the High Plains Aquifer on streamflows other essential life requisites (Cross et conditions conducive to breeding and in the Canadian River upstream of Lake al. 1983, Felley and Cothran 1981). The embryonic development. Spawning is Meredith is less than originally unintentional release of Red River triggered, in part, by abrupt increases in believed, and the threat from shiners, or other potential competitors, streamflow during the late spring or groundwater withdrawals on the Texas into the Canadian River by anglers or summer (Cross et al. 1983, Moore 1944). High Plains does not appear to be as the commercial bait industry is a Streamflows favorable to spawning must severe or as imminent as first suspected. potentially serious threat and could lead be sustained over at least a 24-hour In addition, new information shows that to decimation or extirpation of the period to ensure complete embryonic the aggregations of Arkansas River remaining ARS populations. and larval development. As discussed shiners in the reach between Ute Accidental or intentional releases of under factor A of this section, suitable Reservoir and Lake Meredith are stable the Red River shiner within stream habitat conditions are becoming scarce and not declining, as presented in the segments occupied by the Arkansas and where conditions are not favorable, proposed rule. River shiner have occurred on several populations have rapidly declined. instances but no populations have Declining populations of the ARS may Critical Habitat become established outside of that in also be due to poor survival of juveniles. Critical habitat is defined in section 3 the Cimarron River (Luttrell et al. 1995). Bestgen et al. (1989) observed that of the Act as: (i) the specific areas A recent record of another Red River spawning in ARS appeared to be within the geographical area occupied endemic, the Red River pupfish primarily limited to Age-I individuals, by a species, at the time it is listed in (Cyprinodon rubrofluviatilis), from the based on an absence of Age-I and older accordance with the Act, on which are Salt Fork of the Arkansas River (Pigg et fish from collections made after the found those physical or biological al. 1997b) indicates that releases of fish spawning period. The apparent features (I) essential to the conservation from the Red River continue. extremely high post-spawning mortality of the species and (II) that may require The Red River, native habitat for the observed in Pecos River ARS special management considerations or Red River shiner and Red River pupfish, populations suggests that the protection and; (ii) specific areas exhibits high concentrations of reproductive contribution of Age-II or outside the geographical area occupied chlorides due to contributions from older individuals is very limited. Thus, by a species at the time it is listed, upon brine seeps and springs. Concentrations the continued existence of ARS a determination that such areas are in some tributaries often exceed that of populations may be almost entirely essential for the conservation of the sea water. Within the Arkansas River dependent upon successful annual species. ‘‘Conservation’’ means the use basin, the Cimarron River and the Salt reproduction and subsequent of all methods and procedures needed Fork of the Arkansas River also exhibit recruitment of juvenile individuals into to bring the species to the point at elevated levels of chlorides due to the the population. The loss of a single which listing under the Act is no longer influence of brine seeps and springs. reproductive event or cycle would necessary. Although studies have not been seriously reduce recruitment, and Section 4(a)(3) of the Act and conducted, we suspect that the elevated possibly lead to localized extirpations. implementing regulations (50 CFR chloride loads in the Cimarron River The fragmentation of ARS habitat by 424.12) require that, to the maximum may be at least partially responsible for impoundments intensifies the effects of extent prudent and determinable, the the success of the Red River shiner in failed reproduction by hindering Secretary designate critical habitat at the this stream system. The ability of the repopulation following rapid declines or time the species is determined to be Red River shiner to cope with elevated localized extirpations. endangered or threatened. Our chloride concentrations may have We have carefully assessed the best regulations (50 CFR 424.12(a)) state that provided a competitive advantage over scientific and commercial information designation of critical habitat is not the native ARS aggregations. Lower available regarding the past, present, prudent when one or both of the chloride concentrations in other stream and future threats faced by this species following situations exist: (1) The systems may partially explain why Red in determining to issue this final rule. species is threatened by taking or other River shiners have not yet become Based on this evaluation, the preferred human activity, and identification of established in other Arkansas River action is to list the Arkansas River basin critical habitat can be expected to tributaries after accidental population of the Arkansas River shiner increase the degree of such threat to the introductions. (Notropis girardi) as threatened due to species; or (2) such designation of While the introduction of non- its significantly reduced range, critical habitat would not be beneficial indigenous fishes do not fully account including the apparent extirpation of to the species. for the disappearance of ARS within the the shiner in Arkansas and throughout We find that the designation of Arkansas River basin, particularly much of its historical range in Kansas critical habitat for the Arkansas River outside of the Cimarron River, and Oklahoma. Threatened status, basin population of the ARS is not competition with introduced species which means that the species is likely prudent due to lack of benefit. The can have a significant adverse impact on to become endangered within the prohibition of destruction or adverse ARS populations under certain foreseeable future throughout all or a modification of critical habitat is conditions. The consequences of non- significant portion of its range, more provided under section 7 of the Act and indigenous species on native organisms accurately reflects the threats facing this only applies to Federal agency actions have been widely documented and are species than does endangered status, the (see ‘‘Available Conservation Measures’’ summarized by U. S. Congress, Office of designation we proposed on August 3, section). Under section 7, actions Technology Assessment (1993). 1994 (59 FR 39532). New information funded, authorized, and carried out by The reproductive characteristics and recieved during the comment period Federal agencies may not jeopardize the specialized spawning and early life revealed that modifications to the Lake continued existence of a species or history requirements of this species Meredith Salinity Control Project result in the destruction or adverse makes it especially vulnerable to certain resulted in streamflow reductions that modification of critical habitat. To natural or manmade factors, such as were less severe than originally ‘‘jeopardize the continued existence’’ of drought. Successful reproduction of the projected in 1994. Also, the influence of a species is defined as an action that Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64797 appreciably reduces the likelihood of its species. The protection required of Through this project the USGS will survival and recovery. ‘‘Destruction or Federal agencies and the prohibitions evaluate existing water quality problems adverse modification of critical habitat’’ against taking and harm are discussed, in the aquifer and provide information is defined as an appreciable reduction in part, below. that will help protect water quality in in the value of critical habitat for the Section 7(a) of the Act requires the aquifer. survival and recovery of a species. Federal agencies to evaluate their The CRMWA, the non-Federal Future conservation and recovery of actions with respect to any species that sponsor of the Lake Meredith Salinity the ARS will emphasize remaining is proposed to be listed or listed as Control Project, has agreed to aggregations and habitats in the endangered or threatened and with implement certain conservation actions Canadian River. All suitable ARS respect to its critical habitat, if any is for the ARS. The CRMWA has agreed habitat in the Canadian River is believed being designated. Regulations to—(1) conduct routine evaluations of to be occupied by the species. implementing this interagency flow conditions within the immediate Therefore, Federal actions involving the cooperation provision of the Act are project area, (2) adjust operation of the Canadian River that would cause habitat codified at 50 CFR Part 402. Section salinity control project to minimize any alteration of a severity that would result 7(a)(2) requires Federal agencies to potential effect upon the ARS, and (3) in destruction or adverse modification ensure that activities they authorize, monitor water quality within the of critical habitat would also jeopardize fund, or carry out are not likely to affected stream segment (J.C. Williams, the continued existence of the Arkansas jeopardize the continued existence of a in litt. 1997). In response to provisions River shiner. Furthermore, reasonable listed species or to destroy or adversely under the Supreme Court ruling in and prudent alternatives that would modify its critical habitat. If a Federal Oklahoma and Texas v. New Mexico, remove the likelihood of jeopardy action may affect a listed species or its No. 109, the CRMWA also has agreed to would also remove the likelihood of critical habitat, the responsible Federal cooperate with us and the State of New destruction or adverse modification of agency must enter into consultation Mexico in scheduling releases from Ute critical habitat. Due to the considerable with us. Reservoir to benefit the ARS. The overlap in the jeopardy and adverse A number of Federal agencies have CRMWA has already sought our input modification standards associated with jurisdiction and responsibilities in scheduling releases of excess waters the ARS in the Canadian River, potentially affecting the ARS, and from Ute Reservoir. Most recently, the designation of critical habitat would section 7 consultation may be required CRMWA initiated releases on June 9, provide no additional benefit to the in a number of instances. Federal 1997, and concluded them in July 1997. species when dealing with the Federal involvement is expected to include the Researchers at Texas Tech University actions under section 7 of the Act. Bureau’s Canadian River Project and are currently evaluating the effect of The major threat to the ARS is the operation of the Corps’ multi-purpose these releases on reproductive ecology depletion of surface and ground waters reservoirs throughout the Arkansas of the ARS and will provide us and by non-Federal entities (e.g., State water River Basin. The Corps will also CRMWA with recommendations for agencies, ground water and irrigation consider the ARS in administration of scheduling any future releases. We districts, private individuals). In most Section 404 of the Clean Water Act. The anticipate that such releases will result cases, the management of water is under EPA will consider the ARS in the in conservation benefits for the ARS. the jurisdiction of the States and is not registration of pesticides, adoption of The CRMWA also speculates that the under the purview of section 7 of the water quality criteria, and other reduction in salinity anticipated from Act. Therefore, the designation of pollution control programs. The U.S. operation of the salinity control project critical habitat would provide no benefit Department of Transportation, Federal may hinder the establishment of Red in addressing this important threat to Highway Administration will consider River shiners within the affected reach the ARS. the effects of bridge and road of the Canadian River, should this non- The benefits of listing, specifically the construction at locations where known native species be introduced upstream jeopardy standard under section 7 and habitat may be impacted. The USDA of Lake Meredith (J.C. Williams, in litt. the provisions of sections 9 and 10 of NRCS will consider the effects of 1997). While we have no conclusive the Act, will provide the principal structures installed under the evidence to support this premise, mechanisms to protect ARS populations Watershed Protection and Floodwater reduced salinities could indeed and habitats. For these reasons, the Prevention program (Public Law 566). influence establishment of Red River designation of critical habitat for the Also, the U.S. Forest Service will shiners. The ARS exhibit preferences for ARS would provide no benefit to the consider the effects of their management certain water quality conditions species beyond that conferred by listing actions on the Cimarron and Kiowa (Polivka and Matthews 1997) which alone and is, therefore, not prudent. National Grasslands. may differ from those preferred by the The intent of the section 7 Red River shiner. Available Conservation Measures consultation process is to ensure that Reducing or eliminating incidental Conservation measures provided to agency actions are implemented in a take of ARS during personal collections species listed as endangered or manner that will not jeopardize the or commercial bait operations can be threatened under the Act include continued existence of a listed species. achieved through gear restrictions. State recognition, recovery actions, We have conducted numerous section 7 regulations requiring the use of seines requirements for Federal protection and consultations, and very rarely has the with mesh sizes of 1.3 cm (0.5 in) or consultation under section 7, and consultation process stopped a Federal greater could minimize the capture of prohibitions against certain practices. action. In fact, in the vast majority of ARS during collections for bait. We Recognition through listing encourages consultations the actions are intend to work with the States to ensure and results in conservation actions by implemented with little or no that collection of bait fish for personal Federal, State, and private agencies, modification. or commercial uses does not reduce the groups, and individuals. The Act The USGS has recently initiated a abundance or distribution of the ARS. provides for possible land acquisition water quality assessment of the High Eliminating opportunities for and cooperation with the States and Plains aquifer under the National Water introductions of non-indigenous fishes authorizes recovery plans for all listed Quality Assessment program (NAWQA). is more difficult. Commercial bait 64798 Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations operators should take steps to ensure otherwise lawful activities. For (1) Take, which includes harassing, that holding tanks have been thoroughly threatened species, there are also harming, pursuing, hunting, shooting, emptied and flushed before moving permits available for zoological wounding, killing, trapping, capturing, from one river basin to another. This is exhibition, educational purposes, or or collecting, or attempting any of these particularly important if collections are special purposes consistent with the actions, of ARS without a valid permit; obtained from the Red River basin or the purposes of the Act. You should send (2) Possess, sell, deliver, carry, Cimarron River. Informing anglers of the requests for copies of the regulations transport, or ship illegally taken ARS; potential harm from releases of unused regarding listed wildlife and inquiries (3) Introduction of non-native fish live bait is also important. about prohibitions and permits to the species that compete or hybridize with, Other general conservation measures U.S. Fish and Wildlife Service, P.O. Box displace, or prey upon ARS; that could be implemented to help 1306, Albuquerque, New Mexico, 87103 (4) Unauthorized destruction or conserve the species are listed below. (telephone 505/248–2914; facsimile alteration of ARS habitat by dredging, This list does not constitute our 505/248–8063). channelization, impoundment, interpretation of the entire scope of a It is our policy (59 FR 34272) to diversion, recreational vehicle operation recovery plan as discussed in the identify to the maximum extent within the stream channel, sand provisions of section 4(f) of the Act. practicable at the time a species is listed removal, or other activities that result in (1) Ensure that water extractions, those activities that would or would not the destruction or significant diversions, and groundwater use for likely constitute a violation of section 9 degradation of channel stability, agriculture and municipal purposes do of the Act. The intent of this policy is streamflow/water quantity, substrate not adversely affect habitat of the ARS. to increase public awareness of the composition, and water quality used by Increase efforts to improve irrigation effect of this listing on proposed and the species for foraging, cover, and efficiency and implement appropriate ongoing activities within the species’ spawning; water conservation measures. range. (5) Unauthorized discharges (2) Closely monitor introductions of The Service believes that, based on (including violation of discharge non-indigenous species. Develop and the best available information, the permits), spills, or dumping of toxic implement measures to minimize the following actions will not likely result chemicals, silt, household waste, or accidental or intentional release of non- in a violation of section 9: other pollutants (e.g., sewage, oil and indigenous species. Initiate studies to (1) Authorized taking of ARS in gasoline, heavy metals) into surface or determine the feasibility of and ground waters or their adjoining techniques for eradicating or controlling accordance with a permit issued by us pursuant to section 10 of the Act or with riparian areas that support/sustain ARS; Red River shiners in the Cimarron River. (6) Applications of pesticides, the terms of an incidental take statement If feasible, implement a control herbicides, fungicides and other pursuant to section 7 of the Act, or program. chemicals, including fertilizers, in possessing specimens of this species (3) Monitor and maintain existing violation of label restrictions; aggregations of ARS throughout the that were collected prior to the date of (7) Withdrawal of surface or ground Arkansas River basin. publication in the Federal Register of waters to the point at which baseflows (4) Conduct studies to further define this final regulation adding this species in water courses (e.g., creeks, streams, biological and life history requirements to the list of endangered and threatened rivers) occupied by the ARS diminish of the ARS. species; and habitat becomes unsuitable for the The Act and implementing (2) Normal, lawful recreational species. regulations found at 50 CFR 17.21 and activities such as hiking, trail rides, Not all of the activities mentioned 17.31 set forth a series of general camping, boating, hunting, and fishing, above will result in a violation of prohibitions and exceptions that apply provided unused bait fish are not section 9; only those activities that to all threatened wildlife. These released back into the water; result in ‘‘take’’ of ARS would constitute prohibitions, in part, make it illegal for (3) Normal livestock grazing and other a violation of section 9. any person subject to the jurisdiction of standard ranching activities within The above lists only provide some the United States to take (includes riparian zones that do not destroy or examples of the types of activities that harass, harm, pursue, hunt, shoot, significantly degrade ARS habitat; we would consider as likely or not wound, kill, trap, or collect, or to (4) Routine implementation and likely to take ARS. You should direct attempt any of these), import or export, maintenance of agricultural questions regarding whether specific ship in interstate commerce in the conservation practices specifically activities may constitute a violation of course of commercial activity, or sell or designed to minimize erosion of section 9 of the Act to the Field offer for sale in interstate or foreign cropland (e.g., terraces, dikes, grassed Supervisor, Oklahoma Ecological commerce any listed species. It also is waterways, and conservation tillage); Services Office (see ADDRESSES section). illegal to possess, sell, deliver, carry, (5) Existing discharges into waters You should mail requests for copies of transport, or ship any such wildlife that supporting the ARS, provided these the regulations concerning listed has been taken illegally. Certain activities are carried out in accordance animals and inquiries regarding exceptions apply to our agents and with existing regulations and permit prohibitions and permits to the U.S. agents of State conservation agencies. requirements (e.g., activities subject to Fish and Wildlife Service, Endangered We may issue permits to carry out sections 402, 404, and 405 of the Clean Species Permits, P.O. Box 1306, otherwise prohibited activities Water Act); and Albuquerque, New Mexico 87103–1306 involving threatened wildlife species (6) Improvements to existing (telephone 505/248–6649; facsimile under certain circumstances. irrigation, livestock, and domestic well 505/248–6922). Regulations governing permits are at 50 structures, such as renovations, repairs, CFR 17.22, 17.23, and 17.32. Such or replacement. National Environmental Policy Act permits are available for scientific Activities we believe could We have determined that purposes, to enhance the propagation or potentially harm the ARS and result in Environmental Assessments and survival of the species, and/or for a violation of section 9 include, but are Environmental Impact Statements, as incidental take in connection with not limited to: defined under the authority of the Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / Rules and Regulations 64799

National Environmental Policy Act of Author PART 17Ð[AMENDED] 1969, need not be prepared in The primary author of this proposed connection with regulations adopted rule is Ken Collins, U.S. Fish and 1. The authority citation for part 17 pursuant to section 4(a) of the Act. We Wildlife Service (see ADDRESSES continues to read as follows: published a notice outlining our reasons section). Authority: 16 U.S.C. 1361–1407; 16 U.S.C. for this determination in the Federal 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– List of Subjects in 50 CFR Part 17 Register on October 25, 1983 (48 FR 625, 100 Stat. 3500; unless otherwise noted. 49244). Endangered and threatened species, Exports, Imports, Reporting and 2. In § 17.11(h) the following is added References Cited recordkeeping requirements, to the List of Endangered and Transportation. Threatened Wildlife in alphabetical A complete list of references cited in order under ‘‘FISHES’’: this final rule, as well as others, is Regulation Promulgation available upon request from the For the reasons given in the preamble, § 17.11 Endangered and threatened wildlife. Oklahoma Ecological Services Field part 17, subchapter B of chapter I, title Office (see ADDRESSES section). 50 of the Code of Federal Regulations, * * * * * is amended as set forth below: (h) * * *

SPECIES Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

FISHES:

******* Shiner, Arkansas Notropis girardi ...... U.S.A. (AR, KS, NM, Arkansas River T 653 NA NA River. OK, TX). basin (AR, KS, NM, OK, TX).

*******

Dated: November 13, 1998. John G. Rogers, Acting Director, Fish and Wildlife Service. [FR Doc. 98–31096 Filed 11–20–98; 8:45 am] BILLING CODE 4310±55±P