69008 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations

C. Paperwork Reduction Act silt), reduced water quality, tributary streambed, spring flow and/or The Paperwork Reduction Act does impoundment, stream channelization, groundwater seepage. The predominant not apply because the final rule does not and stream dewatering. The species also substrate (surface) types within these impose any information collection is impacted by introduced predaceous streams are clean gravel, cobble and requirements that require the approval fishes. This determination implements sand. However, bedrock and clay of the Office of Management and Budget Federal protection provided by the Act hardpan (layer of hard soil) overlain by under 44 U.S.C. 3501, et seq. for Notropis topeka. We further a thin layer of silt are not uncommon determine that designation of critical (Minckley and Cross 1959). Topeka List of Subjects in 48 CFR Part 236 habitat is neither beneficial nor prudent. shiners most often occur in pool and Government procurement. EFFECTIVE DATE: January 14, 1999. run areas of streams, seldom being Michele P. Peterson, ADDRESSES: The complete file for this found in riffles (choppy water). They are pelagic (living in open water) in nature, Executive Editor, Defense Acquisition rule is available for inspection, by Regulations Council. appointment, during normal business occurring in mid-water and surface hours at the U.S. Fish and Wildlife areas, and are primarily considered a Therefore, 48 CFR Part 236 is Service, Kansas Ecological Services schooling fish. Occasionally, amended as follows: Field Office, 315 Houston Street, Suite individuals of this species have been found in larger streams, downstream of PART 236ÐCONSTRUCTION AND E, Manhattan, Kansas 66502. known populations, presumably as ARCHITECT-ENGINEER CONTRACTS FOR FURTHER INFORMATION CONTACT: William H. Gill, Field Supervisor, or waifs (strays) (Cross 1967; Pflieger 1975; 1. The authority citation for 48 CFR Vernon M. Tabor, Fish and Wildlife Tabor in litt. 1992a). Part 236 continues to read as follows: Biologist, at the above address (913/ Data regarding the food habits and Authority: 41 U.S.C. 421 and 48 CFR 539–3474). reproduction of Topeka shiners are Chapter 1. SUPPLEMENTARY INFORMATION: limited and detailed reports have not been published. However, Pflieger 236.601 [Amended] Background (Missouri Department of Conservation, 2. Section 236.601 is amended in The Topeka shiner was first described in litt. 1992) reports the species as a paragraph (1)(ii) by removing by C.H. Gilbert in 1884, using nektonic (swimming independently of ‘‘$300,000’’ and adding in its place specimens captured from Shunganunga currents) insectivore (insect eater). In a ‘‘$500,000’’. Creek, Shawnee County, Kansas (Gilbert graduate research report, Kerns [FR Doc. 98–33176 Filed 12–14–98; 8:45 am] 1884). The Topeka shiner is a small, (University of Kansas, in litt. 1983) BILLING CODE 5000±04±M stout minnow, not exceeding 75 states that the species is primarily a millimeters (mm) (3 inches (in)) in total diurnal (daytime) feeder on insects, length. The head is short with a small, with chironomids (midges), other dipterans (true flies), and DEPARTMENT OF THE INTERIOR moderately oblique (slanted or sloping) mouth. The eye diameter is equal to or ephemeropterans (mayflies), making up Fish and Wildlife Service slightly longer than the snout. The the bulk of the diet. However, the dorsal (back) fin is large, with the height microcrustaceans cladocera and 50 CFR Part 17 more than one half the predorsal length copapoda (zooplanktons) also contribute of the fish, originating over the leading significantly to the species’ diet. The RIN 1018±AE42 edge of the pectoral (chest) fins. Dorsal Topeka shiner is reported to spawn in Endangered and Threatened Wildlife and pelvic fins each contain 8 rays pool habitats, over green sunfish and Plants; Final Rule To List the (boney spines supporting the membrane (Lepomis cyanellus) and orangespotted Topeka Shiner as Endangered of a fin). The anal and pectoral fins sunfish (Lepomis humilis) nests, from contain 7 and 13 rays respectively, and late May through July in Missouri and AGENCY: Fish and Wildlife Service, there are 32 to 37 lateral line scales. Kansas (Pflieger 1975; Kerns in litt. Interior. Dorsally the body is olivaceous (olive- 1983). Males of the species are reported ACTION: Final rule. green), with a distinct dark stripe to establish small territories near these preceding the dorsal fin. A dusky stripe nests. Pflieger (in litt. 1992) states that SUMMARY: The U.S. Fish and Wildlife is exhibited along the entire the Topeka shiner is an obligate Service determines the Topeka shiner longitudinal length of the lateral line. (essential) spawner on silt-free sunfish (Notropis topeka) to be an endangered The scales above this line are darkly nests, while Cross (University of Kansas, species under the authority of the outlined with pigment, appearing cross- pers. comm. 1992) states that it is Endangered Species Act of 1973 (Act), hatched. Below the lateral line the body unlikely that the species is solely as amended (16 U.S.C. 1531 et seq.). The lacks pigment, appearing silvery-white. reproductively dependent on sunfish, Topeka shiner is a small fish presently A distinct chevron-like spot exists at the and suggests that the species also known from small tributary streams in base of the caudal (tail) fin (Cross 1967; utilizes other silt-free substrates as the Kansas and Cottonwood river basins Pflieger 1975; Service 1993). spawning sites. Data concerning exact in Kansas; the Missouri, Grand, Lamine, The Topeka shiner is characteristic of spawning behavior, larval stages, and Chariton, and Des Moines river basins small, low order (headwater), prairie subsequent development is lacking. in Missouri; the North Raccoon and streams with good water quality and Maximum known longevity for the Rock river basins in Iowa; the James, Big cool temperatures. These streams Topeka shiner is 3 years, however, only Sioux and Vermillion river watersheds generally exhibit perennial (year round) a very small percentage of each year in South Dakota; and, the Rock and Big flow, however, some approach class attains the third summer. Young- Sioux river watersheds in Minnesota. intermittency (periodic flow) during of-the-year attain total lengths of 20 mm The Topeka shiner is threatened by summer. At times when surface flow to 40 mm (.78 to 1.6 in), age 1 fish 35 habitat destruction, degradation, ceases, pool levels and cool water mm to 55 mm (1.4 to 2.2 in), and age modification, and fragmentation temperatures are maintained by 2 fish 47 mm to 65 mm (1.8 to 2.5 in) resulting from siltation (the build up of percolation (seepage) through the (Cross and Collins 1975; Pflieger 1975). Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69009

Historically, the Topeka shiner was 1997, surveys in Iowa found the species (Nebraska Game and Parks Commission, widespread and abundant throughout at 1 site in the North Raccoon basin, and in litt. 1997). In Nebraska, these were low order tributary streams of the at a new locality in the Little Rock the first collections of Topeka shiners central prairie regions of the United drainage in Oscelola County. Less than since 1940. It is presently considered States. The Topeka shiner’s historic 5 individual Topeka shiners were extant (in existence) at these two range includes portions of Iowa, Kansas, identified in 1997. localities (Cunningham, University of Minnesota, Missouri, Nebraska, and In Kansas, 128 sites at or near historic Nebraska—Omaha, pers. comm. 1996). South Dakota. Stream basins within the collection localities for the Topeka The Topeka shiner began to decline range historically occupied by Topeka shiner were sampled in 1991 and 1992. throughout the central and western shiners include the Des Moines, The species was collected at 22 of 128 portions of the Kansas River basin in the Raccoon, Boone, Missouri, Big Sioux, (17 percent) sites sampled (Tabor, in litt. early 1900’s. Cross and Moss (1987) Cedar, Shell Rock, Rock, and Iowa 1992a; Tabor, in litt. 1992b). Extensive report the species present at sites in the basins in Iowa; the Arkansas, Kansas, stream surveys completed from 1995 Smoky Hill and Solomon River Big Blue, Saline, Solomon, Republican, through 1997 identified 10 new watersheds in 1887, but by the next Smoky Hill, Wakarusa, Cottonwood, localities for Topeka shiners and documented fish surveys in 1935, the and Blue basins in Kansas; the Des reconfirmed the species in a historic Topeka shiner was absent. The Topeka Moines, Cedar, and Rock basins in locale where it was previously believed shiner was extirpated (extinct) from the Minnesota; the Missouri, Grand, extirpated (removed) (Mammoliti, in litt. Wakarusa River watershed during the Lamine, Chariton, Des Moines, Loutre, 1996). 1970’s (Cross, University of Kansas, Middle, Hundred and Two, and Blue In South Dakota in the early 1990s, pers. comm. 1995). The species basins in Missouri; the Big Blue, the species was captured from one disappeared from the Big Blue River Elkhorn, Missouri, and lower Loup stream in the James River basin and four watershed (Kansas River basin) in basins in Nebraska; and the Big Sioux, streams in the Vermillion River basin. Nebraska after 1940 (Clausen, Nebraska Vermillion, and James basins in South (Braaten, South Dakota State University, Game and Parks Commission, in litt. Dakota. The number of known in litt. 1991; Schumacher, South Dakota 1992). The last record of the Topeka occurrences of Topeka shiner State University, in litt. 1991). In 1997, shiner from the Arkansas River basin, populations has been reduced by stream surveys were conducted in the excluding the Cottonwood River approximately 80 percent, with Big Sioux and James river watersheds. watershed, was in 1891 near Wichita, approximately 50 percent of this decline No Topeka shiners were captured from Kansas (Cross and Moss 1987). In Iowa, occurring within the last 25 years. The the Big Sioux basin during these the species was extirpated from all species now primarily exists as isolated surveys. However, collections made in Missouri River tributaries except the and fragmented populations. the Big Sioux basin by South Dakota Rock River watershed prior to 1945. It Recent fish surveys were conducted State University students in 1997 also was eliminated from the Cedar and across the Topeka shiner’s range. In identified several specimens from two Shell Rock River watersheds prior to Missouri, 42 of the 72 sites historically streams in Brookings County, South 1945. Since 1945, the Topeka shiner has supporting Topeka shiners were Dakota. In the James River basin, 3 new subsequently been extirpated from the resurveyed in 1992. The species was localities for the species were identified, Boone, Iowa, and Des Moines drainages, collected at 8 of the 42 surveyed locales and the species was reconfirmed from a with the exception of the North Raccoon (Pflieger, in litt. 1992). In 1995, the historic locality. Two of the new River watershed (Harlan and Speaker remaining 30 historical sites not locations were in Beadle County, where 1951; Harlan and Speaker 1987; Menzel, surveyed in 1992 and an additional 64 29 and 4 individual Topeka shiners Iowa State University, in litt. 1980; locales, thought to have potential to were captured. The other new location Dowell, University of Northern Iowa, in support the species, were sampled. was in Hutchinson County, where 1 litt. 1980; Tabor in litt. 1994). In Topeka shiners were found at 6 of the Topeka shiner was captured. The Missouri, the species has been 30 remaining historical locations and at reconfirmed historic locale was in apparently extirpated since 1940 from 6 of the 64 additional sites sampled. In Davison County, where 1 Topeka shiner many of the tributaries to the Missouri total, recent sampling in Missouri was captured. River where it formerly occurred, identified Topeka shiners at 14 of 72 (19 In Minnesota, 14 streams in the range including Perche Creek, Petite Saline percent) historic localities, and at 20 of of the Topeka shiner were surveyed Creek, Tavern Creek, Auxvasse Creek, 136 (15 percent) total sites sampled between 1985 and 1995. The species Middle River, Moreau River, Splice (Gelwicks and Bruenderman 1996). was collected from 5 of 9 (56 percent) Creek, Slate Creek, Crooked River, Gelwicks and Bruenderman (1996) also streams with historic occurrences, and Fishing River, Shoal Creek, Hundred note that the species has apparently was not found in the 5 streams with no and Two River, and Blue River experienced substantial declines in historic occurrences. These locales were watersheds. abundance in the remaining extant in the Rock River drainage (Baker, in Previous Federal Action (existing) populations in Missouri, with litt. 1996). In 1997, additional surveys the exception of Moniteau Creek. were completed with the species being The Topeka shiner first received In Iowa, 24 locales within 4 drainages captured at 15 sites in 8 streams, listing consideration when the species were sampled in 1994 at or near sites including a stream in the Big Sioux was included in the Animal Candidate from which the species was reported River basin (Baker, in litt. 1997). These Review for Listing as Endangered or extant during surveys conducted surveys are continuing. Threatened Species, as a category 2 between 1975 and 1985. The Topeka In Nebraska, the species was assumed candidate species, published in the shiner was captured at 3 of 24 sites, extirpated (absent) from all historic Federal Register (56 FR 58816) on with these 3 captures occurring in the locales. However, in 1989 the species November 21, 1991. Category 2 North Raccoon River basin (Tabor, U.S. was discovered in the upper Loup River candidate species were those species for Fish and Wildlife Service, in litt. 1994). drainage, where two specimens were which information in the possession of Menzel (in litt. 1996) reports 6 collected (Michl and Peters 1993). In the Service indicated that a proposal to collections of the species in 1994 and 1996, a single specimen was collected list the species as endangered or 1995, also from the same drainage. In from a stream in the Elkhorn River basin threatened was possibly appropriate, 69010 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations but sufficient data on biological rules designating critical habitat. opposed the proposed listing; and 12 vulnerability and threats were not Processing of this Final rule is a Tier 2 expressed neither support nor currently available to support proposed action. opposition. rules. In 1991, our Kansas Field Office Oral or written comments were Summary of Comments and received from 60 parties at the hearings: began a status review of the Topeka Recommendations shiner, including information gathered 21 supported the proposed listing; 33 from stream sampling, and by request In the October 24, 1997, proposed rule opposed the proposed listing; and 6 from knowledgeable individuals and (62 FR 55381), the December 24, 1997, expressed neither support nor agencies. Included were State fish and notice of public hearings and reopening opposition, but provided additional wildlife conservation agencies, State of comment period (62 FR 67324), and information to the proposed listing. health and pollution control agencies, other associated notifications, all In total, oral or written comments colleges and universities, and other interested parties were requested to were received from 23 Federal and State Service offices. A status report, dated submit comments or information that agencies or officials, 24 local agencies or February 16, 1993 (Service 1993), was might bear on whether to list the Topeka officials, and 197 private organizations, subsequently prepared on this species. shiner. The first comment period was companies, and individuals. All In the November 15, 1994, Animal open from October 24, 1997, to comments received during the comment Candidate Review for Listing as December 23, 1997. The second period are addressed in the following Endangered or Threatened Species, comment period, to accommodate the summary. Comments of a similar nature published in the Federal Register (59 public hearings, was opened January 12, are grouped into a number of general FR 58999), the Topeka shiner was 1998, to February 9, 1998. Appropriate issues. reclassified as a category 1 candidate State agencies, county governments, Issue 1: The Service did not have species. Category 1 candidates Federal agencies, scientific sufficient status information to make a comprised taxa for which we had organizations, and other interested determination that the species should be substantial information on biological parties were contacted and requested to listed, and the quality of the data that vulnerability and threats to support comment. Newspaper notices inviting the Service is using to make its determination is questionable. Section 4 proposals to list the taxa as endangered public comment were published in the of the Act requires that you use the or threatened. We have since following newspapers: In Iowa, Des ‘‘best scientific and commercial data discontinued the category designations Moines Register, Greene County Bee Herald, Calhoun County Advocate, and available,’’ to make the determination. for candidates and have established a Oscelola County Tribune; in Kansas, Additional recent surveys in Kansas new policy defining candidate species. Emporia Gazette, Manhattan Mercury, produced the discovery of new Candidate species are currently defined and Topeka Capital-Journal; in populations. Could additional survey as those species for which the Service Minnesota, Minneapolis Star-Tribune work produce similar results in other has sufficient information on file and Pipestone County Star; in Missouri, states? detailing biological vulnerability and Kansas City Star, Columbia Daily Service Response: Our determination threats to support issuance of a Tribune, Grundy County Republican is based on accurate and thorough data proposed rule, but issuance of the Times, Bethany Republican-Clipper, for the Topeka shiner. The large number proposed rule is precluded by other Galatin North Missourian, and Clark of historic records of occurrence in listing actions. In the February 28, 1996, County Kahoka Weekly; in Nebraska, concert with general fish surveys and Review of Plant and Animal Taxa That Omaha World Herald and Norfolk recent intensive surveys for the species, Are Candidates for Listing as News; and in South Dakota, Sioux Falls throughout its range, provide a factual Endangered or Threatened Species, Argus-Leader and Huron Plainsman. In picture of a species undergoing serious published in the Federal Register (61 these newspapers, notices announcing decline. Population losses estimated for FR 7596), the Topeka shiner was the proposal, opening of the first the Topeka shiner are based on total reclassified as a candidate species. A comment period, and the request for number of known localities of proposed rule to list the Topeka shiner public hearings were published between occurrence, in ratio to the present as endangered with no critical habitat October 24, 1997, and November 12, number of locations where the species was published in the Federal Register 1997. Notices announcing the public is known to exist. Since 1989, over one on October 24, 1997 (62 FR 55381). hearing schedule and the reopening of thousand stream fish samples have been Processing of this proposed rule the comment period were published in collected throughout the historic range conforms with the Service’s Listing these same newspapers between January of the species. This sampling was Priority Guidance for Fiscal Years 1998 4, 1998, and January 17, 1998. conducted at or near present and and 1999, published on May 8, 1998 (63 We received 12 requests for hearings historic localities for the species, as well FR 25502). The guidance clarifies the in four states. Locations and times of as in other stream sites within the order in which the Service will process hearings were published in the historic range. These surveys were rulemakings giving highest priority (Tier December 24, 1997, Federal Register completed by biologists from various 1) to processing emergency rules to add notice (62 FR 67324), and the above State natural resource and species to the Lists of Endangered and listed newspapers. We held 4 public environmental agencies, universities, Threatened Wildlife and Plants (Lists); hearings from January 26—29, 1998, in and the Service. These surveys, whether second priority (Tier 2) to processing Manhattan, Kansas; Bethany, Missouri; for general fish fauna information, final determinations on proposals to add Fort Dodge, Iowa; and Sioux Falls, fishery research, or water quality; and/ species to the Lists, processing South Dakota. Attendance at the or specifically for the Topeka shiner, in administrative findings on petitions (to hearings was 104, 86, 17, and 54 reference to the known historic range of add species to the Lists, delist species, persons, respectively. Transcripts from the species, constitute a very sound data or reclassify listed species), and the hearings are available for inspection base for the determination of the present processing a limited number of (see ADDRESSES). status of the species. Additional surveys proposed or final rules to delist or A total of 184 written comments were throughout the range of the species reclassify species; and third priority received at our Kansas Field Office: 92 continue to refine current (Tier 3) to processing proposed or final supported the proposed listing; 80 understanding of the distribution and Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69011 abundance of the species; with a few Service Response: The Act defines an Service Response: In July and new populations found, and many other endangered species as, ‘‘any species September, 1997, 36 sites on 20 streams populations determined to be lost or in which is in danger of extinction in the James and Big Sioux river basins decline. However, we believe that throughout all or a significant portion of of South Dakota were surveyed for current data adequately support our its range.’’ In determining a status of Topeka shiners. All sites sampled were listing proposal. Additional Topeka endangered we considered the following at or near previous collection locations shiner surveys are in progress in factors and threats: (1) continued for the species with the exception of 3 Minnesota. Preliminary results suggest implementation of the small watershed sites in the Big Sioux drainage which the species may be more abundant than flood control programs in portions of were upstream from previously previously reported in the Rock River the species’ range that threatens the recorded sites. Topeka shiners were system of Minnesota, especially in continued existence of the most viable collected from 4 of the 36 sites sampled streams surrounded by pasture land, as populations and population complexes (Cunningham and Hickey 1997). In 1991 opposed to crop land. The Rock River of remaining; (2) numerous recent and 1992, 66 fish collections were Minnesota makes up only a small extirpations, and dramatic reductions in completed in the Vermillion River portion of the range of the species. Even abundance of the Topeka shiner in basin. Topeka shiners were collected if the Rock River population is found to Missouri streams; (3) the nearly from 11 sites in 4 streams (Braaten 1993; be relatively abundant, the range-wide complete extirpation of the species from SD Natural Heritage data in litt. 1997). status of the species remains Iowa in recent years, once a major In 1989, multiple fish collections were unchanged. These surveys are portion of the species’ range; (4) data made in the James River basin. Topeka continuing, and their results will be solicited and received from various shiners were collected at 1 site incorporated into recovery planning for State agencies, universities, and (Schumacher in litt. 1991). Although the the species, and may play an important knowledgeable individuals, and data used by the Service to determine role in identifying recovery populations findings from stream fish surveys across the status of the species in South Dakota and establishing delisting goals for the the remaining portion of the species’ are not as extensive as that available for species. Survey efforts for the species range that indicates an overall, and other States within the species’ range, have been greatly increased during the often critical, decline in numbers of these data do provide both an accurate last few years; therefore, it is expected populations, and abundance within assessment of the present and historic that a few new locations will continue these populations over the recent past. extent, and population trends for the to be discovered. The significance of the These factors and threats were species in South Dakota. results of these intensive survey efforts considered in respect to the widespread, Issue 5: Most populations of Topeka is that very few additional sites have chronic degradation of Topeka shiner shiners occur on private land. Both the been discovered. Further, very low habitat, the characteristic isolated interests of the Topeka shiner and the numbers of individual Topeka shiners nature of most of the persisting landowner would be better served have been found at new sites during populations, and the potential viability through voluntary landowner recent surveys, indicating that of these populations in relation to agreements and cooperative population densities at these sites also population trends and required habitat conservation methods in lieu of listing. is very low. This leads us to conclude conditions range-wide. In Kansas, watershed districts have entered into conservation agreements that our current understanding of the Since publication of the proposed with the Kansas Department of Wildlife species’ range and its historical rule, an additional serious threat to and Parks, and the Service for the contraction is accurate. South Dakota’s Vermillion River basin protection of the Topeka shiner. These Issue 2: The Service has not population has developed. Multiple agreements are an example of what can demonstrated that the species meets any reservoir construction is now planned happen when all parties work together. of the 5 listing criteria specified under on streams occupied by the Topeka Service Response: We recognize that the Act. shiner in this basin, further threatening there are many potential benefits to the Service Response: There are 5 criteria the species. Topeka shiner from the development for listing under the Act, of which 1 or The statement that several and implementation of conservation more must be met to consider a species populations in Kansas would not go agreements. At present one conservation for listing. Data indicates that criterion extinct even if the species is not listed agreement affecting the species, with the A, ‘‘The present or threatened has been misinterpreted. There are Mill Creek Watershed District (in destruction, modification, or indeed a number of populations in Wabaunsee County, Kansas), the Kansas curtailment of its [Topeka shiner] Kansas that are quite viable, inhabiting Department of Wildlife and Parks, and habitat or range,’’ is clearly met, and is very high quality streams. the Service, has been developed and the major factor leading to the species Unfortunately, the continued existence signed. Development of this agreement listing. Criteria C, ‘‘Disease or of these populations is now severely began in 1995 and was signed by the predation,’’ D, ‘‘The inadequacy of threatened by tributary dam involved parties in August, 1997. We existing regulatory mechanisms,’’ and E, development. Several populations that recognize the Mill Creek agreement as a ‘‘Other natural or manmade factors inhabited this area, previously good example of Federal-State-private affecting its continued existence,’’ are considered some of the best remaining, cooperation; however, this agreement is also factors considered in this listing are now gone. yet to be fully implemented and has not determination, as discussed under the Issue 4: There is no recent scientific resulted in the expected on-the-ground subheading, ‘‘Summary of Factors survey work in areas inhabited by the conservation benefits to the species. In Affecting the Species.’’ species in South Dakota, and Federal entering this agreement the Mill Creek Issue 3: The Service has failed to and State officials admittedly do not watershed board of directors was aware provide data that sustains a know where the Topeka shiner exists that this agreement by itself would not determination of endangered. During a within the State, thus they are unable to prevent the listing of the Topeka shiner. public hearing it was stated that several determine the species’ status. Data for We are hopeful that this agreement will populations in Kansas would not go South Dakota populations of Topeka eventually become fully implemented. extinct even if the species is not listed. shiners are very limited. However, similar agreements must be 69012 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations achieved for a large percentage of blanket exemption for drainage ditches are present downstream of ongoing private properties, throughout the entire should be given for all maintenance maintenance activities, potential range of the species, to halt or reverse activities on ditches to avoid this impacts to the species could be possible the species’ declining trend. burdensome regulation. (i.e., releases of habitat-damaging Cooperation with private landowners is Service Response: Section 9 of the Act sediment to downstream reaches). very important in conserving this prohibits the taking of listed species. However, technology exists, and is species, and will be critical in its ‘‘Take’’ is further defined to include a frequently used (i.e., sediment screens recovery, but the species is in trouble number of activities, including those or curtains), to reduce or eliminate this now and the criteria for listing has been that result in ‘‘harm’’ or ‘‘harassment’’ to type of impact. The use of such methods substantially met. We also believe that the species, prohibiting actions which can be stipulated in the conditions of listing the Topeka shiner does not impair normal breeding, feeding, or permits (if required) to allow the preclude or discourage the development sheltering activities. Blanket exemptions necessary protection of Topeka shiner of additional cooperative agreements. from the section 9 prohibition against habitat and the required channel We are cooperating with private ‘‘take’’ of an endangered species are not maintenance. landowners in several important other available under the Endangered Species (2) Habitat Conservation Plans and ways. Specifically, the Habitat Act. However, the issue of drainage Incidental Take Permits—In cases where Conservation Planning (HCP) program ditch maintenance can be handled in an activity is exempt from the under section 10(a)(1)(B) of the Act one of two ways. permitting requirements of section 404, provides for species protection and (1) Section 404 Permit Stipulations— and the activity is determined to have habitat conservation within the context Private landowners and drainage a potential for take of Topeka shiner, an of non-Federal development and land- districts are required to obtain a permit option is available for drainage districts use activities. It provides a tool that from the U.S. Army Corps of Engineers and other non-federal entities to promotes negotiated solutions that for dredge and fill activities in waters of complete a Habitat Conservation Plan reconcile species conservation with the United States under section 404 of for their actions and apply for an economic activities. The purpose of the the Clean Water Act. The Clean Water incidental take permit under section 10 habitat conservation planning process Act also provides for an exemption from of the Endangered Species Act. Such a and subsequent issuance of incidental this permit requirement for the plan would outline the proposed take permits is to authorize the maintenance (but not construction) of activities, the potential nature of the incidental take of threatened or drainage ditches associated with normal adverse impact on the listed species, endangered species. The incidental take farming, silviculture, and ranching and the steps the applicant plans to take permit and associated HCP must ensure practices (40 CFR 232.3 (c)(1)(ii)(B)(3)). to avoid or minimize the impact, and to that the effects of the authorized In this regard, some discrepancies may provide mitigation for habitat which incidental take will not appreciably exist in defining the differences between may be lost. Upon approval by the reduce the likelihood of the survival ‘‘drainage ditches’’ and ‘‘channelized Director of the Service, the incidental and recovery of the species in the wild. streams.’’ We defer to the Corps of take permit would authorize Additionally, the impacts to the covered Engineers, on a case-by-case basis, as to maintenance of the ditches and specify species must be adequately minimized the classification of these conveyance the level of habitat disturbance or and mitigated to the maximum extent structures and whether the exemption species take that would not be practicable through the development from 404 applies to them. However, considered excessive and that would be and implementation of a HCP. The there is still some potential for allowed under the Act. In all cases, even incidental take permit allows the downstream impact to the Topeka where 404 permits are not required, permittee to engage in otherwise lawful shiner and its habitat from activities drainage districts will still have activities that result in incidental take of which are otherwise exempt from 404 responsibilities to avoid unpermitted covered species without violating permitting. ‘‘take’’ of the Topeka shiner as outlined section 9 of the ESA. In cases where in-stream activities under section 9 of the Endangered Safe Harbor agreements are voluntary, and ditch maintenance activities exceed Species Act and codified at CFR 50 cooperative ventures between a original ditch dimensions and thus are 17.21. landowner and us that can provide determined to be non-exempt from Issue 7: In the last several years, benefits to both the landowner and section 404 permitting requirements, severe flooding has affected many listed species. Under these agreements, and such activities may affect the streams within the Topeka shiner’s a landowner would be encouraged to Topeka shiner, formal consultation range. This flooding quite likely shifted maintain or enhance existing under section 7 of the Endangered populations, and the Service does not populations of listed species, to create, Species Act, would be required. The take into account the possibility that restore, or maintain habitats, and/or to Corps of Engineers, as the permitting populations might have moved to other manage their lands in a manner that will agency, would initiate consultation with locations. benefit listed species. In return, we us. The Incidental Take Statement Service Response: It has been would provide assurances that future resulting from this section 7 established that flood flows can increase landowner activities would not be consultation could address the taking of the level of dispersion in some stream subject to ESA restrictions above those a certain number of Topeka shiners or fishes, particularly in channelized and applicable to the property at the time of the disturbance of a certain area of manipulated streams (Simpson et al. enrollment in the program. habitat resulting from ditching 1982). However, in natural systems Issue 6: Private landowners and activities. In cases where no Topeka flood flows do not displace entire drainage districts in Iowa are being told shiners are present in watersheds where populations of native stream fishes that they will not be able to clean and in-stream maintenance is needed, there (Minckley and Mefee 1987). Bank maintain drainage ditches without will be no need for section 7 overflow areas, debris piles, and other section 7 consultation with the Service consultation. Although channelized stream structures provide refuge areas if the species is listed. This is the case streams and drainage ditches are not for fishes during flood flows. This is even though Topeka shiners are not considered suitable permanent habitat certainly true for Topeka shiners. known to inhabit drainage ditches. A for Topeka shiners, if Topeka shiners Capture of Topeka shiners from areas Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69013 with marginal or temporary habitat for violations of the Act posed by the consideration for a permittee. Potential suitability may occur in years continuation of such use. adverse affects for the Topeka shiner, as immediately following large flood flows, Issue 9: It is irresponsible for the well as other aquatic species, may presumably as a function of some level Federal government to list an extend considerably downstream from of dispersion (Cross, pers. comm. 1998; endangered species found primarily in construction sites. This is the case with Tabor, pers. comm. 1998). However, public waters adjacent to private lands project-associated erosion and resulting those individuals will not survive and without identifying specific downstream sedimentation. However, develop into new viable populations mechanisms for the conservation and such projects should not require extra unless they have dispersed into suitable recovery of the species. erosion control measures because, if the habitat. While it is true that the species Service Response: We are directed permittee is in compliance with their can occupy different microhabitats under the Act to develop and permit, even in the case of a nationwide temporally (i.e. areas near flowing water implement recovery plans for the permit, these control measures should margins during summer, and slack survival and conservation of a listed already be in place. A nationwide water near overhanging vegetation and species, unless it is determined that permit does not allow for uncontrolled debris in winter), the species as a whole such a plan would not promote the release of sediment into stream waters. does not disperse from suitable habitat. conservation of the species. However, We have not stated that bans on gravel Issue 8: The proposed rule maintains, recovery plan development is not a removal from streams will occur; and and the Service has similarly stated in concurrent activity with the listing we would only be involved in such public hearings, that there will be little, process. It would not be prudent to regulation, through section 7 review and if any, impacts to private citizens or utilize resources on recovery planning the Corps’ 404 permitting process, if the agricultural producers resulting from a during the listing phase, when gravel removal activity was proposed in listing of the Topeka shiner. However, additional information and comments, or near Topeka shiner habitat. Through in 3 of the 4 actions addressed in the which may impact the listing decision, this review, permit stipulations that proposed rule that you believe would are still being solicited. It is our intent allow for gravel excavation while still not result in a violation of section 9, you on publication of this final rule, to begin maintaining viable Topeka shiner the recovery process with the formation caveat each of the actions with the habitat can most likely be developed. of a recovery team. A recovery team is phrase, ‘‘ . . . except where the Service This is the case for another listed usually composed of a number of has determined that such an activity species, Niangua darter, in central individuals with expertise regarding the would negatively impact the species.’’ Missouri (Corps of Engineers, in litt. species. Also, stakeholder groups This caveat leads the average landowner 1995). to believe you may force reductions in interested in, or potentially affected by, Issue 11: The Service held public the number of cattle grazed, require recovery actions may be involved in hearings only to fulfill a legal obligation trees to be planted along all streams, recovery team activities and and will not pay attention to the public and restrict annual burning within the development of recovery plans. comments. range. What does ‘‘long-term Issue 10: Listing the Topeka shiner as management of the range or prairie an endangered species will cause State, Service Response: We disagree with ecosystem,’’ really mean? The costs to county, and township road, bridge, and this characterization of the role of bring all farm land into the description culvert maintenance and construction public hearing and the fairness of the of number 2 of the actions identified projects to be delayed or eliminated due notice and comment administrative will run in the billions of dollars. The to required extra measures such as, process to listing determinations. landowner cannot afford this expense. erosion control, fish surveys, and Section 553 of the Administrative Service Response: Many current utilization of the individual 404 Procedure Act (APA) requires agencies farming and ranching practices are permitting process instead of the to give the public notice and an consistent with the long-term nationwide 404. This additional process opportunity to comment on a proposed conservation of the local land and water will require added manpower and rule and to discuss in the final rule the resources, and thus will not negatively expense for compliance. It also will be significant issues raised in the impact the species. However, without detrimental in areas where comments. The validity of an agency knowing precisely what changes may governmental entities utilize gravel from action is subject to judicial review take place on the agricultural landscape local streams, because of likely bans on under the APA. Because of these in the future, we are unable to make a dredging of stream gravel. requirements, all comments are blanket statement that each of the Service Response: In section 7 carefully evaluated before we make a referenced practices will never result in consultation involving 404 permits, determination on whether to proceed a violation of section 9 of the Act. We individual 404 permits will only be with a final rule. The purpose of the have neither the authority nor the desire required when the proposed activity public hearings and comment periods is to force landowners to plant trees, may adversely affect the Topeka shiner. to allow the public to present additional manipulate cattle numbers, or The nationwide 404 will still be the data that may or may not support the implement specific burning regimes. appropriate permitting tool in the vast listing, and to hear the concerns the While we are willing to cooperate majority of road and bridge projects public has regarding the proposed whenever possible with landowners occurring throughout the range of the listing. In this case our analysis of the who desire technical and financial Topeka shiner. However, individual information provided by the public assistance to implement habitat permits will be required in some cases. comments in light of the best available improvements on their property, forcing In most instances, it is already known scientific information supports an such actions is beyond the scope of the whether the Topeka shiner occurs endangered finding. The concerns Act. However, where a landuse is within a particular stream system, expressed during the hearings and resulting in degradation of Topeka eliminating the need for extensive extra comment period are also very important shiner habitat that could lead to take of surveys. It should be realized however, in that they provide a focal point for the species, responsible persons will be that the occurrence of the species and inclusion of the public in the notified of the problems caused by such its direct taking at a specific development of the recovery plan, and use, and duly advised of the potential construction site is not the only in working with the concerned groups 69014 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations and landowners during the recovery do not ensure that habitat for the Issue 15: Livestock grazing does not process. Topeka shiner will be protected. We impact the Topeka shiner. The Topeka Issue 12: The public was not believe the protection mechanisms of shiner evolved with varying degrees of adequately notified of the listing the Act are necessary to prevent the grazing pressure by historically proposal or that public hearings were to species’ extinction. See factors occurring animals; including, bison, be held. considered in this listing determination, deer, and elk. The Service will make all Service Response: We made as discussed under the subheading, landowners fence their streams to substantial efforts to notify the public of ‘‘Summary of Factors Affecting the exclude cattle from water sources and the listing proposal, public comment Species.’’ natural cover. periods, request for public hearings, and Issue 14: The agriculture industry as Service Response: Many grazing schedule of public hearings throughout a whole, has recently taken a very pro- regimes are consistent with the the present range of the Topeka shiner. active stance on environmental issues conservation of the Topeka shiner. The Contacts include congressional involving the management and use of extent to which grazing will result in delegations, Federal and State agencies, pesticides and fertilizers. Certification degradation of Topeka shiner habitat county governments, and a variety of requirements for applicators, technology will vary with differing riparian interested groups and individuals. in application, and general field ecosystems, type of livestock, Immediately following publication of practices, such as minimum tillage and seasonality of use, and other factors. In the proposed rule in the Federal no-till, has resulted in very minimal some instances, livestock management Register on October 24, 1997, we runoff and very efficient utilization of can impact stream habitat and water published public notices in newspapers pesticides and fertilizers in crop fields. quality. The primary example of this in and near areas where the species These factors, in combination with the activity is livestock feeding and occurs. These notices announced the increased planting of filter strips and wintering activities concentrated in proposal to list the Topeka shiner, and grass waterways, have minimized small confinements within perennial or announced the opening of 45 day and agricultural chemical impact to water ephemeral stream channels. This 90 day periods for request for public quality and should be a factor in the practice leads to chronic and/or acute hearings, and request for public withdrawl of the listing proposal. inputs of sediment, feces, nutrients, and other organic material directly into comments, respectively. Following the Service Response: The use of request for public hearings, we streams, which impacts stream habitat pesticides, consistent with approved and water quality. Although prairie published a Federal Register notice on labeling and application protocol, and December 24, 1997, announcing the ecosystems evolved with native grazing the use of fertilizer consistent with ungulates, domestic livestock do not, hearing locations and times, and sound, scientifically based application reopening the public comment period. and most often cannot (i.e. due to rates, in combination with stable fencing) forage, herd, or move in the During the second week of January, riparian vegetation buffers serving as 1998, we again published public notices same manner as native species. We have filtering mechanisms to reduce non- neither the authority nor the desire to in these same newspapers announcing point source runoff, will not be hearing locations and times, and the require the fencing of streams for the considered to be a violation of section exclusion of livestock. However, in reopening of the public comment 9 of the Act. However, many period. In addition, we twice issued cases where existing management could agricultural chemicals have yet to impact the Topeka shiner, livestock general press releases concerning the undergo section 7 consultation and the Topeka shiner from our Minneapolis, exclusion can provide benefit. subsequent Environmental Protection Issue 16: The Service is remiss in its Minnesota and Denver, Colorado Agency implementation of reasonable obligation to designate critical habitat. Regional Offices. and prudent measures to minimize Listing critical habitat is prudent and We also provided information on the incidental take of listed species. determinable. If the Service does not listing proposal, comment period, and Evaluation of all chemicals for their designate critical habitat, affected public hearings on the World Wide Web impacts on Topeka shiners has yet to be landowners will not be informed and at two different Service web sites: completed. In the future, we anticipate they will forfeit their right to l http://www.fws.gov/r3pao/eco serv/ working with the Environmental demonstrate economic impacts to their # endangrd/fishes/fishindx.html Topek Protection Agency to identify alternative land. The Service states, ‘‘* ** ashiner and chemicals and methods to reduce any conservation and recovery actions could http://www.r6.fws.gov/endspp/shiner/ impacts which are identified to this be significantly impaired by public index.htm. species. In many areas dispersed apprehension or misunderstanding of a Issue 13: Listing is not necessary throughout the range of the Topeka critical habitat designation.’’ This is a because of existing protections afforded shiner, filter strips and riparian areas do poor reason not to list critical habitat. under various State laws, including not exist, with rowcropping extending The Service also states, ‘‘* ** State threatened and endangered species to the stream channel. Pesticide and intentional taking of the Topeka shiner legislation, and the new Kansas Non- fertilizer applications in these non- is not known to be a problem * * *’’, game and Endangered Species Task protected stream areas have the then states that designation, ‘‘* ** Force legislation (HB 2361); section 404 potential to impact the species, would reasonably be expected to of the Clean Water Act; Fish and particularly through runoff following increase the degree of threat to the Wildlife Coordination Act; and, heavy precipitation events where these species * * *.’’ If intentional taking is National Environmental Policy Act. Any buffer mechanisms are not in place. not a known problem, then it is not activity that could affect the habitat of Although it is recognized that reasonable to expect designation to the species would have to undergo these increasingly filter strips, grass result in increased threat. Also, reviews, and such work could not be waterways, and other riparian designation of critical habitat would done with impunity. protections are being established, there benefit the species because it would Service Response: To date, the species are presently numerous areas along allow the public to be better informed has declined even with these streams without buffers that may impact of Federal projects/actions through regulations in place. These regulations the species. inclusion in public notices; it would be Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69015 useful in delineating areas to avoid for agencies who provide permit authority factors. In areas where habitat pesticide spraying; and, better clarify for stream modification and for water improvements are occurring, the effect the importance of certain stream reaches quality modification specified under on in-stream activities of listing the in providing for the long term survival section 7, should adequately address the Topeka shiner would be lessened. This of the species. potential for adverse impacts to the is because activities to conserve the fish Service Response: Federal regulations species once it becomes listed as are already being undertaken, therefore (50 CFR 424.12(a)(1)) state that a endangered, precluding any additional little change in activities affecting designation of critical habitat is not benefits from designation of critical streams would be needed compared to prudent when one or both of the habitat. areas where streams remain in a following situations exist: (1) the There is no requirement to evaluate degraded condition. species is threatened by taking or other the economic effect on surrounding Issue 19: Grade stabilization human activity, and identification of property due to a species listing structures and small impoundments, critical habitat can be expected to whether or not critical habitat is being such as stock ponds, are being planned increase the degree of threat to the designated. If critical habitat is being and constructed on normally dry species, or (2) such designation of designated for a species, the Act gullies, ravines, and streambeds in critical habitat would not be beneficial specifies that the additional economic several portions of the Topeka shiner’s to the species. In the notice proposing impact that may result from such range. Most of these structures are to designate the Topeka shiner as designation be assessed and identified designed not only to control erosion and endangered, published in the Federal in the designation rule. However, the provide livestock water, but are stocked Register on October 24, 1997, we Act specifically prohibits us from with largemouth bass, bluegill, and indicated our determination that considering economic impacts when catfish to provide additional designation of critical habitat was not making listing decisions. When recreational benefits. Will the threat of prudent at this time. The reasons for deciding whether to list a species, we escapement of bass prevent fish stocking this determination were outlined in that are required to rely solely on the best and/or establishment of permanent publication, and still apply today. scientific and commercial data available pools in these impoundments? Although the comments are accurate regarding the species’ status, without Service Response: Predation by that intentional taking is not known to regard to any other factors. be a significant problem, designation of Issue 17: A determination of critical introduced or stocked fishes can impact critical habitat could exacerbate habitat will place undue restrictions and localized populations of Topeka shiners. whatever threat may exist. A notable bureaucratic process in areas where However, this is mainly the case where example of this occurred recently where Topeka shiner habitat is in good shape impoundments are created on perennial an individual at one of the public and the species is not threatened. (recurrent) streams. Many small hearings concerning the proposed Critical habitat will impact private perennial streams contain habitat that listing indicated a willingness to ‘‘take property rights. allows introduced predatory fishes to care of the problem’’ of having a Service Response: As indicated in our persist, both upstream and downstream federally-protected species on their response to Issue 16, impacts to Topeka from the dam for varying periods of property, indicating a potential for shiner habitat are virtually time, often in addition to existing levels intentional taking of this species. indistinguishable from impacts to the of naturally occurring predators. In the Whether such threats are serious is species itself. However, as also case of stock ponds and grade uncertain, however, they must be indicated in the previous response, stabilization structures located on considered when weighing the positive designation of critical habitat may carry drainages that flow only following and negative aspects of critical habitat with it negative connotations for significant precipitation events, the for this species. Even if specific threats landowners on whose property such likelihood and degree of escapement against the species are never carried out, designation is made, thereby increasing and survivability of individual a negative perception among the level of anxiety surrounding the predators is significantly less. This is landowners could be fostered by critical listing process, resulting in a decreased primarily due to lack of established habitat designation. Some individuals willingness to participate in voluntary aquatic habitat in these normally dry are wary of a federal designation on conservation measures to benefit the drainages. Upstream movement of their property, and such an action species. For these and other reasons, we predators out of these impoundments would likely cause some landowners to have determined that it is not prudent into normally dry channels during be more reluctant to cooperate with our to designate critical habitat for the periods of runoff is inconsequential to efforts to enact voluntary conservation Topeka shiner. populations of Topeka shiners measures on private property. In this Issue 18: In this area of the Topeka downstream of such structures. In cases instance, designation of critical habitat shiner’s range, people are doing good where large numbers of structures could result in an actual adverse effect things for soil and water conservation, planned are concentrated on normally on conservation of the species. many of which will benefit the species. dry drainages, in proximity to It is also our position that designation If other States have problems with downstream Topeka shiner populations, of critical habitat would provide no Topeka shiner habitat then list it in and thus the potential numbers of additional benefit to the species above those States, but not where we are ‘‘washed out’’ predators increases, plans that afforded by endangered species improving habitat. for locations and number of structures designation. Because the Topeka shiner Service Response: The Act does have stocked or having permanent pools may is so closely tied to its specific perennial provisions for the listing of ‘‘distinct need to be altered to avoid possible stream habitats, and is a year-round population segments’’ (DPS), as defined negative affects to the species. However, resident rather than a seasonal migrant, by the joint Fish and Wildlife Service it is anticipated that project changes impacts to the species and to its habitat and National Marine Fisheries Service, will not be required in the vast majority are generally considered one and the Final Vertebrate Population Policy (61 of cases involving dam construction on same. Therefore, prohibitions against FR 4721). However, a DPS cannot be normally dry streambeds. The section 7 taking specified under section 9, and defined by State boundaries, and must process and development of consultation with federal action be based on biological and geographic conservation agreements can provide an 69016 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations avenue for examining and mitigating a population of Topeka shiners. This Peer Review these impacts. proposal was made at a joint meeting In accordance with the policy Issue 20: The Topeka shiner has been with our district, the State, and the promulgated July 1, 1994 (59 FR 34270), recently found in a creek within our Service, but this has now been we have solicited the expert opinions of watershed that was severely polluted ostensibly delayed because of the independent specialists regarding the with animal wastes and turbidity and at Service’s listing proposal. proposed rule. The purpose of such another location immediately below an Service Response: We encourage and review is to ensure listing decisions are impoundment. These findings run recognize all proposals involving the based on scientifically sound data, counter to the Service’s claim of the conservation of the Topeka shiner. The assumptions, and analyses, including Topeka shiner being dependent on good listing proposal in no way diminishes, water quality, thus invalidating them. input of appropriate experts and discourages, or delays the ability of a specialists. Peer reviewers were mailed Service Response: Our position on watershed district, or any other entity, water quality and habitat requirements copies of the proposed rule to list the to propose conservation activities for Topeka shiner as an endangered species is based on many years of study and the species, including plans for observation of the species by several immediately following publication in construction of structures that allow fish the Federal Register on October 24, highly professional scientists. The passage and provide flood control Topeka shiner has the ability to persist 1997 (62 FR 55381). The reviewers were benefits. invited to comment during the public in varying degrees in acutely and Issue 22: Sportfishing is big business chronically reduced water quality and comment period upon the specific throughout many portions of the Topeka habitat situations. Although the Topeka assumptions and conclusions regarding shiner’s range and Federal dollars are shiner can tolerate some degree of short- the proposed listing. These comments spent to enhance and restore these term degradations (Cross, pers. comm. were considered in the preparation of sportfisheries. The proposed rule 1998; Tabor, pers. obs. 1998), long-term the final rule as appropriate. In includes sportfishes, such as northern degradations are undoubtedly conjunction with the proposed rule the pike and largemouth bass, as being detrimental to the species. comments of three independent experts At two isolated sites degraded by threats to the Topeka Shiner. It does not and/or conservation biologists were heavy sediment accumulation and seem logical to spend Federal dollars to solicited. One response was received, nutrient enrichment, where Topeka stock these sportfishes and spend which supported the proposal to list the shiners persist, there is inflow from Federal dollars to list the Topeka shiner. Topeka shiner as an endangered species. seeps and springs which may have a Service Response: In many cases, The respondent’s comments have been bearing on their continued existence in Federal funds are appropriated to considered in the development of this these areas (Cunningham, pers. comm. enhance and stock sportfishes in large final rule and incorporated where 1998; Tabor, pers. obs.). This is in reservoir, lake, and river systems. applicable. contrast to other streams exhibiting the Typically these habitat types are not used by Topeka shiners, and thus would Summary of Factors Affecting the same degradations within the same Species general areas, without spring and seep not present significant impacts. inflow, from which the species is However, in certain cases where After a thorough review and absent. We believe that these enhancement is occurring in proximity consideration of all available populations are likely to disappear to populations of Topeka shiners and information, we have determined that during the next period when these Federal funds are being utilized, we, as the Topeka shiner should be classified springs and seeps cease flowing. the administrators of Federal Aid in as an endangered species. Procedures Situations that allow severe pollution Sportfishing funds, must consider the found at section 4(a)(1) of the Act and from animal wastes in streams are not possible impacts to Topeka shiners regulations implementing the listing just a threat to the Topeka shiner and resulting from such activity. This would provisions of the Act (50 CFR part 424) the aquatic community in general, but most likely be completed through intra- were followed. A species may be likely a threat to human health as well. agency consultation, and determined to be an endangered or Impacts from watershed dams in communication with the various State threatened species due to one or more basins with Topeka shiners are fish and wildlife agencies who of the five factors described in Section generally chronic impacts to the species. administer these actions on the ground. 4(a)(1). These factors and their The development of a dam on a single A ‘‘Policy for Conserving Species Listed application to the Topeka shiner stream in a basin with several occupied or Proposed for Listing Under the (Notropis topeka) throughout the streams would likely impact the single Endangered Species Act While species’ range are as follows: stream. This would allow Topeka Providing and Enhancing Recreational A. The Present or Threatened shiners to still move from the other Fisheries Opportunities’’ (61 FR 27978), Destruction, Modification, or occupied, undammed streams into the was developed to meet the requirements Curtailment of its Habitat or Range. dammed stream, dependent on the level set forth in section 4 of Executive Order of stream impacts from the dam. 12962, Recreational Fisheries. This Once abundant and widely However, when most or all streams are policy identifies measures to ensure distributed throughout the central Great dammed within a basin, hydrology, consistency in the administration of the Plains and western tallgrass prairie habitat, and aquatic systems and Act, promote collaboration with other regions, the Topeka shiner now inhabits communities are altered. The dams Federal, State, and Tribal fisheries less than 10 percent of its original further serve as barriers to fish passage, managers, and improve and increase geographic range. The action most likely all contributing to the decline and efforts to inform nonfederal entities of impacting the species to the greatest extirpation of the species within the the requirements of the Act while degree in the past is sedimentation and basin. enhancing recreational fisheries. We eutrophication (increase of minerals and Issue 21: This watershed district has believe that there will be minimal organic nutrients within a body of water proposed construction of a dam impact to sportfishing enhancement resulting in the decrease of dissolved utilizing an altered design to meet flood activities resulting from the listing of oxygen) resulting from intensive control purposes and the preservation of the Topeka shiner. agricultural development. Most Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69017 populations of Topeka shiners occurring upstream from both mainstem and undoubtedly impacted by the west of the Flint Hills region of Kansas tributary impoundments attempt to construction of multiple impoundments are believed to have been extirpated utilize these water bodies as refuges throughout its upper reaches and prior to 1935 (Cross and Moss 1987). from drying streams during periods of tributaries, as no Topeka shiners were Minckley and Cross (1959) report that drought. During this time, the captured (Tabor in litt. 1994). watersheds with high levels of populations are subject to predation by Impoundment of prairie streams has cultivation, and subsequent siltation larger predatory fish inhabiting the also resulted in the documented and domestic pollution, are unsuitable impounded water bodies. In unaltered extirpation of other prairie stream for the species. These streams often systems, fish move downstream during minnow species (Winston et al. 1991), cease to flow and become warm and drought to find suitable habitat. Deacon the speckled chub (Macrhybopsis muddy during the summer months. (1961) reports fishes characteristic of the aestivalis) and the chub shiner (Notropis Cross (1970) indicates that some of the small and mid-sized tributaries of the potteri). areas where depletion of the species has Neosho and Marais des Cygnes rivers’ In Kansas, substantial tributary occurred also coincide with areas watersheds occurred in the mainstems impoundment is occurring throughout having poor aquifers resulting from following several years of protracted the Flint Hills region, endangering the historical changes in drainage patterns drought in the mid-1950’s. Tributary viability of Topeka shiner populations affecting the quantity of water. Pflieger dams also serve to block migration of at these locales. As of 1993, 46 tributary (1975) reports that increased siltation as fishes upstream following drought, impoundments had been completed in a result of intensive cultivation may prohibiting recolonization of upstream or near habitat for the Topeka shiner in have reduced the amount of Topeka reaches. the Cottonwood River basin, with an additional 115 planned for construction shiner habitat in Missouri. Pflieger (in Several recently extant populations (Service in litt. 1993). Presently in the litt. 1991) also reports that a known have been extirpated from tributaries to Mill Creek watershed, which contains population of the species in Boone Tuttle Creek and Clinton reservoirs, the largest remaining complex of habitat County, Missouri was extirpated both mainstem impoundments in the for the species, 16 dams have been between 1970 and 1976, presumably Kansas River basin of eastern Kansas. constructed with additional structures due to increased turbidity and nutrient The species continues to exist in two enrichment resulting from urbanization planned (Hund, Mill Creek Watershed tributaries to Tuttle Creek Reservoir. and highway construction. Feedlot District, pers. comm. 1997; State However, during sampling on one of operations on or near streams are also Conservation Commission of Kansas, in these streams in 1994 only a single known to impact prairie fishes due to litt. 1992). However, the Mill Creek Topeka shiner was captured. All organic input resulting in watershed district board has entered populations within the Wakarusa River eutrophication (Cross and Braasch into a conservation agreement with us watershed (Clinton Reservoir) are 1968). and Kansas Department of Wildlife and The species was historically known believed extirpated. Clinton Reservoir’s Parks to conserve the species. This from open pools of small prairie streams completion coincided with large scale conservation agreement allows for with cool, clear water. Many streams of development of tributary continued dam development in portions this nature reportedly existed impoundments throughout the of the basin without Topeka shiners or throughout the geographic range of the Wakarusa’s upper basin which may where there are less viable populations, Topeka shiner ‘‘prior to the plowing of have compounded impacts to the and eliminates development in ‘‘critical the prairie sod’’ (Cross 1967). These species. Layher (1993) reports the use’’ areas with stable, self-sustaining conditions continue to exist in many of extirpation of Topeka shiners from a populations. The agreement also the streams in the Flint Hills region of stream following construction of a requires habitat improvement and Kansas, primarily due to shallow, rocky single tributary impoundment in Chase enhancement throughout the occupied soils with numerous limestone County, Kansas. Layher reported that portion of the basin. However, this exposures which prevent cultivation. the species had disappeared both agreement can be terminated by any This is in contrast to the perturbation of upstream and downstream of the dam signatory during the included 5-year the natural fish faunas and their site, and noted significant habitat review. Also, the agreement would be associated habitats in prairie areas more changes below the impoundment. ineffective if not implemented. In South suitable to intensive rowcrop Pflieger (in litt. 1992) reports that an Dakota, a major flood control project is agriculture, which is characteristic of abundant population of the species in planned in the Vermillion watershed, the vast majority of the natural range of Missouri was extirpated following involving the construction of numerous the species (Menzel et al. 1984). Menzel construction of an impoundment. This structures. The Vermillion River basin et al. (1984) also notes accelerated rates population, located downstream from contains the largest complex of Topeka of soil erosion and instream deposition the dam site, was not present when shiner populations in South Dakota. of fluvium (deposits caused by the revisited several years after Dam construction also is a threat to the action of flowing water) throughout construction. The habitat had changed species throughout the rest of its range, many modified prairie streams in Iowa, from clear rocky pools, to pools filled but to a lower degree due to less encompassed by the former range of the with gravel, layered over by silt and immediate and intensive development. species. Today, outside the Flint Hills choked with filamentous (threadlike) Stream channelization also has region of Kansas, only a few, small algae. Pflieger further reports that ‘‘the occurred throughout much of the isolated areas not severely impacted, or SCS (Soil Conservation Service) Topeka shiner’s range. Channelization impacted to an extent within the reservoir has profoundly altered the negatively impacts many aquatic tolerance of the species, continue to hydrology and biota of this stream by species, including the Topeka shiner, by exist. eliminating the scouring floods that eliminating and degrading instream Mainstem reservoir development, formerly created pool habitat and habitat types, altering the natural tributary impoundment, and maintained the rocky, silt-free hydrography (physical characteristics of channelization also have impacted the substrate.’’ During 1994 sampling efforts surface waters), and by changing water species in many areas. Populations in southeast Iowa, a stream with recent quality (Simpson et al. 1982). Intensive located within small tributary streams records of the species had been channelization of low order streams 69018 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations throughout the species’ Iowa range is prairie with generally very good grazing captured in streams directly upstream suspect in the species’ drastic decline in management and land stewardship. and downstream of tributary this State (Bulkley et al. 1976). Menzel impoundments in Kansas are B. Overutilization for Commercial, (in litt. 1980) reports the extirpation of largemouth bass, crappie, and bluegill Recreational, Scientific, or Educational (Lepomis macrochirus), and these Topeka shiners from previous collection Purposes sites following stream channelization species are often captured to the projects in Iowa. During 1994 status Some collecting of Topeka shiners by exclusion of cyprinids, including surveys across this portion of the range, individuals for use as bait fish and Topeka shiner (Mammoliti, Kansas most streams were found to have been display in home aquaria does occur. Department of Wildlife and Parks, pers. severely altered (Tabor in litt. 1994). However, overutilization is not thought comm., 1997). Tabor (in litt. 1994) Changes included elimination of pool to currently contribute to the decline of captured only largemouth bass from a habitats, instream debris, and woody the Topeka shiner. stream segmented by numerous dams in riparian vegetation. Water velocities C. Disease or Predation Iowa. A cooperative report completed were consistently high throughout the by the Soil Conservation Service and There have been no studies conducted channel and deep silt was the dominant Kansas Department of Health and on the impacts of disease or predation substrate. It is suspected that the Topeka Environment (1981) on the effects of upon the Topeka shiner, so the shiner is an obligate or at least a watershed impoundments on Kansas significance of such threats to the facultative (adaptive) spawner on streams states that predacious game species is presently unknown. Disease is sunfish (Lepomis spp.) nests (Pflieger in fishes increased in abundance, and not likely to be a significant threat litt. 1992) or other silt-free substrates, several minnow species, including the except under certain habitat conditions, but no sunfish were captured, nor Topeka shiner, decreased in abundance such as crowding during periods of upstream and downstream from dam suitable sunfish spawning habitat reduced flows, or episodes of poor water observed in these channelized streams. sites following impoundment. While the quality, such as low dissolved oxygen or extent of predation is undocumented, At Iowa sites where Topeka shiners elevated nutrient levels. During these were captured, streams were not as known populations have apparently events, stress reduces resistance to been extirpated in the time period intensively channelized and many pathogens and disease outbreaks may natural conditions persist. While immediately following impoundment of occur. Parasites, bacteria, and viral several low order streams (Layher 1993; channelized streams and drainage agents are generally the most common ditches do not provide suitable Pflieger, in litt. 1992; Tabor, in litt. causes of mortality. Lesions caused by 1992b). Topeka shiners were also permanent habitat for Topeka shiners, injuries, bacterial infections, and maintainence of previously altered reportedly extirpated from a small parasites often become the sites of impoundment previously lacking stream systems, such as periodic secondary fungal infections. However, sediment dredging, could potentially largemouth bass, following stocking of Topeka shiners captured from a largemouth bass (Prophet et al. 1981). impact the species downstream in more- Missouri stream in 1996 were natural type stream habitat. Extirpation of the Topeka shiner from discovered to be afflicted with scoliosis, small, direct tributary streams to large Intensive land-use practices, a condition of deformity affecting the mainstem impoundments has also been maintainence of altered waterways, vertebrae. Scoliosis can result from documented. These extirpations dewatering of streams, and continuing contact with environmental presumably occurred in part due to tributary impoundment and contaminants, or severely reduced predation by introduced piscivorous channelization represent the greatest genetic variability resulting from fishes during drought and low flow existing threats to the Topeka shiner. geographic isolation. No causal factor periods when Topeka shiners seek Over-grazing of riparian zones (banks of for this occurrence has been identified. refuge in permanent water downstream a natural course of water) and the The green sunfish (Lepomis cyanellus) from their typical headwater habitats removal of riparian vegetation to is the most common predator typical of (Service 1993). increase tillable acreage greatly Topeka shiner habitat throughout its diminish a watershed’s ability to filter range. The spotted bass (Micropterus D. The Inadequacy of Existing sediments, organic wastes and other punctulatus) and largemouth bass (M. Regulatory Mechanisms impurities from the stream system salmoides) are also naturally occurring In Kansas, the Topeka shiner is listed (Manci 1989). Irrigation draw-down of predators of the Topeka shiner in as ‘‘species in need of conservation,’’ groundwater levels affects surface and portions of its range but to a much lower under the Kansas Nongame and subsurface flows which can impact the degree due to minimal habitat overlap. Endangered Species Conservation Act of species. At present, both Federal and These bass species typically occur in 1975. This status prohibits the direct State planning for development of only the downstream extremes of taking of specimens but does not protect watershed impoundments and Topeka shiner habitat. The construction habitat or give opportunity to review channelization and/or its maintainence of impoundments on streams with actions or projects which may affect the continue in areas with populations of Topeka shiners and the subsequent species in Kansas. Under Missouri law, Topeka shiners. Several impoundments introduction of piscivorous (fish eating) the species is listed as endangered. This are planned for construction on streams fish species not typically found in status prohibits direct taking of with abundant numbers of the species. headwater habitats, such as largemouth specimens and provides a limited Portions of these stream reaches will be bass, crappie (Pomoxis spp.), white bass review process to suggest remediation inundated by the permanent pools of (Morone chrysops), northern pike (Esox for actions potentially impacting the the reservoirs, imperiling the species’ lucius), and channel catfish (Ictalurus species’ habitat. Minnesota, Nebraska, future existence in these localities. Prior punctatus), may affect the species and South Dakota consider it a species to the planning of the impoundments, during drought or periods of low flows of concern, with no legal protection. In these populations of Topeka shiners when Topeka shiners seek refuge in the Iowa, the species has no legal status. were considered to be the most stable impoundments or permanent stream No significant protections exist for range-wide, due to their occurrence in pools now occupied by these introduced Topeka shiner habitat throughout its watersheds dominated by high quality fishes. The most common fishes range. Listing under the Act would Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69019 provide significant protection against Threatened status is not appropriate habitat means an ‘‘alteration that taking of the species, ensure considering the extent of the species’ appreciably diminishes the value of coordinated review of Federal actions population decline and the vulnerability critical habitat for both the survival and which may affect its habitat, and of the remaining populations. recovery of a listed species.’’ Common encourage proactive management to both definitions is an appreciable Critical Habitat throughout its range. As discussed detrimental effect to both the survival previously, section 404 of the Clean Critical habitat is defined in section 3 and the recovery of a listed species. In Water Act regulates certain activities in of the Act as: (i) The specific areas the case of adverse modification of streams and wetlands, and through the within the geographic area occupied by critical habitat, the survival and section 7 consultation process we are a species, at the time it is listed in recovery of the species has been provided the opportunity to review accordance with the Act, on which are significantly diminished by reducing actions proposed for permitting under found those physical or biological the value of the species’ designated this section. Listing of the Topeka features (I) essential to the conservation critical habitat. Thus, actions satisfying shiner would require a review of of the species and (II) that may require the standard for adverse modification potential section 404 actions which may special management considerations or also jeopardize the continued existence impact the species, which is not a protection and; (ii) specific areas of the species concerned. requirement as long as the species outside the geographic areas occupied Many activities that pose threats to remains unlisted and unprotected by by a species at the time it is listed, upon the continued existence of the Topeka Federal law. a determination that such areas are shiner are funded, permitted, or carried essential for the conservation of the out by Federal agencies (e.g., E. Other Natural and Manmade Factors species. ‘‘Conservation’’ means the use channelization, impoundment, dredge Affecting Its Continued Existence of all methods and procedures needed and fill, and other stream and wetland In the species’ Missouri range, to bring the species to the point at modification projects). Programs that possible interspecific (arising between which listing under the Act is no longer result in these activities in Topeka species) competition between the necessary. shiner habitat are most often regulated Topeka shiner and the introduced Section 4(a)(3) of the Act, as by the U.S. Army Corps of Engineers blackstripe topminnow (Fundulus amended, and implementing regulations and the U.S. Department of Agriculture, notatus) has been suggested (Pflieger, in (50 CFR 424.12) require that, to the Natural Resources Conservation Service, litt. 1992). The absence of the Topeka maximum extent prudent and under a variety of authorities, and are shiner from suitable habitat, where determinable, the Secretary designate thus subject to section 7 consultation blackstripe topminnow is present, also critical habitat at the time the species is under the Act. has been observed in Kansas determined to be endangered or Other State or private actions (Mammoliti, pers. comm. 1997). Both threatened. Our regulations (50 CFR resulting in ‘‘take’’ of Topeka shiners species are nektonic insectivores 424.12(a)(1)) state that a designation of would be prohibited by section 9 of the utilizing similar pool habitat. At critical habitat is not prudent when one Act, and remediation of those potential present, the extent of possible or both of the following situations threats would not be significantly competition between these species is exist—(1) The species is threatened by advanced by designation of critical undocumented. In degraded or taking or other human activity, and habitat. suboptimal habitat conditions where identification of critical habitat can be Recovery activities to assist Topeka shiners persist, competition by expected to increase the degree of threat landowners in maintaining or species more tolerant to these to the species, or (2) such designation of improving the habitat quality of their conditions, such as red shiner critical habitat would not be beneficial streams or otherwise addressing known (Cyprinella lutrensis), may negatively to the species. We find that designation threats to Topeka shiners would not affect the species. In portions of the of critical habitat is not prudent for the benefit from a designation of critical species’ Kansas range, interspecific Topeka shiner at this time for the habitat. However, such conservation competition may exist to some extent following reasons. and recovery actions could be between the Topeka shiner, the Section 7 of the Act requires that significantly impaired by public southern redbelly dace (Phoxinus Federal agencies refrain from apprehension or misunderstanding of a erythrogaster), and the cardinal shiner contributing to the destruction or critical habitat designation. (Luxilus cardinalis) (Tabor pers. obs.). adverse modification of critical habitat Intentional taking of the Topeka We have carefully assessed the best in any action authorized, funded or shiner is not presently known to be a scientific and commercial information carried out by such agency (agency problem. However, the Topeka shiner is available regarding the past, present, action). This requirement is in addition found in very specialized, easily and future threats faced by this species to the section 7 prohibition against accessible and identifiable habitat in determining to make this rule final. jeopardizing the continued existence of characterized by small volumes of flow. Based on this evaluation, the preferred a listed species, and it is the only Local populations are thus highly action is to list the Topeka shiner as mandatory legal consequence of a vulnerable and can be intentionally endangered. Endangered status, which critical habitat designation. targeted for elimination, as suggested at means that the species is in danger of Implementing regulations (50 CFR part a recent public hearing. The listing of extinction throughout all or a significant 402) define ‘‘jeopardize the continuing Topeka shiner as an endangered species portion of its range, is appropriate for existence of’’ and ‘‘destruction or also publicizes the present vulnerability the Topeka shiner. We believe the adverse modification of’’ in very similar of this species. Publication of maps species’ recent significant reduction in terms. To jeopardize the continuing providing precise locations and range and the extirpation of the species existence of a species means to engage descriptions of critical habitat, as throughout most of its historic range, in an action ‘‘that reasonably would be required for the designation of critical within the context of the continuing and expected to reduce appreciably the habitat, would reasonably be expected expected impacts from present and likelihood of both the survival and to increase the degree of threat of planned projects and activities, support recovery of a listed species.’’ vandalism or the intentional destruction the determination of endangered status. Destruction or adverse modification of of the species’ habitat, increase the 69020 Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations difficulties of enforcement, and could include the Corps of Engineers (Corps) Center, Denver, Colorado 80225 (303/ further contribute to the decline of the throughout the species’ range pursuant 236–8189) or facsimile (303/236–0027). Topeka shiner. to the Corps administration of Section It is our policy to identify (59 FR In light of the above, we conclude that 404 of the Clean Water Act. The U.S. 34272), to the extent known at the time designation of critical habitat would not Environmental Protection Agency will a species is listed, specified activities be beneficial to the species and would need to consider the Topeka shiner in that will and will not be considered increase the degree of threat to the the registration of pesticides, adoption likely to result in violation of section 9 species from taking. We have, therefore, of water quality criteria, and other of the Act. The intent of this policy is determined that the designation of pollution control programs. The U.S. to increase public awareness of the critical habitat for the Topeka shiner is Department of Transportation, Federal effect of the listing on ongoing and neither beneficial nor prudent. Highway Administration, will need to likely activities within a species’ range. Available Conservation Measures consider the effects of bridge and road We believe the following actions would construction at locations where known not likely result in a violation of section Conservation measures provided to habitat may be impacted. The U.S. 9: species listed as endangered or Department of Agriculture, Natural (1) Actions that may affect Topeka threatened under the Act include Resources Conservation Service and shiner that are authorized, funded or recognition, recovery actions, Farm Service Agency, will need to carried out by a Federal agency when requirements for Federal protection, and consider the effects of structures and the action is conducted in accordance prohibitions against certain practices. channelization projects installed under with an incidental take statement issued Recognition through listing results in the Watershed Protection and Flood by the Service pursuant to section 7 of public awareness and conservation Prevention Act, (16 U.S.C. 1001–1009, the Act; actions by Federal, State, and local Chapter 18; Pub.L. 83–566, August 4, (2) Actions that may result in take of agencies, private organizations, and 1954, c 656, Sec. 1, 68 Stat. 666; as Topeka shiner when the action is individuals. The Act provides for amended), ‘‘Farm Bill’’ programs, and conducted in accordance with a permit possible land acquisition and other activities which may impact water under section 10 of the Act; and cooperation with the States and requires quality, quantity, or timing of flows. The (3) Private actions which avoid ‘‘take’’ that recovery actions be carried out for Federal Energy Regulatory Commission all listed species. Our ‘‘Partners for Fish under section 9, that are not federally will need to consider potential impacts funded or permitted, undertaken within and Wildlife’’ program can also provide to the Topeka shiner and its habitat a means to help share the cost of or near habitat occupied by Topeka resulting from gas pipeline construction shiners, and not be subject to the conservation measures such as over streams and from hydroelectric constructing fencing to keep cattle out regulations as stated above in section 7 development. of the Act. Private actions not subject to of streams and providing alternative The Act and its implementing section 7 consultation include, but are water source, if necessary. The regulations set forth a series of general not limited to: farming and ranching protection required of Federal agencies prohibitions and exceptions that apply practices, construction of private stock and the prohibitions against taking and to all endangered wildlife. The watering ponds on normally dry harm are discussed, in part, below. prohibitions, codified at 50 CFR 17.21, channels, and fuelwood harvest. Section 7(a) of the Act requires in part, make it illegal for any person We believe that the actions listed Federal agencies to evaluate their subject to the jurisdiction of the United actions with respect to any species that States to take (includes harass, harm, below may result in a violation of is proposed or listed as endangered or pursue, hunt, shoot, wound, kill, trap, section 9; however, possible violations threatened and with respect to its or collect; or to attempt any of these), are not limited to these actions alone: critical habitat, if any is being import or export, ship in interstate (1) Actions that take Topeka shiner designated. Regulations implementing commerce in the course of commercial that are not authorized by either a this interagency cooperation provision activity, or sell or offer for sale in permit under section 10 of the Act, or of the Act are codified at 50 CFR part interstate or foreign commerce any an incidental take permit under section 402. Section 7(a)(4) requires Federal listed species. It also is illegal to 7 of the Act; the term ‘‘take’’ includes agencies to confer on any action that is possess, sell, deliver, carry, transport, or harassing, harming, pursuing, hunting, likely to jeopardize the continued ship any species that has been taken shooting, wounding, killing, trapping, existence of a species proposed for illegally. Certain exceptions apply to capturing, or collecting, or attempting listing or result in destruction or entities having an agency relationship any of these actions; adverse modification of proposed with us (agents) and to State (2) Possess, sell, deliver, carry, critical habitat. If a species is listed conservation agencies. transport, or ship illegally taken Topeka subsequently, section 7(a)(2) requires Permits may be issued to carry out shiner; Federal agencies to ensure that activities otherwise prohibited activities (3) Interstate and foreign commerce they authorize, fund, or carry out are not involving endangered wildlife species (commerce across State and likely to jeopardize the continued under certain circumstances. international boundaries) without the existence of the species or destroy or Regulations governing permits are at 50 appropriate permits under section adversely modify its critical habitat. If a CFR 17.22 and 17.23. Such permits are 10(a)(1)(a)and 50 CFR 17.32. Federal action may affect a listed available for scientific purposes, to (4) Unauthorized collecting or species or its critical habitat, the enhance the propagation or survival of handling of the species; responsible Federal agency is required the species, and/or for incidental take in (5) Destruction or alteration of the to enter into formal consultation. connection with otherwise lawful species’ habitat (i.e., actions that change A number of Federal agencies have activities. water quality, quantity, and/or timing of jurisdiction and responsibilities Requests for copies of the regulations flows; dredging or other physical potentially affecting the Topeka shiner, regarding listed wildlife and inquiries modifications that impact instream and section 7 consultation may be about prohibitions and permits may be habitat, including trampling of stream required in a number of instances. addressed to the U.S. Fish and Wildlife habitat by livestock and allowing animal Federal involvement is expected to Service, P.O. Box 25486, Denver Federal wastes from feedlots or waste lagoons to Federal Register / Vol. 63, No. 240 / Tuesday, December 15, 1998 / Rules and Regulations 69021 enter streams) such that it would result for this determination was published in Wildlife Service (see ADDRESSES in take of the species; the Federal Register on October 25, section). (6) The intentional introduction of 1983 (48 FR 49244). List of Subjects in 50 CFR Part 17 nonnative fish species that result in Required Determination direct competition with or predation on Endangered and threatened species, the Topeka shiner at known locations of This rule does not contain any Exports, Imports, Reporting and occupied habitat; information collection requirements for recordkeeping requirements, (7) Use of fertilizers or pesticides which the Office of Management and Transportation. inconsistent with approved labeling and Budget (OMB) approval under the Regulation Promulgation application procedures; and Paperwork Reduction Act of 1995, 44 (8) Contamination of soil, streams, or U.S.C. 3501 et seq. is required. An Accordingly, part 17, subchapter B of groundwater by illegal spills, information collection related to the chapter I, title 50 of the Code of Federal discharges, or dumping of chemicals, rule pertaining to permits for Regulations, is amended as set forth silt, or other pollutants. endangered and threatened species has below: Questions regarding whether a OMB approval and is assigned clearance specified activity will constitute a number 1018–0094. This rule does not PART 17Ð[AMENDED] violation of section 9 should be directed alter that information collection 1. The authority citation for part 17 to the Field Supervisor of our requirement. For additional information continues to read as follows: Manhattan, Kansas Field office (see concerning permits and associated ADDRESSES section). requirements for threatened species, see Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 50 CFR 17.32. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– National Environmental Policy Act 625, 100 Stat. 3500, unless otherwise noted. References Cited We have determined that 2. Section 17.11(h) is amended by Environmental Assessments and A complete list of all references cited adding the following, in alphabetical Environmental Impact Statements, as herein, as well as others, is available order under FISHES, to the List of defined under the authority of the upon request from the Manhattan, Endangered and Threatened Wildlife to National Environmental Policy Act of Kansas Field Office (See ADDRESSES read as follows: 1969, need not be prepared in section). connection with regulations adopted § 17.11 Endangered and threatened pursuant to section 4(a) of the Author wildlife Endangered Species Act of 1973, as The primary author of this document * * * * * amended. A notice outlining the reasons is Vernon M. Tabor, U.S. Fish and (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, Topeka ...... Notropis topeka KS, IA, MN, MO, Entire ...... E 654 NA NA (=Notropis tristis). NE, SD. *******

Dated: November 25, 1998. ACTION: Notification of inspection fees. DATES: These fee changes were effective Jamie Rappaport Clark, on October 1, 1998. Director, Fish and Wildlife Service. SUMMARY: NMFS announces changes in FOR FURTHER INFORMATION CONTACT: [FR Doc. 98–33100 Filed 12–14–98; 8:45 am] its fees and charges for voluntary fishery Richard V. Cano, Chief, Seafood BILLING CODE 4310±55±P products inspection, grading, and Inspection Division, 301–713–2355. certification services. NMFS increased SUPPLEMENTARY INFORMATION: The the basic fee for full-time in-plant Agricultural Marketing Act of 1946 (7 DEPARTMENT OF COMMERCE inspection services by $1.95, making the U.S.C. 1621–1627) authorizes the hourly rate $46.35. The fees for NMFS voluntary fishery products inspection, National Oceanic and Atmospheric laboratory services and inspection grading, and certification program, as Administration services conducted by the State of well as assessment and collection of 50 CFR Part 260 Alaska remain unchanged. It also such fees as will be reasonable and as includes a 3.6-percent base salary nearly as may be to cover the cost of the [Docket No. 981023266±8266±01; I.D. increase and varying locality pay service rendered. Reorganization Plan 091598A] increases effective January 1999. NMFS No. 4 of 1970 delegated these authorities Inspection and Certification Fees and is continuing its separate fee structure to NMFS. Regulations at 50 CFR 260.70 Charges for facilities with less than full-time authorize the Secretary of Commerce to contract services. This fee reflects review and revise annually the rates for AGENCY: National Marine Fisheries increases in salary, general operating, voluntary fishery products inspection, Service (NMFS), National Oceanic and and overhead costs that are charged by grading, and certification services by Atmospheric Administration (NOAA), NMFS and NOAA. publishing a notice of fee changes in the Commerce. Federal Register. NMFS’ annual review