# Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arkansas River Basin Population of the Arkansas River Shiner

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URL: https://www.frixlaw.com/law-library/documents/fr%3A01-8082

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 4, 2001
- **Citation:** 66 FR 18002

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AG12
Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arkansas River Basin Population of the Arkansas River Shiner

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for the Arkansas River Basin population of the Arkansas River shiner (
Notropis girardi
). This designation is made in response to a court settlement in
Center for Biological Diversity
v.
Bruce Babbitt, et al.
C99-3202 SC, directing us to submit for publication in the
Federal Register
a proposal to withdraw the existing “not prudent” critical habitat determination together with a new proposed critical habitat determination for the Arkansas River Basin population of the Arkansas River shiner by June 23, 2000, and final rule by March 15, 2001 (subsequently extended until March 28, 2001). We are designating as critical habitat a total of approximately 1,846 kilometers (1,148 miles) of rivers and 91.4 meters (300 feet) of their adjacent riparian zones. Critical habitat includes portions of the Arkansas River in Kansas, the Cimarron River in Kansas and Oklahoma, the Beaver/North Canadian River in Oklahoma, and the Canadian/South Canadian River in New Mexico, Texas, and Oklahoma. Section 7 of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to adversely modify designated critical habitat. As required by section 4 of the Act, we considered economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat.

This final critical habitat designation is being completed pursuant to a settlement agreement of a law suit executed on February 16, 2000, and, accordingly, must be published at this time without further review or delay. However, the Department of the Interior's initial review of this final critical habitat rule has raised concerns that are worthy of further attention. Accordingly, we will continue to solicit additional public comments on the effects of this final designation and ways that it may be improved. As soon as practicable hereafter, the Department of the Interior intends to propose the review of the present rule and thereafter, if appropriate, the proposal of a new approach to this critical habitat designation after consideration of these further comments, as part of the recovery planning process.

DATES:

This final rule is effective May 4, 2001.

ADDRESSES:

The complete administrative record for this rule is on file at the U.S. Fish and Wildlife Service, Oklahoma Ecological Services Office, 222 S. Houston, Suite A, Tulsa, Oklahoma 74127-8909. You may view the complete file for this rule, by appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT:

Ken Collins, Oklahoma Ecological Services Office, at the above address; telephone 918/581-7458, facsimile 918/581-7467.

SUPPLEMENTARY INFORMATION:

Background

The Arkansas River shiner is a small, robust minnow with a small, dorsally flattened head, rounded snout, and small subterminal mouth (located near the head end of the body but not at the extreme end) (Miller and Robison 1973, Robison and Buchanan 1988). Dorsal (back) coloration tends to be light tan, with silvery sides gradually grading to white on the belly. Adults attain a maximum length of 51 millimeters (2 inches). Dorsal, anal, and pelvic fins all have eight rays, and there is a small, black chevron usually present at the base of the caudal fin.

The Arkansas River shiner was first described based on a fish collection in 1926 from the Cimarron River northwest of Kenton, Cimarron County, Oklahoma (Hubbs and Ortenburger 1929). Historically, the Arkansas River shiner was widespread and abundant throughout the western portion of the Arkansas River basin in Kansas (KS), New Mexico (NM), Oklahoma (OK), and Texas (TX). This species has disappeared from more than 80 percent of its historical range and is now almost entirely restricted to about 820 kilometers (km) (508 miles (mi)) of the Canadian River in OK, TX, and NM (Larson
et al.
1991; Pigg 1991). An extremely small population may still persist in the Cimarron River in OK and KS, based on the collection of only nine individuals since 1985. A remnant population also may persist in the Beaver/North Canadian River of OK, based on collection of only four individuals since 1990 (Larson
et al.
1991; Jimmie Pigg, Oklahoma Department of Environmental Quality, pers. comm., 1993). An accurate assessment of Arkansas River shiner populations in the Arkansas, Cimarron, and Beaver/North Canadian rivers is difficult because the populations may be so small that individuals may escape detection during routine surveys. The small size of Arkansas River shiner aggregations in these three rivers significantly reduces the likelihood that these populations will persist over evolutionarily significant timescales in the absence of intensive conservation efforts.

In 1999, six Arkansas River shiners were reportedly collected from the Arkansas River in Wichita, KS, at two locations—four from near the 47th Street South bridge and two near the Kansas State Highway 96 crossing (Vernon Tabor, U.S. Fish and Wildlife Service, Manhattan, KS, pers. comm., 2000). Prior to this collection, the Arkansas River shiner was believed to be extirpated from the Arkansas River. Further examination of these specimens by Dr. Frank Cross revealed that these individuals were actually sand shiners (
Notropis stramineus
), a species which superficially resembles the Arkansas River shiner.

The decline of this species throughout its historical range is primarily the result of modification of the duration and timing of stream flows and inundation by impoundments, channel desiccation by water diversion and groundwater mining, stream channelization, and introduction of nonindigenous species. Additional information on the biology and status of this species can be found in the November 23, 1998, final listing determination (63 FR 64772). Biological factors relevant to the species' habitat needs are discussed in the “Primary Constituent Elements” section of this final rule.

Previous Federal Action

We included the Arkansas River shiner in our September 18, 1985, Review of Vertebrate Wildlife (50 FR 37958) as a category 2 candidate for listing. Category 2 included those taxa for which information indicated that a proposal to list as endangered or threatened was possibly appropriate, but for which conclusive data on biological vulnerability and threats were not currently available to support a proposed rule. Our January 6, 1989, revised Animal Notice of Review (54 FR 554) retained this status for the Arkansas River shiner.

We first received detailed information on the status of the species in 1989 (Pigg 1989). A partial status survey by Larson

et al.
(1990) was a source of additional information. We subsequently prepared a status report on this species (U.S. Fish and Wildlife Service 1990). Following this report, Larson
et al.
(1991) and Pigg (1991) provided comprehensive status survey information. In our November 21, 1991, Animal Candidate Review for Listing as Endangered or Threatened Species (56 FR 58804), we reclassified the Arkansas River shiner as a category 1 candidate. At that time, category 1 (now referred to as candidates) included those taxa for which we had substantial information on biological vulnerability and threats to support proposals to list the taxa as endangered or threatened.

We published a proposed rule to list the Arkansas River basin population of the Arkansas River shiner as endangered and invited public comment on August 3, 1994 (59 FR 39532). A nonnative population of the Arkansas River shiner that has become established in the Pecos River was not included in that proposal. We reopened the comment period from January 6, 1995, to February 3, 1995, (60 FR 2070) to accommodate three public hearings. Following lifting of a moratorium on issuing final listings or critical habitat designations on April 26, 1996, we again reopened the comment period on the proposal on December 5, 1997 (62 FR 64337). We published the final rule listing the Arkansas River basin population of the Arkansas River shiner as a threatened species on November 23, 1998 (63 FR 64772).

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate critical habitat at the time a species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that critical habitat is not prudent if one or both of the following situations exist—(i) the species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of this threat, or (ii) designation of critical habitat would not be beneficial to the species. In the final rule listing the Arkansas River Basin population of the Arkansas River shiner (63 FR 64772), we found that designation of critical habitat was not prudent because we believed critical habitat would not provide any additional benefit beyond that provided through listing as threatened.

In the last few years, a series of court decisions have overturned several of our determinations made for different species that designation of critical habitat would not be prudent (for example,
Natural Resources Defense Council
v.
U.S. Department of the Interior
113 F.3d 1121 (9th Cir. 1997);
Conservation Council for Hawaii
v.
Babbitt,
2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we reexamined the question of whether designation of critical habitat for the Arkansas River Basin population of the Arkansas River shiner is prudent.

As part of a settlement order of February 16, 2000, in
Center for Biological Diversity
v.
Bruce Babbitt, et al.
C99-3202 SC, we agreed to reconsider the question of whether critical habitat would be prudent; and, if designation of critical habitat is prudent, we agreed to subsequently propose designation of critical habitat for the Arkansas River Basin population of the Arkansas River shiner by June 23, 2000. Our proposed designation of critical habitat for the Arkansas River shiner was published in the
Federal Register
on June 30, 2000 (65 FR 40576). We held three public hearings on the proposed rule in Amarillo, TX, on August 7, 2000, Oklahoma City, OK, on August 9, 2000, and in Pratt, KS, on August 11, 2000. On August 15, 2000 (65 FR 49781), we published a notice in the
Federal Register
extending the comment period on the proposed rule and draft environmental assessment and announcing the availability of the draft economic analysis for comment. The final comment period was open until October 16, 2000.

Summary of Comments and Recommendations

In the June 30, 2000, proposed rule, we requested all interested parties to submit comments or information that might bear on the designation of critical habitat for the Arkansas River shiner (65 FR 40576). The first comment period was scheduled to close on August 29, 2000. We extended this comment period until October 16, 2000, to continue to solicit comments on the proposed rule and draft environmental assessment and to accept comments on the draft economic analysis (August 15, 2000; 65 FR 49781). We contacted all appropriate State and Federal agencies, Tribes, county governments, scientific organizations, and other interested parties and invited them to comment. In addition, we published newspaper notices inviting public comment and announcing the public hearings in the following newspapers in New Mexico: Quay County Sun; Kansas: Dodge City Globe, Hutchinson News Herald, and Wichita Eagle Beacon; Oklahoma: Woodward News, The Daily Oklahoman, and Tulsa World; Texas: Amarillo Globe News, and Lubbock Avalanche Journal. We held three public hearings on the proposed rule: Amarillo, TX (August 7, 2000); Oklahoma City, OK (August 9, 2000); Pratt, KS (August 11, 2000). Transcripts of these hearings are available for inspection (see
ADDRESSES
section).

We solicited nine independent expert opinions of persons who are familiar with this species to peer review the proposed critical habitat designation. However, none of the peer reviewers submitted comments. We received a total of 212 comments (148 written and 64 oral) from individuals, agencies, and organizations. Of these comments, 18 supported critical habitat designation, 146 were opposed to designation, and 48 were neutral but provided information. We reviewed all comments received for substantive issues and new data regarding critical habitat and the Arkansas River shiner. We address all comments received during the comment periods and public hearing testimony in the following summary of issues. Comments of a similar nature are grouped into issues.

Issue 1: Procedural Issues and Legal Compliance

(1)
Comment:
Critical habitat designation is not a required or necessary action under the Endangered Species Act. In the final rule listing the Arkansas River Basin population of the Arkansas River shiner, the Fish and Wildlife Service determined that designation of critical habitat was not prudent because no benefit to the species would result. Why did the Service reverse its opinion? Why were the parties affected by the designation not represented or involved in the litigation that led to the settlement agreement?

Our Response:
The Act (4(a)(3)) requires that critical habitat be designated for species listed as threatened or endangered unless such designation would not be prudent. In the final rule listing the Arkansas River Basin population of the Arkansas River shiner as threatened, we determined that designation of critical habitat would not be prudent because such designation would provide little benefit to the species. However, as stated in the proposed rule to designate critical habitat, a series of court decisions have overturned several of our determinations made for different species that designation of critical habitat would not be prudent (for example,
Natural Resources Defense Council
v.
U.S. Department of the Interior
113 F.3d 1121 (9th Cir. 1997);
Conservation Council for Hawaii
v.
Babbitt,
2 F. Supp. 2d 1280 (D. Hawaii 1998)).

As part of a settlement order of February 16, 2000, in
Center for Biological Diversity
v.
Bruce Babbitt, et al.
C99-3202 SC, we agreed to reconsider the question of whether critical habitat would be prudent; and, if we found that designation of critical habitat is prudent, we agreed to subsequently propose designation of critical habitat for the Arkansas River Basin population of the Arkansas River shiner. Individuals that are not party to a lawsuit do not participate in negotiations to resolve that litigation. However, we solicited advice and comments from all interested individuals during the public comment periods established for the EA (Environmental Assessment) process and the proposed rule.

Upon further consideration, we believe designation of critical habitat for the Arkansas River shiner may be of some benefit and is thus considered prudent. A critical habitat designation benefits species conservation primarily by identifying important areas and by describing the features within those areas that are essential to conservation of the species, alerting public and private entities to the areas' importance. Although the designation of critical habitat does not, in and of itself, restrict human activities within an area or mandate any specific management or recovery actions, it does help focus Federal, tribal, State, and private conservation and management efforts in such areas. Designating critical habitat may also provide some educational or informational benefits.

(2)
Comment:
The shiner is already protected under sections 4, 7, and 9 of the Act. Why is additional protection necessary?

Our Response:
Section 4 of the Act governs listing of species, designation of critical habitat, and recovery planning. Neither the listing provisions nor recovery planning process provide protective mechanisms per se. Rather, once a species is listed under the provisions of section 4, the recovery process begins, and the protections afforded listed species under sections 7 and 9 are then in effect.

We agree that protections afforded listed species under sections 7 and 9 are substantial, and that critical habitat designation usually adds only marginal protections above those already afforded listed species. Under section 7, Federal agencies are required to utilize their authorities to further the conservation of species and the ecosystems upon which they depend. Federal agencies are prohibited from implementing actions likely to jeopardize the continued existence of a species or to destroy or adversely modify a listed species' designated critical habitat. Regulations implementing the requirements of section 7 (50 CFR 402.02) define “jeopardize the continued existence” (of a species) and “destruction or adverse modification” (of critical habitat) so similarly that the two prohibitions are nearly identical, thus resulting in little additional protection through critical habitat designation.

Section 9 of the Act also provides substantial protection to listed species by prohibiting any person (as opposed to section 7 which involves only Federal agencies) from such activities as taking listed species without proper permits, as well as controlling transportation, selling, and importing or exporting listed species. Critical habitat is not protected under section 9, so no effect on strictly non-Federal activities are added through critical habitat designation.

Despite the little additional benefit critical habitat may provide listed species, its designation is required under the Act if any benefits would accrue to the species at hand. As described above, there may be some benefit to the Arkansas River shiner through designation of its critical habitat.

(3)
Comment:
The court did not require that the Service designate critical habitat for the shiner. Rather, it required only that critical habitat be proposed and considered. Now that critical habitat has been proposed, the Service should withdraw the proposal and return to its original “not prudent” determination.

Our Response:
As explained above, we believe that designation of critical habitat provides some benefit to shiner conservation and that recent court interpretations on prudency of critical habitat would not lend support in this case to a “not prudent” determination. The court cases that reversed our not-prudent determinations have used similar rationales for their decisions.

(4)
Comment:
The Service did not use the best scientific and commercial information available in this designation. No credible information exists as to the threats faced by the species. The Service admits that its contention that a single catastrophic event could eliminate the species is hypothetical and untenable.

Our Response:
The best scientific and commercial information available shows that the Arkansas River shiner has been extirpated from around 80 percent of its historical range, and that its decline continues in many of the areas in which it remains. As with most species, the factors causing the shiner's decline are complex, interactive, and difficult to identify with certainty. However, such trends as declining flows, elimination and degradation of riparian areas, and impoundment of previously flowing water can be reasonably cited as reasons for the species' historic and present decline. All of those examples are threats to the species' habitat, so designation of critical habitat is prudent under the Act. In addition, while it is unlikely that a single catastrophic event would, in itself, result in the immediate extinction of the species, the precarious nature of the population and its restricted distribution leave it vulnerable to significant extirpations which could lead to its eventual extinction.

(5)
Comment:
The Service was involved in preparing a Memorandum of Understanding (MOU) among, the involved States, the Service, and other parties interested in a cooperative and voluntary approach to Arkansas River shiner conservation. However, the MOU approach was abandoned. Critical habitat designation was not a part of the MOU, and will jeopardize the opportunity to fully explore the effectiveness of the MOU approach.

Our Response:
The commenter is correct that an attempt to develop and sign a MOU was never completed. However, we do not agree that the designation of critical habitat in any way precludes a cooperative approach to conserving the Arkansas River shiner. As elaborated upon below, we believe that a recovery planning process involving the cooperation of numerous stakeholders remains the best approach to shiner conservation and will have a significant influence on how critical habitat is managed, rather than the critical habitat designation driving management decisions.

(6)
Comment:
Designating critical habitat prior to development of a recovery plan for the Arkansas River shiner is inappropriate. This “cart before the horse” approach is irresponsible toward the affected public. The public should be allowed to participate in developing a recovery plan for the species, which would be far more effective than designating critical habitat.

Our Response:
We agree that, in an ideal situation, we would have a recovery plan in place for any species prior to designating its critical habitat. In that way, the public would have input into the recovery process, and enough would be known about the species to help determine what areas are essential to its recovery. However, the Act requires that critical habitat be designated concurrently with a species'

listing or, in some circumstances, within 1 year of a final listing determination. Unfortunately, the Act does not allow for a delay in critical habitat designation until after a recovery plan is in place.

It is important to note that the recovery planning process, which will allow the involvement of affected individuals; local, state, and tribal governments; and others interested in conservation of the Arkansas River shiner, will result in development of specific recovery actions to be implemented on behalf of the species' conservation. Although recovery plan implementation is not mandatory, the plan does usually provide a “blueprint” for achieving recovery and substantially influence how the species is managed under the Act. Thus, although critical habitat is usually designated prior to recovery plan development, its on-the-ground recovery implementation can be influenced by a final recovery plan. It is the consideration of critical habitat during the section 7 process, rather than its mere designation, that actually determines how a species' habitat is managed.

(7)
Comment:
Critical habitat should be designated only in areas where the species is present.

Our Response:
The definition of critical habitat under section 3(5) of the Act includes areas outside the geographic areas occupied by the species at the time it was listed, upon a determination that such areas are essential to the conservation of the species. The term “conservation” is defined under section 3(3) of the Act as the measures necessary to bring a species to the point that its protection under the Act is no longer necessary, i.e., the species is recovered. We do not believe that the Arkansas River shiner's current distribution and numbers are adequate to achieve its recovery. Thus, we determined that areas outside its current geographic range are necessary to reach that goal.

(8)
Comment:
All landowners within the area affected by the designation should have been notified. The Service is attempting to implement critical habitat without giving landowners adequate time to review the information. (Numerous commenters expressed concerns about the length of the comment period, particularly with regard to the amount of time allowed for review of the draft EA and draft economic analysis.)

Our Response:
Given the wide-ranging nature of this designation, the thousands of landowners involved, and the amount of time available to complete the designation, contacting each individual landowner within the proposed area would have been nearly impossible. However, we went well beyond the general notification requirements of the Act and the Administrative Procedure Act. This included notification of all State, local, and tribal governments; mailings to over 1,100 interested parties; publication of notices in 9 newspapers; issuance of a press release and other informational materials; and announcement of all public hearings. We regret any instances where interested parties may have been unaware of the proposed designation.

The public comment period on this action was open for 60 days and extended for an additional 48 days, for a total of 108 days of public comment. The Act requires that a minimum of 60 days be allowed for comment on a critical habitat proposal. Thus, we exceeded the statutory requirement. In addition, the court order limited the amount of time we could allow for public review of the information.

The public comment period was initially open for 60 days following publication of the proposed rule on June 30, 2000. The initial 60-day comment period met the requirement under regulations at 50 CFR 424.16(c)(2). The draft EA was also available for public review at that time. During the 60-day review period on the proposed rule and draft EA, we announced the availability of the draft economic analysis (65 FR 49781; August 15, 2000) and extended the close of the public comment period 48 days beyond the initial 60 days, to allow for a full review and comment period upon the draft economic analysis. Thus, the public had 108 days to review and comment upon the proposed rule and draft EA, and 63 days on the draft economic analysis.

(9)
Comment:
Numerous commenters felt that there were too few public hearings held, and that the ones that were held should have been delayed until after the public had the opportunity to review the draft economic analysis. Some were concerned that the public hearings were held in the busy summer season and should have been held in winter. Some questioned the geographic distribution of the hearing sites, and some were concerned that the hearings were poorly publicized.

Our Response:
The Act requires that at least one public hearing be held on a proposed designation of critical habitat if requested within 45 days of publication of a proposed rule. In anticipation of the public's interest in the proposed designation, we announced in the proposal that we would hold three public hearings beginning on August 7, 2000. Thus, the public was given 38 days notice of the dates and locations of the public hearings, exceeding the 15-day notification requirement in the regulations (50 CFR 424.16(c)(3). In addition, we mailed the proposed rule and other information to over 1,100 interested parties on our mailing list, issued a press release announcing the proposal and the public hearings, and published legal notices in 9 newspapers covering the entire geographic area affected by the proposed designation We believe we provided the public adequate notification of the public hearings.

We held public hearings in Amarillo, TX, Oklahoma City, OK, and Pratt, KS. Although we exceeded the statutory requirement of one public hearing, we agree that more public hearings on the proposal would have been desirable, particularly in rural areas. However, workforce, budgetary, and time constraints did not allow us to hold the number of public hearings we would have liked, and forced us to centralize the hearing sites. Further, the court-ordered deadline for making a final determination on the proposal (March 14, 2001) did not allow us to delay the public hearings until after the draft economic analysis became available, nor did it allow us to hold hearings in the winter. Nonetheless, the public had ample opportunity to review and comment on the economic analysis, and many persons did so.

(10)
Comment:
Federal designation of critical habitat is duplicative and intrusive upon States' rights.

Our Response:
Since the designation of critical habitat does not, in itself, prescribe specific management actions or restrictions, we do not see how a designation is duplicative of State management efforts. As stated above, the manner in which consideration of critical habitat during the section 7 process is implemented, will be strongly influenced by the recovery planning process which will, in turn, involve the States in which Arkansas River shiner recovery will occur. It is our intent that States will be closely involved in, and therefore influential upon, recovery plan development.

(11)
Comment:
The proposed rule, draft economic analysis, and draft EA did not indicate that any coordination took place with any State or local governments nor any private organizations.

Our Response:
While the documents listed above did not describe in detail the coordination that has taken place during this designation process, we have coordinated extensively with all involved States, as well as many water

conservation districts and other local governments, throughout the listing of the species and its designation of critical habitat. On April 14, 2000, we requested information on areas to include or exclude from a proposed designation and requested biological and economic information germane to the potential proposal from 5 Native American Nations, 34 State agencies, 31 State and local elected officials, 57 county governments, 22 knowledgeable individuals, and 124 organizations, local units of government, water conservation districts, and similar entities. We also contacted numerous Federal agencies and elected officials by letter.

(12)
Comment:
A copy of the settlement agreement leading to the critical habitat designation should be made available to the public. The amount of funds paid to the Center for Biological Diversity as part of the settlement agreement should be part of the public record.

Our Response:
As stated in the proposed and final rules, all supporting information for this designation is available for public inspection at the Oklahoma Ecological Services Field Office (see
ADDRESSES
section). In addition, persons may request copies of any documents associated with this designation, subject to the provisions of the Freedom of Information Act, by writing to the Field Supervisor at that office. The settlement agreement is part of the public record in the United States District Court for the Northern District of California, San Francisco Division,
Center for Biological Diversity
v.
Bruce Babbitt, et al.,
Civil No. C99-3202 SC. The Stipulated Settlement Agreement and the Order entering that agreement were filed by the Court clerk on February 16, 2000. The Agreement does not specify attorney's fees but establishes that the Federal defendant “agrees to pay Plaintiff's reasonable attorneys’ fees and costs, such amount to be negotiated by the parties upon Defendant's receipt of Plaintiff's fee request.”

(13)
Comment:
The 300-foot “buffer zone” is excessive and unnecessary.

Our Response:
Critical habitat includes the area of bankfull width plus 300 feet on either side of the banks. This is not for the purpose of creating a “buffer zone.” Rather, it defines the lateral extent of those areas we believe are essential to the species' conservation. Although the shiner cannot be found in the areas when they are dry, the areas are sometimes flooded and provide habitat during high-water periods. In addition, the riparian vegetation within these lateral areas provide seeds and insects eaten by shiners, and thus contains a primary constituent element of critical habitat.

(14)
Comment:
The designation of critical habitat for the Arkansas River shiner is arbitrary.

Our Response:
We used the best scientific and commercial data available in developing this designation. Considerations that went into this mapping effort are described in the “Methods” section of this final rule.

(15)
Comment:
The phrase “federally funded actions on private lands” “and private actions that require a Federal permit or authorization” should be clarified. Does this mean all actions that receive Federal funds such as participation in U.S. Department of Agriculture programs, technical assistance from the Natural Resource Conservation Service, transition payments, government loans, loan deficiency payments, conservation plan compliance, etc.?

Our Response:
It is up to Federal agencies to determine whether their actions may affect a listed species or critical habitat and thus be subject to the consultation requirements under section 7 of the Act. An “action” is defined in section 7 regulations (50 CFR 402.02) as “* * * all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies * * * Examples include but are not limited to * * * the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid * * * or actions directly or indirectly causing modifications to the land, water, or air.”

(16)
Comment:
Critical habitat is unnecessary because the Service does not have the authority to regulate water quality or quantity and use—only the states and Environmental Protection Agency (EPA) do. The State of Kansas has been working with the EPA to enhance water quality.

Our Response:
We agree that we do not have the authority to regulate water use, and have no intention of attempting to do so. However, any Federal agency whose actions influence water quality or quantity in a way that may affect critical habitat must enter into section 7 consultation. Those consultations cannot result in restrictions that are outside the action agencies' authorities to implement.

(17)
Comment:
Critical habitat is unnecessary because the Kansas Department of Wildlife and Parks has designated critical habitat and has ongoing plans to help conserve habitat for the shiner.

Our Response:
The designation of critical habitat under Kansas State law only applies to State-sponsored activities and does not apply to Federally-sponsored activities as does a designation of critical habitat under the Act. Additionally, the State designation does not fully overlap this Federal designation. We may exclude areas from critical habitat upon determining that an area is not in need of special management considerations or protection. However, the commenter didn't provide sufficient information to enable us to conduct such an evaluation.

(18)
Comment:
What is to stop the Service from enlarging the critical habitat designation in the future?

Our Response:
Our future revision of this critical habitat determination would likely be a result of the recovery planning process, in which we intend to promote full citizen involvement. Should the recovery planning process identify additional areas necessary for critical habitat designation, or if other public comment indicates the need for revisions to this designation, we would go through the complete rulemaking process, including public participation, before finalizing a revised designation. We do not anticipate increasing this designation.

Issue 2: National Environmental Policy Act (NEPA) Compliance

(19)
Comment:
The Service did not adequately comply with the requirements of the National Environmental Policy Act (NEPA). An Environmental Assessment (EA) is not adequate for an action of this magnitude; an Environmental Impact Statement (EIS) is required. Council on Environmental Quality regulatory requirements for the content of an EIS were not met, and the public was not provided adequate information.

Our Response:
The commenters did not provide sufficient rationale for their belief that an EIS is required. An EIS is required only if we find that the proposed action is expected to have a significant impact on the human environment. To make that determination we prepared an EA, which analyzed the probable effects of the designation as well as several alternatives to the proposed action. The EA was made available for public review and comment on June 30, 2000. In addition, we conducted a draft economic analysis. The economic analysis was made available for public review and comment on August 15, 2000. Based on those analyses and comments received from the public, we prepared a final EA and made a Finding of No Significant Impact (FONSI), negating the need for preparing an EIS.

The final EA, final economic analysis, and FONSI provide our rationale for determining that critical habitat designation would not have a significant effect on the human environment. Those documents are available for public review (see
ADDRESSES
section).

(20)
Comment:
Neither the EA nor the economic analysis used information from landowners or the Oklahoma Farm Bureau.

Our Response:
We considered all information submitted during the comment periods.

(21)
Comment:
The draft EA failed to include information on coordination with State and other Federal agencies.

Our Response:
A discussion of our extensive pre-proposal coordination is included in the final EA and available through the Oklahoma Field Office (see
ADDRESSES
section). See the “National Environmental Policy Act” section below for a discussion of the 10th Circuit Court precedent on critical habitat and NEPA.

(22)
Comment:
The purpose of the NEPA action should be clearly stated as a court settlement in
Center for Biological Diversity
v.
Babbitt et al.

Our Response:
The primary purpose of the proposed designation is to aid in the conservation of the Arkansas River shiner, as stated in the draft EA. However, we clearly state in the final EA that a secondary purpose of the action is to comply with the settlement agreement.

(23)
Comment:
The cover sheet of the draft EA does not indicate the lead agency, list the cooperating agencies, provide the name, address, and phone number of the contact person, or denote the suspense date for submitting comments.

Our Response:
The lead agency and contact information were provided in the cover letter transmitting the draft EA to interested persons. We have added that information to the cover sheet in the final EA. There are no formally-recognized cooperating agencies in this action.

(24)
Comment:
The draft EA fails to clearly define the major issues in accordance with CEQ regulations paragraph 1502.14. Major issues which should be discussed in greater detail include—whether the benefit of the action justifies the cost; effect on private property; plus all other issues identified by State and local governments, concerned citizens, and organizations.

Our Response:
The major issues are defined in the Purpose and Need portion of the draft EA. The regulation cited by the commenter speaks to alternatives rather than the Purpose and Need section. We believe we identified and discussed in sufficient detail the major issues we were aware of when we prepared the draft EA. We have addressed all other issues brought to our attention during the comment period in the final EA and/or related documents.

(25)
Comment:
The draft EA fails to discuss the environmental impacts of each alternative, including the proposed action. Such discussion should include—adverse environmental impacts that cannot be avoided; the relationship between short-term use of the environment and maintenance/enhancement of long-term productivity; and any irreversible or irretrievable commitments of resources (CEQ regulations paragraph 1502.16).

Our Response:
We disagree with the commenter. We considered a no-action alternative and several action alternatives and discussed the adverse and beneficial environmental impacts of each. We determined through the EA that the environmental effects of the critical habitat designation are insignificant above the effects from the listing. We believe our EA was consistent with the spirit and intent of NEPA.

(26)
Comment:
The draft EA did not provide names and qualifications of persons who prepared the document (CEQ regulations paragraph 1502.17), and the mailing list for those provided copies of the draft EA was not included (CEQ regulations paragraph 1502.19).

Our Response:
The regulations cited by the commenter pertain to preparation of an EIS, not an EA.

Issue 3: Biological Concerns

The following comments and responses involve issues related to the biological basis for the designation and status of the Arkansas River shiner.

(27)
Comment:
The Arkansas River shiner population is stable, has readapted to other areas, has not declined in TX or otherwise does not require the protection of the Act. Status information was missing from the proposed rule. How does the Service obtain status information on the species?

Our Response:
The Arkansas River Basin population of the Arkansas River shiner was listed as threatened in 1998. Additional information on the biology and status of this species and our rationale for the listing can be found in the November 23, 1998, final listing determination (63 FR 64772). Overall, the range of the Arkansas River shiner has declined by approximately 80 percent. As stated in the final rule, an analysis of the amount of occupied habitat demonstrates that the range of the ARS has been reduced in Texas. Historically, the Arkansas River shiner occupied 370 km (230.0 mi) of the Canadian River in Texas. At present, the ARS occupies 265 river-km (164.5 river-mi). This represents a loss of 28.5 percent of the historically occupied habitat in Texas. With the exception of those aggregations inhabiting the reach between Ute Dam, NM, and the upper reaches of Lake Meredith, TX, the Arkansas River shiner continues to decline.

We used survey data from a variety of sources including the Texas Parks and Wildlife Department, Bureau of Reclamation, University of New Mexico, Oklahoma State University, University of Kansas, University of Oklahoma, University of Michigan, Westark Community College, Texas Tech University, and the Oklahoma Department of Environmental Quality in assessing the current status of the Arkansas River shiner. Some of this information was funded by contract with us, and we were active participants in some of these studies. Fish and habitat data were collected in each study using standard survey techniques.

(28)
Comment:
The population in the Pecos River is no different than that in the Arkansas River Basin, and no critical habitat was proposed for the Pecos River system.

Our Response:
While the origin of the founding stock for the Pecos River population undoubtedly came from the Arkansas River Basin, we consider these two populations to be different. The Arkansas River basin population is discrete and separate, based on natural, geographic isolation, from the nonnative, introduced population in the Pecos River, likely the result of intentional or unintentional release of bait fish by anglers. The Arkansas River basin population represents the only surviving natural occurrence of the taxon. The Pecos River population is not significant because it is an introduced population located outside of the species' historic range and, as stated in the final listing determination (63 FR 64772), is not essential for recovery of the species within its historic range. We do not believe listing or active conservation of the introduced Pecos River population is appropriate nor is such conservation required by the Act.

(29)
Comment:
The Arkansas River shiner population in NM is healthy.

Our Response:
Surveys and collection records establish that the Arkansas River shiner historically inhabited the Canadian River from the TX-NM State line as far upstream as the Sabinoso area in central San Miguel County, NM (Sublette
et al.
1990), a distance of over 193 river-km (120 river-mi). The

Arkansas River shiner also occurred in Ute and Revuelto creeks and the Conchas River. Present aggregations of Arkansas River shiners are limited to roughly 52 river-km (32 river-mi) of the Canadian River and a short segment of Revuelto Creek. Although the Arkansas River shiner population in the Canadian River of NM appears to be stable, the range of the species has declined by over 73 percent.

(30)
Comment:
When was the most recent occurrence of the Arkansas River shiner in the Cimarron River in Kansas near the Kansas State Highway 23 crossing.

Our Response:
The most recent collection was in May of 1992. The specimen is catalogued in the natural history museum at the University of Kansas, catalogue number KU 23070. This specimen was collected in Harper County, Oklahoma, near the U.S. Route 283 crossing about 6.5 km (4 mi) south of Englewood, KS. To our knowledge, no intensive fish surveys have occurred in this segment of the Cimarron River since that time.

(31)
Comment:
A few comments requested clarification of the identification of the fish collected within the City of Wichita in 1999, or informed us that these specimens were, in fact, not Arkansas River shiners and that the species has been extirpated from the Arkansas River in Kansas. Another questioned whether the occurrence of the species in the Arkansas River was a miraculous recovery or an indication that more study was needed.

Our Response:
In 1999, six fish were collected from two locations in the Arkansas River within the Wichita, KS, metropolitan area. At that time, the specimens were believed to be Arkansas River shiners. However, the specimens were in poor condition and subsequent re-examination of the specimens by Dr. Frank Cross led him to conclude that these fish were not Arkansas River shiners. The minnow family, Cyprinidae, is the largest and most widely distrubuted family of fishes with over 280 known species occurring in North America alone (Robison and Buchanan 1988). Identification of individual species, particularly within the genus
Notropis
is difficult due to the large number of species, their small size, and overall similar appearance. Even within a species, individuals can vary considerably in size and appearance. In preparing the proposed rule, we used the best information available to us at the time. At present the Arkansas River shiner is believed to be extirpated from the entire Arkansas River.

(32)
Comment:
The Arkansas River shiner is used for bait or is sought by commercial bait dealers.

Our Response:
We have no information which indicates that the Arkansas River shiner is used as bait or is a species selectively harvested by the commercial bait industry. Arkansas River shiners may occasionally be captured incidental to harvest of commercial bait fishes. There also are records of the existence or capture of Arkansas River shiners outside of their historic range, such as the Pecos River population, that are likely the result of intentional or unintentional release of bait fish by anglers. Prior to listing, the Arkansas River shiner also may have occasionally been collected for personal use as bait by individual anglers. All four of the States within the historic range of the species allow the harvest of fish for personal use as bait. However, at the time of listing in 1998, the Arkansas River shiner was already listed as threatened or endangered in the States of KS, NM, and OK and collection or possession was prohibited without a valid state permit. Following listing under the Act in 1998, it was prohibited to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect, or to attempt any of these), import or export, shipping in interstate commerce in the course of commercial activity, or selling or offering for sale in interstate or foreign commerce any Arkansas River shiner except without prior obtainment of a Federal section 10(a)(1)(A) or 10(a)(1)(B) recovery or incidental take permit, respectively.

(33)
Comment:
What is the effect of commercial bait harvest on the Arkansas River shiner and have such effects been documented.

Our Response:
As previously discussed, there is some evidence that, at least occasionally, Arkansas River shiners were collected and used as bait prior to Federal listing as threatened. The rarity of this fish outside of the Canadian
/
South Canadian River would indicate that this fish is not likely to occur in the retail trade or to be collected for personal use very frequently. As stated in the final rule, Larson
et al
. (1991) reported that there is no evidence that the species has been adversely affected by the commercial harvest of bait fish. They suggested that slender-bodied fishes such as the Arkansas River shiner would constitute only a small percentage of the commercial harvest, assuming the commercial bait industry used large-mesh seines as the major mode of capture. We suspect that the Arkansas River shiner, while perhaps not a highly sought commercial species, may be inadvertently collected by the commercial bait industry or was occasionally being harvested for personal use as bait. We do not believe that the abundance of the Arkansas River shiner has been or is likely to be seriously impacted by commercial harvest of bait fish. However, there is no conclusive evidence to confirm or refute this position and we believe the effect of this factor warrants further investigation. As previously stated, the section 9 prohibitions against take will likely minimize any effects to the species from the inadvertent collection of the species during commercial bait harvest. As stated in the final listing determination (63 FR 64772), we believe the most significant threat to the ARS from the commercial bait industry or bait collection for personal use is the potential for introduction of non-indigenous fishes into occupied Arkansas River shiner habitat.

(34)
Comment:
Does the Arkansas River shiner spawn in tributaries?

Our Response:
Spawning regularly occurs in the Canadian
/
South Canadian River and historically occurred in all of the other major Arkansas River tributaries such as the Cimarron and Beaver
/
North Canadian Rivers. The only small tributary that currently supports a resident population of the Arkansas River shiner is Revuelto Creek in NM. Recent studies (Wilde
et al
. 2000) did not document spawning in Revuelto Creek. Historically, other small tributaries may have contained spawning sites but few supported permanent, resident populations. Other than Moore (1944) and Wilde
et al
. (2000), very little published information on reproduction by the Arkansas River shiner exists.

(35)
Comment:
Rainfall events exceeding 5-6 inches are required to cause flooding and only one major flood event has occurred on the Cimarron River since 1983; under such conditions habitat for the Arkansas River shiner does not exist. Others questioned the wisdom of designating critical habitat in streams that do not sustain reliable stream flows or that are restricted to pools during certain times of the year. Both the Arkansas and Cimarron Rivers were historically dry rivers and Arkansas River shiners cannot exist in a dry river. One individual noted that minnows disappear during the dry months and then return with the spring rains and wanted an explanation of this phenomenon. Rivers which dry up every 3 or 4 years were not suitable habitat for the Arkansas River shiner. The Arkansas River shiner is hardy and if it can find suitable habitat to survive during periods of drought or low flow

conditions, protection under the Act is not necessary because they are not likely to become extinct. Another sought identification of refugia during periods of drought or reduced stream flow, in particular, if tributaries were important.

Our Response:
We know of no specific studies which investigated the response of Arkansas River shiners to drought and very few studies that document how the species responds during periods of low or no flow. Generally, during periods of low or no flow, plains fishes seek refugia in isolated pools or adjoining tributaries. Here they strive to survive until suitable flow conditions return. This pattern of retraction and recolonization of occupied areas in response to flow and other habitat conditions is typical of fishes who endure harsh conditions of plains rivers and streams. Localized extirpations are not typically of concern where sufficient numbers of the species survive and can recolonize these areas when conditions improve. However, Arkansas River shiners and other plains fishes cannot survive when conditions lead to permanent drying of river systems. Such conditions are in part responsible for the current status of the species. Although the Arkansas River shiner is a fairly hardy species, conditions have degraded to the point where it can no longer persist in certain reaches. Conservation of the core habitats is essential to survival and recovery of the species. However, conservation of sufficient reaches to allow expansion when suitable flow conditions return or under conditions of overall improving habitat conditions and population expansion also is crucial to survival and recovery of the species. The absence of the Arkansas River shiner from an area during certain periods or under certain conditions does not necessarily mean the reach is unoccupied. Please also see our response to Comment (64) under
Issue 5
.

(36)
Comment:
Current soil conservation practices keep runoff from entering the river and such measures would likely preclude existence of Arkansas River shiner habitat.

Our Response:
Some soil conservation practices, such as terracing, are very effective at reducing run-off and may contribute to overall declines in peak discharge during rainfall events. However many conservation practices, such as construction of terraces, shelterbelts, grassed waterways, and certain vegetative plantings, are specifically designed to minimize soil erosion and control sedimentation. Without these practices in place, soil erosion and ensuing increased siltation would likely occur in rivers and streams of the Arkansas River basin. We do not believe that construction of terraces, shelterbelts, grassed waterways, and other vegetative plantings for conservation are likely to significantly impact habitat or threaten survival of the Arkansas River shiner.

(37)
Comment:
Designation of critical habitat would result in the creation of an artificial environment for the Arkansas River shiner and we should not proceed with the designation.

Our Response:
Designation of critical habitat does not result in the creation of an artificial environment. In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). These physical and biological features, as outlined in 50 CFR 424.12, include, but are not limited to, the following: space for individual and population growth, and for normal behavior; food, water, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of a species. In some cases, restoration of one or more of the constituent elements may be needed before efforts to reintroduce a species to an area where it is no longer extant would be successful. Recovery efforts often focus on habitat restoration to obtain more natural conditions and may involve the removal or corrective restoration of any artificial, detrimental habitat traits.

(38)
Comment:
Several species of wildlife occur within the riparian corridor and livestock could not have a greater impact on Arkansas River shiner habitat than these animals.

Our Response:
As stated in the final listing determination (63 FR 64772), we believe well-managed, free-range livestock grazing is compatible with viable Arkansas River shiner populations and will not cause significant degradation of the riparian zone. In fact, low to moderate grazing and seasonal or rotational grazing practices are compatible with many natural resource objectives.

Although many species of wildlife inhabit lowland and riparian areas, they are a natural component of the ecosystem and the overall impacts of these species are generally less than that of livestock at higher stocking rates. White-tailed deer (
Odocoileus virginianus
) are the only large-bodied, native ungulate that regularly occur in riparian zones. Deer do not forage, herd, or move in the same manner as livestock. Deer in the southern United States do not tend to concentrate in large herds and do not remain in riparian areas for extended periods of time as do cattle. Deer typically do not trample vegetation and streambanks to the same extent as cattle. Where cattle have access to streamside zones, they generally reduce the suitability of the riparian zone for deer, either by consumption of forage or by trampling vegetation (Menzel 1984). Restriction of livestock grazing is one of the principal management tools used for white-tailed deer on public lands. Additionally, the dietary preferences of deer and livestock generally do not overlap to a significant extent. Deer are opportunistic feeders, consuming a wide variety of plant species (Jackson (1961) as cited in Menzel (1984)), and cattle forage almost exclusively on grasses and forbs. Consequently, we do not believe that wildlife exert the same influence on the riparian zone as do cattle and likely will not degrade Arkansas River shiner habitat.

(39)
Comment:
The Arkansas River shiner has no lasting value and is not an indicator of the health of ecosystems. The species should be allowed to become extinct.

Our Response:
Congress, in section 2 of the Act (Findings, Purposes, and Policy), found that numerous species of fish, wildlife, and plants had become extinct or were in danger of, or, threatened with, extinction due to a lack of concern for their conservation. Furthermore, Congress found that these species of fish, wildlife and plants are intrinsically valuable to the nation and its people for reasons of aesthetic, ecological, educational, historical, recreational, and scientific value (section 2(a)(3)). These findings are the basis of the Act.

A variety of opinions likely exist as to a particular species' contribution to society. We believe that conserving all species of wildlife has a positive effect on society. Society, like the Arkansas River shiner, depends upon reliable supplies of clean water. Conserving water resources will help to provide a necessary resource for future generations of people and maintain a healthy aquatic ecosystem for fish and wildlife. As the health of ecosystems declines, the number of species inhabiting those systems decline. In general, the presence of rare and

declining species is very often a good indicator of failing ecosystem health. It would be contrary to the Act and our mission to allow the Arkansas River shiner to become extinct without taking all reasonable preventative actions.

(40)
Comment:
Animals are only to be utilized to serve the needs of human kind and interfering with the natural process of extinction is frivolous, futile, and unnecessary.

Our Response:
As stated in the final listing determination (63 FR 64772), we agree that extinction and the dynamic processes of natural selection, fitness, and evolution are natural, ecological phenomena. Numerous natural, including catastrophic, events over geologic time have resulted in the extinction of many species. However, evolutionary changes rarely occur at rates comparable to those induced by human environmental alteration. Congress clearly recognized human-caused increases in the rate of species extinctions and passed the Act in an attempt to decrease the rate at which human-caused extinctions occur. Allowing a species to become extinct simply because it has not adapted to rapid habitat changes caused by human development is not permissible under the Act.

(41)
Comment:
Several factors, such as climate change, greenhouse gases, and other natural phenomena, are responsible for the declining status of the Arkansas River shiner, not just the few mentioned by the Service.

Our Response:
This issue is not relevant to the designation of critical habitat and was addressed in the final listing determination (63 FR 64772), under factor E in the “Summary of Factors Affecting the Species” section.

(42)
Comment:
Wildlife species, such as least terns, whooping cranes, and other water birds, racoons, fish, and coyotes feed on Arkansas River shiners and decimate shiner populations during those periods when the river is confined to pools. In many instances this predation operates as a natural population control mechanism.

Our Response:
This issue is not relevant to the designation of critical habitat and was addressed in the final listing determination (63 FR 64772), under factor C in the “Summary of Factors Affecting the Species” section.

(43)
Comment:
Very little new status or biological information was included in the proposed rule and the information used was dated.

Our Response:
Most of the information on the habitat requirements, food habits, and reproductive needs of the Arkansas River shiner was obtained within the last three years.

(44)
Comment:
The Arkansas River shiner had not been reported from the South Canadian River in over 50 years and the species no longer occurs there.

Our Response:
Data available to us and contained in our files demonstrates that the Arkansas River shiner persists in the majority of the South Canadian River. The most recent data available for Texas was published in 2000, and for Oklahoma in 1997. This information is included in the administrative record and is available for review by the public by appointment, during normal business hours, at the Oklahoma Field Office. Appointments can be made by contacting the Field Supervisor (see
ADDRESSES
section).

(45)
Comment:
What is the effect of the Red River shiner (
Notropis bairdi
) on Arkansas River shiner populations, have these effects been taken into consideration, and how would improving stream flow conditions compensate for the competitive effect of the Red River shiner.

Our Response:
Competition with the non-indigenous Red River shiner contributed to diminished distribution and abundance of the Arkansas River shiner in the Cimarron River. The morphological characteristics, population size, and ecological preferences exhibited by the Red River shiner suggest that it competes with the Arkansas River shiner for food and other essential life requisites in the Cimarron River (Cross
et al.
1983, Felley and Cothran 1981). The accidental or intentional introduction of the Red River shiner into other stream systems represents a potentially serious threat; however, we do not believe introductions of the Red River shiner have presently had a detrimental effect on any stream system in the Arkansas River Basin other than the Cimarron River. Accidental or intentional releases of the Red River shiner within stream segments occupied by the Arkansas River shiner have occurred on several instances but no populations have become established outside of that in the Cimarron River (Luttrell
et al.
1995). A recent record of another Red River endemic, the Red River pupfish (
Cyprinodon rubrofluviatilis
), from the Salt Fork of the Arkansas River (Pigg
et al.
1997) indicates that releases of fish from the Red River continue to occur. Certainly, the risk of extinction for the entire Arkansas River basin population would increase if Red River shiners became established in the Canadian/South Canadian River downstream of Lake Meredith.

The Cimarron River presently provides all of the primary constituent elements needed by the Arkansas River shiner, with the exception of the occurrence of the Red River shiner. If eradication of the Red River shiner from the Cimarron River is feasible, restoration of the Arkansas River shiner here would likely be successful. Techniques to reduce or eliminate Red River shiners could include netting, trapping, electrofishing, habitat modification, or use of fish toxicants. Stream flow restoration would not likely compensate for the effect of the Red River shiner. The most effective approach is to eliminate or minimize the possibility of establishment of this fish into other Arkansas River tributaries. We intend to fully address the threat from introduction of non-native fishes during the recovery planning process for the Arkansas River shiner.

(46)
Comment:
Recovery efforts intended to eradicate Red River shiners would also impact other imperiled Arkansas River basin fishes such as the peppered chub (
Macryhybopsis tetranema
) and the Arkansas darter (
Etheostoma cragini
) and controlling the Red River shiner or attempting restoration of the Arkansas River shiner in light of the potential for introduction of this non-native species is not wise and would be unsuccessful even if critical habitat was designated.

Our Response:
As previously stated, we intend to address the threat from introduction of the Red River shiner or other non-native fishes during the recovery process. The needs of other organisms will be fully considered at that time.

(47)
Comment:
The Arkansas River shiner was not reported from the Canadian River in TX until 1954 and was not an indigenous species until that time.

Our Response:
We agree, in part. The Arkansas River shiner was first reported captured from TX in 1954 by Cross
et al.
(1955) and Lewis and Dalquest (1955). However records exist from upstream reaches of the Canadian River in NM prior to 1950 (Sublette
et al.
1990). Consequently, we believe that the Arkansas River shiner is native/indigenous to the entire Canadian/South Canadian River.

(48)
Comment:
There is no reason to save the Arkansas River shiner in Kansas, instead we should concentrate conservation efforts, such as land acquisition, in Texas where the species occurs.

Our Response:
Conservation (recovery) of listed species is the ultimate purpose of the Act. Kansas includes a significant portion of the historic range and recovery of the Arkansas River shiner will ultimately

involve restoration of self-sustaining populations in portions of its historic range, including Kansas. The recovery process was initiated upon listing of the species in 1998 and is not dependent upon designation of critical habitat. Please also see our response to Comment (81) under
Issue 8.

Land acquisition can be an important tool in the conservation of federally listed species. Recovery planning for the species may include recommendations for land acquisition or easements involving private landowners. However, these efforts would only be undertaken with the cooperation of the landowner. Recovery actions such as land acquisition will be fully evaluated during the recovery phase.

(49)
Comment:
The species experts disagree on habitat requirements for the Arkansas River shiner. Cross (1967) claimed that shiners are rarely found in quiet pools or backwaters and Wilde
et al.
(2000) found that the shiner exhibited no obvious selection or avoidance of any particular habitat type.

Our Response:
Cross's work primarily described the preferred habitat of adult fish during the period from 1940's through late 1960's when Arkansas River shiner habitat in KS was more intact than it is at present. The work by Wilde
et al.
(2000) included both adults and juveniles from the Canadian River in TX after this system had already been degraded by the construction of several impoundments. Adult fish may use slightly different habitats than sub-adults and fish in the Canadian River likely exploit available habitat when preferred habitat is unavailable. Additionally, plains rivers are highly variable environments and plains river fishes are adapted to utilize the entire spectrum of habitat available in these systems. Consequently, the microhabitat features utilized by Arkansas River shiners, as reported by the experts, will vary according to conditions which existed at the time of the study. Both studies provide information that is important in describing the habitat utilized by the Arkansas River shiner.

(50)
Comment:
Arkansas River shiners and peppered chubs have similar habitat requirements and actions taken to conserve the shiner would also benefit the chub.

Our Response:
Generally we agree with this comment. Protection of the habitat of one species will often result in at least partial or total protection for the other species in the same area. However, life history and habitat requirements of the two species do not overlap completely (Wilde
et al.
2000). The current range of the chub and the Arkansas River shiner only overlap within the section of the Canadian River between Ute Reservoir, NM, and Lake Meredith, TX. This also would imply that habitat requirements of these species are somewhat different. The purpose of the Act is protection of ecosystems and where possible, we intend to consider habitat requirements of the chub as we undertake recovery for the Arkansas River shiner. We also will encourage management based on ecosystem principles which will ensure benefits to all species in the area.

(51)
Comment:
The Service has no evidence to support the assumption that groundwater withdrawals from the High Plains aquifer has affected flows in the Canadian River or habitat for the Arkansas River shiner.

Our Response:
As explained in the final listing determination (63 FR 64772), we agree that the extreme southern portion of the High Plains aquifer does not influence streamflows in the Canadian River. We also agree that the influence of the High Plains Aquifer on streamflows in the Canadian River upstream of Lake Meredith is relatively minor. However, downstream of the Hutchinson-Roberts County line in TX, the Canadian River is confined within the sediments of the Ogallala formation and groundwater discharge contributes to surface flows. Groundwater depletion continues within much of the Central Regional Subdivision of the High Plains aquifer. Kromm and White (1992) state that streamflow has been dramatically reduced by groundwater withdrawals in western Kansas and has eliminated aquatic ecosystems in many areas of the High Plains. Additionally, Luckey and Becker 1998 also found that discharge from the High Plains aquifer is important to streamflow in sections of the western portions of the Arkansas River basin.

(52)
Comment:
Has the Service specifically studied flows in the Canadian River; there is currently much more water flowing in the South Canadian River than occurred 50 years ago.

Our Response:
We have not conducted specific studies related to streamflow in the Canadian/South Canadian River. Instead, we rely heavily upon streamflow information collected by the U.S. Geological Survey (USGS) at numerous streamflow gaging stations location within the Arkansas River Basin. These data demonstrate that streamflow in the South Canadian River is not considerably greater than flows which occurred some 50 years earlier. For example, at the gaging station at Bridgeport, OK, stream flows for the years from 1944 to 1964 averaged 13.2 cubic meters per second (cubic m/s) (469 cubic feet per second (cfs)). Streamflows at this gage for the years 1970 to 1999 now average 9.0 cubic m/s (320 cfs). At the gaging station near Calvin, OK, some 272 river-km (169 river-mi) downstream, stream flows for the years from 1905 to 1965 averaged 51 cubic m/s (1,804 cfs). Average streamflows at this gage over the entire period of record (1906 to 1999) is 52 cubic m/s (1836 cfs).

Issue 4: Economic Concerns

(53)
Comment:
Many commenters believed that we underestimated the potential economic effects associated with critical habitat designation.

Our Response:
Section 7 of the Act requires other Federal agencies to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat. The Act does not place requirements on any other parties to consider the effect of their actions on critical habitat. As a result, non-Federal entities can only be affected by critical habitat designation when the activities they carry out have a Federal nexus and the activity having the nexus could adversely modify critical habitat.

The draft economic analysis to the proposed rule found little incremental cost associated with the proposed designation because the shiner already inhabits many of the areas being proposed for designation, many of the areas overlap with interior least tern habitat, which is a federally protected species, and because many of the activities occurring within proposed critical habitat boundaries lacked any identifiable Federal nexus.

Since the publication of the draft economic analysis, information has developed showing that not all the areas being proposed for critical habitat overlap with least tern habitat, as was originally believed. Furthermore, new information obtained subsequent to the proposed designation, indicates that the section of the Arkansas River through the City of Wichita is now no longer believed to be occupied by the species. As a result, the Addendum to the draft economic analysis now projects that there will be some incremental costs associated with the critical habitat designation. These costs result from some additional section 7 consultations that could occur for some of the activities taking place within critical habitat and that could be attributed to the designation. Activities and associated Federal nexuses that could be

affected by additional section 7 consultations include concentrated animal feeding operations (CAFOs) requiring U.S. EPA permits under the National Pollution Discharge Elimination System, sand and gravel removal operations, and pipeline construction and maintenance activities requiring U.S. Army Corps of Engineers permits under section 404 of the Clean Water Act. While the Addendum reflects the associated costs of these consultations, we do not believe that such costs are significant.

(54)
Comment:
We received several comments from individuals concerned about how critical habitat designation will affect surface and groundwater withdrawals.

Our Response:
The permitting and management of water access falls under the control of individual states. Consequently, a Federal nexus does not exist that would allow us to affect surface and groundwater withdrawals under the Act and a result, we do not believe that any section 7 consultations will be conducted for these activities. The Addendum to the draft economic analysis further clarifies these issues.

(55)
Comment:
We received comments stating that it was inaccurate to assume that their would be no incremental effect on section 7 consultations for activities affecting shiner critical habitat that also affect the interior least tern.

Our Response:
The Addendum to the draft economic analysis corrects for this oversight and now provides estimates for the few section 7 consultations that we believe may need to discuss an activities impact on shiner critical habitat, in addition to the interior least tern. Because the section 7 consultation would need to occur regardless of shiner critical habitat designation, we believe the incremental effects to be minimal.

(56)
Comment:
We received many comments from individuals concerned about the designation's impact on agricultural activities occurring on the 91.4 meters (300 ft) “buffer zone” bordering the designated river systems, including the planting of crops or livestock grazing that may receive some form of Federal subsidy or the operation of CAFOs, which may require a Federal permit to discharge wastes into river bodies.

Our Response:
In general, we have not observed any adverse impacts associated with traditional agricultural practices along the river systems being designated for critical habitat. As a result, we have conducted very few consultations on agricultural-related activities within the areas proposed for critical habitat.

Although the draft economic analysis stated that we did not believe that any incremental effects associated with critical habitat designation would occur for agricultural-related practices, the Addendum to the draft economic analysis acknowledges that in some areas small impacts could occur. The Addendum found that, due to a better understanding of areas occupied for the shiner and least tern, agricultural-related activities may take place in areas being designated for critical habitat where the shiner and tern's current occupancy are not well documented. In these areas, any future section 7 consultations that occur could therefore be attributed to critical habitat. The Addendum finds, however, that such effects remain relatively minor due to the combined fact that many of the agricultural-related activities lack a clear Federal nexus, which would allow us the opportunity to consult, and the relatively minor impacts currently adopted agricultural practices have had to date on the river ecosystems being designated.

(57)
Comment:
We received several comments of concern that our draft economic analysis failed to identify some Federal nexuses that potentially could result in new consultations with us over the effects these actions could have on critical habitat once it is designated.

Our Response:
The draft economic analysis attempted to identify all the potential Federal nexuses on private lands and their associated activities in order to assess the likelihood of additional section 7 consultations occurring because of the proposed designation. While the draft economic analysis identified many different Federal agencies having potential nexuses on some private property activities, the analysis considered the likelihood that critical habitat could trigger additional section 7 consultations based on the historical record of whether any of these nexuses or associated activities has triggered consultations in the past. In most cases, our section 7 consultations for the interior least tern, which occupies a significant portion of the area being designated as critical habitat for the shiner, involve many of the same activities that may affect shiner critical habitat. The only instance where the shiner critical habitat would result in new, incremental consultations within least tern habitat would involve projects that impede movement of the shiners or their reproductive products (e.g., eggs, larvae) but do not adversely impact abundance of other fishes used by the least tern as a food source. For example, a small channel dam or run-of-the-river hydropower project could influence distribution and abundance of shiners, but not necessarily other small fishes consumed by terns. In the absence of such activities, however, consultations required by shiner critical habitat will occur simultaneous with consultations for the least tern in those areas occupied both species.

(58)
Comment:
Some commenters believed that we should have considered the effect of listing the shiner in our economic analysis.

Our Response:
We disagree that the economic impacts of the listing should be considered in the economic analysis for the designation of critical habitat. The Act is clear that the listing decision be based solely on the best available scientific and commercial data available (section 4(b) of the Act). Congress also made it clear in the Conference Report accompanying the 1982 amendments to the Act that “economic considerations have no relevance to determinations regarding the status of species * * *” If we were to consider the economic impacts of listing in the critical habitat designation analysis it would lead to confusion, because the designation analysis is meant to determine whether areas should be excluded from the designation of critical habitat based solely upon the costs and benefits of the designation, and not upon the costs and benefits of listing a species. Additionally, because the Act specifically precludes us from considering the economic impacts of the listing, it would be improper to consider those impacts in the context of an economic analysis of the critical habitat designation. Our economic analyses address how the actions we are currently considering may affect current or planned activities and practices; they do not address impacts associated with previous Federal actions, which in this case includes the listing of the shiner as a threatened species. This method is consistent with the standards published by the Office of Management and Budget for preparing economic analyses under Executive Order 12866.

(59)
Comment:
We received a comment that our draft economic analysis relied too much on our own resources for information at the expense of other established information sources.

Our Response:
The Act is clear that only the Federal government is required to consider the effect of its actions on critical habitat. As a result, we believe that only Federal government agency representatives are in a position to characterize whether or not any additional or re-initiated section 7

consultations may occur as a result of critical habitat designation. Because critical habitat in this case is composed principally of private lands, the only Federal agencies that could be affected by this designation are those that issue permits, fund, or authorize activities on private lands. The draft economic analysis found that the activities occurring on private land have very few Federal nexuses. Furthermore, few of the activities associated with these nexuses have required or are likely to require section 7 consultations. Consequently, the sources of available, useful information outside of the Service was limited for the analysis of this designation.

(60)
Comment:
We received many comments from individuals expressing their concern that critical habitat designation will infringe on their rights as private property owners and that the designation could result in a reduction in their property's value.

Our Response:
Because only the Federal government is required to consider the effect of its actions on critical habitat we do not believe that the designation will result in any significant effects to private property owners. Only activities taking place on their property having some sort of Federal nexus could potentially be affected and experience has shown that the majority of such activities have rarely warranted enough concern to trigger a formal section 7 consultation. Activities occurring on private property that could result in the “take” of a species, however, would still be subject to direct consultation with the Service, regardless of any connecting Federal nexus, under section 10 of the Act. Such requirements remain unaffected by the designation of critical habitat and as a result the impacts can not be attributed to this rulemaking.

(61)
Comment:
The Environmental Protection Agency (EPA) indicated that we should evaluate Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, in our economic analysis.

Our Response:
Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. We do not believe that the designation of critical habitat for endangered and threatened species results in any changes to human health or environmental effects on surrounding human populations, regardless of their socioeconomic characterization. As such, we do not believe that Executive Order 12898 applies to critical habitat designations.

(62)
Comment:
Some commenters believed that the draft economic analysis failed to adequately consider the effect that the designation would have on small businesses and rural communities.

Our Response:
The Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act, generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. We are certifying that this rule will in fact not have a significant economic impact on a substantial number of small entities and as a result, we do not need to prepare either an initial or final regulatory flexibility analysis. We have based our decision on the finding of the draft economic analysis and Addendum that this rule will not result in any significant additional burden to the regulated community, regardless of the size of the entity.

Issue 5: Site-Specific Issues

The following comments and responses involve issues related to the inclusion or exclusion of specific streams reaches or our methods for selecting appropriate areas for designation as critical habitat.

(63)
Comment:
The Arkansas River within the City of Wichita, KS, metropolitan area is unoccupied and is not suitable habitat for the Arkansas River shiner due to surface and groundwater contamination and the presence of water control structures that impede movement of the species.

Our Response:
During preparation of the proposed rule, we believed this section of the Arkansas River was inhabited by the Arkansas River shiner. Further examination of these specimens revealed that they were not Arkansas River shiners and the section of the Arkansas River through the City of Wichita is now no longer believed to be occupied by the species. In addition, two flow control structures exist within this reach that are likely physical barriers to the movement of Arkansas River shiner during normal and low flow conditions. One of these structures, the Lincoln Street Dam, also serves to impound the river for the purpose of maintaining constant water levels in the river throughout downtown Wichita and water depths are generally in excess of those preferred by the Arkansas River shiner. This reach of the river is also degraded by high nutrient loading and groundwater contamination and substrates in this reach are predominantly silt. Based on this information, we have excluded a 12.4-mile reach of the Arkansas River through the City of Wichita. However, the current mayor has made remediation a priority and the city is taking steps to improve water quality within this reach. Water quality improvements should facilitate improvement in habitat conditions in the river downstream of the city. The excluded section also remains important to recovery of the Arkansas River shiner because it serves to connect the upper section with the lower section during periods of high flow. Maintenance of this connection is essential to successful egg development and movement of juvenile Arkansas River shiners between the two sections, and will facilitate future efforts to restore Arkansas River shiners to this section of the Arkansas River. Considering the river functions to pass flood waters during elevated stream flow conditions, we do not anticipate that the city would propose modification of this reach to the point that connection between the upper and lower sections during elevated flows would no longer occur.

(64)
Comment:
Designation of critical habitat in the Cimarron River provides no benefit. Restoration of the Cimarron and Arkansas rivers is not hydrologically feasible and these rivers do not qualify as critical habitat. Areas without sufficient flow should not qualify as critical habitat and should be excluded. How can rivers that do not always flow be habitat for the Arkansas River shiner?

Our Response:
As stated in our response to comment 35, these rivers and streams historically have portions that dry either seasonally, during drought conditions, or for other natural reasons. The species is adapted to this phenomenon and persist in isolated pools and tributary refugia only to recolonize the dewatered areas once flow resumes. Consequently, the absence of the Arkansas River shiner or other fishes from an area during certain periods or under certain conditions does not necessarily mean the reach is not suitable habitat.

Arkansas River shiners successfully spawn during elevated flows but major overbank flood events are not necessary to ensure successful reproduction. Arkansas River shiners can, and do, spawn in isolated pools during the

summer but the reproductive effort is not likely to be successful. Flows in the Cimarron River and eastern portions of the Arkansas River basin in Kansas appear suitable for reproduction.

As long as these drought and other adverse circumstances are temporary and not permanent, the shiner can recolonize reaches that were dewatered. Over the past several decades, the extent of areas in the Arkansas River basin that periodically lose flow has increased due to human alterations of the watersheds and stream channels and diversion of the streamflows. If sufficient areas of flow persist, and if all other habitat needs are met, then the stream is suitable for the species whether or not there is flow throughout all areas at all times.

There are areas in the Cimarron and Arkansas rivers where flows are artificially altered by human diversion and uses, up to and including complete loss of flow. In some of these areas, changes in management may potentially increase duration of flows and the length of stream channel with permanent water, thus making them valuable for recovery and survival of Arkansas River shiner.

(65)
Comment:
Although some comments supported inclusion of the adjacent riparian zone as critical habitat, many others were strongly opposed to this approach because the riparian zone should not be considered habitat for the Arkansas River shiner.

Our Response:
Riparian areas form the basis of healthy aquatic ecosystems and influence the primary constituent elements, therefore they are essential to the conservation of the species and may be included in a critical habitat designation. Streams and stream functioning are inextricably linked to adjacent riparian and upland areas. Streams regularly submerge portions of the riparian zone via floods and channel migration, and portions of the riparian zone provide seeds and insects eaten by shiners.

The riparian zone also provides an array of important watershed functions that directly benefit plains fishes. Vegetation in the corridor shades the stream, stabilizes banks and provides organic litter and large woody debris. The riparian zone stores sediment, recycles nutrients and chemicals, mediates stream hydraulics and controls microclimate. Healthy riparian zones help ensure water quality essential to aquatic life. Human activities in the riparian zone can harm stream function and fishes by directly and indirectly interfereing with these important functions. For example grazing, cultivation, road building and similar disturbances can, although not always, increase sediment delivery, destabilize banks, reduce organic litter, simplify stream channels, increase peak flows and otherwise reduce the value of the habitat for stream fishes. In some instances, injury or mortality of fishes may occur. Because the riparian corridor is particularly susceptible to degradation from such activities, we concluded that the adjacent riparian corridor would require special management consideration and therefore was appropriate for inclusion in critical habitat.

(66)
Comment:
Critical habitat in the Cimarron River in Oklahoma should be extended to a point at least one-half mile beyond the Lone Mountain/Safety Clean facility. Critical habitat in the Cimarron River in Oklahoma should be extended downstream to the Highway 412 crossing near the confluence of Eagle Chief Creek.

Our Response:
Because of the requirement for all proposed critical habitat designations to undergo public review and comment, areas normally are not added to the designation without an additional proposal. However, if restoration efforts are successful, existing Arkansas River shiner aggregations may expand and utilize additional segments of the Cimarron River downstream of the designated reach. We could amend critical habitat at a later date if information gained through the recovery planning process indicates such revisions are warranted. If, at that time, we believe a revision is warranted and funding available, we would propose revised critical habitat and consider all information provided, both on additional areas considered in the revision as well as areas included in the current designation, before a final rule is published. Based on the best available science at this time, we determine that the areas designated by this rule are sufficient to conserve the species. As stated in our response to comment 18, we do not currently anticipate a need to expand the present designation.

(67)
Comment:
Critical habitat in the Canadian River (Unit 1a) should not include the area downstream of the U.S. Routes 87
/
287 crossing to the mouth of Coetas Creek because this segment is within the operation pool of Lake Meredith. Critical habitat designation should not include the Canadian River in the Texas Panhandle.

Our Response:
The segment of the Canadian River from the mouth of Coetas Creek upstream to the vicinity of Ute Reservoir, NM, including the crossing of U.S. Routes 87
/
287, is occupied by a relatively stable aggregation of Arkansas River shiners. This segment contains all of the primary constituent elements needed by the Arkansas River shiner and is considered essential to conservation of the species. Because the area is already occupied by the species, protection under the Act within this section is already applicable regardless of the critical habitat designation. Additionally, the National Park Service, the primary land owner in the reach downstream of the U.S. Routes 87
/
287 crossing, requested the area be included because the designation would assist the National Park Service in future recovery of the species and management of its habitat (Karen P. Wade, Director, Intermountain Region, National Park Service,
in litt.
2000).

(68)
Comment:
Portions of the Arkansas River downstream of the Oklahoma
/
Kansas state boundary should be included in the designation.

Our Response:
These reaches are not suitable for the Arkansas River shiner due to the influence of flood control impoundments and stream channelization. Please see our discussion at Unit 4 under the “Critical Habitat Designation” section.

(69)
Comment:
Areas where the Arkansas River shiner has not been recorded from in the last two years should not be designated as critical habitat.

Our Response:
Failure to record Arkansas River shiner from specific locations in the past several years is generally indicative of low population levels but does not necessarily support a declaration of extirpation from the entire stream. Documentation of small populations is very difficult and often results in false declarations of extirpation (Mayden and Kuhajda 1996). At the least, this illustrates the need for caution in concluding that a population has been extirpated. Fish, particularly small species, are often very difficult to locate when population levels are very low.

(70)
Comment:
Those streams proposed for designation of critical habitat that contain the nonnative Red River shiner does not meet the proposed constituent elements description of few or no predatory or competitive nonnative species present, and therefore do not qualify for designation as critical habitat.

Our Response:
The Cimarron River currently contains all of the primary constituent elements for the Arkansas River shiner, with the exception of the occurrence of the Red River shiner. We recognize the influence of this nonnative on the Arkansas River shiner and intend to investigate measures to control or remove the Red River shiner

prior to any attempts to reestablish the Arkansas River shiner. Although the lack of nonnative aquatic species is the best case scenario for the Arkansas River shiner, the mere presence of nonnative aquatic species does not eliminate an area from consideration as critical habitat. There is strong potential for enhancement of the Cimarron River to the point where it may once again support healthy populations of Arkansas River shiner.

Issue 6: Effects of Designation

The following comments and responses involve issues related to the effects of critical habitat designation on land management or other activities.

(71)
Comment:
The Service should clarify how critical habitat designation will affect private properties, private land uses, and management practices. Specific concerns raised included taking
/
confiscation of private property, imposed land use restrictions, reduced land values, limited or restricted surface and groundwater rights and ability to irrigate, supercede state's right to manage and regulate water, forced fencing of riparian zone, hamper individual decision-making capacity, forced land acquisition, further regulation of oil and gas industry, regulation of pesticides, restrict off-road and recreational vehicle use, require acquisition of water rights, prohibit or restrict farming operations such as cultivation, grazing, haying, pecan harvest, restrict aquaculture, and regulate CAFOs.

Our Response:
A critical habitat designation has no effect on situations where a Federal agency is not involved, for example, a landowner undertaking a project on private land that involves no Federal funding or permit. Individuals, organizations, States, local and tribal governments, and other non-Federal entities would potentially be affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding and the action has the potential to affect the species or its critical habitat. In this instance, Federal agencies are required to enter into section 7 consultation with us. Effects of the designation on projects with a Federal nexus is explained in the “Effect of Critical Habitat Designation” section and in Comment (72).

A critical habitat designation does not impose any additional regulatory burdens on private land other than those imposed by the species' listing. Private landowners continue to be free to manage their property as they see fit, using care to ensure that their land management practices do not result in take of listed species. Private actions on private property, such as those mentioned in the comment above, would generally be exempt from the regulatory provisions of the Act unless the actions involve Federal funds, Federal authorization, or some other Federal nexus, or if the individual is engaged in an activity that is likely to result in take of the Arkansas River shiner. The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Prohibitions against take of the species under section 9 of the Act would be present regardless of whether or not critical habitat has been designated. If areas designated as critical habitat are not occupied by Arkansas River shiners, no take in the form of harm or harassment would occur from activities on these areas and no section 9 prohibitions would be in force. However, effects from activities in unoccupied habitat that extend downstream to areas occupied by a listed species could result in take, regardless of whether or not critical habitat has been designated. Although the legal definition of harm includes habitat modification, this applies only to the species and not to critical habitat. Critical habitat is not protected under the take prohibitions of section 9, and there is no regulatory effect of critical habitat on strictly non-Federal activities. If the action causing take does not involve a Federal nexus, a private party could seek a section 10(a)(1)(B) incidental take permit to legally take Arkansas River shiners incidental to otherwise lawful activities. When a Federal nexus is involved, consultation under the Act would be required.

Within the delineated critical habitat boundaries for the Arkansas River shiner, only lands containing one or more of the primary constituent elements that are essential for the primary biological needs of the species are considered critical habitat. Existing human-constructed features and structures within the critical habitat boundary, such as buildings, powerlines, roads, railroads, and others not currently containing one or more of the primary constituent elements are not considered critical habitat and are not included in the designation.

Designation of critical habitat does not prescribe specific management actions but does serve to identify areas that are in need of special management considerations. Regarding grazing, we believe well-managed livestock grazing is compatible with viable Arkansas River shiner populations and that certain types of grazing in riparian zones likely have minimal impacts. In fact, low to moderate grazing and seasonal or rotational grazing practices are compatible with many natural resource objectives. However, negative effects of overgrazing remain a concern (see “Summary of Factors Affecting the Species” section in the final listing determination (63 FR 64772)). In instances where water quality degradation may be occurring as a result of livestock grazing, fencing of the riparian area is one of many corrective measures which could be recommended. Designation of critical habitat does not result in the establishment of a refuge or wildlife management area and fencing of the riparian corridor is not anticipated to occur except in those isolated instances previously discussed.

We are sensitive to the concerns of individuals concerning property rights and genuinely do not believe the designation of critical habitat will have significant effects beyond those imposed by the listing of the Arkansas River shiner. We will work with any landowner within the designated areas to help identify actions that would or would not likely result in take of the Arkansas River shiner, identify measures to conserve the shiner, and where appropriate, to develop Habitat Conservation Plans and associated permits under section 10 of the Act to authorize incidental take of the shiner. In unoccupied areas, individual landowners will not be affected unless a Federal nexus exists.

(72)
Comment:
The Service should clarify how critical habitat designation will affect specific Federal activities and projects. Specific actions mentioned included construction and operation of watershed dams, farm program payments, government loans, technical assistance by Federal agencies, operation of flood control projects, operation of Federal dams, existing waste-water discharges, conservation plan compliance, and Lake Meredith Salinity Control project.

Our Response:
Section 7(a) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Federal actions not affecting the species or its critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 consultation and will not be affected. Specific Federal actions will need to be reviewed by the action

agency to determine if the species or its designated critical habitat would be affected. If the Federal action agency determines the proposed activity may affect the species or critical habitat, they will consult with us under section 7 of the Act. The implications of the consultation process on the various agencies would vary according to the nature of the project. If, during the consultation process, it is determined that the activity is likely to adversely modify critical habitat, we will work with the agency to modify the activity to minimize negative impacts to critical habitat. We will work with the agencies and affected public early in the consultation process to avoid or minimize potential conflicts and, whenever possible, find a solution which protects listed species and their habitat while allowing the action to go forward in a manner consistent with its intended purpose.

Projects that were constructed or invoked before the listing of the Arkansas River shiner would not be affected by this designation except in those instances where the agency still retains some discretion or authority over the project. For these completed projects where affects to the species or critical habitat are anticipated, or a modification of the existing project is proposed, section 7 consultation would be required. Projects which have completed section 7 consultation but have not yet been fully constructed and the potential destruction or adverse modification of critical habitat for the Arkansas River shiner has not been addressed, section 7 consultation must be reinitiated with us.

If a project was determined to adversely affect the Arkansas River shiner, or destroy or adversely modify its critical habitat, the action agency would initiate formal consultation with us. We would then prepare a biological opinion, pursuant to 50 CFR 402.14 (h) and (i). If incidental take of a listed species was involved, we would provide reasonable and prudent measures in an incidental take statement to minimize take and its effects. Under the terms of sections 7(b)(4) and 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered taking within the bounds of the Act, provided that such taking is in compliance with an incidental take statement in a biological opinion.

If we determine during formal consultation that a project would jeopardize the continued existence of a listed species, we would seek to develop reasonable and prudent alternatives to avoid jeopardy. Such reasonable and prudent alternatives might require project modifications. Implementation of reasonable and prudent measures and alternatives are not discretionary. However, discretionary measures to minimize or avoid adverse effects of a proposed action on listed species or critical habitat would be provided as conservation recommendations in the biological opinion.

We are required to deliver a biological opinion, which concludes consultation, to the action agency within 135 days of receipt of a request for formal consultation (50 CFR 402.14(e)). If the action agency incorporates consultation into their planning process and consultation is initiated early, project delays are unlikely. Meetings with us, preparation of documents, and implementation of any reasonable and prudent alternatives or measures identified in the biological opinion may result in some additional project costs.

Large water development projects virtually always involve a Federal agency through funding, permitting, or other action. Therefore, future construction and ongoing operation of Federal reservoirs should be evaluated by the action agency for impacts to the species or its critical habitat, and, where impacts occur, these actions would undergo consultation under section 7 of the Act. If feasible, modifications to these projects will be sought to ensure that the ecosystems upon which this species depends are conserved. However, if no adverse impacts would occur, or if the affected habitat is unoccupied and unsuitable, further consultation under section 7 would be unlikely.

(73)
Comment:
Designation of critical habitat will bring a rash of lawsuits.

Our Response:
Section 11(g) of the Act allows citizens or organizations seeking redress in those instances where they contend that no action, limited action, or inappropriate action is putting listed species at risk. The individual or organization making such claims is required to present information to support its position.

(74)
Comment:
We cannot guarantee that funds will be available for species management and recovery or to reimburse funds expended on management and to offset economic losses. Designation of critical habitat will hinder, complicate, or delay recovery.

Our Response:
We agree that listing does not guarantee that additional funding will become available to implement appropriate management of the species, such as that which may be recommended in an approved recovery plan. The listing does, however, raise the level of awareness about the species' plight and allows us to spend funds from our budget designated for listed species management and protection. It also increases the likelihood that other involved Federal, State, and private organizations will dedicate more funds to recovery of the Arkansas River shiner. Section 7 of the Act provides mandatory protection from any federally permitted, authorized, funded or carried out activity that would cause jeopardy or adverse modification of critical habitat, as explained above. In fact, the Service, U.S. Army Corps of Engineers, and the Bureau of Reclamation have already provided funding for implementation of conservation actions for the species. We do not believe the designation will hinder or delay recovery.

(75)
Comment:
Does the listing and critical habitat designation allow the Service to be granted access to private property or allow trespass?

Our Response:
No. We do not condone entering private land without landowner permission.

(76)
Comment:
Designation of critical habitat will prohibit hunting, fishing, hiking, off-road vehicle use and other forms of recreation. Off-road vehicle use is not affecting the Arkansas River shiner.

Our Response:
As stated in the final listing determination (63 FR 64772), we believe that normal, lawfully authorized recreational activities such as hunting, and fishing, do not result in take of the Arkansas River shiner and would not be prohibited under section 9 of the Act. These activities do not generally impact or destroy the physical habitat for the shiner. However, although specific studies are lacking, heavy recreation use may be adversely impacting the stream and habitat for the Arkansas River shiner, particularly during periods of low flow. Within areas occupied by the shiner, recreational and off-road vehicle use within the river bed to the extent that habitat for the Arkansas River shiner is adversely impacted could be a violation of section 9.

The Lake Meredith National Recreation Area is managed by the National Park Service. Consequently, the National Park Service has an obligation under section 7 of the Act to evaluate its activities for possible effects on listed species. We do not anticipate that recreational activities at the Lake Meredith National Recreation Area or other Federal reservoirs would be significantly altered as a result of evaluations under section 7.

(77)
Comment:
Even though the lateral extent only includes a 300-foot riparian corridor, the implications of the designation appear to apply to the entire watershed of the streams designated as

critical habitat, including their tributaries.

Our Response:
Habitat quality within the mainstem river channels is directly and indirectly related to the character of the floodplain and the associated tributaries, side channels, and backwater habitats. Consequently activities occurring in the entire watershed can influence stream flow, habitat quality, and other key habitat features (e.g., substrate type and water quality). Federal agencies are responsible for ensuring that their activities do not jeopardize the continuing existence of the shiner or destroy or adversely modify it designated critical habitat. Some activities which occur within a watershed would likely have an impact on the species or its critical habitat and must undergo section 7 consultation. Although activities within the watershed may affect the critical habitat, it is not our intent to designate areas outside of the floodplain as critical habitat.

(78)
Comment:
How will designation affect commercial minnow dealers?

Our Response:
As stated in the final listing determination (63 FR 64772), we anticipate that listing of the Arkansas River shiner would only have minimal effects on the activities of the commercial minnow industry. Commercial minnow harvest does not generally lead to habitat impacts and the designation of critical habitat is not likely to have any effect on commercial harvest of bait fish.

(79)
Comment:
The designation of critical habitat will result in control of, or “taking” of, private property in violation of the rights granted under the Fifth and Tenth Amendments to the U.S. Constitution.

Our Response:
This designation will not “take” private property. The designation of critical habitat affects only Federal agency actions. Please see our discussion under the section entitled “Takings.”

Issue 7: Designation of Critical Habitat on Tribal Land

(80)
Comment:
One commenter questioned why we did not propose to designate critical habitat on tribal lands but proposed critical habitat on other private lands when the designation would have the same effects on both.

Our Response:
Under the Presidential Memorandum of April 29, 1994, and Executive Order 13175, we have an obligation to consult with tribes on a government-to-government basis and believe that fish, wildlife, and other natural resources on tribal lands are better managed under tribal authorities, policies, and programs than through Federal regulation. We believe that designating tribal land for the Arkansas River shiner provides very little benefit to the species and would compromise the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the Arkansas River shiner depends.

Issue 8: Recovery

The following comments and responses involve issues related to recovery and recovery planning for the Arkansas River shiner. Although not relevant to the designation of critical habitat, we chose to address some of the comments related to this issue.

(81)
Comment:
Some comments expressed concern regarding implementation of unfavorable recovery actions or noted that the details, costs, and recovery goals of the recovery program were missing from the proposed rule. Others mentioned specific tasks, such as further research, captive propagation, control of salt cedar (
Tamarix
sp.), stream flow restoration, control of non-native fishes, and restoration of the Arkansas River shiner to unoccupied habitat, which we might implement during recovery.

Our Response:
The Secretaries of the Interior and Commerce set forth an interagency policy to minimize social and economic impacts of the Act consistent with timely recovery of listed species on July 1, 1994 (59 FR 34272). Consistent with this policy, we intend to work closely with stakeholders throughout the Arkansas River basin regarding development of recovery actions for the Arkansas River shiner and will strive to balance implementation of those recovery actions with social and economic concerns.

The ultimate purpose of listing a species as threatened or endangered under the Act is to recover the species to the point at which it no longer needs the protections provided to the listed species. The Act mandates the conservation of listed species through different mechanisms. Section 4(f) of the Act authorizes us to develop and implement recovery plans for listed species. A recovery plan delineates reasonable actions which are believed to be required to recover and
/
or protect listed species and may address measures specifically mentioned during the comment period. Recovery plans do not, of themselves, commit personnel or funds nor obligate an agency, entity, or person to implement the various tasks listed in the plan. Recovery plans serve to bring together Federal, State, and private stakeholders in the development and implementation of conservation actions for the species. The plan establishes a framework for agencies to coordinate activities, and cooperate with each other in conservation efforts, set recovery priorities, and estimate costs of various tasks necessary to accomplish the goals of the plan. The plan will describe site specific management actions necessary to achieve conservation and survival of the species. One of the main emphases of recovery plans is to address threats affecting the survival of the species and to remove or minimize their influence. However, we have no intention of restoring these ecosystems to pristine conditions. The recovery plan also will identify delisting criteria.

In the “Available Conservation Measures” section of the final listing determination, we listed four general conservation measures that could be implemented to help conserve the Arkansas River shiner. While this list does not constitute the entire scope of a recovery plan as discussed in the provisions of section 4(f) of the Act, it does provide an indication of measures we intend to investigate during preparation of a recovery plan.

Future conservation and recovery of the shiner will emphasize remaining aggregations and habitats in the Canadian, Cimarron, and Beaver
/
North Canadian Rivers. We also intend to address the implications of groundwater withdrawals and diversions of surface water during the recovery process. Generally, we will support and encourage the States in their efforts to increase irrigation efficiency and improve conservation of groundwater sources in the High Plains. Conservation of the High Plains aquifer, and the resulting benefits to streamflow within the Arkansas River basin, will not occur without the participation of the States. We believe voluntary conservation of the groundwater resource will be more effective in recovery efforts for the Arkansas River shiner than restricting or otherwise regulating withdrawals.

Introductions of non-indigenous species will be closely monitored. Where needed, we will develop and implement measures to minimize or eliminate the accidental or intentional release of these species. Studies will be initiated to determine the feasibility of, and techniques for, eradicating or controlling Red River shiners in the Cimarron River. If control or eradication is feasible, a control program will likely be implemented.

As stated in the following section entitled “Methods”, we have already begun steps to evaluate and study

captive propagation of the Arkansas River shiner using the non-native Pecos River population. And we have begun participating in a joint effort to investigate the feasibility of controlling salt cedar as a means of enhancing stream flow in western portions of the basin. The State of Texas also has initiated similar efforts in the Canadian River.

(82)
Comment:
Recovery of the species is too costly and recovery is not guaranteed by listing or through the recovery process. The Service should involve stakeholders in meetings a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A01-8082. Public record. Not legal advice.