Endangered and Threatened Wildlife and Plants; Proposed Rule To List the Topeka Shiner as Endangered

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE42

Endangered and Threatened Wildlife and Plants; Proposed Rule To

List the Topeka Shiner as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list

the Topeka shiner (Notropis topeka) as an endangered species under the

authority of the Endangered Species Act of 1973 (Act), as amended (16

U.S.C. 1531 et seq.). The Topeka shiner is a small fish presently known

from small tributary streams in the Kansas and Neosho river basins in

Kansas; the Missouri, Grand, Lamine, Chariton, and Des Moines river

basins in Missouri; the North Raccoon River basin in Iowa; the James

and Vermillion river watersheds in South Dakota; and, the Rock River

watershed in Minnesota. The Topeka shiner is threatened by habitat

destruction, degradation, modification, and fragmentation resulting

from siltation, reduced water quality, tributary impoundment, stream

channelization, and stream dewatering. The species is also impacted by

introduced predaceous fishes. This proposal, if made final, will

implement Federal protection provided by the Act for Notropis topeka. A

determination of critical habitat is neither beneficial nor prudent.

DATES: Comments from all interested parties must be received by

December 23, 1997. Public hearing requests must be received by December

8, 1997.

ADDRESSES: Comments and materials concerning this proposal should be

sent to: Field Supervisor, Ecological Services Field Office, 315

Houston Street, Suite E, Manhattan, Kansas 66502. Comments and

materials received will be available for public inspection, by

appointment,

[[Page 55382]]

during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: William H. Gill, Field Supervisor, or

Vernon M. Tabor, Fish and Wildlife Biologist, at the above address

(913/539-3474).

SUPPLEMENTARY INFORMATION:

Background

The Topeka shiner was first described by C.H. Gilbert in 1884,

using specimens captured from Shunganunga Creek, Shawnee County, Kansas

(Gilbert 1884). The Topeka shiner is a small, stout minnow, not

exceeding 75 millimeters (mm) (3 inches (in)) in total length. The head

is short with a small, moderately oblique mouth. The eye diameter is

equal to or slightly longer than the snout. The dorsal fin is large,

with the height more than one half the predorsal length of the fish,

originating over the leading edge of the pectoral fins. Dorsal and

pelvic fins each contain 8 rays. The anal and pectoral fins contain 7

and 13 rays respectively, and there are 32 to 37 lateral line scales.

Dorsally the body is olivaceous (olive-green), with a distinct dark

stripe preceding the dorsal fin. A dusky stripe is exhibited along the

entire longitudinal length of the lateral line. The scales above this

line are darkly outlined with pigment, appearing cross-hatched. Below

the lateral line the body lacks pigment, appearing silvery-white. A

distinct chevron-like spot exists at the base of the caudal fin (Cross

1967; Pflieger 1975; Service 1993).

The Topeka shiner is characteristic of small, low order

(headwater), prairie streams with high water quality and cool

temperatures. These streams generally exhibit perennial flow, however,

some approach intermittency during summer. At times when surface flow

ceases, pool levels and cool water temperatures are maintained by

percolation through the streambed, spring flow and/or groundwater

seepage. The predominant substrate types within these streams are clean

gravel, cobble and sand. However, bedrock and clay hardpan overlain by

a thin layer of silt are not uncommon (Minckley and Cross 1959). Topeka

shiners most often occur in pool and run areas of streams, seldom being

found in riffles. They are pelagic (living in open water) in nature,

occurring in mid-water and surface areas, and are primarily considered

a schooling fish. Occasionally, individuals of this species have been

found in larger streams, downstream of known populations, presumably as

migrants (Cross 1967; Pflieger 1975; Tabor in litt. 1992a).

Data regarding the food habits and reproduction of Topeka shiners

are limited and detailed reports have not been published. However,

Pflieger (Missouri Department of Conservation, in litt. 1992) reports

the species as a nektonic (swimming independently of currents)

insectivore. In a graduate research report, Kerns (University of

Kansas, in litt. 1983) states that the species is primarily a diurnal

or daytime feeder on insects, with chironomids (midges), other

dipterans (true flies), and ephemeropterans (mayflies), making up the

bulk of the diet. However, the microcrustaceans cladocera and copapoda

(zooplanktons) also contribute significantly to the species' diet. The

Topeka shiner is reported to spawn in pool habitats, over green sunfish

(Lepomis cyanellus) and orangespotted sunfish (Lepomis humilis) nests,

from late May through July in Missouri and Kansas (Pflieger 1975; Kerns

in litt. 1983). Males of the species are reported to establish small

territories near these nests. Pflieger (in litt. 1992) states that the

Topeka shiner is an obligate spawner on silt-free sunfish nests, while

Cross (University of Kansas, pers. comm. 1992) states that it is

unlikely that the species is solely reproductively dependent on

sunfish, and suggests that the species also utilizes other silt-free

substrates as spawning sites. Data concerning exact spawning behavior,

larval stages, and subsequent development is lacking. Maximum known

longevity for the Topeka shiner is three years, however, only a very

small percent of each year class attains the third summer. Young-of-

the-year attain total lengths of 20 mm to 40 mm (.78 to 1.6 in) age 1

fish 35 mm to 55 mm (1.4 to 2.2 in), and age 2 fish 47 mm to 65 mm (1.8

to 2.5 in) (Cross and Collins 1975; Pflieger 1975).

Historically, the Topeka shiner was widespread and abundant

throughout low order tributary streams of the central prairie regions

of the United States. The Topeka shiner's historic range includes

portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South

Dakota. Stream basins within the range historically occupied by Topeka

shiners include the Des Moines, Raccoon, Boone, Missouri, Big Sioux,

Cedar, Shell Rock, Rock, and Iowa basins in Iowa; the Arkansas, Kansas,

Big Blue, Saline, Solomon, Republican, Smoky Hill, Wakarusa,

Cottonwood, and Blue basins in Kansas; the Des Moines, Cedar, and Rock

basins in Minnesota; the Missouri, Grand, Lamine, Chariton, Des Moines,

Loutre, Middle, Hundred and Two, and Blue basins in Missouri; the Big

Blue, Elkhorn, Missouri, and lower Loup basins in Nebraska; the Big

Sioux, Vermillion, and James basins in South Dakota. The number of

known occurrences of Topeka shiners has been reduced by approximately

80 percent, with approximately 50 percent of this decline occurring

within the last 25 years. The species now primarily exists as isolated

and fragmented populations.

Recent fish surveys were conducted across the Topeka shiner's

range. In Missouri, 42 of the 72 sites historically supporting Topeka

shiners were resurveyed in 1992. The species was collected at 8 of the

42 surveyed locales (Pflieger, in litt. 1992). In 1995, the remaining

30 historical sites not surveyed in 1992 and an additional 64 locales,

thought to have potential to support the species, were sampled. Topeka

shiners were found at 6 of the 30 remaining historical locations and at

6 of the 64 additional sites sampled. In total, recent sampling in

Missouri identified Topeka shiners at 14 of 72 (19 percent) historic

localities, and at 20 of 136 (15 percent) total sites sampled (Gelwicks

and Bruenderman 1996). Gelwicks and Bruenderman (1996) also note that

the species has apparently experienced substantial declines in

abundance in the remaining extant populations in Missouri, with the

exception of Moniteau Creek.

In Iowa, 24 locales within 4 drainages were sampled in 1994 at or

near sites from which the species was reported extant during surveys

conducted between 1975 and 1985. The Topeka shiner was captured at 3 of

24 sites, with these 3 captures occurring in the North Raccoon River

basin (Tabor, U.S. Fish and Wildlife Service, in litt. 1994). Menzel

(in litt. 1996) reports 6 collections of the species in 1994 and 1995,

also from the same drainage.

In Kansas, 128 sites at or near historic collection localities for

the Topeka shiner were sampled in 1991 and 1992, The species was

collected at 22 of 128 (17 percent) sites sampled (Tabor, in litt.

1992a; Tabor, in litt. 1992b). Extensive stream surveys completed in

1995 and 1996 identified 10 new localities for Topeka shiners and

reconfirmed the species in a historic locale where it was believed

extirpated (Mammoliti, in litt. 1996).

In South Dakota, the species was recently captured in low numbers

from one stream in the James River basin and four streams in the

Vermillion River basin. (Braaten, South Dakota State University, in

litt. 1991; Schumacher, South Dakota State University, in litt. 1991).

In Minnesota, 14 streams in the area likely to be occupied by

Topeka shiners

[[Page 55383]]

were surveyed over the past 10 years. The species was collected from 5

of 9 (56 percent) streams with historic occurrences, and was not found

in the 5 streams with no historic occurrences. These locales are all in

the Rock River drainage (Baker, in litt. 1996).

In Nebraska, the species was assumed extirpated from all historic

locales. However, in 1989 the species was discovered in the upper Loup

River drainage, outside its former known range, where two specimens

were collected (Michl and Peters 1993). In 1996, a single specimen was

collected from a stream in the Elkhorn River basin, within the species'

historic range (Nebraska Game and Parks Commission, in litt. 1997). In

Nebraska, this was the first collection of a Topeka shiner within the

known historic range since 1940. It is presently considered extant at

these two localities (Cunningham, University of Nebraska--Omaha, pers.

comm. 1996).

The Topeka shiner began to decline throughout the central and

western portions of the Kansas River basin in the early 1900's. Cross

and Moss (1987) report the species present at sites in the Smoky Hill

and Solomon River watersheds in 1887, but by the next documented fish

surveys in 1935, the Topeka shiner was absent. The Topeka shiner was

extirpated from the Wakarusa River watershed during the 1970's (Cross,

University of Kansas, pers. comm. 1995). The species disappeared from

the Big Blue River watershed (Kansas River basin) in Nebraska after

1940 (Clausen, Nebraska Game and Parks Commission, in litt. 1992). The

last record of the Topeka shiner from the Arkansas River basin,

excluding the Neosho River watershed, was 1891 near Wichita, Kansas

(Cross and Moss 1987). In Iowa, the species was extirpated from all

Missouri River tributaries except the Rock River watershed prior to

1945. It was also eliminated from the Cedar and Shell Rock River

watersheds prior to 1945. Since 1945, the Topeka shiner has

subsequently been extirpated from the Boone, Iowa, and Des Moines

drainages, with the exception of the North Raccoon River watershed

(Harlan and Speaker 1951; Harlan and Speaker 1987; Menzel, Iowa State

University, in litt. 1980; Dowell, University of Northern Iowa, in

litt. 1980; Tabor in litt. 1994). In Missouri, since 1940 the species

has been apparently extirpated from many of the tributaries to the

Missouri River where it formerly occurred, including Perche Creek,

Petite Saline Creek, Tavern Creek, Auxvasse Creek, Middle River, Moreau

River, Splice Creek, Slate Creek, Crooked River, Fishing River, Shoal

Creek, Hundred and Two River, and Blue River watersheds.

Previous Federal Action

The Topeka shiner first received listing consideration when the

species was included in the Animal Candidate Review for Listing as

Endangered or Threatened Species, as a category 2 candidate species,

published in the Federal Register (56 FR 58816) on November 21, 1991.

In 1991, the Service's Kansas Field Office began a status review of the

Topeka shiner, including information gathered from stream sampling and

requests from knowledgeable individuals and agencies. Included were

State fish and wildlife conservation agencies, State health and

pollution control agencies, colleges and universities, and other

Service offices. The Service subsequently prepared a status report on

this species dated February 16, 1993 (Service 1993). In the November

15, 1994, Animal Candidate Review for Listing as Endangered or

Threatened Species, published in the Federal Register (59 FR 58999),

the Topeka shiner was reclassified as a category 1 candidate species.

Category 1 candidates comprised taxa for which the Service had

substantial information on biological vulnerability and threats to

support proposals to list the taxa as endangered or threatened. The

Service has since discontinued the category designations for candidates

and has established a new policy on the definition of candidate species

(formerly category 1 candidates). In the February 28, 1996, Review of

Plant and Animal Taxa That Are Candidates for Listing as Endangered or

Threatened Species, published in the Federal Register (61 FR 7596), the

Topeka shiner was reclassified as a candidate species. Candidate

species are those species for which the Service has on file sufficient

information on biological vulnerability and threats to support issuance

of a proposed rule to list as endangered or threatened species.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act and regulations (50 CFR part 424)

promulgated to implement the listing provisions of the Act set forth

the procedures for adding species to the Federal ``List of Endangered

and Threatened Wildlife and Plants.'' A species may be determined to be

an endangered or threatened species due to one or more of the five

factors described in Section 4(a)(1). These factors and their

application to the Topeka shiner (Notropis topeka) throughout the

species range are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. Once abundant and widely

distributed throughout the central Great Plains and western tallgrass

prairie regions, the Topeka shiner now inhabits less than 10 percent of

its original geographic range. The action most likely impacting the

species to the greatest degree in the past is sedimentation and

eutrophication resulting from intensive agricultural development. Most

populations of Topeka shiners occurring west of the Flint Hills region

of Kansas are believed to have been extirpated prior to 1935 (Cross and

Moss 1987). Minckley and Cross (1959) report that watersheds with high

levels of cultivation, and subsequent siltation, and domestic pollution

are unsuitable for the species. These streams often cease to flow and

become warm and muddy during the summer months. Cross (1970) indicates

that some of the areas where depletion of the species has occurred also

coincide with areas having poor aquifers. Pflieger (1975) reports that

increased siltation as a result of intensive cultivation may have

reduced the amount of Topeka shiner habitat in Missouri. Pflieger (in

litt. 1991) also reports that a known population of the species in

Boone County, Missouri was extirpated between 1970 and 1976, presumably

due to increased turbidity and nutrient enrichment resulting from

urbanization and highway construction. Feedlot operations on or near

streams are also known to impact prairie fishes due to organic input

resulting in eutrophication (Cross and Braasch 1968).

The species was historically known from open pools of small prairie

streams with cool, clear water. Many streams of this nature reportedly

existed throughout the geographic range of the Topeka shiner ``prior to

the plowing of the prairie sod'' (Cross 1967). These conditions

continue to exist in many of the streams in the Flint Hills region of

Kansas, primarily due to shallow, rocky soils with numerous limestone

exposures which prevent cultivation. This is in contrast to the

perturbation of the natural fish faunas and their associated habitats

in prairie areas more suitable to intensive rowcrop agriculture, which

is characteristic of the vast majority of the natural range of the

species (Menzel et al. 1984). Menzel et al. (1984) also notes

accelerated rates of soil erosion and instream deposition of fluvium

(deposits caused by the action of flowing water) throughout many former

prairie streams in Iowa,

[[Page 55384]]

encompassed by the former range of the species. Today, outside the

Flint Hills region of Kansas, only a few, small isolated areas not

severely impacted, or impacted to an extent within the tolerance of the

species, continue to exist.

Mainstem reservoir development, tributary impoundment, and

channelization have also impacted the species in some areas.

Populations located within small tributary streams upstream from both

mainstem and tributary impoundments attempt to utilize these water

bodies as refuges from drying streams during periods of drought. During

this time, the populations are subject to predation by larger predatory

fish inhabiting the impounded water bodies. In unaltered systems, fish

move downstream during drought to find suitable habitat. Deacon (1961)

reports fishes characteristic of the small and mid-sized tributaries of

the Neosho and Marais des Cygnes rivers' watersheds occurred in the

mainstems following several years of protracted drought in the mid-

1950's. Tributary dams also serve to block migration of fishes upstream

following drought, effectively prohibiting recolonization of upstream

reaches.

Several recently extant populations have been extirpated from

tributaries to Tuttle Creek and Clinton reservoirs, both mainstem

impoundments in the Kansas River basin of eastern Kansas. The species

continues to exist in two tributaries to Tuttle Creek Reservoir;

however, during sampling on one of these streams in 1994 only a single

Topeka shiner was captured. All populations within the Wakarusa River

watershed (Clinton Reservoir) are believed extirpated. Clinton

Reservoir's completion coincided with large scale development of

tributary impoundments throughout the Wakarusa's upper basin which may

have compounded impacts to the species. Layher (1993) reports the

extirpation of Topeka shiners from a stream following construction of a

single tributary impoundment in Chase County, Kansas. Layher reported

that the species had disappeared both upstream and downstream of the

dam site, and noted significant habitat changes below the impoundment.

Pflieger (in litt. 1992) reports that an abundant population of the

species in Missouri was extirpated following construction of an

impoundment. This population, located downstream from the dam site, was

not present when revisited several years after construction. The

habitat had changed from clear rocky pools, to pools filled with

gravel, layered over by silt and choked with filamentous algae.

Pflieger further reports that ``the SCS (Soil Conservation Service)

reservoir has profoundly altered the hydrology and biota of this stream

by eliminating the scouring floods that formerly created pool habitat

and maintained the rocky, silt-free substrate.'' During 1994 sampling

efforts in southeast Iowa, a stream with recent records of the species

was found to have been impacted by the construction of multiple

impoundments throughout its upper reaches and tributaries. No Topeka

shiners were captured (Tabor in litt. 1994). Impoundment of prairie

streams has also resulted in the documented extirpation of other

prairie stream minnow species (Winston et al. 1991).

In Kansas, substantial tributary impoundment is occurring

throughout the Flint Hills region, threatening Topeka shiners in these

locales. As of 1993, 46 tributary impoundments had been completed in or

near habitat for the Topeka shiner in the Cottonwood River basin, with

an additional 115 planned for construction (Service in litt. 1993).

Presently in the Mill Creek watershed, the largest remaining complex of

habitat for the species, 16 dams have been completed, with an

additional 48 planned (Hund, Mill Creek Watershed District, pers. comm.

1997; State Conservation Commission of Kansas, in litt. 1992). Dam

construction is also a threat to the species throughout the rest of the

species' range, but to a lower degree due to less immediate and

intensive development.

Stream channelization has also occurred throughout much of the

Topeka shiner's range. Channelization negatively impacts many aquatic

species, including the Topeka shiner, by eliminating and degrading

instream habitat types, altering the natural hydrography (physical

characteristics of surface waters), and by changing water quality

(Simpson et al. 1982). Intensive channelization of low order streams

throughout the species' Iowa and Minnesota range is suspect in the

species' drastic decline in these areas. Menzel (in litt. 1980) reports

the extirpation of Topeka shiners from previous collection sites

following stream channelization projects in Iowa. During 1994 status

surveys across this portion of the range, most streams were found to

have been severely altered from natural conditions (Tabor in litt.

1994). Changes included elimination of pool habitats, instream debris,

and woody riparian vegetation. Water velocities were consistently high

throughout the channel and deep silt was the dominant substrate. It is

suspected that the Topeka shiner is an obligate spawner on sunfish

(Lepomis spp.) nests (Pflieger in litt. 1992) or other silt-free

substrates, but no sunfish were captured, nor suitable sunfish spawning

habitat observed in these channelized streams. At Iowa sites where

Topeka shiners were captured, streams were not intensively channelized

and many natural conditions persisted.

Intensive land-use practices, dewatering of streams, and continuing

tributary impoundment and channelization represent the greatest

existing threats to the Topeka shiner. Grazing of riparian zones and

the removal of riparian vegetation to increase tillable acreage greatly

diminish a watershed's ability to filter sediments, organic wastes and

other impurities from the stream system (Manci 1989). Irrigation draw-

down of groundwater levels affect surface and subsurface flows which

can impact the species. At present, both Federal and State planning for

development of watershed impoundments and channelization continue in

areas with populations of Topeka shiners. Several impoundments are

planned for construction on streams with abundant numbers of the

species. Portions of these stream reaches will be inundated by the

permanent pools of the reservoirs, imperiling the species' future

existence in these localities. Prior to the planning of the

impoundments, these populations of Topeka shiners were considered to be

the most stable range-wide, due to their occurrence in watersheds

dominated by high quality prairie with generally very good grazing

management and land stewardship.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Some collecting of Topeka shiners by individuals

for use as bait fish and display in home aquaria does occur. However,

overutilization is not thought to currently contribute to the decline

of the Topeka shiner.

C. Disease or predation. There have been no studies conducted on

the impacts of disease or predation upon the Topeka shiner; therefore,

the significance of such threats to the species is presently unknown.

Disease is not likely to be a significant threat except under certain

habitat conditions, such as crowding during periods of reduced flows,

or episodes of poor water quality, such as low dissolved oxygen or

elevated nutrient levels. During these events, stress reduces

resistance to pathogens and disease outbreaks may occur. Parasites,

bacteria, and viral agents are generally the most common causes of

mortality. Lesions caused by

[[Page 55385]]

injuries, bacterial infections, and parasites often become the sites of

secondary fungal infections. However, Topeka shiners captured from a

Missouri stream in 1996 were discovered to be afflicted with scoliosis,

a condition of deformity affecting the vertebrae. Scoliosis can result

from contact with environmental contaminants, or severely reduced

genetic variability resulting from geographic isolation. No causal

factor for this occurrence has been identified.

The green sunfish (Lepomis cyanellus) is the most common predator

typical of Topeka shiner habitat throughout its range. The spotted bass

(Micropterus punctulatus) and largemouth bass (M. salmoides) are also

naturally occurring predators of the Topeka shiner in portions of its

range but to a much lower degree due to minimal habitat overlap. These

bass species typically occur in only the downstream extremes of Topeka

shiner habitat. The construction of impoundments on streams with Topeka

shiners and the subsequent introduction of piscivorous (fish eating)

fish species not typically found in headwater habitats, such as

largemouth bass, crappie (Pomoxis spp.), white bass (Morone chrysops),

northern pike (Esox lucius), and channel catfish (Ictalurus punctatus),

may affect the species during drought or periods of low flows when

Topeka shiners seek refuge in the impoundments or permanent stream

pools now occupied by these introduced fishes. The most common fishes

captured in streams directly upstream and downstream of tributary

impoundments in Kansas are largemouth bass, crappie, and bluegill

(Lepomis macrochirus), and these species are often captured to the

exclusion of cyprinids, including Topeka shiner (Mammoliti, Kansas

Department of Wildlife and Parks, pers. comm., 1997). Tabor (in litt.

1994) captured only largemouth bass from a stream segmented by numerous

dams in Iowa. A cooperative report completed by the Soil Conservation

Service and Kansas Department of Health and Environment (1981) on the

effects of watershed impoundments on Kansas streams states that

predacious game fishes increased in abundance, and several minnow

species, including the Topeka shiner, decreased in abundance upstream

and downstream from dam sites following impoundment. While the extent

of predation is undocumented, known populations have apparently been

extirpated in the time period immediately following impoundment of

several low order streams (Layher 1993; Pflieger, in litt. 1992; Tabor,

in litt. 1992b). Topeka shiners were also reportedly extirpated from a

small impoundment previously lacking largemouth bass, following

stocking of largemouth bass (Prophet et al. 1981). Extirpation of the

Topeka shiner from small, direct tributary streams to large mainstem

impoundments has also been documented. These extirpations presumably

occurred in part due to predation by introduced piscivorous fishes

during drought and low flow periods when Topeka shiners seek refuge in

permanent water downstream from their typical headwater habitats

(Service 1993).

D. The inadequacy of existing regulatory mechanisms. In Kansas, the

Topeka shiner is listed as ``species in need of conservation,'' under

the Kansas Nongame and Endangered Species Conservation Act of 1975.

This status prohibits the direct taking of specimens but does not

protect habitat or give opportunity to review actions or projects which

may affect the species in Kansas. Under Missouri law, the species is

listed as endangered. This status prohibits direct taking of specimens

and provides a limited review process to suggest remediation for

actions potentially impacting the species' habitat. Minnesota,

Nebraska, and South Dakota consider it a species of concern, with no

legal protection. In Iowa, the species has no legal status.

At present, only Missouri provides statutory protection for both

the species and its habitat. No significant protections exist for the

Topeka shiner and its habitat in the other states encompassing its

range. Listing under the Act would provide significant protection

against taking of the species, ensure coordinated review of Federal

actions which may affect its habitat, and encourage proactive

management throughout its range.

E. Other natural and manmade factors affecting its continued

existence. In the species' Missouri range, possible interspecific

competition between the Topeka shiner and the introduced blackstripe

topminnow (Fundulus notatus) has been suggested (Pflieger, in litt.

1992). The absence of the Topeka shiner from suitable habitat, with

blackstripe topminnow present, has also been observed in Kansas

(Mammoliti, pers. comm. 1997). Both species are nektonic insectivores

utilizing similar pool habitat. At present, the extent of possible

competition between these species is undocumented. In degraded or

suboptimal habitat conditions where Topeka shiners persist, competition

by species more tolerant to these conditions, such as red shiner

(Cyprinella lutrensis), may negatively affect the species.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this species in determining to propose this

rule. Based on this evaluation, the preferred action is to list the

Topeka shiner as endangered. Endangered status, which means that the

species is in danger of extinction throughout all or a significant

portion of its range, is appropriate for the Topeka shiner because of

its significantly reduced range, including the apparent extirpation of

the species throughout most of its historic range. Threatened status

does not appear appropriate considering the extent of the species'

population decline and the vulnerability of the remaining populations.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) the

specific areas within the geographic area occupied by a species, at the

time it is listed in accordance with the Act, on which are found those

physical or biological features (I) essential to the conservation of

the species and (II) that may require special management considerations

or protection and; (ii) specific areas outside the geographic areas

occupied by a species at the time it is listed, upon a determination

that such areas are essential for the conservation of the species.

``Conservation'' means the use of all methods and procedures needed to

bring the species to the point at which listing under the Act is no

longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. The Service

finds that designation of critical habitat is not prudent for the

Topeka shiner at this time. The Service's regulations (50 CFR

424.12(a)(1)) state that a designation of critical habitat is not

prudent when one or both of the following situations exist--(1) The

species is threatened by taking or other human activity, and

identification of critical habitat can be expected to increase the

degree of threat to the species, or (2) such designation of critical

habitat would not be beneficial to the species.

Section 7 of the Act requires that Federal agencies refrain from

contributing to the destruction or adverse modification of critical

habitat in any action authorized, funded or

[[Page 55386]]

carried out by such agency (agency action). This requirement is in

addition to the section 7 prohibition against jeopardizing the

continued existence of a listed species, and it is the only mandatory

legal consequence of a critical habitat designation. Implementing

regulations (50 CFR part 402) define ``jeopardize the continuing

existence of'' and ``destruction or adverse modification of'' in very

similar terms. To jeopardize the continuing existence of a species

means to engage in an action ``that reasonably would be expected to

reduce appreciably the likelihood of both the survival and recovery of

a listed species.'' Destruction or adverse modification of habitat

means an ``alteration that appreciably diminishes the value of critical

habitat for both the survival and recovery of a listed species.''

Common to both definitions is an appreciable detrimental effect to both

the survival and the recovery of a listed species. In the case of

adverse modification of critical habitat, the survival and recovery of

the species has been significantly diminished by reducing the value to

the species' designated critical habitat. Thus, actions satisfying the

standard for adverse modification also jeopardize the continued

existence of the species concerned.

Many activities that pose threats to the continued existence of the

Topeka shiner are funded, permitted, or carried out by Federal agencies

(e.g., channelization, impoundment, dredge and fill, and other stream

and wetland modification projects). Programs that result in these

activities in Topeka shiner habitat are most often regulated by the

U.S. Army Corps of Engineers and the U.S. Department of Agriculture,

Natural Resources Conservation Service, under a variety of authorities,

and are thus subject to section 7 consultation under the Act. In areas

where suitable habitat exists within the historical range of the Topeka

shiner, but the species is not present, the section 7 process would

still allow for the jeopardy threshold to be reached. Considerations in

such cases would include, but not be restricted to, proximity to extant

populations and areas essential for the recovery of the species. As

explained above, designation of critical habitat would not provide any

additional protection to the species beyond those already provided by

listing the species.

Other State or private actions resulting in ``take'' of Topeka

shiners would be prohibited by section 9 of the Act, and remediation of

those potential threats would not be significantly advanced by

designation of critical habitat.

Recovery activities to assist landowners in maintaining or

improving the habitat quality of their streams or otherwise addressing

known threats to Topeka shiners would not benefit from a designation of

critical habitat. However, such conservation and recovery actions could

be significantly impaired by public apprehension or misunderstanding of

a critical habitat designation.

Intentional taking of the Topeka shiner is not known to be a

problem. The Topeka shiner is found in very specialized, easily

accessible and identifiable habitat characterized by small volumes of

flow. It is possible that a local population could be intentionally

eliminated. Publication of maps providing its precise locations and

descriptions of critical habitat, as required for the designation of

critical habitat, would reasonably be expected to increase the degree

of threat to the species, increase the difficulties of enforcement, and

could further contribute to the decline of the Topeka shiner.

In light of the above, the Service concludes that designation of

critical habitat would not be beneficial to the species and could

increase the degree of threat to the species from taking. Therefore,

designation of critical habitat for the Topeka shiner is neither

beneficial nor prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing results in public awareness and

conservation actions by Federal, State, and local agencies, private

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires that recovery

actions be carried out for all listed species. The protection required

of Federal agencies and the prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any species that is proposed or listed as

endangered or threatened and with respect to its critical habitat, if

any is being designated. Regulations implementing this interagency

cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) requires Federal agencies to confer with the Service on

any action that is likely to jeopardize the continued existence of a

species proposed for listing or result in destruction or adverse

modification of proposed critical habitat. If a species is listed

subsequently, section 7(a)(2) requires Federal agencies to ensure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of the species or destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

A number of Federal agencies have jurisdiction and responsibilities

potentially affecting the Topeka shiner, and section 7 consultation may

be required in a number of instances. Federal involvement is expected

to include the Corps of Engineers throughout the species' range in the

administration of Section 404 of the Clean Water Act. The U.S.

Environmental Protection Agency will consider the Topeka shiner in the

registration of pesticides, adoption of water quality criteria, and

other pollution control programs. The U.S. Department of

Transportation, Federal Highway Administration, will consider the

effects of bridge and road construction at locations where known

habitat may be impacted. The U.S. Department of Agriculture, Natural

Resources Conservation Service and Farm Service Agency, will need to

consider the effects of structures and channelization projects

installed under the Watershed Protection and Flood Prevention Act, (16

U.S.C. 1001-1009, Chapter 18; Pub.L. 83-566, August 4, 1954, c 656,

Sec. 1, 68 Stat. 666; as amended), ``Farm Bill'' programs, and other

activities which may impact water quality, quantity, or timing of

flows. The Federal Energy Regulatory Commission will consider potential

impacts to the Topeka shiner and its habitat resulting from gas

pipeline construction over streams and from hydroelectric development.

Private actions, that are not federally funded or permitted,

undertaken within or near habitat occupied by Topeka shiners, would not

be subject to the regulations as stated above in section 7 of the Act.

Some examples of private actions not subject to section 7 consultation

include, but are not limited to: farming and ranching practices,

construction of private stock watering ponds on normally dry channels,

and fuelwood harvest. However, private actions that result in ``take''

of Topeka shiners, as discussed below, would be prohibited by section 9

of the Act.

The Act and its implementing regulations set forth a series of

general

[[Page 55387]]

prohibitions and exceptions that apply to all endangered wildlife. The

prohibitions, codified at 50 CFR 17.21, in part, make it illegal for

any person subject to the jurisdiction of the United States to take

(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or

collect; or to attempt any of these), import or export, ship in

interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

also is illegal to possess, sell, deliver, carry, transport, or ship

any species that has been taken illegally. Certain exceptions apply to

agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered wildlife species under certain circumstances.

Regulations governing permits are at 50 CFR 17.22 and 17.23. Such

permits are available for scientific purposes, to enhance the

propagation or survival of the species, and/or for incidental take in

connection with otherwise lawful activities.

Requests for copies of the regulations regarding listed wildlife

and inquiries about prohibitions and permits may be addressed to the

U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center,

Denver, Colorado 80225 (303/236-8189) or fax (303/236-0027).

It is the policy of the Service to identify, to the extent known at

the time a species is listed, specified activities that will and will

not be considered likely to result in violation of section 9 of the

Act. The intent of this policy is to increase public awareness of the

effect of the listing on ongoing and likely activities within a

species' range. The Service believes the actions listed below would not

result in a violation of section 9.

(1) Grazing within watersheds at levels consistent with the long

term management of the range or prairie ecosystem, thus precluding

water quality and stream habitat degradation, except where the Service

has determined that such activity would negatively impact the species;

(2) Cropping within stream corridors where stable riparian

vegetation buffers exist, with the buffers serving as filtering

mechanisms for non-point source runoff, decreasing sediment, nutrient,

and pesticide input into streams, except where the Service has

determined that such activity would negatively impact the species;

(3) Construction of small stock watering ponds in upland areas on

normally dry drainage; and

(4) Prescribed burns at levels consistent with the long-term

management of the range or prairie ecosystem, except where the Service

has determined that such activity would negatively impact the species.

The Service believes that the actions listed below may result in a

violation of section 9; however, possible violations are not limited to

these actions alone:

(1) Unauthorized collecting or handling of the species;

(2) Destruction or alteration of the species' habitat (i.e.,

actions that change water quality, quantity, and/or timing of flows;

dredging or other physical modifications that impact instream habitat;

(3) The introduction of nonnative species;

(4) Use of fertilizers or pesticides inconsistent with approved

labeling and application procedures; and

(5) Contamination of soil, streams, or groundwater by spills,

discharges, or dumping of chemicals, silt, or other pollutants.

Questions regarding whether a specified activity will constitute a

violation of section 9 should be directed to the Field Supervisor of

the Service's Manhattan, Kansas Field office (see ADDRESSES section).

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

(1) Biological, commercial trade, or other relevant data concerning

any threat (or lack thereof) to this species;

(2) The location of any additional populations of this species and

the reasons why any habitat should or should not be determined to be

critical habitat as provided by section 4 of the Act;

(3) Additional information concerning the range, distribution, and

population size of this species; and

(4) Current or planned activities in the subject area and their

possible impacts on the species.

Final promulgation of the regulation(s) on this species will take

into consideration the comments and any additional information received

by the Service, and such communications may lead to a final regulation

that differs from this proposal.

The Endangered Species Act provides for one or more public hearings

on this proposal, if requested. Requests must be received within 45

days of the date of the publication of the proposal in the Federal

Register. Such requests must be made in writing and addressed to Field

Supervisor, Manhattan, Kansas (see ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Required Determination

The Service has examined the regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements.

References Cited

A complete list of all references cited herein, as well as others,

is available upon request from the Manhattan, Kansas Field Office (See

ADDRESSES section).

Author

The primary author of this proposed rule is Vernon M. Tabor, U.S.

Fish and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby proposes to amend part 17,

subchapter B of chapter I, title 50 of the Code of Federal Regulations,

as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.11(h) is amended by adding the following, in

alphabetical order under ``FISHES,'' to the List of Endangered and

Threatened Wildlife:

[[Page 55388]]

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Fishes

* * * * * * *

Shiner, Topeka................... Notropis Topeka..... U.S.A. (KS, IA, MN, Entire............. E ........... NA NA

MO, E, SD).

* * * * * * *

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Dated: October 2, 1997

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97-28231 Filed 10-23-97; 8:45 am]

BILLING CODE 4310-55-P