Endangered and Threatened Wildlife and Plants; Reopening of Public Comment Period on the Proposed Rule to List the Arkansas River Basin Population of the Arkansas River Shiner as Endangered

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC62

Endangered and Threatened Wildlife and Plants; Reopening of

Public Comment Period on the Proposed Rule to List the Arkansas River

Basin Population of the Arkansas River Shiner as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; Notice reopening the public comment period.

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SUMMARY: On August 3, 1994, the U.S. Fish and Wildlife Service

(Service) proposed to list the Arkansas River basin population of the

Arkansas (AR) River shiner (Notropis girardi) as an endangered species

under the authority of the Endangered Species Act of 1973, as amended

(Act)(59 FR 39532). Public comments were solicited, three public

hearings were held, and the last comment period expired on February 3,

1995 (60 FR 2070).

The enactment of Pub. L. 104-6 in April 1995, and a series of

continuing resolutions from October 1, 1995, through April 26, 1996,

established a moratorium against issuing final listings or critical

habitat designations. The Service's listing program was essentially

shut down and listing program personnel were reassigned to other

duties. When the moratorium was lifted, the Service published guidance

for assigning relative priorities to listing actions conducted under

section 4 of the Act during Fiscal Year 1997 (61 FR 64475).

This species was proposed for endangered status in 1994. New

information concerning the AR River shiner's status has since become

available.

This notice identifies possible issues the public should be aware

of and provides the public opportunity to comment on these issues. All

previous comments submitted in response to the August 3, 1994,

proposal, including comments that were received after the expiration of

the previous comment periods, will be entered into the public record

for the AR River shiner.

DATES: Comments from all interested parties must be received by January

5, 1998.

ADDRESSES: Written comments and materials should be sent to:

Supervisor, Ecological Services Field Office, 222 South Houston, Suite

A, Tulsa, Oklahoma 74127-8909. Comments and materials received will be

available for public inspection, by appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT: Ken Collins at the above address

(telephone 918/581-7458 ext. 230).

SUPPLEMENTARY INFORMATION:

Background

On August 3, 1994 (59 FR 39532), the Service proposed to list the

Arkansas River basin population of the AR River shiner (Notropis

girardi) as an endangered species under the authority of the Endangered

Species Act of 1973, as amended (Act)(16 U.S.C. 1531 et seq.). The

introduced population which occurs in the Pecos River basin is not

under consideration for protection under the Act because it is not

native to the area.

Two public comment periods were established, with the last comment

period expiring on February 3, 1995 (60 FR 2070). During the second

comment period, the Service held three public hearings, one each in

Kansas, Oklahoma, and Texas. The Service received 602 comments (letters

and oral testimony) from 567 individuals or agencies, including a

petition containing the names of 36 individuals. Contents of the

written comments and oral statements obtained during the public

hearings and comment periods were being evaluated at the time Public

Law 104-6 was enacted.

The enactment of Pub. L. 104-6 in April 1995, and a series of

continuing resolutions from October 1, 1995, through April 26, 1996,

established a moratorium against issuing final listings or critical

habitat designations. Funding for the Service's listing program was

severely reduced or eliminated and listing personnel were reassigned to

other duties, essentially shutting down the listing program.

On April 26, 1996, President Clinton approved the Omnibus Budget

Reconciliation Act of 1996 and exercised the authority granted under

this Act to waive the listing moratorium. When the moratorium was

lifted, the Service published guidance for assigning relative

priorities to listing actions conducted under section 4 of the Act

during Fiscal Year 1997 (61 FR 64475). Based on this priority system,

[[Page 64338]]

the listing of the Arkansas River basin population of the AR River

shiner was assigned to Tier 2. Tier 2 includes processing of final

decisions on pending proposed listings. The Service has determined that

an additional comment period is needed to allow public comment on all

relevant information that has arisen since the close of the last

comment period for the AR River shiner.

Summary of Information Relevant to the Listing Decision

The Service has received information indicating that populations of

AR River shiners in the Canadian River upstream from Lake Meredith may

be stable (and not declining as suggested in the proposed rule).

1. Effects of the Bureau of Reclamations's Lake Meredith Salinity

Control Project

In the proposed rule, the U.S. Bureau of Reclamation's (Bureau)

Lake Meredith Salinity Control Project was identified as a significant,

ongoing threat to the aggregations of AR River shiners that occur in

the Canadian River between Ute Reservoir in New Mexico and Lake

Meredith in Texas. Based on information available at the time of the

proposed listing, the abundance of AR River shiners within this stream

segment were believed to be declining and operation of the salinity

control project would have resulted in significant reductions in stream

flow, affecting habitat for the species within the Canadian River above

Lake Meredith. New information (J.C. Williams, Canadian River Municipal

Water Authority, in litt. 1997; Gene Wilde, Texas Tech University, in

litt. 1997; Bureau 1995) does not support this assertion and the

Service solicits questions and comments regarding this issue.

2. Influence of the High Plains Aquifer on Canadian River Stream Flows

New information provided by the U.S. Geological Survey, State of

Texas, and High Plains Underground Water Conservation District

clarified the influence of the High Plains aquifer (Ogallala Aquifer)

on Canadian River stream flows, particularly upstream of Lake Meredith.

The High Plains aquifer in Texas underlies all or portions of 48

counties of the Panhandle region. The aquifer is constricted in the

vicinity of Randall and Potter counties, Texas, and this constriction

is considered a subdivision boundary which divides the Southern High

Plains from the Central High Plains regions (Dugan and Sharpe 1996).

Groundwater in the Southern High Plains region moves in a southeasterly

direction away from the Canadian River, based on the altitude of water

levels within the aquifer (Peckham and Ashworth 1993). This region of

the aquifer appears to have little influence, if any, over observed

stream flows within the Canadian River in Texas.

Upstream of the Hutchinson-Roberts County line, including Lake

Meredith, the Canadian River stream bed is below the elevation of the

High Plains aquifer (John Ashworth, Texas Water Development Board, in

litt. 1995). Induced recharge of the High Plains aquifer by the

Canadian River within this segment, caused by a lowering of the water

table, is not likely to occur. The primary influence of the High Plains

aquifer on stream flow within this reach would be predominantly through

spring flow and similar emissions (e.g., natural discharge) where the

water table intersects the land surface (Peckham and Ashworth 1993,

Brune 1981, Texas State Board of Engineers 1938a, 1938b).

The contribution of the High Plains aquifer to stream flows

downstream of Lake Meredith, and the influence of groundwater pumping

on observed stream flows, is difficult to determine with the existing

information available to the Service. Considering the small amounts of

springflow within this segment, reductions in such flows are not likely

to have had a profound impact on stream flows or habitat for the AR

River shiner. Any impact from a reduction or cessation of springflow is

considerably less significant than the influence of Lake Meredith on

current stream flows. The Service requests questions, comments, or any

new information regarding the High Plains Aquifer. Information

indicates that withdrawals from the High Plains aquifer may have

affected stream flow within the Canadian River in Roberts and Hemphill

counties, Texas, but the data necessary to confirm this assumption or

determine the degree to which stream flows have been affected is

lacking. Comments are sought on this particular issue, including any

information that would clarify the influence of the High Plains aquifer

on stream flows in this stream segment.

3. Susceptibility of Extant Populations to Catastrophic Events

The proposed rule indicated that the Arkansas River basin

population was essentially limited to one river system and was

extremely susceptible to extinction from a single catastrophic event.

In making this determination, the Service essentially discounted the

small aggregations of AR River shiners occurring in the Cimarron River

and considered the artificially isolated aggregations upstream of Lake

Meredith vulnerable to the same singular catastrophic event. Likewise,

the Service considered any AR River shiner aggregations in the Beaver/

North Canadian River to be the result of releases by commercial bait

operators and such aggregations did not represent a naturally

reproducing or self-sustaining population. Upon review of comments

received during the comment periods, the Service has reassessed the

significance of these factors in the status of the species.

Lake Meredith is an effective artificial barrier to movement of

stream fishes and does provide a small degree of protection to AR River

shiner aggregations upstream of Lake Meredith from introductions of

nonnative fishes that might occur downstream of the reservoir.

Essentially two separate events would be required to affect both the

upstream and downstream aggregations. Consequently, the Service

acknowledges that a single catastrophic event, such as establishment of

the non-native Red River shiners, would not necessarily affect existing

aggregations of AR River shiners in the Canadian/South Canadian River

system simultaneously. However, aggregations of AR River shiners

upstream of Lake Meredith are less numerous than those in the remainder

of the Canadian/South Canadian River system and the risk of extinction

for the Arkansas River basin population would increase if Red River

shiners became established downstream of Lake Meredith.

Comments (from one individual) during the public comment period

indicate that AR River shiners may still exist in the Beaver/North

Canadian River near Turpin, Oklahoma. Likewise, AR River shiners may

still occur in the Cimarron River. The Service recognizes that

additional aggregations of AR River shiners may occur outside the

Canadian/South Canadian River system. However, the viability of these

aggregations is unknown and their present contribution to survival of

the Arkansas River basin population is likely to be minimal considering

the small size of these aggregations.

The Service also did not adequately consider the importance of the

Pecos River population to the survival of the Arkansas River basin

population of the AR River shiner. The Pecos River population was

accidentally established with individuals trans-located from the

Arkansas River basin and could be used in conservation efforts

following a severe drought within the Arkansas

[[Page 64339]]

River basin. While the Pecos River population is nonnative and not

currently proposed for protection under the Act, this population

essentially represents a refugia population that could be utilized in

restoration efforts. The Service requests any additional information,

questions, or comments regarding AR River shiner aggregations.

4. Status of Population Above Lake Meredith

Recent (1995-96) data collected by Texas Tech University, supports

the position of the Texas Parks and Wildlife Department (TPWD) for the

aggregations of AR River shiners upstream of Lake Meredith. At the time

of the publication of the proposed rule, AR River shiner aggregations

upstream of Lake Meredith were believed to be declining in abundance.

However, current data may indicate otherwise. While the number of AR

River shiners collected upstream of Lake Meredith has declined since

the 1950's, the relative abundance of the AR River shiner in this

stream segment has remained almost constant. Except for 1990

collections, the relative abundance of AR River shiners within this

stream segment has varied between 22 and 26 percent (Gene Wilde, Texas

Tech University, in litt. 1997). The Service requests information on

the aggregations of AR River shiners between Ute Reservoir and Lake

Meredith.

5. The Memorandum of Understanding (MOU) Between the Service and the

States of Texas and Oklahoma

On March 7, 1997, the Service met with representatives from four of

the five affected State fish and wildlife conservation agencies and the

Bureau to discuss conservation of the Arkansas River basin population

of the AR River shiner. The Kansas Department of Wildlife and Parks was

unable to send a representative to this meeting. The invited parties

included those agencies with the responsibility, authority, and funding

mechanisms to implement conservation actions for the AR River shiner.

Following this meeting, the Service and the states of Texas and

Oklahoma cooperated in drafting a MOU outlining actions the agencies

should undertake to conserve the species. The purpose of the draft MOU

is twofold--(1) to establish a general framework for cooperation among

the signatory parties to conserve the Arkansas River basin population

of the AR River shiner, and (2) to seek commitments from the signatory

states that will provide conservation benefits to the shiner, thereby

lessening the likelihood of extinction.

The TPWD and the Oklahoma Department of Wildlife (ODWC) will

accomplish the following actions under the MOU, to the extent that

funding and authorities allow:

(A) Work in partnership with the Service and other State fish and

wildlife resource agencies to develop and implement a detailed

conservation strategy to address known and possible future threats to

the AR River shiner, and recovery opportunities; implementation of the

conservation strategy will be initiated within 18 months from the

effective date of this MOU.

(B) Work in partnership with the Service to coordinate with other

applicable State agencies and other stakeholders to develop adequate

actions that eliminate or reduce threats to the AR River shiner and

identify recovery actions for inclusion in the conservation strategy.

(C) Work in partnership with the Service to develop and implement a

systematic program to annually monitor the distribution and abundance

of the AR River shiner and other nongame fishes within the Arkansas

River Basin within each State (the McClellan-Kerr Arkansas River

Navigation System is exempt).

Likewise, the Service agreed to accomplish the following actions

under the MOU, to the extent that funding and authorities allow:

(A) Work in partnership with the ODWC, TPWD and other State fish

and wildlife resource agencies in the development of a conservation

strategy that involves appropriate stakeholders, including applicable

Federal and State agencies, that identifies appropriate measures needed

to eliminate or reduce threats to the AR River shiner and initiate

recovery actions. The Service will coordinate the first meeting with

future coordination responsibilities determined by consensus.

(B) Seek to increase Endangered Species Act section 6 funds and

assist in obtaining funds from other sources for states within the

geographic range of the AR River shiner to assist in the conservation

of this species as outlined in this MOU, the conservation strategy, and

the recovery plan.

(C) If the species is listed as threatened, work cooperatively with

the State fish and wildlife resource agencies in promulgating a 4(d)

rule under the Act that encompasses the conservation strategy and other

management/recovery actions developed by the Service in partnership

with the State fish and wildlife resource agencies.

(D) Initiate delisting activities for the AR River shiner when

protection under the Act is no longer warranted and the Service and

State fish and wildlife resource agencies fulfill the obligations

stipulated in the 4(d) rule, the conservation strategy, and recovery

plan.

The draft MOU also contains an appendix specific to Texas that

reflects the unique nature of the threats and recovery opportunities

available in that State and will serve to guide development of the

conservation strategy for the AR River shiner. The Texas appendix

contains these principles--

(A) Conservation strategies will not restrict or regulate

groundwater use of the High Plains Aquifer (formerly the Ogallala

Aquifer) in Texas since, based on current knowledge, there is no

hydrologic connection between groundwater resources of this aquifer and

surface flows in the Canadian River in Texas. Conservation of the

aquifer's water resources, however, is encouraged.

(B) Conservation strategies will not require releases of water from

Lake Meredith, except as might be voluntarily agreed to by controlling

authorities in contributing to the conservation and recovery of the

species and its habitat.

(C) Existing (i.e., traditional, in the sense that they are

ongoing) agricultural and land management activities as currently

practiced adjacent to occupied AR River shiner habitat in Texas will

not be adversely affected as part of developing and implementing

conservation strategies, unless--(1) those practices are modified to

adversely affect the species or its habitat, existing stream flow, or

degradation of water quality; or (2) changes in those practices would

benefit the species or its habitat, and are mutually agreed to by the

landowner(s), TPWD, and the Service.

The draft MOU will become effective upon signature of all parties,

and will remain in force until modified or terminated. The MOU may be

modified at any time during the period of performance by mutual consent

of the signatory parties. If changes to an appendix are warranted, the

respective State and the Service may make such changes. If a proposed

change to an appendix would affect other signatory states, then all

signatory parties must consent to the change. This MOU, as drafted, may

be terminated at any time during the period of performance, upon 30

days written notice, by any of the signatory parties.

The TPWD and the ODWC signed the draft MOU in early May. The State

of Kansas declined to enter into the MOU due to staff and fiscal

constraints (Steve

[[Page 64340]]

Williams, Secretary, Kansas Department of Wildlife and Parks, in litt.

1997).

Likewise, the State of New Mexico declined to enter into the MOU

due to staff and fiscal constraints (Jerry A. Maracchini, Director, New

Mexico Department of Game and Fish, in litt. 1997).

Public Comments Solicited

The Service solicits written comments on information described in

this notice. All previous comments and information submitted in

response to earlier comment periods on this proposed action will be

considered. Communications received during this comment period may lead

to a final regulation that differs from that presented in this notice.

References Cited

Brune, G. 1981. Springs of Texas volume I. Branch-Smith, Inc. Fort

Worth, TX

Dugan, J.T. and J.B. Sharpe. 1996. Water-level changes in the High

Plains aquifer predevelopment to 1994. Water-Resources

Investigations Report 95-4208. U.S. Geological Survey. Lincoln, NE.

Peckham, D.S. and J.B. Ashworth. 1993. The High Plains aquifer

system of Texas, 1980 to 1990 overview and projections. Texas Water

Development Board. Austin, TX 34 pp.

Texas State Board of Water Engineers. 1938a. Oldham County, Texas

records of wells and springs, driller's logs, water analysis and map

showing location of wells and springs. WPA Project 6017-5674. State

Board of Water Engineers, U.S. Geological Survey, and Univ. Texas

Bureau of Industrial Chemistry. Austin, TX. 50 pp.

Texas State Board of Water Engineers. 1938b. Potter County, Texas

records of wells, springs, and representative earthen tanks,

driller's logs, water analysis and map showing location of wells.

WPA Ground-water Survey Project 5674. State Board of Water

Engineers, Univ. Texas Bureau of Industrial Chemistry, and U.S.

Geological Survey. Austin, TX. 52 pp.

U.S. Bureau of Reclamation. 1995. Final supplemental environmental

assessment Lake Meredith Salinity Control Project Texas-New Mexico.

Great Plains Region, Oklahoma-Texas Area Office. Oklahoma City, OK

57 pp.

Author

The primary author of this notice is Ken Collins, U.S. Fish and

Wildlife Service (see ADDRESSES above).

Authority

The authority for this action is 16 U.S.C. 1531-1544.

Dated: November 24, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97-31840 Filed 12-4-97; 8:45 am]

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