# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-31840

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 5, 1997
- **Citation:** 62 FR 64337

## Text

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]
BILLING CODE 4310-55-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-31840. Public record. Not legal advice.