Endangered and Threatened Wildlife and Plants; Final Rule to List the Arkansas River Basin Population of the Arkansas River Shiner (Notropis girardi) as Threatened

SUMMARY: We, the U.S. Fish and Wildlife Service, determine the Arkansas

River basin population of the Arkansas River shiner (ARS) (Notropis

girardi) to be a threatened species under the authority of the

Endangered Species Act of 1973, as amended (Act).

The ARS is a small fish found in the Canadian River in New Mexico,

Oklahoma, and Texas and the Cimarron River in Kansas and Oklahoma, both

rivers in the Arkansas River basin. A non-native, introduced population

occurs in the Pecos River in New Mexico; however, we did not propose

listing of this population and are not including it in this final rule.

The Arkansas River basin population is threatened by habitat

destruction and modification from stream dewatering or depletion due to

diversion of surface water and groundwater pumping, construction of

impoundments, and water quality degradation. Competition with the non-

indigenous Red River shiner (Notropis bairdi) contributed to diminished

distribution and abundance in the Cimarron River. Incidental capture of

the ARS during pursuit of commercial bait fish species may also

contribute to reduced population sizes. Drought and other natural

factors also threaten the existence of the ARS.

We originally proposed to list the ARS as endangered. However,

since publication of the proposed rule for this species, we decided to

list this species as threatened due to lesser immediacy and magnitude

of threats to its existence. New information received during the public

comment period revealed that modifications to the Lake Meredith

Salinity Control Project resulted in streamflow reductions that were

less severe than originally projected in 1994. In addition, new

information shows that the influence of the High Plains Aquifer on

streamflows in the Canadian River upstream of Lake Meredith are less

than originally believed and that the aggregations of Arkansas River

shiners in the reach between Ute Reservoir and Lake Meredith are stable

and not declining, as presented in the proposed rule. This action will

implement Federal protection provided by the Act for the ARS. We have

determined that designation of critical habitat for the ARS is not

prudent.

EFFECTIVE DATE: December 23, 1998.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Oklahoma Ecological

Services Field Office, 222 South Houston, Suite A, Tulsa, Oklahoma

74127-8909.

FOR FURTHER INFORMATION CONTACT: Ken Collins at the above address,

telephone 918/581-7458, or facsimile 918/581-7467).

SUPPLEMENTARY INFORMATION:

Background

A. I. Ortenburger discovered the Arkansas River shiner (ARS) in

1926 in the Cimarron River northwest of Kenton, Cimarron County,

Oklahoma (Hubbs and Ortenburger 1929). The ARS is a small, robust

shiner with a small, dorsally flattened head, rounded snout, and small

subterminal mouth (Miller and Robison 1973, Robison and Buchanan 1988).

Adults attain a maximum length of 51 millimeters (mm) (2 inches (in)).

Dorsal, anal, and pelvic fins all have eight rays, and there is usually

a small, black chevron present at the base of the caudal fin. Dorsal

coloration tends to be light tan, with silvery sides gradually grading

to white on the belly.

The ARS historically inhabited the main channels of wide, shallow,

sandy-bottomed rivers and larger streams of the Arkansas River basin

(Gilbert 1980). Adults are uncommon in quiet pools or backwaters, and

almost never occur in tributaries having deep water and bottoms of mud

or stone (Cross 1967). Specifically, Polivka and Matthews (1997) found

that the ARS in the South Canadian River of central Oklahoma, like most

fishes occurring in the highly variable environments of plains streams,

used a broad range of microhabitat features. They also found only a

weak relationship between selected environmental variables and

occurrence of the species within the stream channel. Water depth, sand

ridge and midchannel habitats, dissolved oxygen, and current were the

environmental variables most strongly associated with the distribution

of ARS within the channel. Juvenile ARS associated most strongly with

current, conductivity (total dissolved solids), and backwater and

island habitat types (Polivka and Matthews 1997).

Cross (1967) believed that adults preferred to orient into the

current on the ``lee'' sides of transverse sand ridges and feed upon

organisms washed downstream. Researchers have only recently described

the feeding preferences and diets of the ARS. In studies on the South

Canadian River near Norman, Oklahoma, Polivka and Matthews (1997) found

that gut contents were dominated by sand/sediment and detritus (organic

matter). Invertebrate prey were only an incidental component of the

diet. Polivka and Matthews (1997) concluded that the ARS is a

generalist feeder in which no particular invertebrate dominated the

diet. In the Canadian River of Texas, the diet of ARS was dominated by

detritus, aquatic invertebrates, and sand and silt (Bonner et al.

1997). With the exception of the winter season when larval flies were

consumed much more frequently than other aquatic invertebrates, no

particular invertebrate taxa dominated the diet. This led Bonner et al.

(1997) to similarly conclude that the ARS is a generalized forager,

feeding on both items suspended in the water column and items lying on

the substrate. In the Pecos River, fly larvae, copepods, immature

mayflies, insect eggs, and seeds were the dominant items in the diet of

ARS (Keith Gido, University of Oklahoma, in litt. 1997).

The ARS spawns in July, usually coinciding with flood flows

following heavy rains (Moore 1944). However, recent studies by Polivka

and Matthews (1997) and Texas Tech University (Gene Wilde, Assistant

Professor, pers. comm. 1998) neither confirmed nor rejected the

hypothesis that ARS spawn during rises in the river stage. The ARS

appears to be in peak reproductive condition throughout the months of

May, June and July (Polivka and Matthews 1997) and may actually spawn

several times during this period (Gene Wilde, pers. comm. 1998).

Arkansas River shiner eggs are non-adhesive and drift with the swift

current during high flows.

The mean number of mature ova for ARS in Texas varied between 120.8

and 274.4, with some large females containing over 400 (Bonner et al.

1997). Hatching occurs within 24-48 hours after spawning. The larvae

are capable of swimming within 3-4 days; they then seek out backwater

pools and quiet water at the mouth of tributaries where food is more

abundant (Moore 1944). Both Moore (1944) and Cross (1967) inferred that

this species will not spawn unless conditions are favorable to the

survival of the larvae.

[[Page 64773]]

Maximum longevity is unknown, but Moore (1944) speculated that the

species' life span is likely less than 3 years in the wild. The age

structure of ARS collected from the Pecos River in New Mexico included

three, and possibly four, age classes (Bestgen et al. 1989). The

majority of the fish captured were juveniles (Age-0) and first-time

spawners (Age-I). Most of the fish in spawning condition were Age-I.

Bestgen et al. (1989) thought mortality of post-spawning fish was

extremely high based on the absence of Age-I and older fish from

collections made after the spawning period (late July and August).

Historically, the ARS was widespread and abundant throughout the

western portion of the Arkansas River basin in Kansas, New Mexico,

Oklahoma, and Texas. In New Mexico, surveys and collection records

establish that the ARS historically inhabited the Canadian River from

the Texas-New Mexico State line as far upstream as the Sabinoso area in

central San Miguel County, New Mexico (Sublette et al. 1990), a

distance of over 193 river-kilometers (river-km) (120 river-miles

(river-mi)). The ARS also occurred in Ute and Revuelto creeks and the

Conchas River.

In Texas, the Arkansas River shiner occurred throughout the

Canadian River from State line to State line, a distance of about 370

river-km (230 river-mi). The first reported captures of ARS from Texas

were in 1954 (Cross et al. 1955, Lewis and Dalquest 1955). The species

was captured at several sites extending from near the Texas-New Mexico

State line at the Matador Ranch in Oldham County downstream to the

Texas-Oklahoma State line (Lewis and Dalquest 1955).

Arkansas River shiners (9 specimens) were first reported from

Kansas in 1926 from near Kinsley (Hubbs and Ortenburger 1929), although

fish collection records from as early as 1884 exist. More extensive

collections from the mainstem Arkansas River first occurred in 1952 at

Holcomb in Finney County, Great Bend in Barton County, and Wichita in

Sedgwick County (Cross et al. 1985). Arkansas River shiners were

present but scarce at all 3 sites--41 specimens at Holcomb, 11

specimens at Great Bend, and 4 specimens at Wichita. Cross et al.

(1985) believed ARS inhabited the full length of the Arkansas River

mainstem in Kansas at that time, a distance of over 640 river-km (400

river-mi); although the species was already suspected to be in decline.

In the Cimarron River basin of Kansas, ARS were first reported from

Crooked Creek, Meade County in 1941. Earliest records from the mainstem

Cimarron were from 1955 near Ulysses, Grant County, and in 1956 from

near Kismet, Seward County (William H. Busby, Kansas Biological Survey,

University of Kansas, in litt. 1990). In all, ARS specimens exist from

17 counties and eight rivers or streams, including several tributaries

of the Arkansas and Cimarron rivers (Larson et al. 1991, Cross et al.

1985, William H. Busby, in litt. 1990).

Records of occurrence for the ARS are most extensive from Oklahoma

where the majority of the historical range occurs. Collections from as

early as 1926 exist for 43 counties (Luttrell et al. 1993, Larson et

al. 1991, Pigg 1991, Hubbs and Ortenburger 1929). Records exist for the

major rivers in the Arkansas River basin and many of the smaller

tributaries. A record (one individual) also exists for the Red River

basin in Oklahoma (Cross 1970), possibly originating from a release of

bait fish by anglers. Historically, the ARS inhabited over 2,700 km

(1,700 mi) of habitat in the larger rivers (e.g., Arkansas, Cimarron,

North Canadian, and Canadian rivers) plus an unknown amount in the

smaller tributaries.

Records from Arkansas are scarce. There is one record of several

specimens from the Arkansas River at the mouth of Piney Creek in Logan

County, Arkansas (Black 1940, as cited in Robison and Buchanan 1988).

The ARS is presumed to have been extirpated from (become extinct in)

Arkansas.

Researchers conducted comprehensive surveys for the ARS at 155

localities within the Arkansas River basin from 1989 to 1991 (Larson et

al. 1991). They collected fish at 128 of 155 localities; the remaining

27 sites were dry. The researchers captured 1,455 ARS from 23

localities--14 in Oklahoma, 5 in Texas, and 4 in New Mexico. No ARS

were captured in Kansas. These data, plus related surveys from 1976 to

1997 (Kevin R. Bestgen, Larval Fish Laboratory, Colorado State

University, in litt. 1998; Polivka and Matthews 1997; Bonner et al.

1997; Eric Berg, Wildlife Biologist, L.W. Reed Consultants, Inc., in

litt. 1995; Luttrell et al. 1993; Eric Altena, Fisheries Biologist,

Texas Parks and Wildlife Department (TPWD), in litt. 1993; Pigg 1991;

and Eugene Hinds, Regional Director, Bureau of Reclamation (Bureau), in

litt. 1984), confirm that the ARS has disappeared from over 80 percent

of its historical range within the last 35 years.

The ARS is now almost entirely restricted to about 820 km (508 mi)

of the Canadian River in Oklahoma, Texas, and New Mexico. An extremely

small population may still persist in the Cimarron River in Oklahoma

and Kansas, based on the collection of only nine individuals since

1985. A non-native population of the ARS has become established in the

Pecos River of New Mexico within the last 20 years (Bestgen et al.

1989). The decline of this species throughout its historical range may

primarily be attributed to inundation and modification of stream

discharge by impoundments, channel desiccation (drying out) by water

diversion and excessive groundwater pumping, stream channelization, and

introduction of non-native species.

The ARS began to decline in the Arkansas River in western Kansas

prior to 1950 due to increasing water diversions for irrigation and

completion of John Martin Reservoir in 1942 (Cross et al. 1985). The

Arkansas River between Coolidge to near Great Bend, Kansas, is

frequently dewatered (Cross et al. 1985). Habitat alteration following

construction of Kaw and Keystone reservoirs on the Arkansas River in

Oklahoma, in conjunction with completion of the McClellan-Kerr

Navigation System in 1970, greatly reduced ARS habitat in Oklahoma and

Arkansas. The ARS is no longer believed to occur in the Arkansas River

in Arkansas, Kansas, and Oklahoma, a loss of over 1,240 km (770 mi) of

previously occupied habitat.

The ARS was once common throughout the Cimarron River and its

tributaries (Pigg 1991). The abundance of the ARS in the Cimarron River

declined markedly after 1964 (Felley and Cothran 1981). The Red River

shiner, a small minnow endemic to the Red River, was first recorded

from the Cimarron River in Kansas in 1972 (Cross et al. 1985) and from

the Cimarron in Oklahoma in 1976 (Marshall 1978). Cross et al. (1985)

believed the Red River shiner was first introduced into the Cimarron

River sometime between 1964 and 1972. Since that time, the Red River

shiner has essentially replaced the ARS. Habitat alteration and

resulting flow modification also have contributed to the decline of the

species from the Cimarron River. A small, remnant population may still

persist in the Cimarron River.

The ARS was first reported from the North Canadian River drainage

in 1926 (Hubbs and Ortenburger 1929). Collections between 1947 and 1976

indicated that the ARS occurred in large numbers in the river and some

larger tributaries despite the construction of Optima and Canton

reservoirs (Pigg 1991). This fish was still sporadically collected from

the North Canadian River until 1987. Several collection attempts at 15

localities over the next 2 years failed to result in the capture of any

[[Page 64774]]

ARS (Pigg 1991). In 1990, four specimens were collected from the river

south of Turpin, Beaver County, Oklahoma (Larson et al. 1991; Jimmie

Pigg, Oklahoma Department of Environmental Quality, pers. comm., 1993).

Commercial bait dealers were observed flushing their holding tanks in

the vicinity of the site where the ARS specimens were captured and may

have been responsible for the unintentional release of this species

back into the North Canadian River. The species has not been captured

from the North Canadian River since 1990 (J. Pigg, pers. comm., 1997),

indicating a probable loss of over 1,046 km (650 mi) of previously

occupied habitat.

Historically, the species occurred in the Canadian River from its

confluence with the Arkansas River near Sallisaw, Sequoyah County,

Oklahoma as far upstream as the Sabinoso area in central San Miguel

County, New Mexico (Pigg 1991, Sublette et al. 1990). Construction and

operation of Ute and Conchas reservoirs in New Mexico, Lake Meredith in

Texas, and Eufaula Reservoir in Oklahoma altered or eliminated sections

of riverine habitat and diminished the range of ARS within the Canadian

River. Eufaula Reservoir isolated Canadian River populations from the

Arkansas River and, in combination with Lake Meredith and Ute

Reservoir, confined ARS to two restricted segments of the Canadian

River--a 218-km (135-mi) section from Ute Dam to the upper reaches of

Lake Meredith; and 601 river-km (373 river-mi) downstream of Lake

Meredith (near Canadian, Texas) to the upper reaches of Eufaula

Reservoir in Oklahoma. The reservoirs function as barriers,

significantly inhibiting dispersal and interchange between the two

segments.

Consideration as a ``Species'' Under the Act

Section 3(15) of the Act defines ``species'' to include ``any

subspecies of fish or wildlife or plants, and any distinct population

segment of any species of vertebrate fish or wildlife . . .'' On

February 7, 1996, the Fish and Wildlife Service and the National Marine

Fisheries Service published a joint policy (DPS policy) (61 FR 4722) to

clarify our interpretation of the phrase ``distinct population segment

of any species of vertebrate fish or wildlife'' for the purposes of

listing, delisting, and reclassifying species under the Act. The policy

identifies the following three elements to be considered in deciding

whether to list a possible DPS as endangered or threatened under the

Act: The discreteness of the population segment in relation to the

remainder of the species or subspecies to which it belongs; the

significance of the population segment to the species or subspecies to

which it belongs; and the conservation status of the population segment

in relation to the Act's standards for listing.

Discreteness of the Population Segment: According to our DPS

policy, a population segment may be considered discrete if it satisfies

either one of the following conditions: it is markedly separated from

other populations of the same taxon as a consequence of physical,

physiological, ecological, or behavioral factors; or it is delimited by

international governmental boundaries across which there is a

significant difference in control of exploitation, management of

habitat, or conservation status. The Arkansas River basin population is

discrete based on natural, geographic isolation from the non-native,

introduced population in the Pecos River.

Significance of the Population Segment: Our DPS policy states that

the consideration of the significance of the population segment to the

taxon to which it belongs may include, but is not limited to, the

following: persistence of the discrete population in an ecological

setting unusual or unique for the taxon; evidence that the loss of the

discrete population segment would result in a significant gap in the

range of a taxon; evidence that the discrete population segment

represents the only surviving natural occurrence of a taxon that may be

more abundant elsewhere; or evidence that the discrete population

segment differs markedly from other populations of the species in its

genetic characteristics. The Arkansas River basin population is

significant because it represents the only surviving natural occurrence

of the taxon.

Because it is both discrete and significant, the Arkansas River

basin population of the ARS qualifies as a distinct population segment

under the Act. Although it is discrete, the Pecos River population of

the ARS is not significant because it is an introduced population

located outside of the species' historic range and, at this time, is

not essential for recovery of the species within its historic range.

Therefore, the Arkansas River basin population of the ARS is a listable

entity under the Act, and the non-native, introduced Pecos River

population is not a listable entity under the Act.

Furthermore, protection of the non-native Pecos River population of

the ARS would conflict with the preservation of the Pecos bluntnose

shiner (Notropis simus pecosensis) and possibly the Rio Grande silvery

minnow (Hybognathus amarus). Management of native Pecos River fishes

will focus on the preservation and restoration of habitat conditions

favored by these species. Restoration of historic flow conditions in

the Pecos River and control of competitive, non-indigenous fishes,

including the ARS, may be necessary in recovery efforts for the Pecos

bluntnose shiner. While the non-native, introduced Pecos River

population of the ARS could be important in efforts to supplement

native populations of the ARS within the species' historical range,

protection of the Pecos River population would not improve the status

of the ARS within the species' historical range.

Previous Federal Action

We included the ARS in our September 18, 1985, Review of Vertebrate

Wildlife (50 FR 37958) as a category 2 candidate for listing. At that

time, category 2 comprised 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 proposed rules. Our

January 6, 1989, revised Animal Notice of Review (54 FR 554) retained

this status for the ARS.

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 ARS as a category 1 candidate. At

that time, category 1 comprised taxa for which we had substantial

information on biological vulnerability and threats to support

proposals to list the taxa as endangered or threatened.

In the August 3, 1994, Federal Register, we published a proposed

rule to list the Arkansas River basin population of the ARS as

endangered and invited public comment (59 FR 39532). We based the

proposal primarily on status information from reports to the Oklahoma

Department of Wildlife Conservation (ODWC). We also used collections

and observations made by Dr. Frank Cross, Mr. Jimmie Pigg, the TPWD,

and the Bureau and our own collections and observations in preparing

the proposed rule.

[[Page 64775]]

The enactment of Public Law 104-6 in April, 1995, and subsequent

series of continuing resolutions from October 1, 1995, through April

26, 1996, established a moratorium on issuing final listings or

critical habitat designations. During that time, we were prohibited

from making final determinations on listing proposals. Following this

delay, we reopened the comment period on the proposal to list the ARS

on December 5, 1997 (62 FR 64337), to solicit any new relevant data and

to allow the public to review and comment on data we had obtained since

publication of the proposed rule.

Since publication of the proposed rule for the ARS, we have

determined that the Arkansas River basin population of the Arkansas

River shiner, which we proposed to list as endangered, should be listed

as threatened due to a lesser immediacy and magnitude of threats to its

existence. New information received during the comment period revealed

that modifications to the Lake Meredith Salinity Control Project

resulted in streamflow reductions that were less severe than originally

projected in 1994. Also, the influence of the High Plains Aquifer on

streamflows in the Canadian River upstream of Lake Meredith is less

than originally believed. In addition, we discovered that the

aggregations of ARS in the reach between Ute Reservoir and Lake

Meredith are stable and not declining, as presented in the proposed

rule. The most recent information on the status of the ARS is discussed

in the ``Summary of Factors Affecting the Species'' section.

The processing of this final rule conforms with our listing

priority guidance published in the Federal Register on May 8, 1998 (63

FR 25503). This guidance further clarifies the order in which we will

process the remaining backlog of rulemakings resulting from the 1995-

1996 moratorium. The guidance calls for giving highest priority to

handling emergency situations (Tier 1) and second highest priority to

resolving the listing status of outstanding proposed listings,

resolving the conservation status of candidate species, processing

petitions, and delisting or reclassifications (Tier 2). The guidance

assigns the lowest priority (Tier 3) to processing of proposed or final

designations of critical habitat. Processing of this final rule is a

Tier 2 action.

Summary of Comments and Recommendations

In the August 3, 1994, proposed rule (59 FR 39532), associated

notifications, and in subsequent notices to extend or reopen the public

comment period, we requested all interested parties to submit factual

reports or information that might contribute to the development of a

final rule. The original public comment period closed on October 3,

1994, but we reopened it from January 6, 1995, to February 3, 1995 (60

FR 2070) to accommodate three public hearings. We reopened the comment

period a second time from December 5, 1997 to January 5, 1998 (62 FR

64337). We contacted numerous Federal and state agencies, county

governments, municipalities, scientific organizations, knowledgeable

individuals, and other interested parties and requested them to comment

during the comment periods. We published newspaper notices during all

comment periods in the Dodge City Globe (KS), the Hutchinson News

Herald (KS), the Quay County Sun (Tucumcari, NM), the Daily Oklahoman

(Oklahoma City, OK), the Tulsa World (OK), Woodward News (OK), and the

Amarillo Globe (TX), inviting general public comment and attendance at

public hearings. In addition, we published a notice in the Lubbock

Avalanche-Journal (TX) announcing the reopening of the comment period

on December 5, 1997.

We received 114 requests for public hearings--46 from interested

parties in Kansas, 40 from Oklahoma, and 28 from Texas. We received 16

other requests for public hearings after the 45-day period for

requesting hearings had expired. We held public hearings on January 23,

1995, in Meade, Kansas; January 24, 1995, in Woodward, Oklahoma; and

January 25, 1995, in Amarillo, Texas.

In Meade, 154 people attended and 25 commented; in Woodward at

least 45 attended and 29 commented; and in Amarillo 381 attended and 27

commented. Thirty-seven individuals at the Amarillo hearing did not

have an opportunity to make oral comments because of time limitations.

However, many of these individuals did submit written comments at the

conclusion of the hearing. In addition, the High Plains Underground

Water Conservation District Number One sponsored a public meeting in

which an unknown number of individuals attended. The District provided

a video tape and transcript of this meeting containing the comments of

25 individuals.

We received a total of 734 comments (letters and oral testimony)

from Federal (12) and State (45) agencies/elected officials, local

governments (62), and private organizations, companies, and individuals

(615) during the comment periods. The total number of entities

providing comments was 671, with several individuals submitting more

than one comment. We also received three letters containing numerous

signatures opposing listing of the ARS.

We address written and oral comments received during the comment

periods in the following summary. Comments from all respondents,

including the invited peer reviewers, are combined. These comments

addressed a diversity of economic, social, and political issues.

Because multiple respondents offered similar comments in some cases,

comments of a similar nature are grouped. Most comments opposed listing

or favored delaying the listing. Of those actually stating a position,

380 specifically opposed listing and 8 supported listing. The

remainder, while not specifically stating a position on the rule, often

expressed concerns over what impact the listing would have on various

activities. Some comments were non-substantive or dealt with matters of

opinion or legal history, which are not relevant to the listing

decision. The substantive comments and our responses, grouped by issue

category, are as follows:

Issue 1: Procedural Concerns

Comment: Thirty commenters noted that the Act expired in 1992 and

has not yet been reauthorized, leaving us without authority from

Congress to implement it. These commenters believed that, therefore, we

should either postpone listing or take no action until the Act has been

reauthorized.

Service Response: The Act remains in place unless unfunded in the

annual Congressional appropriations process. With the exception of the

recision of listing funds described earlier, Congress has continued to

fund the Act. We prepared this final rule using funds specifically

appropriated by Congress for conducting the Act's listing activities.

Comment: Seven commenters believed that we fail to use common sense

in implementing the Act, relying on regulation instead of innovation,

leaving landowners with no incentive to protect listed species and

their habitat.

Service Response: By Federal Register notice on July 1, 1994 (59 FR

34272), 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. Therefore, we will

work closely with stakeholders throughout the Arkansas River basin to

accommodate economic and recreational activities to the extent possible

while ensuring the continued survival and recovery of the ARS.

Comment: One commenter stated that we do not have the authority to

list the ARS in only a portion of the species'

[[Page 64776]]

known range. Another individual stated that if we can exclude listing

of the Pecos River population, we could exclude listing of the ARS

population upstream of Lake Meredith.

Service Response: As described previously, our policy published in

the Federal Register on February 7, 1996 (61 FR 4721), established that

to qualify as a distinct population segment, the population must be

both discrete in relation to the remainder of the species to which it

belongs, and significant to the species to which it belongs. In the

case of the ARS, the Arkansas River basin population is clearly

separate from the Pecos River population and represents the only

surviving natural occurrence of the species. Thus the Arkansas River

basin population segment is both discrete and significant.

With respect to the Canadian River segment upstream of Lake

Meredith, we do not believe it would be prudent to consider these

aggregations of ARS as a distinct population segment. Although Lake

Meredith is a human-made barrier to dispersal, the ARS aggregations

upstream of Lake Meredith are not markedly separated from those in the

remainder of the Arkansas River basin.

Comment: Eighteen commenters requested a longer comment period or

stated that we did not give adequate time for public comment. Five

commenters thought we were unwilling to disclose pertinent information

or denied access to materials which the rule was based on. One

commenter requested that all data, information, and results of

investigations, including information on occurrence of Red River

shiners in the Canadian River, be available for review by interested

parties. Another felt we provided ``Fact Sheets'' only to select

individuals.

Service Response: Regulations at 50 CFR 424.16(c)(2) require us to

allow a minimum of 60 days for public comment on proposed rules. The

first comment period on the ARS proposed rule was open for 60 days. We

also provided two additional comment periods, encompassing a total of

59 days. We believe that the comment periods provided were adequate and

fulfilled the requirements of the Act.

The proposed rule contained a complete summary of the information

available to us regarding the status of the ARS and sources of that

information. The cited material was available to the pubic through a

variety of sources. We have incorporated new information on the

occurrence of the Red River shiner in the Arkansas River basin into

this rule and the administrative record. All documents, records, and

correspondence relating to this listing, including data, survey

results, analyses, supporting information, and public comments, are

included in the administrative record and are 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).

In several instances, we provided copies of referenced material,

including information on Red River shiners, in response to requests

from the public. Also, in accordance with the Act and its implementing

regulations, the Administrative Procedure Act, and the Freedom of

Information Act (5 U.S.C. Sec. 552), we provided copies of documents to

members of the public who requested such information.

We prepared Fact Sheets and distributed them to the public in

conjunction with notification letters for the public hearings. We also

distributed copies of the Fact Sheets to the public at the three public

hearings. Any individual who was not on our mailing list at the time of

the hearings or did not attend the public hearings did not receive

copies of the Fact Sheets. We would have provided this material to

anyone requesting it; however, we have no record of any specific

requests for the Fact Sheets following conclusion of the public hearing

process.

Comment: Three commenters felt that we had already reached a

decision prior to receiving public comment and did not value public

participation in the decision-making process. Ten commenters stated

that we had not adequately notified the public regarding the hearings

or the proposed rule. Commenters specifically stated that we did not

contact the TPWD, Texas State elected officials, and affected municipal

governments and that newspaper notices were inadequate.

Service Response: We reviewed and evaluated all written and oral

comments, as recorded in the public hearing transcripts, before making

a final determination on the proposed rule. We have addressed all

substantive comments in this section. Based on the comments we

received, we revised the status of the shiner and incorporated new

information into this final rule.

We conducted an extensive notification process to make the public

aware of the proposal. In addition to newspaper and Federal Register

notices (see discussion at beginning of this section), we mailed 153

separate notifications of the proposed rule to Federal, State, county

and city governments, species experts, and other individuals to solicit

their input. Subsequently, we mailed 355 separate notifications of the

public hearing to species experts, other interested individuals, and

Federal, State, county and city government entities. We directly

notified all interested parties known to us. We continually updated the

mailing list to include all parties who had expressed interest in the

rulemaking or had requested to be added to the mailing list. Our

mailing list currently contains 1,153 separate entities. We believe our

notification process fully satisfied the requirements of the Act.

We first contacted the TPWD concerning the status of the ARS by

letter dated May 7, 1993. We sent copies of this letter to Andrew

Sansom, the Executive Director; Larry McKinney, then Director of the

Resource Protection Division, and David Diamond, Coordinator of the

Natural Heritage Program. We received a response from David Bowles,

Endangered Species Biologist with TPWD. We also contacted the Federal

Congressional delegation and the commissioners and judges within the

counties encompassing the ARS historic range during the notification

process. Subsequent to this initial mailing, we received over 200

requests for additions to the mailing list. Included in these additions

were Texas Senator Teel Bivins, Texas Representatives Warren Chisum and

David Counts, and the cities of Brownfield, Canadian, Hereford,

Plainview, and Slaton, Texas.

Comment: Some respondents were disappointed with the quality of the

hearings, and thought we deliberately misled the public. Others

believed the hearings were inadequate to obtain full public input on

the proposal or that we had deliberately tried to limit the number of

individuals who were allowed to comment.

Service Response: We are obligated to hold at least one public

hearing on a listing proposal if requested to do so within 45 days of

publication of the proposal (16 U.S.C. 1533(b)(5)(E)). Considering the

number of requests received and the geographic distribution of the

species, we decided that holding a single public hearing in each State,

excluding New Mexico, would be adequate and would not cause undue

inconvenience to those wishing to attend. We selected the locations and

times of the public hearings to be convenient to most citizens living

within the affected area. We reviewed and considered all oral comments

presented at the public hearings. In one instance, we had to limit oral

comments; however, all persons were allowed to submit written comments,

[[Page 64777]]

which receive equal consideration to oral comments.

Comment: Two respondents wanted to know if information in the

proposed rule had been peer reviewed.

Service Response: The information used in determining to propose

listing the ARS has been peer reviewed (see ``Peer Review'' section).

Comment: One commenter stated that we must prepare an Environmental

Impact Statement (EIS), pursuant to the National Environmental Policy

Act (NEPA), on this rule.

Service Response: For the reasons set out in the NEPA section of

this document, we have determined that the rules issued pursuant to

section 4(a) of the Act do not require the preparation of an EIS. The

Federal courts have held in Pacific Legal Foundation v. Andrus, 657

F2d. 829 (6th Circuit 1981) that an EIS is not required for listing

under the Act. The Sixth Circuit decision noted that preparing an EIS

on listing actions does not further the goals of NEPA or the Act.

Comment: One respondent believed we were being pressured to list

the ARS in response to pending litigation.

Service Response: We classified the ARS as a category 1 candidate

species independent of any litigation, meaning that we had substantial

information on biological vulnerability and threats to support a

proposal to list the taxon as endangered or threatened. Our decision to

propose the ARS for listing was based on the mandates of the Act and

not any ``pressures'' from litigants.

Issue 2: Recovery Planning and Implementation

Comment: Many comments were received regarding our recovery

planning process. Twenty-four commenters felt that we should not list

the species because recovery of the species is too costly and recovery

is not guaranteed by listing or through the recovery process or that we

should provide details, costs, and recovery goals of the recovery

program before proceeding with the listing. Seventeen commenters

requested that we involve stakeholders in meetings and in the

development of recovery actions. Sixty-six respondents suggested

potential recovery actions or focus areas for recovery, or expressed

concern regarding implementation of unfavorable recovery actions.

Service Response: Regulations at 50 CFR 424.11(b) require the

Secretary of the Interior to make listing decisions based on ``the best

available scientific and commercial information regarding a species'

status, without reference to possible economic or other impacts of such

determination.'' Neither the Act nor implementing regulations allows us

to consider the recovery potential or recovery cost for a species in

determining whether a species should be listed.

We solicit active participation by the scientific community, local,

State, and Federal agencies, Tribal governments, and other interested

parties in the development and implementation of recovery plans (59 FR

34270). We agree that local community support and the cooperation of

private landowners is essential to fully protect and recover listed

species, and we will work closely with stakeholders in the management

and recovery of the ARS to ensure that the concerns of local

governments, citizens, and others are considered.

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. Once we develop a

recovery plan for the ARS, the plan will be available for public review

and comment prior to adoption.

Issue 3: Critical Habitat

Comment: We received many comments regarding the designation of

critical habitat. Numerous (110) commenters expressed concern regarding

the economic implications of critical habitat designation and often

stated that such designation would severely limit a number of land and

water uses or affect residents' quality of life and economic growth

potential. Seventeen commenters requested we involve stakeholders in

any economic analysis conducted during identification of critical

habitat. Eleven others urged us to designate critical habitat at the

same time the species is proposed for listing. A few (3) suggested

locations that should or should not be included as critical habitat.

Service Response: We have determined that designation of critical

habitat is not prudent (see ``Critical Habitat'' section).

Issue 4: Pecos River Population

Comment: We received a variety of comments relating to the Pecos

River population of the ARS. Fifteen commenters questioned the need to

eradicate the Pecos River population stating that it is not in direct

adverse competition with native fish fauna, it is valuable in

restoration efforts, habitat in the Pecos River is optimal for

maintaining a thriving population, and the Act requires protection of

the ARS and does not authorize eradication of this population. One

individual questioned whether the ARS population in the Pecos River was

truly an anomaly or if it was actually a natural event. Another

respondent stated that the historic range should be expanded to include

the Pecos River. Conversely two commenters stated that our description

of the Pecos River population was accurate. Twenty respondents believed

the Arkansas River Basin population of the ARS should not be listed

because the species is abundant, robust, and thriving in the Pecos

River of New Mexico and its habitat is stable and optimal for spawning.

Two other commenters stated that the Arkansas River basin population

should not be listed if recovery of the Pecos bluntnose shiner is more

important than conservation of the ARS.

Service Response: In the ``Background'' section of this rule we

included a discussion of the Pecos River population of the ARS that

addresses most of these comments. As we explained in that section, the

Act clearly authorizes us to list distinct population segments of

vertebrate species.

The occurrence of the ARS in the Pecos River is not a natural

event. Researchers examined fish collections housed at Eastern New

Mexico University in Portales and at the University of New Mexico for

evidence of any historical occurrence of ARS in the Pecos River. Two

collections from near Ft. Sumner in 1977 and 20 collections from the

reach extending from near Santa Rosa to the vicinity of McMillan

Reservoir between the years 1974 to 1977 did not contain ARS. A

collection taken in September of 1978 downstream of Sumner Dam

contained 16 specimens. This led Bestgen et al. (1989) to conclude that

the initial release of ARS into the Pecos River occurred in 1978 and

that the Pecos River population is artificial and not within the

historic range of the ARS. We concur with this assessment.

The purpose of the Act is to conserve threatened and endangered

species and the ecosystems on which they depend. Non-native, introduced

populations, while possibly useful in recovery/restoration efforts, are

not a viable substitute for species conservation in native ecosystems.

We do not believe listing or active conservation of the introduced

Pecos River population is appropriate nor is such conservation required

by the Act.

[[Page 64778]]

We agree that the Pecos River population could serve as a source of

individuals for transplantation into suitable, unoccupied, historic

habitat. Consequently, we do not currently intend to aggressively

pursue eradication of the ARS from the Pecos River. However, we do not

intend to manage the Pecos River as a refugium for the ARS. The

feasibility of using ARS from the Pecos River in restoration efforts in

the Arkansas River basin will be fully evaluated during the recovery

process.

Issue 5: Ecological and Economic Value of the ARS

Comment: Several (21) commenters questioned the economic or

ecological value of the ARS, including its use as an indicator of the

health of ecosystems, its benefit to society, its value for medicinal

purposes, its importance in comparison with other species, and its

importance in comparison to the economic benefits of agriculture.

Another eight individuals believed the shiner was here to be used as

humans deemed necessary.

Service Response: In section 2 of the Act (Findings, Purposes, and

Policy), Congress found that numerous species of fish, wildlife, and

plants had become extinct, and that other species had become so

depleted in numbers that these species 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 Endangered Species Act, the purpose of which is to

conserve threatened and endangered species and the ecosystems on which

they depend. To that end, the Act requires the Department of Interior

to maintain a list of endangered and threatened species.

The Act requires that listing decisions be based on the best

available scientific and commercial information regarding a species'

status, without reference to possible economic or other impacts of such

determination. Although a variety of opinions likely exist as to a

particular species' contribution to society, this issue is not among

the five factors upon which a listing determination is based. While we

cannot consider the intrinsic value of species when making a listing

determination under the Act, we believe that protecting these species

has a positive effect on society. Society, like the ARS, 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.

Comment: Eighteen commenters stated that extinction of the ARS is a

natural, evolutionary process and we should not interfere with the

process of natural selection.

Service Response: We concur 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

extinction occurs.

Issue 6: Threats

Comment: Forty-six commenters were concerned that corporate swine

farms pose a threat to the ARS due to their high usage of surface and

ground water which could reduce streamflows in the affected rivers.

These same commenters were concerned that waste application from

confined swine, poultry, and dairy operations has the potential to

contaminate surface and groundwater, constituting a threat to the ARS.

Conversely, one commenter stated that we have no information to

indicate that commercial livestock operations have impacted the ARS.

Service Response: We concur that water use and waste application or

a spill from waste holding facilities represents a potential threat to

ARS. Since 1990, the number of swine in Oklahoma has increased from

200,000 to 1.7 million animals, making Oklahoma the eighth largest pork

producer in the Nation (``State Legislators Expecting Vote on Hog Farm

Bill,'' Mick Hinton, The Daily Oklahoman, Oklahoma City, February 11,

1998). The Oklahoma panhandle contains almost one-half of these

animals. However, we have no data documenting the effects of

concentrated livestock operations on water quality or quality

specifically relating to the ARS.

Comment: Four respondents suggested that salt cedar (Tamarix sp.),

Russian olive (Eleagnus angustifolia), mesquite (Prosopis sp.), and

other phreatophytes (i.e., deep rooted plants that obtain water from

the water table or the zone just above it) have invaded river basins

and use water, causing streamflows to decline.

Service Response: We agree that various species of phreatophytes

have invaded stream channels within the western regions of the Arkansas

River basin and that they have the potential to use large quantities of

water when growth is extensive. Stinnett et al. (1988) documented the

effects of vegetation encroachment within the Canadian River (see

factor A in ``Summary of Factors Affecting the Species'' section).

Comment: One respondent stated that when the Eastern New Mexico

Water Supply Project is completed in the year 2000 (or later),

diversions from Ute Reservoir would occur, reducing the frequency and

amount of water released from Ute Reservoir.

Service Response: The Bureau has preliminarily evaluated the

feasibility of minimum streamflow releases (2 cubic feet per second

(cfs)) downstream of Ute Reservoir as a component of the Eastern New

Mexico Water Supply Project. Such releases would likely preclude

dewatering of the Canadian River below Ute Reservoir, provided the

State of New Mexico does not appropriate all of the remaining

unappropriated water in the Canadian River downstream of Ute Dam. We

will work with the Bureau pursuant to section 7 to ensure that the

needs of the ARS are adequately addressed by this project.

Comment: Twenty-five commenters were concerned that we considered

agricultural conservation practices a threat to the ARS and would

discourage practices such as planting of shelterbelts, conservation

farming (e.g., no-till planting and conservation reserve program grass

plantings), and construction of terraces, waterways, stockwater ponds,

and watershed dams. Many included specific information relating to

these practices. Another 13 specifically were concerned about the

effect of listing on flood control reservoirs.

Service Response: All of the conservation practices mentioned in

this comment, although very effective at reducing run-off, are

specifically designed to minimize soil erosion and control

sedimentation. Without these practices in place, increased siltation

would likely occur in rivers and streams of the Arkansas River basin.

Construction of terraces, shelterbelts, grassed waterways, and other

vegetative planting for conservation are not likely to significantly

impact streamflows and habitat or threaten the survival of the ARS.

The effects of construction of stock ponds and flood water

retention structures and other small dams on tributary streams are

likely to have a

[[Page 64779]]

much different effect on streamflows. The primary goal of most small

watershed projects is to provide drainage and relief from flooding in

rural areas. Channelization (e.g. channel modification or

``improvement'') is often used to provide drainage and flood relief,

while watershed dams and levees primarily provide flood relief. The

effects of these activities are discussed in the ``Summary of Factors

Affecting the Species'' section.

The Natural Resource Conservation Service (NRCS) Small Watershed

Project program is subject to the provisions of section 7 of the Act

and any planned projects must first be examined for impacts to listed

species before construction may proceed. Private actions, such as

construction of a farm pond, would generally be exempt from the

regulatory provisions of the Act unless the actions involve Federal

funds or Federal authorization, or if the action would result in take

of ARS. 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. A private party could seek a section 10(a)(1)(B)

incidental take permit to legally take ARS incidental to otherwise

lawful activities.

Comment: Two commenters expressed concern that we considered open-

range grazing a threat to the ARS due to water quality concerns. Two

other commenters implied that white-tailed deer have access to

streamside zones, have abundant populations, and would cause similar

impacts on riparian zones as do domestic livestock.

Service Response: We believe well-managed livestock grazing is

compatible with viable ARS populations and that certain types of

grazing in riparian zones likely have minimal impacts on the ARS. 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).

Although white-tailed deer typically inhabit lowland and riparian

areas in the Central and Southern Plains (Menzel 1984), the overall

impacts of deer and other native ungulates on riparian zones are less

than that of livestock. Livestock do not forage, herd, or move in the

same manner as native ungulates. Deer do not tend to concentrate in

large numbers and do not remain in riparian areas for long 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

deer exert the same influence on the riparian zone as do cattle and do

not consider use of riparian zones by deer to be a threat to ARS.

Comment: Two individuals were concerned that the Federal

government, through construction of reservoirs and support of soil and

water conservation practices, was responsible for the decline of the

ARS. Three other respondents stated that agriculture was singled out as

a threat, even though Federal reservoirs were known to have an impact

on ARS.

Service Response: We acknowledge that some Federal actions are, in

part, responsible for the threats facing the Arkansas River basin

population of the ARS. As a result of listing, those ongoing Federal

actions will be subject to consultation under section 7 of the Act.

We did not intentionally single out agriculture as the primary

threat to survival of the ARS. We believe a number of threats

collectively imperil the ARS, and no single threat likely poses a

sufficient threat to the ARS to justify listing. When making a listing

determination, we assess the potential impact of all threats, including

agriculture, to the species. Although agricultural activities can

impact the ARS in various ways, we do not believe agriculture is the

primary threat to the ARS.

Comment: Two commenters stated that overcollection for scientific

purposes, particularly during spawning periods, is a threat.

Service Response: We have no information indicating that collecting

for scientific or educational purposes poses a significant threat to

the ARS. However, take by private and institutional collectors could

pose a threat, if left unregulated. With the exception of the States of

Texas and Arkansas, the ARS is listed as an endangered or threatened

species by States within its historical range and take is prohibited

without a valid State collecting permit. Such provisions should

minimize the threat of overcollecting for scientific or educational

purposes. Federal protection of the ARS also will help to reduce

illegal and inappropriate take.

Arkansas River shiners are thought to spawn communally (Cross et

al. 1985) but are not known to make basin-wide migrations to a few

traditional spawning areas where large numbers of individuals would be

susceptible to a single collection event. Additionally, ARS may spawn

several times during the course of the spawning season and even

widespread scientific collecting during this period would not likely

eliminate the entire reproductive effort for the year.

Comment: Numerous (115) commenters stated that irrigation and

groundwater pumping are not a threat to the ARS because water levels

have stabilized, primarily due to conservation and more efficient

irrigation systems, and the effect on streamflow, where it occurs, is

limited. Similarly, 58 commenters stated that we have no evidence to

support the assumption that irrigation and pumping from the High Plains

(Ogallala) aquifer has diminished flow in the Canadian River or has

affected habitat conditions for the ARS. Two commenters stated that we

have new information regarding the influence of groundwater on flows in

the Canadian River basin. Six others stated that springflow is not

reliable or has not been affected by groundwater pumping.

Service Response: We agree that water conservation efforts have had

a significant effect on reducing the amount of water used. These

efforts have reduced the rate of depletion of the High Plains aquifer

in Texas. However, groundwater depletion continues within the Central

Regional Subdivision of the High Plains aquifer. Although certain

underground water conservation districts have recently shown stabilized

groundwater levels within their districts or have shown that average

depletions over the past several years have been reduced to less than

10 centimeters (cm) (4 in), these statistics are not indicative of the

entire western region of the Arkansas River basin. Dugan and Sharpe

(1996) state that water level declines in the Central High Plains

subregion from 1980 to 1994 were the largest, both in area and

magnitude of decline, of any in the entire High Plains. A nearly

continuous area including much of southwestern Kansas, portions of the

Oklahoma Panhandle, and much of the northern Panhandle of Texas has

shown a decline of more than 3 meters (m) (10 feet (ft))(see factor A

in ``Summary of Factors Affecting the Species'' section).

Regarding the influence of water level declines on streamflow,

specific, regionwide data are lacking. We concur

[[Page 64780]]

that groundwater pumping has likely had a minimal effect on streamflow

in the Canadian River upstream of Lake Meredith. We evaluated new

information provided during the public comment period and concluded

that pumping has reduced spring flow but the overall effect on flow in

the Canadian River between Ute Reservoir and Lake Meredith has been

relatively minor. This new information has been incorporated into this

rule (see factor A in ``Summary of Factors Affecting the Species''

section).

Information on the contribution of springs to flow in the Canadian

River below Lake Meredith and the effects of groundwater pumping on

this springflow is generally unavailable. However, we believe that,

based on the predevelopment discharge from the aquifer within the

Arkansas River basin (Luckey and Becker 1998), continuing groundwater

depletion will affect streamflow in the Arkansas River basin.

Comment: Seven commenters stated that, based on the rate at which

water moves through the High Plains aquifer, the aquifer would not

contribute to streamflow. Similarly, one respondent stated that water

level contour maps of the aquifer show that water only moves toward the

river within the area described as the ``breaks.''

Service Response: The rate at which water moves through the aquifer

has no bearing on the contribution of the aquifer to streamflow. The

aquifer is an underground body of water that resembles a ``reservoir;''

the water bearing strata are a mixture of gravel and sands. A

withdrawal from one end of the ``reservoir'' affects water levels in

the entire reservoir. Water within the aquifer exists in balance with

the rate of recharge, that is, natural discharge to streams equals

recharge, at least under predevelopment conditions. Pumping from the

aquifer essentially represents an artificial discharge from the

aquifer. When this artificial discharge exceeds recharge, natural

discharges must decline accordingly.

Comment: Five commenters stated that the Canadian River was below

the elevation of the High Plains aquifer and thus not connected.

Service Response: We partly agree with this comment. The Canadian

River has cut below the elevation of the Ogallala formation upstream of

the Hutchinson-Roberts County line in Texas (Dugan and Sharpe 1996).

Downstream of this point the Canadian River is confined within the

sediments of the Ogallala formation (see factor A in ``Summary of

factors Affecting the Species'' section).

Comment: One respondent stated that the threat analysis is

incorrect because very little surface water is diverted from the

Canadian River in Texas.

Service Response: We agree that very little diversion of stream

surface water occurs in the Canadian River of Texas. However, surface

water is diverted from Lake Meredith via the Canadian River Project.

Diversion of surface water also occurs within other Arkansas River

tributaries. Our threat analysis includes threats occurring in other

portions of the Arkansas River basin, not just those in Texas.

Comment: Seven commenters expressed opposing views concerning the

influence of predation on the ARS. Four individuals stated that

predation is a threat and three commenters did not believe that

existing information suggested that predation was a threat.

Service Response: Studies on the impact of disease or predation

upon the ARS have not been conducted and the significance of these

threats is unknown. While neither disease nor predation are thought to

be a significant threat to a healthy ARS population, they could, in

certain localized areas, occur more frequently or have a more

significant impact and hinder recovery of the ARS. This threat is

addressed in more detail under factor C in the ``Summary of Factors

Affecting the Species'' section.

Comment: One commenter stated that illegal dumping of oil field

brines in the 1960s caused fish kills, and fish populations never

recovered. Two commenters stated that a major threat to the ARS and

other aquatic species was water quality degradation. Two others stated

that we have no information that any chemical has been introduced into

ARS habitat. One commenter stated that changes in turbidity and

salinity were not threats to the ARS.

Service Response: Dumping of oil field brines was suspected to have

partially accounted for the decline of the ARS from the North Canadian

River in the vicinity of Oklahoma City, Oklahoma (Pigg et al. 1997a).

Nutrient enrichment from municipal waste water effluent, particularly

in the North Canadian River, also may have contributed to degradation

of water quality. Pigg et al. (1992) stated that 64 municipal sewage

treatment plants, 34 industries, and 2 electric power plants discharge

into the North Canadian River. Matthews and Gelwick (1990) examined

fish communities within a highly urbanized reach of the North Canadian

River in Oklahoma City that received concentrated feedlot runoff and

secondary treated sewage effluent. Dumping of construction materials

and a smaller secondary sewage source occurred at a site approximately

30 river-km (18 river-mi) downstream of that site. Although ARS were

not collected during that study, fish communities in these reaches did

not appear to be significantly depressed by urbanization (Matthews and

Gelwick 1990).

Advancements in waste water treatment facilities and reductions in

other sources of pollution have occurred since passage of the Clean

Water Act in 1972. Species which are less tolerant of degraded

conditions would generally not occur in stream reaches affected by

urbanization. Where water quality degradation has dramatically altered

ARS habitat, we would agree that such events have played a role in the

decline of this species. However, we have very little specific

information documenting the effects of poor water quality on ARS and

cannot conclude that these types of pollution are a significant factor

contributing to the decline of the ARS. The effects of changes in

turbidity or salinity on the ARS are unknown.

Comment: Three commenters stated that drought is the main threat to

the ARS and is responsible for its decline; twelve others stated that

minnows inhabiting plains streams are adapted to withstand a variety of

harsh conditions, such as dewatered and drought conditions, and lack of

streamflow is not a threat.

Service Response: Arkansas River shiners evolved under natural

cycles of flooding and drought, and are adapted to a wide variety of

physical and chemical conditions. Fish populations in such systems tend

to be cyclic in nature, responding to such natural factors as weather

events, disease, and predation. Natural events, however, including

long-term drought or extreme rainfall, have less of a negative effect

overall on a species when that species is widely and continuously

distributed. Where populations are small, fragmented, or isolated by

various human-related factors, they are more vulnerable to extirpation

by naturally occurring or random events and cumulative effects.

Construction of mainstream dams hinder natural expansion and

contraction of populations, preventing fish from recolonizing dewatered

reaches when flows return. This may have contributed to the extirpation

of aggregations of the ARS. Drought also accentuates the effect of

human-caused events (Matthews 1998), such as overallocation of

streamflows and overdraft of groundwater resources. Stream dewatering

combined with long-term drought could result in permanent

[[Page 64781]]

elimination of ARS from a large part of the Arkansas River drainage.

Although the species as a whole has persisted to date, we do not

believe remaining populations are secure. Considering the species'

ability to withstand harsh conditions within prairie streams, the fact

that this species has disappeared from over 80 percent of its

historical range suggests that the effects of natural events are

exacerbated by human influences.

Comment: Two commenters thought introductions of non-native species

was a primary reason for the disappearance of the ARS. Five individuals

stated that introductions of Red River shiner did not affect

aggregations of ARS because the species had already declined and the

Red River shiner simply replaced the ARS. Two others stated that

reduced flows or drought, not introductions of non-native fishes, was

the primary threat. Six commenters stated that introductions of Red

River shiners only affected a small portion of the historical range and

thus are not a primary threat to remaining populations.

Service Response: The introduction of the Red River shiner

represents a potentially serious threat to the ARS; however, we do not

believe introductions of the Red River shiner have had a detrimental

effect on any ARS aggregations other than those in the Cimarron River.

The primary threat to ARS aggregations is streamflow alterations due to

reservoir construction and water withdrawals (see ``Summary of Factors

Affecting the Species'' section).

Comment: Seven respondents stated that the ARS is not likely to be

affected by commercial bait harvest. One commenter stated that using

ARS as fish bait should be illegal.

Service Response: We agree that abundance of the ARS is not likely

to be seriously impacted by commercial harvest of bait fish. The ARS is

not a highly prized bait fish, and it is not selectively harvested as

bait. Arkansas River shiners may occasionally be captured incidental to

capture of other commercial bait fishes (see factor B in ``Summary of

Factors Affecting the Species'' section). The ARS is already listed as

threatened or endangered in the States of Kansas, New Mexico, and

Oklahoma, and collection is prohibited without a valid permit. The

greatest potential threat to the ARS from commercial bait operations is

the possible accidental release of non-indigenous fishes into the

Arkansas River basin.

Comment: Twenty-two commenters requested clarification or

documentation that reservoirs and impoundments were a threat to the

ARS. Four of these individuals stated that construction and operation

of John Martin Reservoir in Colorado had affected streamflow within the

Arkansas River in Kansas. Conversely, one individual stated that the

threat from John Martin Reservoir is speculative and inconclusive. One

individual stated that construction of Medford Dam was a threat.

Another stated that construction of Forgan Reservoir on the Cimarron

River was no longer a threat. Four individuals stated that reservoirs

were beneficial and that we should consider these benefits in the

analysis. Two others stated that our assessment of the impacts of dams

was inconsistent. One individual asked if we had considered the effects

of releases from Keystone Reservoir on ARS spawning requirements.

Conversely, one individual stated that flood pulses still occur below

dams and reproduction should still occur. Five individuals stated that

damming has diminished habitat but the effects are short-term and the

river will stabilize allowing populations to persist. Another

individual stated that streamflows following impoundment have

stabilized and are not going to decline. One individual stated that

Lake Meredith was the primary threat.

Service Response: Cross et al. (1985) stated that irrigation

diversions and flow regulation by John Martin Reservoir led to declines

in several species of fish in western Kansas, including ARS. They found

that the initial effect of impoundment by John Martin Reservoir was a

moderation of flow extremes (e.g., reduction peak flows and increase in

minimum flows) between 1943 and 1965. After 1965, streamflow generally

ceased after July and did not resume until January or February.

Although these declining streamflow conditions cannot be entirely

attributed to John Martin Reservoir, this reservoir definitely

contributed to flow alterations in the western portion of the Arkansas

River.

We could not verify the existence of a Medford Dam and cannot

address this comment.

In its Northwest Oklahoma Water Supply Study (Bureau 1991), the

Bureau proposed the construction of Forgan Reservoir, to be located

near the Kansas-Oklahoma State line on the Cimarron River. This

reservoir would impound about 8 km (5 mi) of the Cimarron River.

Although this reservoir has not been authorized, and planning has been

deferred, we consider this reservoir a potential threat to the ARS.

We disagree that reservoirs have had a beneficial effect on the

ARS. Reservoirs function as barriers, significantly inhibiting

dispersal and interchange between populations. Reservoirs also have

inundated, dewatered, or otherwise directly altered considerable

sections of riverine habitat once inhabited by ARS (see factor A in

``Summary of Factors Affecting the Species'' section). It is possible

that, under certain conditions, fragmentation of ARS habitat by

reservoirs could help reduce the probability that a release of Red

River shiners would impact all ARS aggregations within a river basin.

However, such protection is minimal considering the popularity of

recreational fishing in the basin and the lack of specific regulations

prohibiting bait-bucket releases of non-native fishes. We believe that

the known adverse effects of reservoirs far outweigh any such potential

small benefit.

We have not evaluated the implications of releases from Keystone

Dam on ARS reproduction. The specific spawning requirements of ARS are

not yet known. However, we suspect that these releases are not

compatible with ARS spawning requirements and that these flow

modifications are largely responsible for the decline of ARS below the

reservoir. We anticipate that once reproductive requirements are known,

we will initiate discussions with the Tulsa District of the Army Corps

of Engineers (Corps) to evaluate whether releases from the reservoir

could be modified to benefit ARS.

We agree that flood pulses necessary to support reproduction by ARS

still occur below some impoundments. Reproducing populations of ARS

persist downstream of Lake Meredith and Ute Reservoir; however, neither

of these impoundments provide regular downstream releases. Runoff and

tributary inflow during precipitation events within these river

segments provide stage rises sufficient to induce spawning in these

populations. In the eastern regions of the Arkansas River basin,

reservoir releases often cause streamflows to fluctuate on a daily

basis which is not conducive to spawning by ARS.

Flow fluctuations caused by releases from reservoirs tend to

attenuate or dampen with distance downstream of the dam. Thus, at some

point, the effects of such releases on the aquatic community would be

minor and reproduction could occur. However, in the absence of

sufficient river length or without modification of existing releases,

regulated flows rarely mimic those which occurred prior to impoundment.

Under these conditions, reproduction will not occur, and populations

will not likely persist.

[[Page 64782]]

We agree that Lake Meredith has exerted the greatest influence over

ARS aggregations in Texas. However, Lake Meredith is not the primary

threat to ARS. The decline of the ARS is due to a variety of factors,

many of which act synergistically. The cumulative and synergistic

effects of all of the identified threats are responsible for the

present and threatened destruction of ARS habitat and its diminished

range.

Comment: One respondent stated that minimal alterations of the flow

regime did not directly cause the ARS to diminish in range and

abundance, and thus are of little consequence.

Service Response: We agree that very minor alterations in

streamflow are not likely to be a significant threat to the ARS.

However, the commenter did not state what constitutes minimal

streamflow alterations. As discussed under factor A of the ``Summary of

Factors Affecting the Species'' section, certain alterations of the

natural flow regime are detrimental to the ARS.

Comment: One commenter stated that a present threat must be

demonstrated and asked to what extent reservoirs now impact or threaten

the ARS.

Service Response: The Act requires us to consider ``the present or

threatened destruction'' of a species' habitat or range. The lack of

streamflow downstream of a reservoir would qualify as a present,

ongoing threat because if streamflows were restored, downstream

populations could recolonize those areas that are presently unsuitable.

For example, if releases were made from Lake Meredith, these flows,

under certain conditions, could be beneficial and allow shiner

aggregations which exist downstream to recolonize the entire reach of

the river. Withholding these releases prevents this from occurring and

is a present, ongoing threat to ARS habitat downstream of the

reservoir, particularly in Texas. Similarly, where reservoir releases

have modified ARS habitat such that these reaches can no longer be

inhabited, the present, ongoing operation of these reservoirs prevents

ARS from recolonizing these stream reaches.

Comment: One individual commented that the decline of the ARS is

due to channelization of the Cimarron River below Tulsa for navigation.

Service Response: We suspect this commenter mistakenly referred to

the Cimarron River instead of the Arkansas River. The Cimarron River

has not been modified to support navigation. We agree that modification

of the Arkansas River for navigation eliminated habitat for the ARS

(see ``Summary of Factors Affecting the Species'' section).

Issue 7: Sufficiency of Information

Comment: Eighty commenters questioned why we were listing the ARS,

either rangewide or within the State of Texas. Few of these commenters

provided substantive new information relevant to making risk

assessments or assessing the status of the species. Forty-six

commenters stated that the proposed rule contained inadequate,

incomplete, inaccurate, or unclear information concerning the need to

list the ARS. Three commenters stated that the listing is premature and

that the need for listing has not been fully researched. Two others

believed that the listing should be postponed until more information

outlining why the species continues to survive in the Canadian River

has been obtained. One individual felt that the listing should be

delayed until more studies have been completed on habitat requirements.

Eighteen individuals requested that we provide life history information

on the species or conduct additional studies.

Service Response: Section 4(b)(1)(A) of the Act requires us to make

listing determinations on the basis of the best scientific and

commercial data available. Although we consider historical habitat loss

and rates of decline, we also consider many other factors, including

current rates of decline, potential and imminent threats, number and

status of populations, and amount and quality of remaining habitat. We

use historical habitat loss and rates of decline to ascertain whether a

species is undergoing a precipitous or gradual decline. Reduced

abundance, loss of habitat, and extirpation of ARS aggregations from a

variety of causes have been documented. This information shows that the

range of the ARS in the Arkansas River basin has been reduced by over

80 percent.

In preparing both the proposed and final rules on this listing, we

have used information received from a variety of sources including

museum collections, knowledgeable biologists, groundwater hydrologists,

and studies specifically directed at gathering information on the

distribution and threats to the ARS. This rule summarizes all of the

available information on the status of and threats to the ARS.

We have incorporated in this rule all substantive new data,

including an investigation of ARS habitat requirements, obtained since

the species was first proposed for listing in 1994. This new

information caused us to reassess our analysis of the nature and

immediacy of threats affecting the species. Specific justification for

listing the species is summarized in factors A through E in the

``Summary of Factors Affecting the Species'' section.

We have summarized all of the available life history information in

this rule. We agree that many aspects of the biology of this species

are unknown and need further study. This is true for most species of

fishes, including common species that have been studied extensively.

However, we are not required to address all of the biological and

ecological requirements of the species in order to list it. In fact,

delaying listing in order to complete a large, long-term biological or

ecological research effort could seriously compromise the survival of

the Arkansas River basin population of the ARS.

Comment: Four commenters were concerned that we had not used all of

the available information in preparing the proposed rule; specifically

status information from the TPWD and the Bureau, collections of

commercial bait dealers, and groundwater depletion records from

underground water conservation districts in Texas.

Service Response: We examined data from the TPWD (Lewis and

Dalquist 1955 and Eric Altena, in litt. 1993 ) and the Bureau (Eugene

Hinds, in litt. 1984) but did not specifically cite them in the

proposed rule. We used harvest data from the commercial minnow dealers,

to the extent possible. However, this information is not always

reliable (see factor B in ``Summary of Factors Affecting the Species''

section). We used information available from the U.S. Geological Survey

(USGS) to document groundwater depletion in the High Plains aquifer.

During the comment period, we received additional information on

groundwater depletion from several underground water conservation

districts. We also obtained additional information from the USGS. We

have incorporated all of the information from these sources into this

final rule.

Comment: One individual stated that there is currently more water

in the Canadian River than there was before the reservoir was

constructed.

Service Response: This commenter did not specify which portion of

the Canadian River, above or below Lake Meredith, now has more water.

An analysis of streamflow records for the period of record up to 1963

(USGS 1963) above Lake Meredith, shows that average annual discharge

was 12.4 cubic meters per second (cubic m/s) (439 cfs) as measured at

the gage north of Amarillo. This measurement included some regulation

by Conchas Reservoir, but was prior to construction of Ute Reservoir.

Analysis of flows in the

[[Page 64783]]

Canadian River, as measured at Logan, New Mexico in 1961 (USGS 1961)

shows that flows averaged 11.1 cubic m/s (392 cfs) prior to

construction of Conchas Reservoir and 7.6 cubic m/s (270 cfs) after

construction. The average annual discharge at Amarillo for the period

of record up to 1996 has been reduced to 8.1 cubic m/s (286 cfs).

Streamflow records up to 1996, as measured at Canadian, Texas,

approximately 121 river-km (75 river-mi) downstream of Lake Meredith,

show that the average annual discharge was 15.5 cubic m/s (549 cfs)

before Lake Meredith was built and 2.4 cubic m/s (83.7 cfs) after the

reservoir was built. Flow in both reaches of the river may now be

perennial, due to seepage from Ute and Sanford dams, but there is not

more water in the river now compared to years prior to construction of

Lake Meredith.

Comment: One individual stated that the proposed rule was incorrect

because water quality improves rather than declines as the river flows

from Ute Reservoir to Lake Meredith.

Service Response: We recognize that water quality for human

consumptive purposes improves as the river flows into Lake Meredith

because salinity concentrations are diluted by tributary inflows. The

existing salinity levels in this section of the Canadian River do not

appear to have an adverse effect on ARS populations. However, the

proposed rule actually referred to water quality within the entire

Canadian River in Texas, not just the segment upstream of Lake Meredith

(see factor A in ``Summary of factors Affecting the Species'' section).

Comment: Five commenters stated that additional surveys should be

conducted because one survey was not sufficient. Similarly, three

individuals stated that a complete census of the ARS should be

conducted.

Service Response: We did not rely on one survey to document the

status of the ARS in the Arkansas River basin. We used data from the

TPWD, Bureau, University of New Mexico, Oklahoma State University,

University of Kansas, University of Oklahoma, University of Michigan,

Westark Community College, and the Oklahoma Department of Environmental

Quality in assessing the current status of the ARS.

Complete census data for fishes are extremely difficult, if not

impossible, to obtain with non-lethal survey techniques. Use of lethal

techniques are not appropriate for surveys of rare species.

Additionally, even lethal techniques, such as fish toxicants, are not

100 percent accurate. We often must rely on data collected from

numerous sites, often by several individuals, over several years. The

protocols used in these surveys and in analyzing the data are generally

accepted by the scientific community as appropriate for sampling fish

populations (Nielsen and Johnson 1983, Schreck and Moyle 1990).

Comment: Seventeen commenters stated that a one-time introduction

of Red River shiners would not constitute a catastrophic event

sufficient to cause extirpation of the entire Arkansas River basin

population of the ARS. One other individual stated that the rangewide

loss of an annual reproductive cycle is remote.

Service Response: Lake Meredith is an effective artificial barrier

to movement of stream fishes and potentially could provide a small

degree of protection to ARS aggregations upstream of Lake Meredith from

introductions of non-native fishes which might occur downstream of the

reservoir. However, aggregations of ARS upstream of Lake Meredith are

much less numerous than those in the remainder of the Canadian River

and the risk of extinction for the entire Arkansas River basin

population would increase if Red River shiners became established

downstream of Lake Meredith. We have reassessed the vulnerability of

the Arkansas River basin population of the ARS to a single,

catastrophic event and no longer consider the entire population

susceptible to extinction from a single, catastrophic event at this

time. However, as the range and abundance of ARS continue to decline,

the vulnerability of the ARS to catastrophic events and the likelihood

that a catastrophic event would lead to extinction of the species

increases.

Comment: Thirteen individuals stated that existing Federal and

State laws and regulatory mechanisms are adequate to protect the ARS.

Service Response: Although certain laws and regulations provide

some water quality and quantity benefits, they do not alleviate all of

the identified threats to the ARS. Flow modification below Federal dams

is ongoing and prevents ARS from recovering. Irrigation withdrawals

have dewatered the Beaver River in the Oklahoma Panhandle, as well as

considerable sections of the Arkansas River in Kansas. Existing

regulations did not prevent these events from occurring. Existing

regulations also were ineffective in preventing the introduction of

non-native fishes into the Cimarron River. With the exception of the

State of Kansas, none of the States protect ARS habitat. The State of

Texas does not list the ARS as threatened or endangered and provides no

special protection. We believe that existing regulatory mechanisms do

not currently provide adequate protection for the ARS. Additional

discussion of existing regulations can be found under factor D of the

``Summary of Factors Affecting The Species'' section.

Comment: Nineteen commenters believed we did not adequately

demonstrate that the threats identified in the proposed rule were

actually affecting ARS aggregations in the Arkansas River basin. One

commenter stated that ongoing activities within the river basin were

not likely to change in the foreseeable future.

Service Response: For the reasons explained in this rule,

sufficient, ongoing threats exist for us to justify listing the

Arkansas River basin population of the ARS. Although specific studies

documenting the influence of a particular threat on the ARS may not

have been conducted, sufficient information exists to demonstrate that

ARS are vulnerable to the identified threats. We have presented ample

evidence for a reasonable person to conclude that a definite cause and

effect relationship exists. Under section 4 (b)(1) of the Act, we must

make listing decisions based on the best scientific and commercial data

available. We have met these requirements in this listing decision.

Comment: Nine respondents questioned the influence of the

reproductive characteristics of the ARS during the threat assessment.

One individual stated that southernmost populations of the ARS may

spawn repeatedly, giving them an advantage over those populations in

the northern portion of the range. Two individuals wanted to know how

much water was necessary to ensure spawning by ARS. Another individual

stated that the ARS should persist because the species is very fecund.

One individual requested we explain how stream channelization affects

spawning of the ARS. Two individuals stated that data do not

demonstrate that flood pulses are needed to induce spawning. Two

individuals stated that reproduction is not restricted to only Age-I

fish.

Service Response: There is no information in the scientific

literature which even speculates that reproductive potential varies

among those ARS aggregations in the Arkansas River and those from the

Canadian River.

We do not know what specific flow regimes are necessary to trigger

spawning in the ARS. As previously discussed, the Act does not require

us to address all of the biological and ecological requirements of the

species in order to list it.

[[Page 64784]]

Cross et al. (1985) stated that female ARS develop 1,500 to 3,500

eggs of uniform size. Carlander (1969) reported the number of ova for

several species of minnows in the genus Cyprinella and Notropis. The

number of eggs varied from 98-2,600 per individual. Although several of

these species have reproductive strategies which differ from ARS, the

values presented do not indicate that the ARS is significantly more

fecund than other species of minnows. Regardless of their fecundity,

ARS were unable to maintain populations in several Arkansas River basin

rivers and streams. Fecundity of ARS is not sufficient to maintain

robust populations where adequate water to support populations no

longer exists.

Stream channelization affects fish populations indirectly by

altering the structural, physical, and chemical characteristics of the

stream (Simpson et al. 1982). Direct impacts include injury or

mortality during the actual construction of the channel. The specific

spawning requirements of ARS are unknown, and we cannot specifically

describe the influence of channelization on reproduction of ARS. Based

on known impacts of channelization, we can predict, with a fairly high

degree of accuracy, how ARS reproduction could be affected. The

preferred habitat, including presumed microhabitat for spawning, of the

ARS is found in wide, relatively shallow, sandy bottomed rivers and

larger streams. Channelization would eliminate this preferred habitat.

Shallow water habitat would then exist in minute quantities and would

be restricted to nearshore areas. Production of microscopic plant

material by photosynthesis would be limited to the shallow near shore

zones. Consequently, productivity of the stream would decline.

Channelization also would reduce or eliminate invertebrates and other

food resources needed to ensure successful reproduction and survival of

the larvae.

Channelization also alters the morphology of the channel by

creating fairly uniform steep sided channels, eliminating habitat

diversity. Alteration of the channel morphology also would alter water

velocities, which would in turn affect hatching of the fertilized eggs,

assuming any would be produced. If ARS prefer to spawn in shallow

waters, channelization would reduce the amount of habitat available for

spawning. All of these alterations that occur as a result of

channelization would likely seriously reduce the number of young fish

that would be produced, leading to overall declines in the number of

adult fish in the affected stream reach.

All of the information published prior to 1997 concluded that flood

pulses were the primary environmental cue that triggered the onset of

spawning by ARS. None of these studies, however, documented how much of

a rise in river stage was necessary to induce spawning. We still lack

specific data to determine how much of a flood pulse is needed to

induce spawning. Recent studies (Polivka and Matthews 1997, Bonner et

al. 1997), have failed to show that reproduction in ARS is entirely

dependent upon these flood pulses. Flows, however, are important to

maintaining habitat conditions within the stream channel and for

hatching of the eggs once a spawn occurs. We believe streamflow is a

crucial component of suitable ARS habitat even though large flood

pulses may not be required to induce spawning.

The proposed rule did not state that reproduction was entirely

restricted to Age-I individuals. Age-I individuals, however, do provide

most of the annual reproductive effort. The loss of a single year class

would significantly reduce the chances of survival of the ARS because

the Age-I year class is so important to the success of each year's

reproductive effort (see factor E in ``Summary of Factors Affecting the

Species'' section).

Issue 8: Conservation Agreement

Comment: Eight respondents urged us to consummate a conservation

agreement or seek local attempts to conserve the species without the

need to list. Seven commenters encouraged us to follow a voluntary

approach to conservation as fostered in the draft Memorandum of

Understanding submitted to us by the TPWD and the ODWC.

Service Response: Candidate conservation agreements are formal

agreements between us and one or more parties (i.e., land owners, land

managers, or State fish and wildlife agencies) to address the

conservation needs of proposed or candidate species. The participants

take on the responsibility of developing the agreement, and voluntarily

commit to implementing specific actions that will remove or reduce

threats. This can contribute to stabilizing or restoring the species,

thereby precluding or removing the need to list.

In order to remove the need for listing the ARS, a significant

number of candidate conservation agreements would have to be developed

and implemented throughout the four-State range of the Arkansas River

Basin population. We met with representatives of the Arkansas Game and

Fish Commission, Kansas Department of Wildlife and Parks (KDWP), New

Mexico Department of Game and Fish (NMDGF), ODWC, and TPWD in March of

1997 to discuss the merits and feasibility of developing a conservation

agreement. Unfortunately, not all States could commit to such an

agreement due to fiscal and personnel constraints. However, listing of

the species does not preclude the future development of habitat

conservation plans or other conservation agreements with private

individuals or agencies.

Because the ARS occurs primarily on private property, we fully

realize that recovery of this species will depend upon local support

and the voluntary cooperation of private landowners, and we welcome

them as cooperators in the recovery effort. We will work to provide

technical assistance to those property owners and land managers who

wish to implement conservation measures for this species.

Issue 9: Abundance and Range

Comment: Numerous (249) commenters stated that the ARS is abundant

in Texas and populations are stable and that, therefore, listing is not

warranted. In addition, the TPWD does not believe that the ARS should

be listed in Texas and is opposed to the listing.

Service Response: A considerable amount of variation can occur in

samples of fish community structure between sites, years, and sampling

effort, that makes trends difficult to determine. However, data

collected by various researchers (e.g., TPWD, Oklahoma State

University, Bureau, and Texas Tech University) between 1953 and 1998

from identical, readily identified locations (e.g., major highway

crossings) document trends in ARS abundance in Texas. In Hemphill

County, the numbers of ARS collected between 1954 and 1990 declined by

67 percent. In Hutchinson County, the number of ARS collected declined

by 99 percent over this same time period. Upstream of Lake Meredith, in

Potter and Oldham counties, collection records document similar

declines at one of two sites. At the U.S. Highway 87/287 crossing north

of Amarillo, Texas, the numbers of ARS collected have declined by 46

percent. However, in Oldham County, at the U.S. Highway 385 crossing

near Tascosa, Texas, the numbers of ARS collected have increased by

about 38 percent.

An analysis of the amount of occupied habitat demonstrates that the

range of the ARS also has been reduced

[[Page 64785]]

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.

As discussed previously, our policy on delineating distinct

vertebrate population segments requires that those segments be both

discrete and significant. We do not believe that the ARS in Texas is

discrete from the remainder of the Arkansas River basin population.

Thus, although the ARS in Texas may have declined less precipitously

than in other areas of the species' range (see factor A in ``Summary of

Factors Affecting the Species'' section), we cannot consider the ARS in

Texas separately from the entire Arkansas River basin population.

Comment: Three commenters stated that the historical range of the

ARS did not include Morton, Stevens, or Grant counties, Kansas. Two

individuals stated that, based on the journals from travelers using the

Sante Fe Trail, water sufficient to support shiners was not available

in the Cimarron River of western Kansas.

Service Response: Morton, Grant, and Stevens counties, Kansas are

within the historical range of the species. The ARS was first collected

from the Cimarron River, near Kenton, Oklahoma. This section of the

Cimarron River is upstream of the section that flows through Morton,

Stevens, and Grant counties. Hubbs and Ortenburger (1929) state that

``hundreds of paratypes'' were collected from several sites in Oklahoma

and at Kinsley, Kansas. The species likely occurred throughout the

Cimarron River in 1926. In 1955, the species was collected from the

Cimarron River south of Ulysses, Grant County, Kansas (William H.

Busby, in litt. 1990). There are also two records from the Cimarron

National Grassland (Morton County), one in 1962 and one in 1987

(William H. Busby, in litt. 1990). Records from the Cimarron River in

Kansas also exist for Clark, Meade, and Seward counties.

We suspect that the Santa Fe Trail crossed the Cimarron River where

crossing was most convenient and easiest. People using the trail likely

did not choose to cross at sites supporting ``abundant'' water.

Comment: Two commenters stated that we have inadequate evidence to

show that any populations of the ARS occur in Kansas.

Service Response: We believe that ARS may indeed have been

extirpated from Kansas (see ``Background'' section). However, habitat

within the Cimarron River in Meade County, Kansas appears suitable.

This segment of the Cimarron River is not separated from that portion

of the Cimarron River in Oklahoma where other individuals have been

collected since 1989. The extreme rarity of this species in the

Cimarron River makes it highly unlikely that infrequent collection

efforts from one or two sites would locate this species. Consequently,

we believe the ARS could still exist in very reduced numbers in the

Cimarron River near the Kansas-Oklahoma State line.

Comment: Several commenters disagreed with our assessment of the

historical and current range of the ARS. Three individuals stated that

the ARS had not disappeared from 80 percent of its historical range.

Another individual stated that the occurrence of the ARS in Arkansas

was an anomaly due either to a flood or a misidentification. Similarly,

one individual thought we had exaggerated the historical range in

western Kansas and eastern Oklahoma. Another three individuals stated

that we reported the ARS to be historically abundant and widespread

without providing sufficient data to support this position. Two other

individuals stated that we provided no data to document the change in

abundance alluded to in the proposed rule. Six commenters stated that

the Arkansas River has been permanently modified by the navigation

system and should not be included as historical range for the species.

Three commenters stated that the Beaver/North Canadian River should be

excluded from the current range of the shiner. One commenter stated

that many small tributaries of the Arkansas River and its larger

tributaries incorrectly appear to be included as historical range of

the ARS.

Service Response: The distribution and abundance of ARS were

determined from collections of fish throughout the Arkansas River basin

since the late 1880s. The collection record establishes that this fish

occurred abundantly throughout most of the Arkansas River basin with

the exception of Colorado. A compilation of the museum records for the

ARS is contained in Larson et al. (1991). These records, however,

generally only contain a percentage of the number of individuals

collected because ichthyologists do not always retain and catalog every

individual captured. Where possible, individuals captured in excess of

those needed for vouchers are released unharmed at the site of capture.

Some of the larger vouchers include 533 specimens from the Canadian

River below Conchas Reservoir in New Mexico; 827 specimens from the

Canadian River near Norman, Oklahoma; 1,182 specimens from the Salt

Fork of the Arkansas River in Oklahoma; 1,068 from the Cimarron River

near Cleo Springs, Oklahoma; and 2,122 specimens from the North

Canadian River near Woodward Oklahoma. At least 21 other voucher

collections containing in excess of 200 individuals from over 15

different sites also exist in several museums.

It is important to note that the ARS no longer occurs in the

Canadian River below Conchas Reservoir, the entire Salt Fork of the

Arkansas River, and the entire North Canadian River and is almost

extirpated from the Cimarron River. We believe that these data

accurately document that the species was historically widespread and

abundant throughout most of the Arkansas River basin and adequately

document the decline in range and abundance of the ARS. Based on the

amount of currently occupied habitat compared with the amount of

historically occupied habitat, either in number of stream miles

inhabited or percent of the drainage basin occupied, we believe the 80

percent figure is accurate.

The records from the eastern and western fringes of the species'

range are both documented by voucher specimens deposited in natural

history museums. We have no information indicating that the

identification or capture locations of any of these fish are in doubt.

Arkansas was likely the eastern periphery of the range for the ARS.

The individuals collected from the mouth of Piney Creek were deposited

as voucher specimens in the University of Michigan, Museum of Zoology

(catalog number 128394) and are available for inspection. In addition,

Robison and Buchanan (1988) consider the ARS a valid member of the fish

community of Arkansas.

The range of the ARS in western Kansas extended at least as far

west as Holcomb, Finney County, Kansas based on collection of 41

individuals in 1952. At that time, Cross et al. (1985) believed the

species inhabited the full length of the Arkansas River in Kansas.

There are no records from Colorado, thus the Arkansas River west of

Garden City to the Kansas State line was likely the western periphery

of the range of ARS.

Although the Arkansas River in extreme eastern Oklahoma and western

Arkansas was not likely optimal habitat for the ARS, this reach is

established historic range of the ARS. Records for the ARS exist for

this section of the Arkansas River prior to construction of the

McClellan-Kerr Arkansas River Navigation System and impoundment by

Keystone and Kaw reservoirs (Larson et al. 1991). We agree that the ARS

[[Page 64786]]

likely no longer occurs in the Beaver/North Canadian River.

Some smaller tributaries supported populations of the ARS, at least

temporarily, based on verified collection records (Larson et al. 1991).

These tributaries, while not likely essential habitat for the ARS, are

a vital component of the entire watershed and are indirectly important

to the survival of the ARS. These tributaries contribute streamflow,

sediments and other important habitat constituents; influence water

quality; and supply nutrients to the larger tributaries and river

mainstems. These inputs are necessary to sustain the ecological

integrity of the entire Arkansas River basin.

Comment: One respondent stated that journals of the early explorers

reported the western region of the Arkansas River basin to be devoid of

water long before the arrival of irrigation on the plains, thus

irrigation could not have affected habitat for the ARS.

Service Response: Historically, the western region of the Arkansas

river basin did not have an abundant supply of surface water. Average

annual precipitation in this region varies from 40-61 cm (16-24 in) and

pan evaporation during the growing season varies from 25-38 cm (10-15

in) (Johnson and Duchon 1995). Various periods of drought, generally

lasting from 3-5 years each, also have occurred (Johnson and Duchon

1995). Despite these harsh conditions, ARS occurred at a number of

sites in the western basin as early as 1926, which is prior to

extensive irrigation development (see ``Background'' section). The

general lack of water reported by these explorers does not disagree

with information in this rule and does not indicate that ARS or their

habitat were non-existent in this region prior to extensive irrigation

development.

Comment: Thirteen respondents stated that the ARS is abundant in

the Canadian River, Revuelto Creek, Palo Duro Creek, and throughout its

range.

Service Response: Data available to us, as presented in this rule,

document that the ARS has decreased in abundance and has been

completely eliminated from over 80 percent of its historical range. The

number of fish collected, an indication of the abundance of the

species, has declined at numerous sites within the Canadian River

(Larson et al. 1991).

In the Canadian River, habitat upstream of Ute Reservoir and

downstream of Lake Meredith and Eufaula Reservoir has been eliminated

or degraded to the point that this habitat no longer supports the ARS.

Habitat throughout the entire length of the Arkansas River in Kansas,

Oklahoma, and western Arkansas has been destroyed or degraded to the

point that the ARS no longer occurs. Likewise habitat in the North

Canadian River, Salt Fork of the Arkansas River, and many of the

smaller tributaries, including Palo Duro Creek, no longer supports ARS.

The introduction of the Red River shiner, in combination with habitat

loss and degradation has severely depleted the ARS in the Cimarron

River.

Comment: Two commenters stated that records on the periphery of the

ARS historical range could be due to bait bucket introductions.

Service Response: These records could be due to bait bucket

introduction. However, we believe this is very unlikely. Considering

the size of the human population in western Oklahoma and Kansas, the

wide-spread distribution of the species, and the general lack of access

to the technology necessary for transporting minnows over long

distances, we do not believe populations in the Arkansas River were

established by bait bucket introductions.

Comment: Two individuals stated that the ARS is thriving in ponds

and lakes (e.g., Optima Reservoir) in Oklahoma.

Service Response: All of the existing life history information

indicates that the ARS is an obligate riverine species. Flowing water

is necessary to keep the eggs suspended in the water column until

hatching and the larvae become free-swimming. The few collection

records from reservoirs were obtained following a flood event,

immediately post-impoundment, or under similar circumstances. A

persistent, self-perpetuating reservoir population has never been

documented.

Issue 10: Socioeconomic Impacts

Comment: Numerous (325) commenters stated that listing and the

regulations which follow will have a devastating effect on the economy

of the region. Conversely, two commenters stated that society will

benefit when habitat for threatened and endangered species is

protected. One other commenter stated that Federal listing of the

interior least tern (Sterna antillarum) has not affected landowners

economically. Fifty commenters requested that we prepare an in-depth

regional economic impact study describing how listing will affect

present and future economic growth and metropolitan development. Forty-

eight others believed that listing places the needs of animals over the

needs of the people.

Service Response: Under section 4(b)(1)(A) of the Act, we must base

listing decisions solely on the basis of biological information using

the best scientific and commercial data available without considering

possible economic or other impacts. Because we are specifically

precluded from considering economic effects, either positive or

negative, in a final decision on a proposed listing, we did not

evaluate or consider the economic effects of listing this species.

While economic effects, private property rights, and related

concerns cannot be considered in listing decisions, we intend to work

closely with affected parties throughout the Arkansas River basin to

accommodate economic and recreational activities to the extent possible

while ensuring the continued survival and recovery of the ARS. By

Federal Register notice on July 1, 1994 (59 FR 34272), the Secretaries

of the Interior and Commerce set forth an interagency policy to

minimize social and economic impacts consistent with timely recovery of

listed species. We will strive to balance any recovery actions for the

ARS with social and economic concerns.

Comment: Three commenters stated that the High Plains aquifer

exists to be exploited for man's benefit. Another respondent stated

that once water supplies in the Texas Panhandle are gone, they cannot

be easily replaced. Similarly, one respondent stated that one of the

Texas underground water conservation districts is involved in

developing and implementing an aquifer management plan.

Service Response: Listing will not preclude a landowner's ability

to utilize water which exists on or under his property, unless such use

would result in take of ARS pursuant to section 9 of the Act. A

description of activities we believe would and would not likely violate

section 9 is presented in the ``Available Conservation Measures''

section.

If a landowner proposes to withdraw groundwater to an extent that

taking of ARS would likely occur, the landowner could seek a section

10(a)(1)(B) incidental take permit to legally take ARS incidental to

otherwise lawful activities. We recognize the importance of the aquifer

to the citizens of the region but also realize the importance of the

aquifer to streamflow within the basin. We believe that a region-wide

focus on conservation will ensure that the aquifer can meet the needs

of people and the ARS simultaneously. Even at reduced pumping rates,

the supply of water within the aquifer is not unlimited. Many citizens

realize this

[[Page 64787]]

and are diligently striving to conserve this resource. We support such

efforts.

Comment: Eleven commenters wanted to know how listing and section 7

of the Act would affect Federal agencies. One commenter was concerned

that the section 7 process would increase the costs of and delay

affected projects. Seventeen commenters stated that listing the shiner

would impact several existing or proposed water development projects in

the Arkansas River Basin either by requiring downstream releases or

eliminating the ability to control floodwaters. Similarly, seven

commenters stated that any change in operation of the upstream Federal

reservoirs, which are operated to maximize benefits to the McClellan-

Kerr Arkansas River Navigation System, would have a negative impact on

navigation either by altering the uses, benefits, and reliability of

the navigation system or impacting operation and maintenance of the

system. Three commenters stated that listing will extend the

regulations of the Act to private land and impact all Federal funds

spent in the region.

Service Response: Any action funded, carried out, or authorized by

a Federal agency that may affect a listed species would be subject to

the section 7 consultation process. The implications of the

consultation process on the various agencies would vary according to

the nature of the project. If a project was determined to adversely

affect a listed species, 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 mandatory terms and conditions

and recommended reasonable and prudent measures in an incidental take

statement to minimize take and its effects. Under 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 determined 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 alternatives and terms and conditions are not

discretionary. 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 reservoirs will be evaluated for

impacts to the ARS, 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, such as in the McClellan-Kerr Navigation

System, further consultation under section 7 would be unlikely.

Private actions, such as construction of a private residence, would

be exempt from the regulatory provisions of section 7, unless Federal

funds were expended or Federal authorization was required. However,

private actions that would result in the taking of an ARS are not

exempt. In the latter case, a private party could seek a section

10(a)(1)(B) incidental take permit to legally take ARS incidental to an

otherwise lawful activity.

Comment: Seven commenters stated that listing would affect

recreational activities (fishing and trail rides) on the Canadian

River, at the Lake Meredith National Recreation Area, and at Conchas

and Ute reservoirs.

Service Response: We believe that normal, lawfully authorized

recreational activities such as hiking, trail rides, camping, boating,

hunting, and fishing, do not result in take of the ARS and would not be

prohibited under section 9 of the Act (see ``Available Conservation

Measures'' section). These activities do not generally impact or

destroy the physical habitat for the ARS. However, recreational vehicle

use within the river bed to the extent that habitat for the ARS 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. Similarly, if a Federal agency

funds, authorizes, or carries out a recreation program at Ute or

Conchas Reservoir, that agency has an obligation to evaluate its

activities for possible effects on listed species. We do not anticipate

that recreational activities at the Lake Meredith National Recreation

Area, Ute Reservoir, or Conchas Reservoir will be altered as a result

of these evaluations.

Comment: Eighty-four commenters contended that the listing of the

ARS will result in control of, or ``taking'' of private property (e.g.,

grazing and water rights), in clear violation of their rights within

the Fifth, Tenth, and Fourteenth Amendments to the U.S. Constitution.

Similarly, 25 others concluded that property would be taken without

compensation or that listing would impact ability to generate income.

Conversely, one individual stated that Federal listing of a fish, the

leopard darter (Percina pantherina), in southeastern Oklahoma did not

result in the loss of private land rights.

Service Response: Listing under the Act does not imply that private

land would be confiscated or taken without just compensation, and the

Act itself does not authorize ``takings'' of private lands. Many of the

provisions of the Act apply only to Federal agencies and Federal lands.

However, section 9 of the Act prohibits taking of a listed species,

including the ARS, regardless of land ownership. Recovery planning for

the species may include recommendations for land acquisition or

easements involving private landowners. These efforts would only be

undertaken with the cooperation of the landowner. In the vast majority

of cases, listing of a species does not preclude private landowners

from using their land as they always have.

We do not anticipate significant land use restrictions, impacts to

local economies, or to the well-being of citizens. The listing of the

Arkansas River Basin population of the ARS does not, in itself,

restrict groundwater pumping or water diversions, does not in any way

limit or usurp water rights, and does not violate State or Federal

water law. Through section 7 consultations, extraction or use of water

that is funded, carried out, or authorized by Federal agencies that

might adversely affect the ARS could be modified through reasonable and

prudent measures or alternatives in a biological

[[Page 64788]]

opinion, as discussed previously. However, compliance with section 7 or

other provisions of the Act has never resulted in the wrongful taking

of property.

Comment: Numerous (105) respondents expressed concern that listing

would either reduce land and property values or diminish or eliminate a

property owner's equity. Two other commenters specifically stated that

listing will depress property values as shown in the Texas A&M

University Real Estate Center's study on the Edwards Aquifer.

Service Response: The Act and regulations at 50 CFR 424.11(b)

require the Secretary of the Interior to make listing decisions based

on the best available scientific and commercial information regarding a

species' status, without reference to possible economic or other

impacts of such determinations. However, we do not anticipate that

listing would result in reduced land and property values or other

significant impacts to the economy. The results of one study, conducted

by the Massachusetts Institute of Technology (Meyer 1995), show that

endangered species listings have not depressed State economic

development activity as measured by growth in construction employment

and gross State product. Continuing depletion of the High Plains

Aquifer and related reduction in the region's water supply is likely to

be an equally important factor determining future land and property

values in the Region.

Comment: Twelve individuals expressed concern regarding the

implications of section 9 of the Act and either urged us to follow the

interpretation of the ``Sweet Home'' decision or expressed concern that

actions causing habitat alterations would constitute take under section

9.

Service Response: The Sweet Home decision (Sweet Home Chapter of

Communities for a Great Oregon v. Babbitt, 17 F.3d 1463) found the harm

regulation at 50 CFR 17.3 invalid because our definition of harm

exceeded our statutory authority and was not a reasonable

interpretation of the statute. The definition of harm at 50 CFR 17.3

includes ``. . . significant habitat modification or degradation. . .

.'' In this decision, the court found that harm does not include

habitat modification. However, on June 29, 1995, the Supreme Court

upheld our definition of harm to include habitat modification. The

prohibition against take of listed species applies to Federal and non-

Federal lands without respect to whether critical habitat has been

designated. In accordance with our policy published in the Federal

Register on July 1, 1994 (59 FR 34272), we have identified those

activities that would or would not constitute a violation of section 9

of the Act (see ``Available Conservation Measures'' section).

Comment: Twenty-two commenters believed we intend to restrict

grazing in riparian zones to reduce damage by livestock.

Service Response: We consider livestock grazing to be one of many

contributing factors affecting water quality within the Arkansas River

basin. However, we do not envision recommending widespread fencing of

riparian zones as a means of reducing water quality degradation within

the basin. Excluding livestock from riparian zones is just one means of

preserving water quality. Best grazing management practices, such as

low to moderate grazing and seasonal or rotational grazing, are

compatible with many natural resource objectives and likely do not

adversely modify the riparian zone.

Comment: Two respondents stated that we would hamper activities of

the commercial minnow industry in order to protect the ARS.

Service Response: We anticipate that listing of the ARS would only

have minimal effects on the activities of the commercial minnow

industry. At present, take of ARS in Kansas, New Mexico, and Oklahoma

without a valid permit is already prohibited by State law. Federal

listing will only increase the penalties for unauthorized take.

Considering the ARS is not sought by the commercial minnow industry,

any take that occurs is incidental to capture of other bait species and

will likely be minor. Collectors could minimize take of ARS by using

nets having a larger mesh size. We will work with the States and the

commercial minnow industry to reduce the threat to ARS from

recreational use of bait fish. We expect that any required changes in

bait fish collection practices would be minor.

Comment: Eight commenters were concerned that, in order to increase

streamflows, we would mandate which soil and water conservation

practices could be applied on local farms and ranches.

Service Response: The U.S. Department of Agriculture (USDA) has

already developed a list of approved soil and water conservation

practices. Under section 7 of the Act, we would consult with the USDA

to determine which practices are likely to result in impacts to the

ARS. Considering the number of practices that are available, we do not

believe that listing of the ARS would significantly affect the soil and

water conservation options for local farms and ranches. We have already

determined that certain conservation practices, such as terracing,

would not likely result in take of ARS (see ``Available Conservation

Measures'' section).

Comment: Ten commenters believed that listing would impact the

Bureau's Lake Meredith Salinity Control Project. Seven commenters

stated that this project is not a threat and would not impact the ARS.

Service Response: We expect the effects of the Lake Meredith

Salinity Control Project on the ARS will be minimal. Consequently,

conservation of the ARS will have little influence over the anticipated

construction and operation of this project (see factor a in ``Summary

of Factors Affecting the Species'' section).

Comment: Five commenters were concerned about the effect of the

listing on operation of Lake Meredith.

Service Response: In 1968, the Bureau turned operation and

maintenance of the reservoir over to the Canadian River Municipal Water

Authority (CRMWA). However, until the cost of the reservoir has been

repayed to the Federal government, operation of the reservoir is still

considered a Federal action. Arkansas River shiners are not known to

inhabit Lake Meredith. Arkansas River shiners prefer riverine

environments; if they occur in the reservoir, they would only occur in

the upper reaches of the reservoir on a temporary basis. Existing

literature on spawning requirements of the ARS do not indicate that the

species could complete its entire life cycle within the confines of the

reservoir. Consequently, we do not anticipate any impacts to reservoir

operation.

Scheduled, downstream releases from Lake Meredith have not occurred

since the reservoir was constructed. Water releases could occur at

three points, the spillway, control gates, and river outlet works.

Water levels in the reservoir have never reached the elevation of the

spillway. Releases could still occur from one of the other two points

as long as the water surface elevation was above 868.6 m (2850 ft).

Although lack of releases from Lake Meredith has had a significant

effect on ARS habitat below the reservoir, we do not believe releases

from Lake Meredith would provide any significant, long-term benefit to

the ARS. The Canadian River floodplain below Lake Meredith has been

invaded by salt cedar, mesquite, and other perennial woody vegetation

such that a single, one-time release would not likely result in

significant improvements in habitat for the ARS. This vegetation would

likely consume a considerable portion of the released water and prevent

restoration to a wider,

[[Page 64789]]

unvegetated floodplain unless the density of the vegetation was reduced

or vegetation was removed prior to release. Likewise, we do not believe

sufficient precipitation occurs in this area to support sufficient

releases, either in duration or frequency, to improve downstream

aquatic habitat permanently.

During the recovery process, we intend to investigate the potential

for improving habitat below Lake Meredith with the Bureau, CRMWA, and

TPWD. If releases from Lake Meredith ever occur, we will work with

responsible entities to ensure that ARS benefit to the extent possible.

Comment: Thirty-seven commenters stated that listing would affect

municipal water systems. Two others were concerned about the

consequences of listing on municipal storm water drainage systems and

waste water treatment facilities.

Service Response: Unless a city's water supply system, storm water

drainage system, or waste water treatment facility is funded, carried

out, or authorized by a Federal agency, these projects would not be

subject to the requirements of section 7 (see other comment response

under this issue for further discussion of the section 7 consultation

process). If these projects result in take of ARS, the provisions of

section 9 would apply. As stated in the ``Available Conservation

Measures'' section, existing discharges into waters supporting the

species that are carried out in accordance with existing regulations

and permit requirements generally would not constitute a taking of ARS.

The States, with assistance from and oversight by the U.S.

Environmental Protection Agency (EPA), set water quality standards that

are presumably protective of aquatic life, including the ARS. If new

information indicates that current water quality criteria are

insufficient to prevent the likelihood of jeopardy to the ARS, new

standards may be needed. In this instance, the EPA would consult with

us under section 7 of the Act to determine appropriate standards.

However, we believe that no significant increase in regulatory burden

regarding waste water discharge permits would result from listing of

the ARS.

Comment: Nineteen respondents wanted to know what impact this

listing would have on the use of agricultural chemicals. Another was

concerned that listing would hinder ability to obtain section 18

exemptions under the Federal Insecticide, Fungicide and Rodenticide Act

(FIFRA).

Service Response: The EPA, during its pesticide registration

process, consults with us to determine if a pesticide will likely

jeopardize the continued existence of any federally listed species. If

we determine that the application of the chemical is likely to

jeopardize a species, we provide reasonable and prudent chemical

application alternatives, if any, that would avoid the likelihood of

jeopardy. These alternatives generally consist of some type of

application restriction to protect the species (e.g., prohibit

pesticide application within a prescribed distance from an inhabited

stream reach). Thus, it is possible that we could require restrictions

on the use of a pesticide to avoid jeopardizing the ARS.

Although there may be some added restrictions to pesticide use as a

result of this listing, we believe that the resulting impacts to

pesticide users will be minimal. We have already assessed the stream

reaches inhabited by the ARS that are populated with previously listed

species (interior least tern and bald eagle (Haliaeetus

leucocephalus)). Additionally, some pesticides reviewed for

registration are not believed to be harmful to fishes and no

restrictions are applied. If we find a pesticide to be harmful to a

species, pesticide users can sometimes use other unrestricted,

alternative chemicals to control the same pest.

Comment: Fifteen commenters stated that listing the ARS would have

the same implications for the High Plains aquifer as listing did for

the Edwards Aquifer.

Service Response: We do not expect the implications to be the same

because the two situations differ. The High Plains aquifer is not a

porous limestone, karst aquifer, as is the Edwards Aquifer. Recharge in

the southern portions of the High Plains Aquifer is no more than 2.5 cm

(1 in) annually (Opie 1993). Although discharge from the High Plains

Aquifer is important to streamflow in the western portions of the

Arkansas River basin (Luckey and Becker 1998), the ARS is not an

obligate spring inhabitant. Several of the listed species occurring in

the Edwards Aquifer Region are entirely dependent on spring discharge

for habitat maintenance or actually reside underground within the

aquifer.

Comment: Numerous (280) commenters stated that listing or

designation of critical habitat would result in the Federal government

regulating or restricting the use of surface/stream water and

groundwater within the Arkansas River basin. Similarly, one respondent

stated that although pumping from the aquifer may one day cease to be

economically feasible, the free enterprise system must determine when

this occurs, not a fish or the Federal government.

Service Response: The listing of the ARS does not, in itself,

restrict groundwater pumping or stream water diversions, does not in

any way limit or usurp water rights, and does not violate State or

Federal water law. Likewise, we have no authority to regulate surface

water or groundwater. However, groundwater pumping or a surface water

withdrawal that would dewater a stream or reduce base flows to the

point that a take of ARS occurred would be a violation of section 9 of

the Act.

We believe that groundwater pumping at existing rates does not pose

an immediate threat to remaining ARS aggregations in the Canadian River

in Texas and Oklahoma, but that withdrawals at existing rates will

eventually deplete the aquifer to the point that streamflows will be

reduced and ARS will be affected. Because withdrawals of groundwater

and surface water at current rates have already reduced streamflows in

other areas of the ARS historic range in western Oklahoma and Kansas,

northern Texas, and eastern New Mexico, continued withdrawals at

current rates will further diminish streamflow and make habitat more

unsuitable for ARS. In the currently occupied range of the ARS,

withdrawals will likely cause adverse effects in the foreseeable future

unless mitigating actions are implemented. In the long term,

groundwater withdrawals must be reduced to the point that they do not

exceed recharge, or ARS habitat in the western reaches of the Arkansas

River basin will ultimately be lost. A recent report by the USGS

(Luckey and Becker 1998) demonstrates the predevelopment influence of

the High Plains aquifer on streamflows in the western reaches of the

Arkansas River basin. However, we recognize that groundwater pumping is

not entirely responsible for reduced streamflows and the demise of the

ARS in the Arkansas River basin.

We intend to fully 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. Groundwater management

districts in the Texas High Plains have aggressively encouraged

implementation of water-saving technologies that have minimized annual

depletion. For example, low head, low pressure sprinkler (LEPA) systems

have largely replaced high

[[Page 64790]]

pressure sprinkler systems in the Texas High Plains.

Some other States do not have underground water conservation

districts or similar groups that encourage water conservation to the

same extent. Unfortunately, conversion to LEPA systems in other States

has not been as widespread. Flood irrigation and high pressure center

pivot and side roll systems are still often used in western Oklahoma

and Kansas. Conservation of the High Plains aquifer, and the resulting

benefits to streamflow within the Arkansas River basin, will not occur

without the participation of other States. We believe voluntary

conservation of the groundwater resource will be more effective in

recovery efforts for the ARS than restricting or otherwise regulating

withdrawals.

Comment: Two commenters stated that groundwater withdrawals in the

extreme southern portion of the High Plains aquifer do not influence

groundwater levels or streamflows in the Canadian River basin and that

we mislead the public with these statements.

Service Response: We agree that this portion of the High Plains

aquifer appears to have little influence, if any, over groundwater

levels or streamflows within the Canadian River basin in Texas.

Comment: Four commenters stated that listing might impose

additional cuts on oil and gas development, causing imports of foreign

oil to rise.

Service Response: The listing of the ARS will not, in itself,

restrict oil and gas development. However, if such development is

funded, authorized, or carried out by a Federal agency, that agency has

an obligation to evaluate it's activities for possible effects on

listed species. If such activities may adversely affect the ARS, then

some conservation actions may be necessary. Use of water from the High

Plains aquifer for secondary oil recovery is not likely to be

restricted as a result of this listing. We believe voluntary

conservation of the groundwater resource will be more effective in

recovery efforts for the ARS than restricting or otherwise regulating

withdrawals.

Peer Review

We routinely solicit comments from parties interested in, and

knowledgeable of, taxa which have been proposed for listing as

threatened or endangered species. On May 7, 1993, we mailed a summary

of the available status information on the ARS to 72 Federal and State

agencies, organizations, and knowledgeable individuals, including 10

university scientists familiar with the status of fishes in the

Arkansas River basin. We solicited their comments on life history,

threats, and the need to propose this species under the Act. We

received 13 responses.

Of the 13 respondents, the National Park Service, the Corps' Tulsa

District, Kansas Water Office, and a fishery scientist from Texas Tech

University provided no new information. The Bureau submitted

information on the Lake Meredith Salinity Control Project. The TPWD

submitted known collection records and stated that the last recorded

observation in Texas was from 1954. Two acknowledged scientific

authorities and one research assistant from Oklahoma State University

responded that the status and threats we presented were accurate and

supported listing. A highly respected fisheries ecologist from the

University of Oklahoma commented that periodic scientific collecting

would not harm the species and stated that modification of streamflow

was the primary threat. A biologist employed by the State of Oklahoma,

who has annually surveyed fish communities throughout the State since

1976, submitted information relative to the status of the species. Two

of our offices, one in Kansas and one in New Mexico, also provided

status information. Our New Mexico Ecological Services Field Office

concurred that listing of the Pecos River population of the ARS was not

appropriate. The most extensive comments were submitted by the New

Mexico Interstate Stream Commission. They did not express an opinion on

the need to list but did provide considerable information on threats to

the species. We considered all of the information provided in preparing

this rule.

A July 1, 1994, policy on peer review (59 FR 34270) requires us to

solicit peer review on our listing proposals from a minimum of three

independent peer reviewers. We sent copies of the proposed rule to 20

appropriate and independent specialists who have extensive knowledge or

expertise in the life history, taxonomy, and ecology of the ARS. All of

these specialists were employed at universities within the States

affected by the proposed rule. We received one response which expressed

support for the proposed listing and provided additional insight into

threats affecting the species. The remaining reviewers did not respond

to our request. We also met with USGS staff in Oklahoma to discuss

threats affecting this species.

We also requested and/or received comments on the proposed rule

from a variety of Federal, State, county, and private individuals,

including all parties known to us having expertise regarding the ARS.

Additionally, the State fish and game agencies as well as the State

water management agencies were requested to comment. The game and fish

agencies in the States of Kansas, New Mexico, and Oklahoma supported

listing. The TPWD opposed listing the species in Texas. Various State

water management agencies and the USGS provided information on threats

to the species. We considered all of these comments in preparing this

final rule.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we have determined that the Arkansas River basin population

of the ARS is not in imminent danger of extinction. However, we have

determined that this population is likely to become in danger of

extinction within the foreseeable future and, therefore, should be

listed as a threatened species.

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) 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

lists. 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). These factors and their application to the Arkansas River basin

population of the ARS (Notropis girardi) are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The primary threat facing the ARS

and its associated habitat is the destruction and modification of

habitat by one or more of the following: stream channelization,

reservoir construction, streamflow alteration and depletion, and, to a

lesser extent, water quality degradation.

Navigation improvements on the Arkansas River by the Corps began in

Arkansas in 1832, 4 years before Arkansas adopted statehood (Corps

1989). Initially, constructed projects generally consisted of small

improvements, such as clearing and snagging operations, until passage

of the River and Harbor Act in 1946 authorized construction of the

McClellan-Kerr Arkansas River Navigation System from the Mississippi

River upstream to Catoosa, Oklahoma. Project construction began in the

1950s and intensified during the 1960s. Project segments from the

Mississippi confluence upstream to Fort Smith, Arkansas were completed

by 1969. By 1970, the channel had been extended up

[[Page 64791]]

the Arkansas River as far as Muskogee, Oklahoma and was essentially

complete. The project included numerous bank stabilization and channel

rectification projects, 17 locks and dams (12 in Arkansas), annual

channel maintenance, and port facilities. Several of the locks and dams

are multipurpose facilities, providing hydropower generation. The Corps

maintains a minimum channel depth of 3 m (9 ft) and minimum width of 76

m (250 ft).

Channelization causes a variety of changes in natural stream

channels, including altering the channel shape, form, and width, water

depth, substrate type, stream gradient, streamflow, water velocity, and

the hydroperiod (Simpson et al. 1982). Channelization of the Arkansas

River has permanently altered and eliminated suitable habitat for the

ARS and is largely responsible for the extirpation of the ARS within

the State of Arkansas. This channelization has also contributed to the

decline of the species in Oklahoma. In the Arkansas River downstream of

Muskogee, Oklahoma, ARS were last observed in 1985 (Pigg 1991).

Buchanan (1976) failed to collect any ARS specimens from the Arkansas

River Navigation System in Arkansas, and fish collections between 1972

and 1988 from the Arkansas River near Fort Smith, Arkansas also failed

to produce any ARS specimens (Robison and Buchanan 1988).

Reservoir construction is the most widespread cause of habitat loss

for the ARS. Numerous multipurpose impoundments, including three

mainstem reservoirs on the Arkansas River (John Martin, Kaw, and

Keystone) and four mainstem reservoirs on the Canadian River (Conchas,

Ute, Meredith, and Eufaula) have been constructed within the Arkansas

River basin. Other large mainstem impoundments also have been

constructed within the historical range of the ARS--Optima and Canton

reservoirs on the North Canadian River, and Great Salt Plains Reservoir

on the Salt Fork of the Arkansas River. All of these impoundments have

inundated, dewatered, fragmented, or otherwise directly altered

considerable sections of riverine habitat once inhabited by ARS.

Arkansas River shiner populations persist only below Ute Reservoir in

New Mexico and Lake Meredith in Texas (Bonner et al. 1997; Eric Altena,

in litt. 1993; Larson et al. 1991; Pigg 1991).

Inundation following impoundment eliminated ARS spawning habitat,

isolated populations, and favored increased abundance of predators both

upstream and downstream of these reservoirs. Water releases from

impoundments may be infrequent or non-existent in the western portions

of the Arkansas River basin causing streams to be dewatered for

considerable distances downstream of the reservoir.

In the eastern region of the basin, sufficient water is released to

maintain downstream flows. However, these releases generally alter the

natural flow regime for considerable distances downstream of the

impoundment, establishing a stream environment unlike that which

existed under pre-impoundment conditions. Regulation of streamflows has

severely modified or eliminated natural cycles of flooding, drought,

and sediment transport. Physical changes from these altered flows may

include modifications to water velocity, wetted perimeter (amount of

streambed exposed to water at any given flow), water depth, streambed

and bank erosion, and suspension and re-distribution of bed and bank

sediments.

Impoundments also function as barriers, fragmenting populations and

habitat into smaller, more isolated units. These fragmented sections

are then more likely to be affected by influences from external factors

(e.g., localized drought, water withdrawals, permitted and unpermitted

wastewater discharges). Once the habitats are isolated, other

aggregations of ARS can no longer disperse into them and help maintain

or restore populations of ARS there.

In 1952, the ARS was believed to inhabit the entire Arkansas River

mainstem in Kansas, but was already suspected to be declining due to

the construction of John Martin Reservoir 10 years earlier on the

Arkansas River in Bent County, Colorado (Cross et al. 1985). By 1960,

the species had disappeared from the Arkansas River mainstem west of

Wichita, Kansas and was absent from the entire Kansas portion of the

Arkansas mainstem by 1983 (Cross et al. 1985).

Arkansas River shiners were apparently abundant in the Arkansas

River near Tulsa, Oklahoma prior to construction of Keystone Reservoir

in 1964 (Pigg 1991). Following addition of hydropower at Keystone Dam

in 1968, the resultant flow alterations severely depleted ARS

populations. The ARS was last observed from the section of the Arkansas

River between Keystone Reservoir and Muskogee, Oklahoma, in 1982. Kaw

Reservoir, another Arkansas River mainstem impoundment, located

upstream of Keystone Reservoir, became operational in 1976. Arkansas

River shiners were last observed downstream of Kaw Reservoir in 1986

(Larson et al. 1991, Pigg 1991).

On the Canadian River, Eufaula Reservoir, Lake Meredith, Conchas

Reservoir, and Ute Reservoir have impacted the ARS. Construction of

Conchas Reservoir in 1938 ultimately led to the extirpation of upstream

populations. Flows in the Canadian River prior to construction of

Conchas Reservoir, as measured at Logan, New Mexico (before Ute

Reservoir was completed in 1963), averaged 11.1 cubic m/s (392 cfs).

Flows declined to 7.6 cubic m/s (270 cfs) after Conchas Reservoir was

built. Flows at Logan declined to 1.1 cubic m/s (38 cfs) after

construction of Ute Reservoir.

Prior to completion of Eufaula Reservoir, ARS were abundant in the

Canadian River between the proposed dam site and the Arkansas River

(Pigg 1991). Arkansas River shiners have not been collected from this

reach of the Canadian River since the reservoir became operational in

1964. The disappearance of ARS from the 43-km (27-mi) section of the

Canadian River below Eufaula Reservoir has been attributed to rapid

water level fluctuations occurring during hydropower generation and

altered conditions favoring an abundant predatory fish population (Pigg

1991).

Lake Meredith was constructed by the Bureau in 1965 and

conservation storage is presently managed by the CRMWA. Prior to

construction of the reservoir, historical streamflow measured at

Canadian, Texas, 121 river-km (75 river-mi) below Lake Meredith,

averaged 15.5 cubic m/s (549 cfs). Releases from Lake Meredith are now

infrequent to non-existent (Williams and Wolman l984) and have

considerably altered flows in the Canadian River downstream of the

reservoir. Annual discharge at Canadian, Texas now averages only 2.4

cubic m/s (83.7 cfs). Principal sources of water to the Canadian River

below Lake Meredith are wastewater discharges, tributary inflows, and

groundwater discharges (Buckner et al. 1985). Although ARS persist in

the Texas portion of the Canadian River some 121 river-km (75 river-mi)

downstream of Lake Meredith, remaining populations are small.

Reduced flows downstream of Lake Meredith, and to a lesser extent

below Ute Reservoir, have considerably altered the morphology of the

Canadian River and have reduced the extent of suitable habitat for ARS.

Stinnett et al. (1988) examined a 370-km stretch of the Canadian River

and associated 72,843 hectares (ha) (179,495 acres (ac)) of floodplain

between the western Oklahoma border and the western

[[Page 64792]]

Pottawatomie County line near Norman, Oklahoma. Between 1955 and l984,

the amount of riverine wetlands (shoreline and open water) had

decreased by about 50 percent. Sandbar acreage alone had been reduced

by 54 percent. Wetland and associated floodplain changes were

principally the result of hydrological modifications due to the

influence of Lake Meredith (Stinnett et al. 1988). The lack of

significant scouring flows permitted the encroachment of vegetation

into the channel, reducing channel width by almost 50 percent since

1955. Although ARS persist in the Canadian River downstream of Ute

Reservoir and Lake Meredith, the reduction in available habitat has

likely suppressed shiner populations in affected reaches. Habitat

alterations associated with reduced flows downstream of Lake Meredith

are considered to be a significant, ongoing threat to the continued

existence of the ARS within the Canadian River.

Surface water withdrawals constitute a small percentage of the

total water used within the western sections of the historical range of

the ARS, primarily because of the limited number of impoundments and

elevated levels of chlorides. However, surface flows in the Cimarron

River upstream of Waynoka, Oklahoma are affected by several diversions

for irrigation. Within the western portion of the Arkansas River basin,

groundwater is an extremely important water source due to limited

surface supplies and lack of precipitation during the summer months

(Oklahoma Water Resources Board 1997, 1990, 1980; Kansas Water Office

and Kansas Division of Water Resources 1992; Texas Water Resources

Board 1990; Stoner 1985; Texas Department of Water Resources 1984). For

example, withdrawals from western Oklahoma aquifers account for about

80 percent of the State's total groundwater usage (Oklahoma Water

Resources Board 1990). Irrigation of croplands in the basin is the

dominant use of this water. Withdrawal from the High Plains aquifer and

from alluvial and terrace deposits associated with the major river

systems in conjunction with diversion of surface water has affected

streamflow in several of the major tributaries. 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.

During the period from 1950 to 1975, water tables receded from 3 m

(10 ft) to more than 30 m (100 ft) over much of southwestern Kansas

(Cross et al. 1985). Between 1955 and 1980, declines in water levels by

as much as 31 m (102 ft) have been recorded from the High Plains

Aquifer in Oklahoma (Oklahoma Water Resources Board 1980). In 1960,

there were about 400 groundwater wells in the Oklahoma panhandle; by

1974, the number of wells had risen to 2,067 (Oklahoma Water Resources

Board 1980). By 1988, there were an estimated 3,200 high capacity wells

overlying the Ogallala Aquifer in western Oklahoma alone (Oklahoma

Water Resources Board 1990).

In Texas, withdrawals of groundwater in the Canadian River Basin

were as much as 33 times higher than the annual natural recharge in

1980 and irrigation return flows in the Basin are negligible (Texas

Department of Water Resources 1984). From 1980 to 1994, Dugan and

Sharpe (1996) documented a nearly continuous area of decline exceeding

3 m (10 ft) in the Central High Plains subregion of the aquifer,

including much of southwestern Kansas, portions of the Oklahoma

Panhandle, and much of the northern Panhandle of Texas. The water level

declines in the Central High Plains subregion were the largest, both in

area and magnitude of decline, of any in the entire High Plains

aquifer. Even precipitation that averaged about 5 cm (2 in) above

normal from 1981-93 in the Central High Plains appeared to have a

minimal effect on the large rate of water level decline (Dugan and

Sharpe 1996). Portions of this subregion also showed evidence of a

long-term decline in the amount of irrigated cropland acreage during

this same period.

Streamflow is the largest natural discharge from the aquifer and

pumping from the aquifer has caused water level declines and streamflow

reductions (Luckey and Becker 1998). The relationships between

groundwater pumping and river flow are complicated. Generally, when

groundwater is pumped faster than it is restored, water tables drop,

channel seepage ceases, and streams dry up. Under these conditions,

suitable habitat to support ARS populations is non-existent.

The Canadian River appears to have been affected the least by water

withdrawals from the High Plains aquifer primarily because much of the

Canadian River in Texas and New Mexico has cut below the water bearing

strata and the alluvium has not been significantly tapped as a source

of water. Much of the land immediately adjacent to the Canadian River

in Texas is rangeland and relatively little groundwater use occurs.

Upstream of the Hutchinson-Roberts county line, including Lake

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

High Plains aquifer. 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 streamflow within this reach would be predominantly through

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

water table intersects the land surface.

Springs and seeps in the Canadian River basin of Texas issue

largely from Ogallala sand, gravel, and caliche, and from Triassic

sandstone (e.g. Dockum and Santa Rosa formations), with a few flowing

from Permian dolomite (Brune 1981, Peckham and Ashworth 1993). Upstream

of Lake Meredith, Brune (1981) identified 57 springs or seeps from

Oldham and Potter counties and another 25 from Hutchinson County. In

his discussion of the importance of these water bearing formations and

the effects of groundwater withdrawal on spring flow, Brune (1981)

stated that the water tables in the Ogallala and Dockum aquifers were

rapidly being depleted and flow within the associated springs had

declined or ceased to flow. However, the contribution of these springs

and seeps to flow in the Canadian River upstream of Lake Meredith is

relatively minor.

In 1937-38, prior to large scale development of the High Plains

aquifer for irrigation, flow contributions from 56 known springs in

Oldham and Potter counties were measured (Texas State Board of Water

Engineers 1938a, 1938b). Measured flows from these springs totaled

between 2 and 4 cfs. Prior to construction of Conchas Reservoir, New

Mexico in 1938, 2-4 cfs represented only about 0.5-1 percent of the

average annual discharge in the Canadian River, as measured at Logan,

New Mexico, and less than one percent at Amarillo (USGS 1961, 1963).

Based on this information, the influence of irrigation withdrawals from

the High Plains aquifer on streamflows upstream of Lake Meredith

appears to be insignificant, particularly compared to flow reductions

caused by impoundment of the Canadian River in New Mexico.

Downstream of Lake Meredith, the Canadian River is below the

elevation of the High Plains aquifer in Hutchinson County, but is

confined within the sediments of the aquifer in Roberts and Hemphill

counties (John Ashworth, Texas Water Development Board, in litt. 1995).

Within Hutchinson County, as within the segment above Lake Meredith,

contributions from springflow are the primary influence of the aquifer

on streamflow. Unfortunately, we have

[[Page 64793]]

been unable to locate comparable historic spring flow information for

the reach downstream of Lake Meredith. Brune (1981) provides

information on flow from some 62 springs in Hutchinson, Hemphill, and

Roberts counties. These springs generally have relatively low flows,

with only Spring Lake Springs in Hutchinson County, Texas having a

measured flow exceeding 1 cfs (Brune 1981). However, these measurements

were taken in 1977 and 1978 after widespread irrigation development had

already had its greatest effect on water levels in the High Plain

aquifer. Consequently, we cannot determine the influence of groundwater

pumping on the observed springflows with the available information.

Considering the small contribution of springflow within this segment,

we believe a reduction in spring flow is not likely to have had a

profound impact on streamflows or habitat for the ARS. Certainly, any

impact from a reduction or cessation of flows from these springs and

seeps is considerably less significant than the influence of Lake

Meredith on existing streamflows.

Downstream of the Hutchinson County segment, however, groundwater

moves toward the river where it eventually either discharges as spring

flow into the river or seeps into the alluvial deposits (John Ashworth,

in litt. 1995). The potential for groundwater depletion to affect

streamflows is much greater in this segment of the Canadian River. For

example, a proposed project adjacent to the Canadian River in Roberts

and Hutchinson counties, Texas has the potential to reduce median

streamflows over the 50-year life of the project by as much as 25

percent, as measured at Canadian, Texas (Kathy Peters, USGS, in litt.

1998). The proposed project would also dewater White Deer Creek, a

Canadian River tributary, over much of its length. This project

ultimately would involve the pumping of some 1,200 cubic meters (40,000

acre-feet) of groundwater annually (Bureau 1997). Currently, no

reliable means of augmenting streamflows in White Deer Creek or the

Canadian River have been identified. Occurrences of the ARS in the

Canadian River within the project are extremely rare. No ARS were

reported from fish collections made by Texas Tech University, Bureau,

and us from White Deer Creek or the Canadian River in 1998 (Shirley

Shadix, Bureau, in litt. 1998). Only three ARS were reported captured

by Texas Tech University at Canadian, Texas in 1995 (Gene Wilde, in

lit. 1997). However, we are currently working with the Bureau and the

CRMWA to identify feasible measures which would reduce the impacts of

the proposed project.

Continued unmitigated groundwater withdrawal threatens to further

reduce or eliminate baseflows in western sections of the Arkansas River

basin. Fortunately, improved conservation, more efficient irrigation

practices, and improved technology have resulted in less water demand

over the last 5 years. However, precipitation and runoff contribute

little recharge to the underlying aquifers. In the Canadian River basin

in Texas, water demand is projected to decrease only slightly over the

next 50 years primarily due to improvements in irrigation efficiency

(Texas Water Development Board 1990). In Oklahoma, water use is

projected to increase statewide over the next 50 years (Oklahoma Water

Resources Board 1997). Municipal and industrial de

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