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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE42

Endangered and Threatened Wildlife and Plants; Final Rule To List

the Topeka Shiner as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service determines the Topeka

shiner (Notropis topeka) to be an endangered species under the

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

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

from small tributary streams in the Kansas and Cottonwood river basins

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

basins in Missouri; the North Raccoon and Rock river basins in Iowa;

the James, Big Sioux and Vermillion river watersheds in South Dakota;

and, the Rock and Big Sioux river watersheds in Minnesota. The Topeka

shiner is threatened by habitat destruction, degradation, modification,

and fragmentation resulting from siltation (the build up of silt),

reduced water quality, tributary impoundment, stream channelization,

and stream dewatering. The species also is impacted by introduced

predaceous fishes. This determination implements Federal protection

provided by the Act for Notropis topeka. We further determine that

designation of critical habitat is neither beneficial nor prudent.

EFFECTIVE DATE: January 14, 1999.

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

by appointment, during normal business hours at the U.S. Fish and

Wildlife Service, Kansas Ecological Services Field Office, 315 Houston

Street, Suite E, Manhattan, Kansas 66502.

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

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

(913/539-3474).

SUPPLEMENTARY INFORMATION:

Background

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

using specimens captured from Shunganunga Creek, Shawnee County, Kansas

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

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

is short with a small, moderately oblique (slanted or sloping) mouth.

The eye diameter is equal to or slightly longer than the snout. The

dorsal (back) fin is large, with the height more than one half the

predorsal length of the fish, originating over the leading edge of the

pectoral (chest) fins. Dorsal and pelvic fins each contain 8 rays

(boney spines supporting the membrane of a fin). The anal and pectoral

fins contain 7 and 13 rays respectively, and there are 32 to 37 lateral

line scales. Dorsally the body is olivaceous (olive-green), with a

distinct dark stripe preceding the dorsal fin. A dusky stripe is

exhibited along the entire longitudinal length of the lateral line. The

scales above this line are darkly outlined with pigment, appearing

cross-hatched. Below the lateral line the body lacks pigment, appearing

silvery-white. A distinct chevron-like spot exists at the base of the

caudal (tail) fin (Cross 1967; Pflieger 1975; Service 1993).

The Topeka shiner is characteristic of small, low order

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

temperatures. These streams generally exhibit perennial (year round)

flow, however, some approach intermittency (periodic flow) during

summer. At times when surface flow ceases, pool levels and cool water

temperatures are maintained by percolation (seepage) through the

streambed, spring flow and/or groundwater seepage. The predominant

substrate (surface) types within these streams are clean gravel, cobble

and sand. However, bedrock and clay hardpan (layer of hard soil)

overlain by a thin layer of silt are not uncommon (Minckley and Cross

1959). Topeka shiners most often occur in pool and run areas of

streams, seldom being found in riffles (choppy water). They are pelagic

(living in open water) in nature, occurring in mid-water and surface

areas, and are primarily considered a schooling fish. Occasionally,

individuals of this species have been found in larger streams,

downstream of known populations, presumably as waifs (strays) (Cross

1967; Pflieger 1975; Tabor in litt. 1992a).

Data regarding the food habits and reproduction of Topeka shiners

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

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

the species as a nektonic (swimming independently of currents)

insectivore (insect eater). In a graduate research report, Kerns

(University of Kansas, in litt. 1983) states that the species is

primarily a diurnal (daytime) feeder on insects, with chironomids

(midges), other dipterans (true flies), and ephemeropterans (mayflies),

making up the bulk of the diet. However, the microcrustaceans cladocera

and copapoda (zooplanktons) also contribute significantly to the

species' diet. The Topeka shiner is reported to spawn in pool habitats,

over green sunfish (Lepomis cyanellus) and orangespotted sunfish

(Lepomis humilis) nests, from late May through July in Missouri and

Kansas (Pflieger 1975; Kerns in litt. 1983). Males of the species are

reported to establish small territories near these nests. Pflieger (in

litt. 1992) states that the Topeka shiner is an obligate (essential)

spawner on silt-free sunfish nests, while Cross (University of Kansas,

pers. comm. 1992) states that it is unlikely that the species is solely

reproductively dependent on sunfish, and suggests that the species also

utilizes other silt-free substrates as spawning sites. Data concerning

exact spawning behavior, larval stages, and subsequent development is

lacking. Maximum known longevity for the Topeka shiner is 3 years,

however, only a very small percentage of each year class attains the

third summer. Young-of-the-year attain total lengths of 20 mm to 40 mm

(.78 to 1.6 in), age 1 fish 35 mm to 55 mm (1.4 to 2.2 in), and age 2

fish 47 mm to 65 mm (1.8 to 2.5 in) (Cross and Collins 1975; Pflieger

1975).

[[Page 69009]]

Historically, the Topeka shiner was widespread and abundant

throughout low order tributary streams of the central prairie regions

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

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

Dakota. Stream basins within the range historically occupied by Topeka

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

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

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

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

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

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

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

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

known occurrences of Topeka shiner populations has been reduced by

approximately 80 percent, with approximately 50 percent of this decline

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

isolated and fragmented populations.

Recent fish surveys were conducted across the Topeka shiner's

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

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

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

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

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

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

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

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

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

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

the species has apparently experienced substantial declines in

abundance in the remaining extant (existing) populations in Missouri,

with the exception of Moniteau Creek.

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

near sites from which the species was reported extant during surveys

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

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

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

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

also from the same drainage. In 1997, surveys in Iowa found the species

at 1 site in the North Raccoon basin, and at a new locality in the

Little Rock drainage in Oscelola County. Less than 5 individual Topeka

shiners were identified in 1997.

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

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

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

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

1995 through 1997 identified 10 new localities for Topeka shiners and

reconfirmed the species in a historic locale where it was previously

believed extirpated (removed) (Mammoliti, in litt. 1996).

In South Dakota in the early 1990s, the species was captured from

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

River basin. (Braaten, South Dakota State University, in litt. 1991;

Schumacher, South Dakota State University, in litt. 1991). In 1997,

stream surveys were conducted in the Big Sioux and James river

watersheds. No Topeka shiners were captured from the Big Sioux basin

during these surveys. However, collections made in the Big Sioux basin

by South Dakota State University students in 1997 identified several

specimens from two streams in Brookings County, South Dakota. In the

James River basin, 3 new localities for the species were identified,

and the species was reconfirmed from a historic locality. Two of the

new locations were in Beadle County, where 29 and 4 individual Topeka

shiners were captured. The other new location was in Hutchinson County,

where 1 Topeka shiner was captured. The reconfirmed historic locale was

in Davison County, where 1 Topeka shiner was captured.

In Minnesota, 14 streams in the range of the Topeka shiner were

surveyed between 1985 and 1995. The species was collected from 5 of 9

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

the 5 streams with no historic occurrences. These locales were in the

Rock River drainage (Baker, in litt. 1996). In 1997, additional surveys

were completed with the species being captured at 15 sites in 8

streams, including a stream in the Big Sioux River basin (Baker, in

litt. 1997). These surveys are continuing.

In Nebraska, the species was assumed extirpated (absent) from all

historic locales. However, in 1989 the species was discovered in the

upper Loup River drainage, where two specimens were collected (Michl

and Peters 1993). In 1996, a single specimen was collected from a

stream in the Elkhorn River basin (Nebraska Game and Parks Commission,

in litt. 1997). In Nebraska, these were the first collections of Topeka

shiners since 1940. It is presently considered extant (in existence) at

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

comm. 1996).

The Topeka shiner began to decline throughout the central and

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

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

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

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

extirpated (extinct) from the Wakarusa River watershed during the

1970's (Cross, University of Kansas, pers. comm. 1995). The species

disappeared from the Big Blue River watershed (Kansas River basin) in

Nebraska after 1940 (Clausen, Nebraska Game and Parks Commission, in

litt. 1992). The last record of the Topeka shiner from the Arkansas

River basin, excluding the Cottonwood River watershed, was in 1891 near

Wichita, Kansas (Cross and Moss 1987). In Iowa, the species was

extirpated from all Missouri River tributaries except the Rock River

watershed prior to 1945. It also was eliminated from the Cedar and

Shell Rock River watersheds prior to 1945. Since 1945, the Topeka

shiner has subsequently been extirpated from the Boone, Iowa, and Des

Moines drainages, with the exception of the North Raccoon River

watershed (Harlan and Speaker 1951; Harlan and Speaker 1987; Menzel,

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

Iowa, in litt. 1980; Tabor in litt. 1994). In Missouri, the species has

been apparently extirpated since 1940 from many of the tributaries to

the Missouri River where it formerly occurred, including Perche Creek,

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

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

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

Previous Federal Action

The Topeka shiner first received listing consideration when the

species was included in the Animal Candidate Review for Listing as

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

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

Category 2 candidate species were those species for which information

in the possession of the Service indicated that a proposal to list the

species as endangered or threatened was possibly appropriate,

[[Page 69010]]

but sufficient data on biological vulnerability and threats were not

currently available to support proposed rules. In 1991, our Kansas

Field Office began a status review of the Topeka shiner, including

information gathered from stream sampling, and by request from

knowledgeable individuals and agencies. Included were State fish and

wildlife conservation agencies, State health and pollution control

agencies, colleges and universities, and other Service offices. A

status report, dated February 16, 1993 (Service 1993), was subsequently

prepared on this species. In the November 15, 1994, Animal Candidate

Review for Listing as Endangered or Threatened Species, published in

the Federal Register (59 FR 58999), the Topeka shiner was reclassified

as a category 1 candidate species. Category 1 candidates comprised taxa

for which we had substantial information on biological vulnerability

and threats to support proposals to list the taxa as endangered or

threatened. We have since discontinued the category designations for

candidates and have established a new policy defining candidate

species. Candidate species are currently defined as those species for

which the Service has sufficient information on file detailing

biological vulnerability and threats to support issuance of a proposed

rule, but issuance of the proposed rule is precluded by other listing

actions. In the February 28, 1996, Review of Plant and Animal Taxa That

Are Candidates for Listing as Endangered or Threatened Species,

published in the Federal Register (61 FR 7596), the Topeka shiner was

reclassified as a candidate species. A proposed rule to list the Topeka

shiner as endangered with no critical habitat was published in the

Federal Register on October 24, 1997 (62 FR 55381).

Processing of this proposed rule conforms with the Service's

Listing Priority Guidance for Fiscal Years 1998 and 1999, published on

May 8, 1998 (63 FR 25502). The guidance clarifies the order in which

the Service will process rulemakings giving highest priority (Tier 1)

to processing emergency rules to add species to the Lists of Endangered

and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to

processing final determinations on proposals to add species to the

Lists, processing administrative findings on petitions (to add species

to the Lists, delist species, or reclassify listed species), and

processing a limited number of proposed or final rules to delist or

reclassify species; and third priority (Tier 3) to processing proposed

or final rules designating critical habitat. Processing of this Final

rule is a Tier 2 action.

Summary of Comments and Recommendations

In the October 24, 1997, proposed rule (62 FR 55381), the December

24, 1997, notice of public hearings and reopening of comment period (62

FR 67324), and other associated notifications, all interested parties

were requested to submit comments or information that might bear on

whether to list the Topeka shiner. The first comment period was open

from October 24, 1997, to December 23, 1997. The second comment period,

to accommodate the public hearings, was opened January 12, 1998, to

February 9, 1998. Appropriate State agencies, county governments,

Federal agencies, scientific organizations, and other interested

parties were contacted and requested to comment. Newspaper notices

inviting public comment were published in the following newspapers: In

Iowa, Des Moines Register, Greene County Bee Herald, Calhoun County

Advocate, and Oscelola County Tribune; in Kansas, Emporia Gazette,

Manhattan Mercury, and Topeka Capital-Journal; in Minnesota,

Minneapolis Star-Tribune and Pipestone County Star; in Missouri, Kansas

City Star, Columbia Daily Tribune, Grundy County Republican Times,

Bethany Republican-Clipper, Galatin North Missourian, and Clark County

Kahoka Weekly; in Nebraska, Omaha World Herald and Norfolk News; and in

South Dakota, Sioux Falls Argus-Leader and Huron Plainsman. In these

newspapers, notices announcing the proposal, opening of the first

comment period, and the request for public hearings were published

between October 24, 1997, and November 12, 1997. Notices announcing the

public hearing schedule and the reopening of the comment period were

published in these same newspapers between January 4, 1998, and January

17, 1998.

We received 12 requests for hearings in four states. Locations and

times of hearings were published in the December 24, 1997, Federal

Register notice (62 FR 67324), and the above listed newspapers. We held

4 public hearings from January 26--29, 1998, in Manhattan, Kansas;

Bethany, Missouri; Fort Dodge, Iowa; and Sioux Falls, South Dakota.

Attendance at the hearings was 104, 86, 17, and 54 persons,

respectively. Transcripts from the hearings are available for

inspection (see ADDRESSES).

A total of 184 written comments were received at our Kansas Field

Office: 92 supported the proposed listing; 80 opposed the proposed

listing; and 12 expressed neither support nor opposition.

Oral or written comments were received from 60 parties at the

hearings: 21 supported the proposed listing; 33 opposed the proposed

listing; and 6 expressed neither support nor opposition, but provided

additional information to the proposed listing.

In total, oral or written comments were received from 23 Federal

and State agencies or officials, 24 local agencies or officials, and

197 private organizations, companies, and individuals. All comments

received during the comment period are addressed in the following

summary. Comments of a similar nature are grouped into a number of

general issues.

Issue 1: The Service did not have sufficient status information to

make a determination that the species should be listed, and the quality

of the data that the Service is using to make its determination is

questionable. Section 4 of the Act requires that you use the ``best

scientific and commercial data available,'' to make the determination.

Additional recent surveys in Kansas produced the discovery of new

populations. Could additional survey work produce similar results in

other states?

Service Response: Our determination is based on accurate and

thorough data for the Topeka shiner. The large number of historic

records of occurrence in concert with general fish surveys and recent

intensive surveys for the species, throughout its range, provide a

factual picture of a species undergoing serious decline. Population

losses estimated for the Topeka shiner are based on total number of

known localities of occurrence, in ratio to the present number of

locations where the species is known to exist. Since 1989, over one

thousand stream fish samples have been collected throughout the

historic range of the species. This sampling was conducted at or near

present and historic localities for the species, as well as in other

stream sites within the historic range. These surveys were completed by

biologists from various State natural resource and environmental

agencies, universities, and the Service. These surveys, whether for

general fish fauna information, fishery research, or water quality;

and/or specifically for the Topeka shiner, in reference to the known

historic range of the species, constitute a very sound data base for

the determination of the present status of the species. Additional

surveys throughout the range of the species continue to refine current

understanding of the distribution and

[[Page 69011]]

abundance of the species; with a few new populations found, and many

other populations determined to be lost or in decline. However, we

believe that current data adequately support our listing proposal.

Additional Topeka shiner surveys are in progress in Minnesota.

Preliminary results suggest the species may be more abundant than

previously reported in the Rock River system of Minnesota, especially

in streams surrounded by pasture land, as opposed to crop land. The

Rock River of Minnesota makes up only a small portion of the range of

the species. Even if the Rock River population is found to be

relatively abundant, the range-wide status of the species remains

unchanged. These surveys are continuing, and their results will be

incorporated into recovery planning for the species, and may play an

important role in identifying recovery populations and establishing

delisting goals for the species. Survey efforts for the species have

been greatly increased during the last few years; therefore, it is

expected that a few new locations will continue to be discovered. The

significance of the results of these intensive survey efforts is that

very few additional sites have been discovered. Further, very low

numbers of individual Topeka shiners have been found at new sites

during recent surveys, indicating that population densities at these

sites also is very low. This leads us to conclude that our current

understanding of the species' range and its historical contraction is

accurate.

Issue 2: The Service has not demonstrated that the species meets

any of the 5 listing criteria specified under the Act.

Service Response: There are 5 criteria for listing under the Act,

of which 1 or more must be met to consider a species for listing. Data

indicates that criterion A, ``The present or threatened destruction,

modification, or curtailment of its [Topeka shiner] habitat or range,''

is clearly met, and is the major factor leading to the species listing.

Criteria C, ``Disease or predation,'' D, ``The inadequacy of existing

regulatory mechanisms,'' and E, ``Other natural or manmade factors

affecting its continued existence,'' are also factors considered in

this listing determination, as discussed under the subheading,

``Summary of Factors Affecting the Species.''

Issue 3: The Service has failed to provide data that sustains a

determination of endangered. During a public hearing it was stated that

several populations in Kansas would not go extinct even if the species

is not listed.

Service Response: The Act defines an endangered species as, ``any

species which is in danger of extinction throughout all or a

significant portion of its range.'' In determining a status of

endangered we considered the following factors and threats: (1)

continued implementation of the small watershed flood control programs

in portions of the species' range that threatens the continued

existence of the most viable populations and population complexes

remaining; (2) numerous recent extirpations, and dramatic reductions in

abundance of the Topeka shiner in Missouri streams; (3) the nearly

complete extirpation of the species from Iowa in recent years, once a

major portion of the species' range; (4) data solicited and received

from various State agencies, universities, and knowledgeable

individuals, and findings from stream fish surveys across the remaining

portion of the species' range that indicates an overall, and often

critical, decline in numbers of populations, and abundance within these

populations over the recent past. These factors and threats were

considered in respect to the widespread, chronic degradation of Topeka

shiner habitat, the characteristic isolated nature of most of the

persisting populations, and the potential viability of these

populations in relation to population trends and required habitat

conditions range-wide.

Since publication of the proposed rule, an additional serious

threat to South Dakota's Vermillion River basin population has

developed. Multiple reservoir construction is now planned on streams

occupied by the Topeka shiner in this basin, further threatening the

species.

The statement that several populations in Kansas would not go

extinct even if the species is not listed has been misinterpreted.

There are indeed a number of populations in Kansas that are quite

viable, inhabiting very high quality streams. Unfortunately, the

continued existence of these populations is now severely threatened by

tributary dam development. Several populations that inhabited this

area, previously considered some of the best remaining, are now gone.

Issue 4: There is no recent scientific survey work in areas

inhabited by the species in South Dakota, and Federal and State

officials admittedly do not know where the Topeka shiner exists within

the State, thus they are unable to determine the species' status. Data

for South Dakota populations of Topeka shiners are very limited.

Service Response: In July and September, 1997, 36 sites on 20

streams in the James and Big Sioux river basins of South Dakota were

surveyed for Topeka shiners. All sites sampled were at or near previous

collection locations for the species with the exception of 3 sites in

the Big Sioux drainage which were upstream from previously recorded

sites. Topeka shiners were collected from 4 of the 36 sites sampled

(Cunningham and Hickey 1997). In 1991 and 1992, 66 fish collections

were completed in the Vermillion River basin. Topeka shiners were

collected from 11 sites in 4 streams (Braaten 1993; SD Natural Heritage

data in litt. 1997). In 1989, multiple fish collections were made in

the James River basin. Topeka shiners were collected at 1 site

(Schumacher in litt. 1991). Although the data used by the Service to

determine the status of the species in South Dakota are not as

extensive as that available for other States within the species' range,

these data do provide both an accurate assessment of the present and

historic extent, and population trends for the species in South Dakota.

Issue 5: Most populations of Topeka shiners occur on private land.

Both the interests of the Topeka shiner and the landowner would be

better served through voluntary landowner agreements and cooperative

conservation methods in lieu of listing. In Kansas, watershed districts

have entered into conservation agreements with the Kansas Department of

Wildlife and Parks, and the Service for the protection of the Topeka

shiner. These agreements are an example of what can happen when all

parties work together.

Service Response: We recognize that there are many potential

benefits to the Topeka shiner from the development and implementation

of conservation agreements. At present one conservation agreement

affecting the species, with the Mill Creek Watershed District (in

Wabaunsee County, Kansas), the Kansas Department of Wildlife and Parks,

and the Service, has been developed and signed. Development of this

agreement began in 1995 and was signed by the involved parties in

August, 1997. We recognize the Mill Creek agreement as a good example

of Federal-State-private cooperation; however, this agreement is yet to

be fully implemented and has not resulted in the expected on-the-ground

conservation benefits to the species. In entering this agreement the

Mill Creek watershed board of directors was aware that this agreement

by itself would not prevent the listing of the Topeka shiner. We are

hopeful that this agreement will eventually become fully implemented.

However, similar agreements must be

[[Page 69012]]

achieved for a large percentage of private properties, throughout the

entire range of the species, to halt or reverse the species' declining

trend. Cooperation with private landowners is very important in

conserving this species, and will be critical in its recovery, but the

species is in trouble now and the criteria for listing has been

substantially met. We also believe that listing the Topeka shiner does

not preclude or discourage the development of additional cooperative

agreements.

We are cooperating with private landowners in several important

other ways. Specifically, the Habitat Conservation Planning (HCP)

program under section 10(a)(1)(B) of the Act provides for species

protection and habitat conservation within the context of non-Federal

development and land-use activities. It provides a tool that promotes

negotiated solutions that reconcile species conservation with economic

activities. The purpose of the habitat conservation planning process

and subsequent issuance of incidental take permits is to authorize the

incidental take of threatened or endangered species. The incidental

take permit and associated HCP must ensure that the effects of the

authorized incidental take will not appreciably reduce the likelihood

of the survival and recovery of the species in the wild. Additionally,

the impacts to the covered species must be adequately minimized and

mitigated to the maximum extent practicable through the development and

implementation of a HCP. The incidental take permit allows the

permittee to engage in otherwise lawful activities that result in

incidental take of covered species without violating section 9 of the

ESA.

Safe Harbor agreements are voluntary, cooperative ventures between

a landowner and us that can provide benefits to both the landowner and

listed species. Under these agreements, a landowner would be encouraged

to maintain or enhance existing populations of listed species, to

create, restore, or maintain habitats, and/or to manage their lands in

a manner that will benefit listed species. In return, we would provide

assurances that future landowner activities would not be subject to ESA

restrictions above those applicable to the property at the time of

enrollment in the program.

Issue 6: Private landowners and drainage districts in Iowa are

being told that they will not be able to clean and maintain drainage

ditches without section 7 consultation with the Service if the species

is listed. This is the case even though Topeka shiners are not known to

inhabit drainage ditches. A blanket exemption for drainage ditches

should be given for all maintenance activities on ditches to avoid this

burdensome regulation.

Service Response: Section 9 of the Act prohibits the taking of

listed species. ``Take'' is further defined to include a number of

activities, including those that result in ``harm'' or ``harassment''

to the species, prohibiting actions which impair normal breeding,

feeding, or sheltering activities. Blanket exemptions from the section

9 prohibition against ``take'' of an endangered species are not

available under the Endangered Species Act. However, the issue of

drainage ditch maintenance can be handled in one of two ways.

(1) Section 404 Permit Stipulations--Private landowners and

drainage districts are required to obtain a permit from the U.S. Army

Corps of Engineers for dredge and fill activities in waters of the

United States under section 404 of the Clean Water Act. The Clean Water

Act also provides for an exemption from this permit requirement for the

maintenance (but not construction) of drainage ditches associated with

normal farming, silviculture, and ranching practices (40 CFR 232.3

(c)(1)(ii)(B)(3)). In this regard, some discrepancies may exist in

defining the differences between ``drainage ditches'' and ``channelized

streams.'' We defer to the Corps of Engineers, on a case-by-case basis,

as to the classification of these conveyance structures and whether the

exemption from 404 applies to them. However, there is still some

potential for downstream impact to the Topeka shiner and its habitat

from activities which are otherwise exempt from 404 permitting.

In cases where in-stream activities and ditch maintenance

activities exceed original ditch dimensions and thus are determined to

be non-exempt from section 404 permitting requirements, and such

activities may affect the Topeka shiner, formal consultation under

section 7 of the Endangered Species Act, would be required. The Corps

of Engineers, as the permitting agency, would initiate consultation

with us. The Incidental Take Statement resulting from this section 7

consultation could address the taking of a certain number of Topeka

shiners or the disturbance of a certain area of habitat resulting from

ditching activities. In cases where no Topeka shiners are present in

watersheds where in-stream maintenance is needed, there will be no need

for section 7 consultation. Although channelized streams and drainage

ditches are not considered suitable permanent habitat for Topeka

shiners, if Topeka shiners are present downstream of ongoing

maintenance activities, potential impacts to the species could be

possible (i.e., releases of habitat-damaging sediment to downstream

reaches). However, technology exists, and is frequently used (i.e.,

sediment screens or curtains), to reduce or eliminate this type of

impact. The use of such methods can be stipulated in the conditions of

permits (if required) to allow the necessary protection of Topeka

shiner habitat and the required channel maintenance.

(2) Habitat Conservation Plans and Incidental Take Permits--In

cases where an activity is exempt from the permitting requirements of

section 404, and the activity is determined to have a potential for

take of Topeka shiner, an option is available for drainage districts

and other non-federal entities to complete a Habitat Conservation Plan

for their actions and apply for an incidental take permit under section

10 of the Endangered Species Act. Such a plan would outline the

proposed activities, the potential nature of the adverse impact on the

listed species, and the steps the applicant plans to take to avoid or

minimize the impact, and to provide mitigation for habitat which may be

lost. Upon approval by the Director of the Service, the incidental take

permit would authorize maintenance of the ditches and specify the level

of habitat disturbance or species take that would not be considered

excessive and that would be allowed under the Act. In all cases, even

where 404 permits are not required, drainage districts will still have

responsibilities to avoid unpermitted ``take'' of the Topeka shiner as

outlined under section 9 of the Endangered Species Act and codified at

CFR 50 17.21.

Issue 7: In the last several years, severe flooding has affected

many streams within the Topeka shiner's range. This flooding quite

likely shifted populations, and the Service does not take into account

the possibility that populations might have moved to other locations.

Service Response: It has been established that flood flows can

increase the level of dispersion in some stream fishes, particularly in

channelized and manipulated streams (Simpson et al. 1982). However, in

natural systems flood flows do not displace entire populations of

native stream fishes (Minckley and Mefee 1987). Bank overflow areas,

debris piles, and other stream structures provide refuge areas for

fishes during flood flows. This is certainly true for Topeka shiners.

Capture of Topeka shiners from areas

[[Page 69013]]

with marginal or temporary habitat suitability may occur in years

immediately following large flood flows, presumably as a function of

some level of dispersion (Cross, pers. comm. 1998; Tabor, pers. comm.

1998). However, those individuals will not survive and develop into new

viable populations unless they have dispersed into suitable habitat.

While it is true that the species can occupy different microhabitats

temporally (i.e. areas near flowing water margins during summer, and

slack water near overhanging vegetation and debris in winter), the

species as a whole does not disperse from suitable habitat.

Issue 8: The proposed rule maintains, and the Service has similarly

stated in public hearings, that there will be little, if any, impacts

to private citizens or agricultural producers resulting from a listing

of the Topeka shiner. However, in 3 of the 4 actions addressed in the

proposed rule that you believe would not result in a violation of

section 9, you caveat each of the actions with the phrase, `` . . .

except where the Service has determined that such an activity would

negatively impact the species.'' This caveat leads the average

landowner to believe you may force reductions in the number of cattle

grazed, require trees to be planted along all streams, and restrict

annual burning within the range. What does ``long-term management of

the range or prairie ecosystem,'' really mean? The costs to bring all

farm land into the description of number 2 of the actions identified

will run in the billions of dollars. The landowner cannot afford this

expense.

Service Response: Many current farming and ranching practices are

consistent with the long-term conservation of the local land and water

resources, and thus will not negatively impact the species. However,

without knowing precisely what changes may take place on the

agricultural landscape in the future, we are unable to make a blanket

statement that each of the referenced practices will never result in a

violation of section 9 of the Act. We have neither the authority nor

the desire to force landowners to plant trees, manipulate cattle

numbers, or implement specific burning regimes. While we are willing to

cooperate whenever possible with landowners who desire technical and

financial assistance to implement habitat improvements on their

property, forcing such actions is beyond the scope of the Act. However,

where a landuse is resulting in degradation of Topeka shiner habitat

that could lead to take of the species, responsible persons will be

notified of the problems caused by such use, and duly advised of the

potential for violations of the Act posed by the continuation of such

use.

Issue 9: It is irresponsible for the Federal government to list an

endangered species found primarily in public waters adjacent to private

lands without identifying specific mechanisms for the conservation and

recovery of the species.

Service Response: We are directed under the Act to develop and

implement recovery plans for the survival and conservation of a listed

species, unless it is determined that such a plan would not promote the

conservation of the species. However, recovery plan development is not

a concurrent activity with the listing process. It would not be prudent

to utilize resources on recovery planning during the listing phase,

when additional information and comments, which may impact the listing

decision, are still being solicited. It is our intent on publication of

this final rule, to begin the recovery process with the formation of a

recovery team. A recovery team is usually composed of a number of

individuals with expertise regarding the species. Also, stakeholder

groups interested in, or potentially affected by, recovery actions may

be involved in recovery team activities and development of recovery

plans.

Issue 10: Listing the Topeka shiner as an endangered species will

cause State, county, and township road, bridge, and culvert maintenance

and construction projects to be delayed or eliminated due to required

extra measures such as, erosion control, fish surveys, and utilization

of the individual 404 permitting process instead of the nationwide 404.

This additional process will require added manpower and expense for

compliance. It also will be detrimental in areas where governmental

entities utilize gravel from local streams, because of likely bans on

dredging of stream gravel.

Service Response: In section 7 consultation involving 404 permits,

individual 404 permits will only be required when the proposed activity

may adversely affect the Topeka shiner. The nationwide 404 will still

be the appropriate permitting tool in the vast majority of road and

bridge projects occurring throughout the range of the Topeka shiner.

However, individual permits will be required in some cases. In most

instances, it is already known whether the Topeka shiner occurs within

a particular stream system, eliminating the need for extensive extra

surveys. It should be realized however, that the occurrence of the

species and its direct taking at a specific construction site is not

the only consideration for a permittee. Potential adverse affects for

the Topeka shiner, as well as other aquatic species, may extend

considerably downstream from construction sites. This is the case with

project-associated erosion and resulting downstream sedimentation.

However, such projects should not require extra erosion control

measures because, if the permittee is in compliance with their permit,

even in the case of a nationwide permit, these control measures should

already be in place. A nationwide permit does not allow for

uncontrolled release of sediment into stream waters.

We have not stated that bans on gravel removal from streams will

occur; and we would only be involved in such regulation, through

section 7 review and the Corps' 404 permitting process, if the gravel

removal activity was proposed in or near Topeka shiner habitat. Through

this review, permit stipulations that allow for gravel excavation while

still maintaining viable Topeka shiner habitat can most likely be

developed. This is the case for another listed species, Niangua darter,

in central Missouri (Corps of Engineers, in litt. 1995).

Issue 11: The Service held public hearings only to fulfill a legal

obligation and will not pay attention to the public comments.

Service Response: We disagree with this characterization of the

role of public hearing and the fairness of the notice and comment

administrative process to listing determinations. Section 553 of the

Administrative Procedure Act (APA) requires agencies to give the public

notice and an opportunity to comment on a proposed rule and to discuss

in the final rule the significant issues raised in the comments. The

validity of an agency action is subject to judicial review under the

APA. Because of these requirements, all comments are carefully

evaluated before we make a determination on whether to proceed with a

final rule. The purpose of the public hearings and comment periods is

to allow the public to present additional data that may or may not

support the listing, and to hear the concerns the public has regarding

the proposed listing. In this case our analysis of the information

provided by the public comments in light of the best available

scientific information supports an endangered finding. The concerns

expressed during the hearings and comment period are also very

important in that they provide a focal point for inclusion of the

public in the development of the recovery plan, and in working with the

concerned groups

[[Page 69014]]

and landowners during the recovery process.

Issue 12: The public was not adequately notified of the listing

proposal or that public hearings were to be held.

Service Response: We made substantial efforts to notify the public

of the listing proposal, public comment periods, request for public

hearings, and schedule of public hearings throughout the present range

of the Topeka shiner. Contacts include congressional delegations,

Federal and State agencies, county governments, and a variety of

interested groups and individuals. Immediately following publication of

the proposed rule in the Federal Register on October 24, 1997, we

published public notices in newspapers in and near areas where the

species occurs. These notices announced the proposal to list the Topeka

shiner, and announced the opening of 45 day and 90 day periods for

request for public hearings, and request for public comments,

respectively. Following the request for public hearings, we published a

Federal Register notice on December 24, 1997, announcing the hearing

locations and times, and reopening the public comment period. During

the second week of January, 1998, we again published public notices in

these same newspapers announcing hearing locations and times, and the

reopening of the public comment period. In addition, we twice issued

general press releases concerning the Topeka shiner from our

Minneapolis, Minnesota and Denver, Colorado Regional Offices.

We also provided information on the listing proposal, comment

period, and public hearings on the World Wide Web at two different

Service web sites:

http://www.fws.gov/r3pao/eco__serv/endangrd/fishes/fishindx.html#Topek

ashiner and

http://www.r6.fws.gov/endspp/shiner/index.htm.

Issue 13: Listing is not necessary because of existing protections

afforded under various State laws, including State threatened and

endangered species legislation, and the new Kansas Non-game and

Endangered Species Task Force legislation (HB 2361); section 404 of the

Clean Water Act; Fish and Wildlife Coordination Act; and, National

Environmental Policy Act. Any activity that could affect the habitat of

the species would have to undergo these reviews, and such work could

not be done with impunity.

Service Response: To date, the species has declined even with these

regulations in place. These regulations do not ensure that habitat for

the Topeka shiner will be protected. We believe the protection

mechanisms of the Act are necessary to prevent the species' extinction.

See factors considered in this listing determination, as discussed

under the subheading, ``Summary of Factors Affecting the Species.''

Issue 14: The agriculture industry as a whole, has recently taken a

very pro-active stance on environmental issues involving the management

and use of pesticides and fertilizers. Certification requirements for

applicators, technology in application, and general field practices,

such as minimum tillage and no-till, has resulted in very minimal

runoff and very efficient utilization of pesticides and fertilizers in

crop fields. These factors, in combination with the increased planting

of filter strips and grass waterways, have minimized agricultural

chemical impact to water quality and should be a factor in the

withdrawl of the listing proposal.

Service Response: The use of pesticides, consistent with approved

labeling and application protocol, and the use of fertilizer consistent

with sound, scientifically based application rates, in combination with

stable riparian vegetation buffers serving as filtering mechanisms to

reduce non-point source runoff, will not be considered to be a

violation of section 9 of the Act. However, many agricultural chemicals

have yet to undergo section 7 consultation and the subsequent

Environmental Protection Agency implementation of reasonable and

prudent measures to minimize incidental take of listed species.

Evaluation of all chemicals for their impacts on Topeka shiners has yet

to be completed. In the future, we anticipate working with the

Environmental Protection Agency to identify alternative chemicals and

methods to reduce any impacts which are identified to this species. In

many areas dispersed throughout the range of the Topeka shiner, filter

strips and riparian areas do not exist, with rowcropping extending to

the stream channel. Pesticide and fertilizer applications in these non-

protected stream areas have the potential to impact the species,

particularly through runoff following heavy precipitation events where

these buffer mechanisms are not in place. Although it is recognized

that increasingly filter strips, grass waterways, and other riparian

protections are being established, there are presently numerous areas

along streams without buffers that may impact the species.

Issue 15: Livestock grazing does not impact the Topeka shiner. The

Topeka shiner evolved with varying degrees of grazing pressure by

historically occurring animals; including, bison, deer, and elk. The

Service will make all landowners fence their streams to exclude cattle

from water sources and natural cover.

Service Response: Many grazing regimes are consistent with the

conservation of the Topeka shiner. The extent to which grazing will

result in degradation of Topeka shiner habitat will vary with differing

riparian ecosystems, type of livestock, seasonality of use, and other

factors. In some instances, livestock management can impact stream

habitat and water quality. The primary example of this activity is

livestock feeding and wintering activities concentrated in small

confinements within perennial or ephemeral stream channels. This

practice leads to chronic and/or acute inputs of sediment, feces,

nutrients, and other organic material directly into streams, which

impacts stream habitat and water quality. Although prairie ecosystems

evolved with native grazing ungulates, domestic livestock do not, and

most often cannot (i.e. due to fencing) forage, herd, or move in the

same manner as native species. We have neither the authority nor the

desire to require the fencing of streams for the exclusion of

livestock. However, in cases where existing management could impact the

Topeka shiner, livestock exclusion can provide benefit.

Issue 16: The Service is remiss in its obligation to designate

critical habitat. Listing critical habitat is prudent and determinable.

If the Service does not designate critical habitat, affected landowners

will not be informed and they will forfeit their right to demonstrate

economic impacts to their land. The Service states, ``* * *

conservation and recovery actions could be significantly impaired by

public apprehension or misunderstanding of a critical habitat

designation.'' This is a poor reason not to list critical habitat. The

Service also states, ``* * * intentional taking of the Topeka shiner is

not known to be a problem * * *'', then states that designation, ``* *

* would reasonably be expected to increase the degree of threat to the

species * * *.'' If intentional taking is not a known problem, then it

is not reasonable to expect designation to result in increased threat.

Also, designation of critical habitat would benefit the species because

it would allow the public to be better informed of Federal projects/

actions through inclusion in public notices; it would be

[[Page 69015]]

useful in delineating areas to avoid for pesticide spraying; and,

better clarify the importance of certain stream reaches in providing

for the long term survival of the species.

Service Response: Federal regulations (50 CFR 424.12(a)(1)) state

that a designation of critical habitat is not prudent when one or both

of the following situations exist: (1) the species is threatened by

taking or other human activity, and identification of critical habitat

can be expected to increase the degree of threat to the species, or (2)

such designation of critical habitat would not be beneficial to the

species. In the notice proposing to designate the Topeka shiner as

endangered, published in the Federal Register on October 24, 1997, we

indicated our determination that designation of critical habitat was

not prudent at this time. The reasons for this determination were

outlined in that publication, and still apply today.

Although the comments are accurate that intentional taking is not

known to be a significant problem, designation of critical habitat

could exacerbate whatever threat may exist. A notable example of this

occurred recently where an individual at one of the public hearings

concerning the proposed listing indicated a willingness to ``take care

of the problem'' of having a federally-protected species on their

property, indicating a potential for intentional taking of this

species. Whether such threats are serious is uncertain, however, they

must be considered when weighing the positive and negative aspects of

critical habitat for this species. Even if specific threats against the

species are never carried out, a negative perception among landowners

could be fostered by critical habitat designation. Some individuals are

wary of a federal designation on their property, and such an action

would likely cause some landowners to be more reluctant to cooperate

with our efforts to enact voluntary conservation measures on private

property. In this instance, designation of critical habitat could

result in an actual adverse effect on conservation of the species.

It is also our position that designation of critical habitat would

provide no additional benefit to the species above that afforded by

endangered species designation. Because the Topeka shiner is so closely

tied to its specific perennial stream habitats, and is a year-round

resident rather than a seasonal migrant, impacts to the species and to

its habitat are generally considered one and the same. Therefore,

prohibitions against taking specified under section 9, and consultation

with federal action agencies who provide permit authority for stream

modification and for water quality modification specified under section

7, should adequately address the potential for adverse impacts to the

species once it becomes listed as endangered, precluding any additional

benefits from designation of critical habitat.

There is no requirement to evaluate the economic effect on

surrounding property due to a species listing whether or not critical

habitat is being designated. If critical habitat is being designated

for a species, the Act specifies that the additional economic impact

that may result from such designation be assessed and identified in the

designation rule. However, the Act specifically prohibits us from

considering economic impacts when making listing decisions. When

deciding whether to list a species, we are required to rely solely on

the best scientific and commercial data available regarding the

species' status, without regard to any other factors.

Issue 17: A determination of critical habitat will place undue

restrictions and bureaucratic process in areas where Topeka shiner

habitat is in good shape and the species is not threatened. Critical

habitat will impact private property rights.

Service Response: As indicated in our response to Issue 16, impacts

to Topeka shiner habitat are virtually indistinguishable from impacts

to the species itself. However, as also indicated in the previous

response, designation of critical habitat may carry with it negative

connotations for landowners on whose property such designation is made,

thereby increasing the level of anxiety surrounding the listing

process, resulting in a decreased willingness to participate in

voluntary conservation measures to benefit the species. For these and

other reasons, we have determined that it is not prudent to designate

critical habitat for the Topeka shiner.

Issue 18: In this area of the Topeka shiner's range, people are

doing good things for soil and water conservation, many of which will

benefit the species. If other States have problems with Topeka shiner

habitat then list it in those States, but not where we are improving

habitat.

Service Response: The Act does have provisions for the listing of

``distinct population segments'' (DPS), as defined by the joint Fish

and Wildlife Service and National Marine Fisheries Service, Final

Vertebrate Population Policy (61 FR 4721). However, a DPS cannot be

defined by State boundaries, and must be based on biological and

geographic factors. In areas where habitat improvements are occurring,

the effect on in-stream activities of listing the Topeka shiner would

be lessened. This is because activities to conserve the fish are

already being undertaken, therefore little change in activities

affecting streams would be needed compared to areas where streams

remain in a degraded condition.

Issue 19: Grade stabilization structures and small impoundments,

such as stock ponds, are being planned and constructed on normally dry

gullies, ravines, and streambeds in several portions of the Topeka

shiner's range. Most of these structures are designed not only to

control erosion and provide livestock water, but are stocked with

largemouth bass, bluegill, and catfish to provide additional

recreational benefits. Will the threat of escapement of bass prevent

fish stocking and/or establishment of permanent pools in these

impoundments?

Service Response: Predation by introduced or stocked fishes can

impact localized populations of Topeka shiners. However, this is mainly

the case where impoundments are created on perennial (recurrent)

streams. Many small perennial streams contain habitat that allows

introduced predatory fishes to persist, both upstream and downstream

from the dam for varying periods of time, often in addition to existing

levels of naturally occurring predators. In the case of stock ponds and

grade stabilization structures located on drainages that flow only

following significant precipitation events, the likelihood and degree

of escapement and survivability of individual predators is

significantly less. This is primarily due to lack of established

aquatic habitat in these normally dry drainages. Upstream movement of

predators out of these impoundments into normally dry channels during

periods of runoff is inconsequential to populations of Topeka shiners

downstream of such structures. In cases where large numbers of

structures planned are concentrated on normally dry drainages, in

proximity to downstream Topeka shiner populations, and thus the

potential numbers of ``washed out'' predators increases, plans for

locations and number of structures stocked or having permanent pools

may need to be altered to avoid possible negative affects to the

species. However, it is anticipated that project changes will not be

required in the vast majority of cases involving dam construction on

normally dry streambeds. The section 7 process and development of

conservation agreements can provide an

[[Page 69016]]

avenue for examining and mitigating these impacts.

Issue 20: The Topeka shiner has been recently found in a creek

within our watershed that was severely polluted with animal wastes and

turbidity and at another location immediately below an impoundment.

These findings run counter to the Service's claim of the Topeka shiner

being dependent on good water quality, thus invalidating them.

Service Response: Our position on water quality and habitat

requirements is based on many years of study and observation of the

species by several highly professional scientists. The Topeka shiner

has the ability to persist in varying degrees in acutely and

chronically reduced water quality and habitat situations. Although the

Topeka shiner can tolerate some degree of short-term degradations

(Cross, pers. comm. 1998; Tabor, pers. obs. 1998), long-term

degradations are undoubtedly detrimental to the species.

At two isolated sites degraded by heavy sediment accumulation and

nutrient enrichment, where Topeka shiners persist, there is inflow from

seeps and springs which may have a bearing on their continued existence

in these areas (Cunningham, pers. comm. 1998; Tabor, pers. obs.). This

is in contrast to other streams exhibiting the same degradations within

the same general areas, without spring and seep inflow, from which the

species is absent. We believe that these populations are likely to

disappear during the next period when these springs and seeps cease

flowing. Situations that allow severe pollution from animal wastes in

streams are not just a threat to the Topeka shiner and the aquatic

community in general, but likely a threat to human health as well.

Impacts from watershed dams in basins with Topeka shiners are

generally chronic impacts to the species. The development of a dam on a

single stream in a basin with several occupied streams would likely

impact the single stream. This would allow Topeka shiners to still move

from the other occupied, undammed streams into the dammed stream,

dependent on the level of stream impacts from the dam. However, when

most or all streams are dammed within a basin, hydrology, habitat, and

aquatic systems and communities are altered. The dams further serve as

barriers to fish passage, all contributing to the decline and

extirpation of the species within the basin.

Issue 21: This watershed district has proposed construction of a

dam utilizing an altered design to meet flood control purposes and the

preservation of a population of Topeka shiners. This proposal was made

at a joint meeting with our district, the State, and the Service, but

this has now been ostensibly delayed because of the Service's listing

proposal.

Service Response: We encourage and recognize all proposals

involving the conservation of the Topeka shiner. The listing proposal

in no way diminishes, discourages, or delays the ability of a watershed

district, or any other entity, to propose conservation activities for

the species, including plans for construction of structures that allow

fish passage and provide flood control benefits.

Issue 22: Sportfishing is big business throughout many portions of

the Topeka shiner's range and Federal dollars are spent to enhance and

restore these sportfisheries. The proposed rule includes sportfishes,

such as northern pike and largemouth bass, as being threats to the

Topeka Shiner. It does not seem logical to spend Federal dollars to

stock these sportfishes and spend Federal dollars to list the Topeka

shiner.

Service Response: In many cases, Federal funds are appropriated to

enhance and stock sportfishes in large reservoir, lake, and river

systems. Typically these habitat types are not used by Topeka shiners,

and thus would not present significant impacts. However, in certain

cases where enhancement is occurring in proximity to populations of

Topeka shiners and Federal funds are being utilized, we, as the

administrators of Federal Aid in Sportfishing funds, must consider the

possible impacts to Topeka shiners resulting from such activity. This

would most likely be completed through intra-agency consultation, and

communication with the various State fish and wildlife agencies who

administer these actions on the ground. A ``Policy for Conserving

Species Listed or Proposed for Listing Under the Endangered Species Act

While Providing and Enhancing Recreational Fisheries Opportunities''

(61 FR 27978), was developed to meet the requirements set forth in

section 4 of Executive Order 12962, Recreational Fisheries. This policy

identifies measures to ensure consistency in the administration of the

Act, promote collaboration with other Federal, State, and Tribal

fisheries managers, and improve and increase efforts to inform

nonfederal entities of the requirements of the Act while enhancing

recreational fisheries. We believe that there will be minimal impact to

sportfishing enhancement activities resulting from the listing of the

Topeka shiner.

Peer Review

In accordance with the policy promulgated July 1, 1994 (59 FR

34270), we have solicited the expert opinions of independent

specialists regarding the proposed rule. The purpose of such review is

to ensure listing decisions are based on scientifically sound data,

assumptions, and analyses, including input of appropriate experts and

specialists. Peer reviewers were mailed copies of the proposed rule to

list the Topeka shiner as an endangered species immediately following

publication in the Federal Register on October 24, 1997 (62 FR 55381).

The reviewers were invited to comment during the public comment period

upon the specific assumptions and conclusions regarding the proposed

listing. These comments were considered in the preparation of the final

rule as appropriate. In conjunction with the proposed rule the comments

of three independent experts and/or conservation biologists were

solicited. One response was received, which supported the proposal to

list the Topeka shiner as an endangered species. The respondent's

comments have been considered in the development of this final rule and

incorporated where applicable.

Summary of Factors Affecting the Species

After a thorough review and consideration of all available

information, we have determined that the Topeka shiner should be

classified as an endangered species. Procedures found at section

4(a)(1) of the Act and regulations implementing the listing provisions

of the Act (50 CFR part 424) were followed. A species may be determined

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

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

application to the Topeka shiner (Notropis topeka) throughout the

species' range are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range.

Once abundant and widely distributed throughout the central Great

Plains and western tallgrass prairie regions, the Topeka shiner now

inhabits less than 10 percent of its original geographic range. The

action most likely impacting the species to the greatest degree in the

past is sedimentation and eutrophication (increase of minerals and

organic nutrients within a body of water resulting in the decrease of

dissolved oxygen) resulting from intensive agricultural development.

Most

[[Page 69017]]

populations of Topeka shiners occurring west of the Flint Hills region

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

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

levels of cultivation, and subsequent siltation and domestic pollution,

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

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

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

coincide with areas having poor aquifers resulting from historical

changes in drainage patterns affecting the quantity of water. Pflieger

(1975) reports that increased siltation as a result of intensive

cultivation may have reduced the amount of Topeka shiner habitat in

Missouri. Pflieger (in litt. 1991) also reports that a known population

of the species in Boone County, Missouri was extirpated between 1970

and 1976, presumably due to increased turbidity and nutrient enrichment

resulting from urbanization and highway construction. Feedlot

operations on or near streams are also known to impact prairie fishes

due to organic input resulting in eutrophication (Cross and Braasch

1968).

The species was historically known from open pools of small prairie

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

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

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

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

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

exposures which prevent cultivation. This is in contrast to the

perturbation of the natural fish faunas and their associated habitats

in prairie areas more suitable to intensive rowcrop agriculture, which

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

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

accelerated rates of soil erosion and instream deposition of fluvium

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

modified prairie streams in Iowa, encompassed by the former range of

the species. Today, outside the Flint Hills region of Kansas, only a

few, small isolated areas not severely impacted, or impacted to an

extent within the tolerance of the species, continue to exist.

Mainstem reservoir development, tributary impoundment, and

channelization also have impacted the species in many areas.

Populations located within small tributary streams upstream from both

mainstem and tributary impoundments attempt to utilize these water

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

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

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

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

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

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

mainstems following several years of protracted drought in the mid-

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

following drought, prohibiting recolonization of upstream reaches.

Several recently extant populations have been extirpated from

tributaries to Tuttle Creek and Clinton reservoirs, both mainstem

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

continues to exist in two tributaries to Tuttle Creek Reservoir.

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

Topeka shiner was captured. All populations within the Wakarusa River

watershed (Clinton Reservoir) are believed extirpated. Clinton

Reservoir's completion coincided with large scale development of

tributary impoundments throughout the Wakarusa's upper basin which may

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

extirpation of Topeka shiners from a stream following construction of a

single tributary impoundment in Chase County, Kansas. Layher reported

that the species had disappeared both upstream and downstream of the

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

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

species in Missouri was extirpated following construction of an

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

not present when revisited several years after construction. The

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

gravel, layered over by silt and choked with filamentous (threadlike)

algae. Pflieger further reports that ``the SCS (Soil Conservation

Service) reservoir has profoundly altered the hydrology and biota of

this stream by eliminating the scouring floods that formerly created

pool habitat and maintained the rocky, silt-free substrate.'' During

1994 sampling efforts in southeast Iowa, a stream with recent records

of the species had been undoubtedly impacted by the construction of

multiple impoundments throughout its upper reaches and tributaries, as

no Topeka shiners were captured (Tabor in litt. 1994). Impoundment of

prairie streams has also resulted in the documented extirpation of

other prairie stream minnow species (Winston et al. 1991), the speckled

chub (Macrhybopsis aestivalis) and the chub shiner (Notropis potteri).

In Kansas, substantial tributary impoundment is occurring

throughout the Flint Hills region, endangering the viability of Topeka

shiner populations at these locales. As of 1993, 46 tributary

impoundments had been completed in or near habitat for the Topeka

shiner in the Cottonwood River basin, with an additional 115 planned

for construction (Service in litt. 1993). Presently in the Mill Creek

watershed, which contains the largest remaining complex of habitat for

the species, 16 dams have been constructed with additional structures

planned (Hund, Mill Creek Watershed District, pers. comm. 1997; State

Conservation Commission of Kansas, in litt. 1992). However, the Mill

Creek watershed district board has entered into a conservation

agreement with us and Kansas Department of Wildlife and Parks to

conserve the species. This conservation agreement allows for continued

dam development in portions of the basin without Topeka shiners or

where there are less viable populations, and eliminates development in

``critical use'' areas with stable, self-sustaining populations. The

agreement also requires habitat improvement and enhancement throughout

the occupied portion of the basin. However, this agreement can be

terminated by any signatory during the included 5-year review. Also,

the agreement would be ineffective if not implemented. In South Dakota,

a major flood control project is planned in the Vermillion watershed,

involving the construction of numerous structures. The Vermillion River

basin contains the largest complex of Topeka shiner populations in

South Dakota. Dam construction also is a threat to the species

throughout the rest of its range, but to a lower degree due to less

immediate and intensive development.

Stream channelization also has occurred throughout much of the

Topeka shiner's range. Channelization negatively impacts many aquatic

species, including the Topeka shiner, by eliminating and degrading

instream habitat types, altering the natural hydrography (physical

characteristics of surface waters), and by changing water quality

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

[[Page 69018]]

throughout the species' Iowa range is suspect in the species' drastic

decline in this State (Bulkley et al. 1976). Menzel (in litt. 1980)

reports the extirpation of Topeka shiners from previous collection

sites following stream channelization projects in Iowa. During 1994

status surveys across this portion of the range, most streams were

found to have been severely altered (Tabor in litt. 1994). Changes

included elimination of pool habitats, instream debris, and woody

riparian vegetation. Water velocities were consistently high throughout

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

that the Topeka shiner is an obligate or at least a facultative

(adaptive) spawner on sunfish (Lepomis spp.) nests (Pflieger in litt.

1992) or other silt-free substrates, but no sunfish were captured, nor

suitable sunfish spawning habitat observed in these channelized

streams. At Iowa sites where Topeka shiners were captured, streams were

not as intensively channelized and many natural conditions persist.

While channelized streams and drainage ditches do not provide suitable

permanent habitat for Topeka shiners, maintainence of previously

altered stream systems, such as periodic sediment dredging, could

potentially impact the species downstream in more-natural type stream

habitat.

Intensive land-use practices, maintainence of altered waterways,

dewatering of streams, and continuing tributary impoundment and

channelization represent the greatest existing threats to the Topeka

shiner. Over-grazing of riparian zones (banks of a natural course of

water) and the removal of riparian vegetation to increase tillable

acreage greatly diminish a watershed's ability to filter sediments,

organic wastes and other impurities from the stream system (Manci

1989). Irrigation draw-down of groundwater levels affects surface and

subsurface flows which can impact the species. At present, both Federal

and State planning for development of watershed impoundments and

channelization and/or its maintainence continue in areas with

populations of Topeka shiners. Several impoundments are planned for

construction on streams with abundant numbers of the species. Portions

of these stream reaches will be inundated by the permanent pools of the

reservoirs, imperiling the species' future existence in these

localities. Prior to the planning of the impoundments, these

populations of Topeka shiners were considered to be the most stable

range-wide, due to their occurrence in watersheds dominated by high

quality prairie with generally very good grazing management and land

stewardship.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Some collecting of Topeka shiners by individuals for use as bait

fish and display in home aquaria does occur. However, overutilization

is not thought to currently contribute to the decline of the Topeka

shiner.

C. Disease or Predation

There have been no studies conducted on the impacts of disease or

predation upon the Topeka shiner, so the significance of such threats

to the species is presently unknown. Disease is not likely to be a

significant threat except under certain habitat conditions, such as

crowding during periods of reduced flows, or episodes of poor water

quality, such as low dissolved oxygen or elevated nutrient levels.

During these events, stress reduces resistance to pathogens and disease

outbreaks may occur. Parasites, bacteria, and viral agents are

generally the most common causes of mortality. Lesions caused by

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

secondary fungal infections. However, Topeka shiners captured from a

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

a condition of deformity affecting the vertebrae. Scoliosis can result

from contact with environmental contaminants, or severely reduced

genetic variability resulting from geographic isolation. No causal

factor for this occurrence has been identified.

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

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

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

naturally occurring predators of the Topeka shiner in portions of its

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

bass species typically occur in only the downstream extremes of Topeka

shiner habitat. The construction of impoundments on streams with Topeka

shiners and the subsequent introduction of piscivorous (fish eating)

fish species not typically found in headwater habitats, such as

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

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

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

Topeka shiners seek refuge in the impoundments or permanent stream

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

captured in streams directly upstream and downstream of tributary

impoundments in Kansas are largemouth bass, crappie, and bluegill

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

exclusion of cyprinids, including Topeka shiner (Mammoliti, Kansas

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

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

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

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

effects of watershed impoundments on Kansas streams states that

predacious game fishes increased in abundance, and several minnow

species, including the Topeka shiner, decreased in abundance upstream

and downstream from dam sites following impoundment. While the extent

of predation is undocumented, known populations have apparently been

extirpated in the time period immediately following impoundment of

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

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

small impoundment previously lacking largemouth bass, following

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

Topeka shiner from small, direct tributary streams to large mainstem

impoundments has also been documented. These extirpations presumably

occurred in part due to predation by introduced piscivorous fishes

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

permanent water downstream from their typical headwater habitats

(Service 1993).

D. The Inadequacy of Existing Regulatory Mechanisms

In Kansas, the Topeka shiner is listed as ``species in need of

conservation,'' under the Kansas Nongame and Endangered Species

Conservation Act of 1975. This status prohibits the direct taking of

specimens but does not protect habitat or give opportunity to review

actions or projects which may affect the species in Kansas. Under

Missouri law, the species is listed as endangered. This status

prohibits direct taking of specimens and provides a limited review

process to suggest remediation for actions potentially impacting the

species' habitat. Minnesota, Nebraska, and South Dakota consider it a

species of concern, with no legal protection. In Iowa, the species has

no legal status.

No significant protections exist for Topeka shiner habitat

throughout its range. Listing under the Act would

[[Page 69019]]

provide significant protection against taking of the species, ensure

coordinated review of Federal actions which may affect its habitat, and

encourage proactive management throughout its range. As discussed

previously, section 404 of the Clean Water Act regulates certain

activities in streams and wetlands, and through the section 7

consultation process we are provided the opportunity to review actions

proposed for permitting under this section. Listing of the Topeka

shiner would require a review of potential section 404 actions which

may impact the species, which is not a requirement as long as the

species remains unlisted and unprotected by Federal law.

E. Other Natural and Manmade Factors Affecting Its Continued Existence

In the species' Missouri range, possible interspecific (arising

between species) competition between the Topeka shiner and the

introduced blackstripe topminnow (Fundulus notatus) has been suggested

(Pflieger, in litt. 1992). The absence of the Topeka shiner from

suitable habitat, where blackstripe topminnow is present, also has been

observed in Kansas (Mammoliti, pers. comm. 1997). Both species are

nektonic insectivores utilizing similar pool habitat. At present, the

extent of possible competition between these species is undocumented.

In degraded or suboptimal habitat conditions where Topeka shiners

persist, competition by species more tolerant to these conditions, such

as red shiner (Cyprinella lutrensis), may negatively affect the

species. In portions of the species' Kansas range, interspecific

competition may exist to some extent between the Topeka shiner, the

southern redbelly dace (Phoxinus erythrogaster), and the cardinal

shiner (Luxilus cardinalis) (Tabor pers. obs.).

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by this species in determining to make this rule final. Based on

this evaluation, the preferred action is to list the Topeka shiner as

endangered. Endangered status, which means that the species is in

danger of extinction throughout all or a significant portion of its

range, is appropriate for the Topeka shiner. We believe the species'

recent significant reduction in range and the extirpation of the

species throughout most of its historic range, within the context of

the continuing and expected impacts from present and planned projects

and activities, support the determination of endangered status.

Threatened status is not appropriate considering the extent of the

species' population decline and the vulnerability of the remaining

populations.

Critical Habitat

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

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

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

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

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

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

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

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

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

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

longer necessary.

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

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

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. Our

regulations (50 CFR 424.12(a)(1)) state that a designation of critical

habitat is not prudent when one or both of the following situations

exist--(1) The species is threatened by taking or other human activity,

and identification of critical habitat can be expected to increase the

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

habitat would not be beneficial to the species. We find that

designation of critical habitat is not prudent for the Topeka shiner at

this time for the following reasons.

Section 7 of the Act requires that Federal agencies refrain from

contributing to the destruction or adverse modification of critical

habitat in any action authorized, funded or carried out by such agency

(agency action). This requirement is in addition to the section 7

prohibition against jeopardizing the continued existence of a listed

species, and it is the only mandatory legal consequence of a critical

habitat designation. Implementing regulations (50 CFR part 402) define

``jeopardize the continuing existence of'' and ``destruction or adverse

modification of'' in very similar terms. To jeopardize the continuing

existence of a species means to engage in an action ``that reasonably

would be expected to reduce appreciably the likelihood of both the

survival and recovery of a listed species.'' Destruction or adverse

modification of habitat means an ``alteration that appreciably

diminishes the value of critical habitat for both the survival and

recovery of a listed species.'' Common to both definitions is an

appreciable detrimental effect to both the survival and the recovery of

a listed species. In the case of adverse modification of critical

habitat, the survival and recovery of the species has been

significantly diminished by reducing the value of the species'

designated critical habitat. Thus, actions satisfying the standard for

adverse modification also jeopardize the continued existence of the

species concerned.

Many activities that pose threats to the continued existence of the

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

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

and wetland modification projects). Programs that result in these

activities in Topeka shiner habitat are most often regulated by the

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

Natural Resources Conservation Service, under a variety of authorities,

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

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

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

those potential threats would not be significantly advanced by

designation of critical habitat.

Recovery activities to assist landowners in maintaining or

improving the habitat quality of their streams or otherwise addressing

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

critical habitat. However, such conservation and recovery actions could

be significantly impaired by public apprehension or misunderstanding of

a critical habitat designation.

Intentional taking of the Topeka shiner is not presently known to

be a problem. However, the Topeka shiner is found in very specialized,

easily accessible and identifiable habitat characterized by small

volumes of flow. Local populations are thus highly vulnerable and can

be intentionally targeted for elimination, as suggested at a recent

public hearing. The listing of Topeka shiner as an endangered species

also publicizes the present vulnerability of this species. Publication

of maps providing precise locations and descriptions of critical

habitat, as required for the designation of critical habitat, would

reasonably be expected to increase the degree of threat of vandalism or

the intentional destruction of the species' habitat, increase the

[[Page 69020]]

difficulties of enforcement, and could further contribute to the

decline of the Topeka shiner.

In light of the above, we conclude that designation of critical

habitat would not be beneficial to the species and would increase the

degree of threat to the species from taking. We have, therefore,

determined that the designation of critical habitat for the Topeka

shiner is neither beneficial nor prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing results in public awareness and

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

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires that recovery

actions be carried out for all listed species. Our ``Partners for Fish

and Wildlife'' program can also provide a means to help share the cost

of conservation measures such as constructing fencing to keep cattle

out of streams and providing alternative water source, if necessary.

The protection required of Federal agencies and the prohibitions

against taking and harm are discussed, in part, below.

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

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

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

any is being designated. Regulations implementing this interagency

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

Section 7(a)(4) requires Federal agencies to confer on any action that

is likely to jeopardize the continued existence of a species proposed

for listing or result in destruction or adverse modification of

proposed critical habitat. If a species is listed subsequently, section

7(a)(2) requires Federal agencies to ensure that activities they

authorize, fund, or carry out are not likely to jeopardize the

continued existence of the species or destroy or adversely modify its

critical habitat. If a Federal action may affect a listed species or

its critical habitat, the responsible Federal agency is required to

enter into formal consultation.

A number of Federal agencies have jurisdiction and responsibilities

potentially affecting the Topeka shiner, and section 7 consultation may

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

to include the Corps of Engineers (Corps) throughout the species' range

pursuant to the Corps administration of Section 404 of the Clean Water

Act. The U.S. Environmental Protection Agency will need to consider the

Topeka shiner in the registration of pesticides, adoption of water

quality criteria, and other pollution control programs. The U.S.

Department of Transportation, Federal Highway Administration, will need

to consider the effects of bridge and road construction at locations

where known habitat may be impacted. The U.S. Department of

Agriculture, Natural Resources Conservation Service and Farm Service

Agency, will need to consider the effects of structures and

channelization projects installed under the Watershed Protection and

Flood Prevention Act, (16 U.S.C. 1001-1009, Chapter 18; Pub.L. 83-566,

August 4, 1954, c 656, Sec. 1, 68 Stat. 666; as amended), ``Farm Bill''

programs, and other activities which may impact water quality,

quantity, or timing of flows. The Federal Energy Regulatory Commission

will need to consider potential impacts to the Topeka shiner and its

habitat resulting from gas pipeline construction over streams and from

hydroelectric development.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered

wildlife. The prohibitions, codified at 50 CFR 17.21, in part, make it

illegal for any person subject to the jurisdiction of the United States

to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,

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

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

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

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

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

entities having an agency relationship with us (agents) and to State

conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered wildlife species under certain circumstances.

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

permits are available for scientific purposes, to enhance the

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

connection with otherwise lawful activities.

Requests for copies of the regulations regarding listed wildlife

and inquiries about prohibitions and permits may be addressed to the

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

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

It is our policy to identify (59 FR 34272), to the extent known at

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

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

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

effect of the listing on ongoing and likely activities within a

species' range. We believe the following actions would not likely

result in a violation of section 9:

(1) Actions that may affect Topeka shiner that are authorized,

funded or carried out by a Federal agency when the action is conducted

in accordance with an incidental take statement issued by the Service

pursuant to section 7 of the Act;

(2) Actions that may result in take of Topeka shiner when the

action is conducted in accordance with a permit under section 10 of the

Act; and

(3) Private actions which avoid ``take'' under section 9, that are

not federally funded or permitted, undertaken within or near habitat

occupied by Topeka shiners, and not be subject to the regulations as

stated above in section 7 of the Act. Private actions not subject to

section 7 consultation include, but are not limited to: farming and

ranching practices, construction of private stock watering ponds on

normally dry channels, and fuelwood harvest.

We believe that the actions listed below may result in a violation

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

actions alone:

(1) Actions that take Topeka shiner that are not authorized by

either a permit under section 10 of the Act, or an incidental take

permit under section 7 of the Act; the term ``take'' includes

harassing, harming, pursuing, hunting, shooting, wounding, killing,

trapping, capturing, or collecting, or attempting any of these actions;

(2) Possess, sell, deliver, carry, transport, or ship illegally

taken Topeka shiner;

(3) Interstate and foreign commerce (commerce across State and

international boundaries) without the appropriate permits under section

10(a)(1)(a)and 50 CFR 17.32.

(4) Unauthorized collecting or handling of the species;

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

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

dredging or other physical modifications that impact instream habitat,

including trampling of stream habitat by livestock and allowing animal

wastes from feedlots or waste lagoons to

[[Page 69021]]

enter streams) such that it would result in take of the species;

(6) The intentional introduction of nonnative fish species that

result in direct competition with or predation on the Topeka shiner at

known locations of occupied habitat;

(7) Use of fertilizers or pesticides inconsistent with approved

labeling and application procedures; and

(8) Contamination of soil, streams, or groundwater by illegal

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

Questions regarding whether a specified activity will constitute a

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

our Manhattan, Kansas Field office (see ADDRESSES section).

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental

Impact Statements, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to section 4(a) of the Endangered

Species Act of 1973, as amended. A notice outlining the reasons for

this determination was published in the Federal Register on October 25,

1983 (48 FR 49244).

Required Determination

This rule does not contain any information collection requirements

for which the Office of Management and Budget (OMB) approval under the

Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. is required. An

information collection related to the rule pertaining to permits for

endangered and threatened species has OMB approval and is assigned

clearance number 1018-0094. This rule does not alter that information

collection requirement. For additional information concerning permits

and associated requirements for threatened species, see 50 CFR 17.32.

References Cited

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

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

ADDRESSES section).

Author

The primary author of this document is Vernon M. Tabor, U.S. Fish

and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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

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

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

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

alphabetical order under FISHES, to the List of Endangered and

Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife

* * * * *

(h) * * *

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

Species Vertebrate

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

Historic range endangered or Status When listed habitat rules

Common Name Scientific name threatened

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

* * * * * * *

Fishes

* * * * * * *

Shiner, Topeka................... Notropis topeka KS, IA, MN, MO, NE, Entire............. E 654 NA NA

(=Notropis tristis). SD.

* * * * * * *

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

Dated: November 25, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-33100 Filed 12-14-98; 8:45 am]

BILLING CODE 4310-55-P