DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AT84

Endangered and Threatened Wildlife and Plants; Proposed Designation of
Critical Habitat for the Arkansas River Basin Population of the Arkansas
River Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Arkansas River Basin population of
the Arkansas River shiner ([Notropis]{.underline} [girardi]{.underline})
pursuant to the Endangered Species Act of 1973, as amended (Act).
Limited new information on the biological needs of the Arkansas River
Shiner has become available since critical habitat for the Arkansas
River Shiner was published on April 4, 2001 (66 FR 18002). However, this
rule is being proposed pursuant to a court order issued in September
2003, vacating critical habitat established for the Arkansas River Basin
population of the Arkansas River Shiner and remanding the previous
designation of critical habitat for preparation of a new analysis of the
economic and other effects of the designation ([New Mexico Cattle
Growers Association et al.]{.underline} v. [Norton, et al. Civ. No.
02-0461]{.underline}).

We propose to designate as critical habitat a total of approximately
2,002 kilometers (1,244 miles) of linear distance of rivers, including
91.4 meters (300 feet) of adjacent riparian areas measured laterally
from each bank. This distance includes areas that we are proposing to
exclude which is described further in the proposed rule below. The areas
that we have determined to be essential to the conservation of the
Arkansas River Shiner include portions of the Canadian River (often
referred to as the South Canadian River) in New Mexico, Texas, and
Oklahoma, the Beaver/North Canadian River of Oklahoma, the Cimarron
River in Kansas and Oklahoma, and the Arkansas River in Arkansas,
Kansas, and Oklahoma.

In developing this proposal, we evaluated those lands determined to be
essential to the conservation of the Arkansas River Shiner to ascertain
if any specific areas would be appropriate for exclusion from the final
critical habitat designation pursuant to section 4(b)(2) of the Act. On
the basis of our preliminary evaluation, we believe that the benefits of
excluding the Beaver/North Canadian River of Oklahoma (Unit 2) and the
Arkansas River in Arkansas, Kansas, and Oklahoma (Unit 4), from the
final critical habitat for the Arkansas River Shiner outweigh the
benefits of their inclusion. As noted in the "Public Comments Solicited"
section below, we are seeking comments on our prelimary 4(b)(2) analysis
that is contained within this rule.

If this proposal is made final, section 7 of the Act would prohibit
destruction or adverse modification of critical habitat by any activity
authorized, funded, or carried out by any Federal agency. As required by
section 4 of the Act, we will consider the economic and other relevant
impacts prior to making a final decision on what areas to designate as
critical habitat.

We hereby solicit data and comments from the public on all aspects of
this proposal, including data on economic and other impacts of the
proposed designation. We may revise this proposal prior to final
designation to incorporate or address new information received during
public comment periods.

DATES: We will accept comments until April 30, 2005. The Act provides
for a public hearing on this proposal, if requested. Given the high
likelihood of such requests, we intend to hold three public hearings,
one in central Oklahoma, one in southwest Kansas and one in Texas. The
specific times, dates, and locations for those hearings will be
announced in the [Federal]{.underline} [Register]{.underline} in the
coming months.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:

1\. You may submit written comments and information to the Field
Supervisor, Oklahoma Ecological Services Office, U.S. Fish and Wildlife
Service, 222 South Houston, Tulsa, Oklahoma 74127-8909.

2\. You may hand-deliver written comments and information to our
Oklahoma Office, at the above address, or fax your comments to
918/581-7467.

3\. You may send your comments by electronic mail (e-mail) to
r2arshinerch@fws.gov. For directions on how to submit electronic filing
of comments, see the "Public Comments Solicited" section.

All comments and materials received, as well as supporting documentation
used in preparation of this proposed rule, will be available for public
inspection, by appointment, during normal business hours at the above
address.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Oklahoma Office
(telephone 918/581-7458; facsimile 918/581-7467).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will be as
accurate and as effective as possible. Therefore, we solicit comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party concerning
this proposed rule. On the basis of public comment, during the
development of the final rule we may find that areas proposed are not
essential, are appropriate for exclusion under section 4(b)(2), or not
appropriate for exclusion; in all of these cases, this information would
be incorporated into the final designation. We particularly seek
comments concerning:

\(1\) The reasons why any areas included in this proposal should or
should not be determined to be critical habitat as provided by section 4
of the Act, including whether the benefit of designation will outweigh
any threats to the species due to the designation;

\(2\) Specific information on the amount and distribution of Arkansas
River Shiner habitat, and which habitat or habitat components are
essential to the conservation of this species and why;

\(3\) Information on the status, viability, and distribution of the
Arkansas River Shiner in the Cimarron River in Kansas and Oklahoma;

\(4\) Comments or information related to our determination to include
the adjacent riparian area (i.e., 300-feet on either side of the stream
bank) as proposed critical habitat;

\(5\) Land use designations and current or planned activities in or
adjacent to the areas proposed and their possible impacts on proposed
critical habitat;

\(6\) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation, particularly any
impacts on small entities;

\(7\) Two areas previously designated as critical habitat (the
Beaver/North Canadian River of Oklahoma (Unit 2) and portions of the
Arkansas River in Arkansas, Kansas, and Oklahoma (Unit 4), although
still considered essential for the conservation of the Arkansas River
Shiner, are currently proposed for exclusion from critical habitat
because we believe the benefit of excluding these areas outweighs the
benefit of including them. We specifically solicit comment on the
inclusion or exclusion of such areas and: (a) whether these areas are
essential; (b) whether these areas warrant exclusion; (c) the basis for
excluding these areas as critical habitat (section 4(b)(2) of the Act);
and (d) whether the preliminary 4(b)(2) analysis contained within this
rule is adequate to justify an exclusion and/or any other factors that
we should take into consideration; and

\(8\) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating public
concerns and comments.

If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit electronic comments in ASCII file format and
avoid the use of special characters or any form of encryption. Please
also include "Attn: RIN 1018--AT84" in your e-mail subject header and
your name and return address in the body of your message. If you do not
receive a confirmation from the system that we have received your
Internet message, contact us directly by calling our Oklahoma Ecological
Services Office at phone number 918-581-7458. Please note that the
e-mail address, r2arshinerch@fws.gov will be closed out at the
termination of the public comment period.

Our practice is to make comments, including names and home addresses of
respondents, available for public review during regular business hours.
Individual respondents may request that we withhold their home addresses
from the rulemaking record, which we will honor to the extent allowable
by law. There also may be circumstances in which we would withhold from
the rulemaking record a respondent\'s identity, as allowable by law. If
you wish us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying themselves
as representatives or officials of organizations or businesses,
available for public inspection in their entirety. Comments and
materials received will be available for public inspection, by
appointment, during normal business hours at the above address.

[Designation Of Critical Habitat Provides Little Additional Protection
To Species]{.underline}

In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has changed since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous amounts of agency resources, and imposes huge social and
economic costs. The Service believes that additional agency discretion
would allow our focus to return to those actions that provide the
greatest benefit to the species most in need of protection.

[Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act]{.underline}

While attention to and protection of habitat is paramount to successful
conservation actions, we have consistently found that, in most
circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, "Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7." Currently, only 445 species or 36 percent of
the 1,244 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,244 listed species through conservation mechanisms such as
listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.

We note, however, that a recent 9^th^ Circuit judicial opinion, [Gifford
Pinchot Task Force]{.underline} v. [United States Fish and Wildlife
Service]{.underline}, has invalidated the Service's regulation defining
destruction or adverse modification of critical habitat. We are
currently reviewing the decision to determine what effect it may have on
the outcome of consultations pursuant to section 7 of the Act.

[Procedural and Resource Difficulties in Designating Critical
Habitat]{.underline}

[\
]{.underline}

We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now consumes
nearly the entire listing program budget. This leaves the Service with
little ability to prioritize its activities to direct scarce listing
resources to the listing program actions with the most biologically
urgent species conservation needs.

The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left the
Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.

[]{.mark}

The costs resulting from the designation include legal costs, the cost
of preparation and publication of the designation, the analysis of the
economic effects and the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy Act (NEPA). None of these costs result in any
benefit to the species that is not already afforded by the protections
of the Act enumerated earlier, and they directly reduce the funds
available for direct and tangible conservation actions.

Background

The Arkansas River Shiner is a small, robust minnow with a small,
dorsally flattened head, rounded snout, and small subterminal mouth
(located near the head end of the body but not at the extreme end)
(Miller and Robison 1973; Robison and Buchanan 1988). Dorsal (back)
coloration tends to be light tan, with silvery sides gradually grading
to white on the belly. Adults typically attain a maximum length of 51
millimeters (2 inches). Dorsal, anal, and pelvic fins all have eight
rays, and there is a small, black chevron (v-shaped mark) usually
present at the base of the caudal (tail) fin.

The Arkansas River Shiner was first described based on a fish collection
in 1926 from the Cimarron River northwest of Kenton, Cimarron County,
Oklahoma (Hubbs and Ortenburger 1929). Historically, the Arkansas River
Shiner was widespread and abundant throughout the western portion of the
Arkansas River Basin in Kansas, New Mexico, Oklahoma, and Texas. This
species has disappeared from more than 80 percent of its historical
range and is now almost entirely restricted to about 820 km (508 mi) of
the Canadian River in Oklahoma, Texas, and New Mexico (Larson
[et]{.underline} [al]{.underline}. 1991; Pigg 1991). A small aggregation
of Arkansas River Shiner still persists in the Cimarron River in
Oklahoma and Kansas, based on the collection of 24 individuals since
1985. The Arkansas River Shiner was last captured from the Cimarron
River in August of 2004 near Guthrie, Oklahoma, by SWCA Environmental
Consultants (Stuart Leon, U.S. Fish and Wildlife Service,
[in]{.underline} [litt]{.underline}. 2004). A remnant population also
may persist in the Beaver/North Canadian River of Oklahoma, based on
collection of only four individuals since 1990 (Larson [et]{.underline}
[al]{.underline}. 1991; Jimmie Pigg, Oklahoma Department of
Environmental Quality, pers. comm., 1993). The Arkansas River Shiner is
no longer believed to occur in the Arkansas River in Arkansas, Kansas,
and Oklahoma; a loss of over 1,240 km (770 mi) of previously occupied
habitat. However, an accurate assessment of Arkansas River Shiner
populations in the Arkansas and Beaver/North Canadian Rivers is
difficult because the populations are likely so small, if present, that
individuals escape detection during routine, one-time surveys.

The decline of the Arkansas River Shiner throughout its historical range
is primarily the result of modification of the duration and timing of
stream flows and inundation by impoundments, channel drying by water
diversion and groundwater mining, stream channelization, and
introduction of nonindigenous plant and animal species. Additional
information on the biology and status of this species, as well as a
thorough discussion of the threats to the species, can be found in the
November 23, 1998, final listing determination (63 FR 64772) and the
final critical habitat determination (66 FR 18002; April 4, 2001).
Biological factors relevant to the species' habitat needs are discussed
in the "Primary Constituent Elements" section of this proposed rule.

Previous Federal Action

We published a proposed rule to list the Arkansas River Basin population
of the Arkansas River Shiner as endangered and invited public comment on
August 3, 1994 (59 FR 39532). A non-native population of the Arkansas
River Shiner that has become established in the Pecos River was not
included in that proposal. We reopened the comment period from January
6, 1995, to February 3, 1995 (60 FR 2070), to accommodate three public
hearings. Following a moratorium on issuing final listings or critical
habitat designations that ended on April 26, 1996, we again reopened the
comment period on the proposal on December 5, 1997 (62 FR 64337). We
published the final rule listing the Arkansas River Basin population of
the Arkansas River shiner as a threatened species on November 23, 1998
(63 FR 64772). A recovery plan for this species has not yet been
completed.

At the time of listing, we concluded that designation of critical
habitat for the Arkansas River Shiner was not prudent because such
designation would not benefit the species. As part of a settlement order
of February 16, 2000, in [Center for Biological Diversity]{.underline}
v. [Bruce Babbitt, et al.]{.underline} C99-3202 SC, we agreed to
reconsider the question of whether critical habitat would be prudent;
and, if designation of critical habitat were prudent, we agreed to
subsequently propose designation of critical habitat for the Arkansas
River Basin population of the Arkansas River Shiner by June 23, 2000.
Our proposed designation of critical habitat for the Arkansas River
Shiner was published in the [Federal]{.underline} [Register]{.underline}
on June 30, 2000 (65 FR 40576). On August 15, 2000 (65 FR 49781), we
published a notice in the [Federal]{.underline} [Register]{.underline}
extending the comment period on the proposed rule and draft
environmental assessment and announcing the availability of the draft
economic analysis for public review and comment. The final comment
period was open until October 16, 2000. After review of all comments
received in response to the proposed rule, we published a final rule
designating critical habitat for the Arkansas River Basin population of
the Arkansas River Shiner (66 FR 18002; April 4, 2001).

On April 25, 2002, the New Mexico Cattle Growers Association and 16
other plaintiffs filed a complaint in United States District Court for
the District of New Mexico for alleged violations of the Act, the
Administrative Procedure Act, and NEPA. A decision in that case was
issued by Senior U.S. District Judge C. LeRoy Hansen in September of
2003. In that Memorandum Opinion, critical habitat for the Arkansas
River Shiner was vacated and the Service was ordered to complete a
proposed rulemaking to redesignate critical habitat by September 30,
2004. A final rulemaking is due one year later.

This proposal relies upon the best scientific and commercial data
available to us, including the biological and habitat information
described in the previous final rules, and recognized principles of
conservation biology. Accordingly, this proposal differs from the
previous critical habitat designation for the Arkansas River Shiner and
includes only those areas we currently consider essential to the
conservation of the species.

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 area 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 that are necessary to bring
an endangered or a threatened species to the point at which listing
under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through
the prohibition against destruction or adverse modification of critical
habitat with regard to actions carried out, funded, or authorized by a
Federal agency. Section 7 requires consultation on Federal actions that
are likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow government or
public access to private lands.

To be included in a critical habitat designation, the habitat must first
be "essential to the conservation of the species." Critical habitat
designations identify, to the extent known using the best scientific and
commercial data available, habitat areas that provide essential life
cycle needs of the species (i.e., areas on which are found the primary
constituent elements, as defined at 50 CFR 424.12(b)).

Occupied habitat may be included in critical habitat only if the
essential features thereon may require special management or protection.
Thus, we do not include areas where existing management is sufficient to
conserve the species. (As discussed below, such areas may also be
excluded from critical habitat pursuant to section 4(b)(2).)

Our regulations state that, "The Secretary shall designate as critical
habitat areas outside the geographic area presently occupied by the
species only when a designation limited to its present range would be
inadequate to ensure the conservation of the species" (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographic area occupied by the species.

The Service's Policy on Information Standards Under the Endangered
Species Act, published in the [Federal]{.underline}
[Register]{.underline} on July 1, 1994 (59 FR 34271), and Section 515 of
the Treasury and General Government Appropriations Act for Fiscal Year
2001 (P.L. 106-554; H.R. 5658) and the associated Information Quality
Guidelines issued by the Service, provide criteria, establish
procedures, and provide guidance to ensure that decisions made by the
Service represent the best scientific and commercial data available.
They require Service biologists to the extent consistent with the Act
and with the use of the best scientific and commercial data available,
to use primary and original sources of information as the basis for
recommendations to designate critical habitat. When determining which
areas are critical habitat, a primary source of information should be
the listing package for the species. Additional information sources
include the recovery plan for the species, articles in peer-reviewed
journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge.

Section 4 of the Act requires that we designate critical habitat on the
basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to be
necessary for the recovery of the species. For these reasons, critical
habitat designations do not signal that habitat outside the designation
is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat
designation, will continue to be subject to conservation actions
implemented under section 7(a)(1) of the Act and to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard, as
determined on the basis of the best available information at the time of
the action. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still result
in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available to these
planning efforts calls for a different outcome.

Methods

As required by section 4(b)(1)(A) of the Act, in determining areas that
are essential for the conservation of the Arkansas River Shiner, we used
the best scientific and commercial data available. These included data
from research and survey observations published in peer-reviewed
articles and that were conducted by the Service and others; conservation
measures described in the final listing determination (63 FR 64772) and
in the [Issue 8: Recovery]{.underline} section of the prior final
critical habitat determination (66 FR 18002); our recovery outline;
regional Geographic Information System (GIS) watershed and species
coverages; and data compiled in the Oklahoma Natural Heritage Inventory
Database. In addition, information provided in comments on the proposed
critical habitat designation and draft economic analysis will be
evaluated and considered in the development of the final designation for
the Arkansas River Shiner. Although a recovery plan has not yet been
prepared for this species, the areas we have proposed as critical
habitat represent those that currently support viable populations of the
Arkansas River Shiner or are areas where we have data that the Arkansas
River Shiner is still extant (i.e. the Cimarron River). Full recovery of
the species likely will require conservation of existing populations and
establishment of at least one additional viable population in an
additional stream drainage within the historic range of the Arkansas
River Shiner.

Physical features were identified using U.S. Geological Survey (USGS)
7.5\' quadrangle maps. River reach distances, as noted in Table 1 below,
were caculated from TIGER 2000 water line and water polygon Geographic
Information Systems files.

We request that peer reviewers who are familiar with this species review
the proposed rule (see "Peer Review" section below) in order to ensure
that we have identified those areas that are essential for the
conservation of the Arkansas River Shiner and avoid designating
unsuitable habitat inappropriately.

This proposed designation does not include all areas previously
designated as critical habitat for the Arkansas River Shiner (66 FR
18002; April 4, 2001). Some areas that were included in the previous
designation are not being included in this proposal because they no
longer meet the definition of critical habitat based on recent
information concerning habitat quality and lack of primary constituent
elements. Specifically, and as explained in further detail below, the
Arkansas River upstream of Larned, Kansas, is not included in this
proposed designation. Portions of the Beaver/North Canadian and the
lower reaches of the Arkansas River between the cities of Larned and the
Kansas/Oklahoma State line, are proposed for exclusion from this
critical habitat designation as explained under the "[Relationship of
Section 4(b)(2) of the Act to Arkansas River Shiner Critical
Habitat]{.underline}" section below.

During 2000 and 2001, Wilde (2002) conducted an assessment of fish
communities and aquatic habitat at 10 sites from the Beaver/North
Canadian River within the area previously designated (66 FR 18002; April
4, 2001) as critical habitat (Unit 2) for the Arkansas River Shiner. No
Arkansas River Shiners were encountered and habitat was considered
marginal for Arkansas River Shiner (Wilde 2002). Overall, aquatic
habitat in the lower reach (i.e., North Canadian River) was generally
swifter and deeper than that preferred by the Arkansas River Shiner in
the Canadian River in Texas. Habitat in the upper reach (i.e., Beaver
River) was, on average, slightly swifter but comparable in depth with
habitats preferred by the Arkansas River Shiner in the Canadian River in
Texas. While habitat quality in the North Canadian River, previously
designated as Unit 2, appears marginal, all of the primary constituent
elements are present. However, we are uncertain if the Arkansas River
Shiner still inhabits this reach. Reestablishing Arkansas River Shiner
in this reach would involve some habitat restoration to achieve more
optimal conditions for the Arkansas River Shiner.

Habitat improvements due to increased stream flow previously anticipated
to occur in the upper reaches of the Arkansas River in Kansas, formerly
designated as part of Unit 4, have failed to occur. Much of the Arkansas
River upstream of Great Bend, Kansas, continues to be dewatered for
significant periods of time. Examination of information (USGS 2004) for
the Arkansas River in Kansas revealed that average annual streamflow
values, as measured at Syracuse, Garden City, and Dodge City, were
considerably higher during the period from 1998 to 2000 than they were
from 2001 to 2003. Consequently, we no longer believe this reach
provides all of the primary constituent elements needed by the Arkansas
River Shiner. We are not including it in this proposal because we do not
believe the area meets the definition of critical habitat. Habitat in
the lower reaches of the Arkansas River between the cities of Great Bend
and Wichita, Kansas, remains suitable for the Arkansas River Shiner.
While streamflows were much lower during the period from 2001 to 2003
than they were from 1998 to 2000, streamflows were consistently higher
than those measured at the more upstream gauging stations.
Unfortunately, the Arkansas River Shiner no longer persists in the
Arkansas River. It is not known with certainty why the species is no
longer present in the Arkansas River; however, it is likely due to a
combination of factors including streamflow alterations and water
quality-related issues, the combination of which have precluded
successful reproduction. Surveys have been conducted within the past
five years with consistent negative results reported.

We intend to promote conservation and recovery of the Arkansas River
Shiner in these two reaches through the use of other tools, which may
include reestablishment of the Arkansas River Shiner through the
provisions of section 10(j) of the Act - experimental populations. See
our analysis under "[Relationship of Section 4(b)(2) of the Act to
Arkansas River Shiner Critical Habitat]{.underline}" section of this
rule.

[Primary Constituent Elements]{.underline}

In accordance with section 3(5)(A)(i) of the Act and regulations at 50
CFR 424.12, in determining which areas to propose as critical habitat,
we are required to consider those physical and biological features
(primary constituent elements) that are essential to the conservation of
the species and that may require special management considerations or
protection. These features include, but are not limited to, space for
individual and population growth and for normal behavior; food, water,
light, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, or rearing of offspring; and
habitats that are protected from disturbance or are representative of
the historical, geographical, and ecological distributions of a species.

The specific biological and physical features, referred to as the
primary constituent elements, that provide for the physiological,
behavioral, and ecological requirements of the Arkansas River Shiner
include adequate spawning flows over sufficient distances; habitat for
food organisms; appropriate water quality; a natural flow regime;
rearing and juvenile habitat appropriate for growth and development to
adulthood; and suitable habitat (e.g., sufficient flows and lack of
barriers) sufficient to allow Arkansas River Shiner to recolonize
upstream habitats. Special management, such as habitat rehabilitation
efforts (e.g., removal or control of non-native competitors), also may
be necessary over much of the area being proposed for designation. Given
the large geographic range the species historically occupied, and the
diverse habitats used by the various life-history stages, the specific
values or conditions described for each of these habitat features may
not capture all of the variability that is inherent in natural systems
supporting the Arkansas River Shiner. However, the following discussion
summarizes the primary constituent elements determined essential to the
conservation of the Arkansas River Shiner.

The Arkansas River Shiner historically inhabited the main channels of
wide, shallow, sandy-bottomed rivers and larger streams of the Arkansas
River Basin (Gilbert 1980). Adult Arkansas River Shiner are uncommon in
quiet pools or backwaters lacking streamflow, and almost never occur in
habitats having deep water and bottoms of mud or stone (Cross 1967).
Cross (1967) believed that adult Arkansas River Shiner prefer to orient
into the current on the \"lee\" sides of large transverse sand ridges
and prey upon food organisms washed downstream with the current.

Food

The Arkansas River Shiner is believed to be a generalized forager and
feeds upon both items suspended in the water column and items lying on
the substrate (Jimenez 1999; Bonner [et]{.underline} [al]{.underline}.
1997). In the Canadian River of central Oklahoma, Polivka and Matthews
(1997) found that gut contents were dominated by sand/sediment and
detritus (decaying organic material) with invertebrate prey being an
incidental component of the diet. In the Canadian River of New Mexico
and Texas, the stomach contents of Arkansas River Shiner were dominated
by detritus, invertebrates, grass seeds, and sand and silt (Jimenez
1999). Invertebrates were the most important food item, followed by
detrital material.

Terrestrial and semiaquatic invertebrates were consumed at higher levels
than were aquatic invertebrates (Jimenez 1999). With the exception of
the winter season, when larval flies were consumed much more frequently
than other aquatic invertebrates, no particular invertebrate taxa
dominated the diet (Bonner [et]{.underline} [al]{.underline}. 1997). Fly
larvae, copepods, immature mayflies, insect eggs, and seeds were the
dominant items in the diet of the non-native population of the Arkansas
River Shiner inhabiting the Pecos River in New Mexico (Keith Gido,
University of Oklahoma, [in]{.underline} [litt]{.underline}. 1997).

Water

Most plains streams are highly variable environments. Water
temperatures, flow regimes, and overall physicochemical conditions
(e.g., quantity of dissolved oxygen) typically fluctuate so drastically
that fishes native to these systems often exhibit life-history
strategies and microhabitat preferences that enable them to cope with
these conditions. Matthews (1987) classified several species of fishes,
including the Arkansas River Shiner, based on their tolerance for
adverse conditions and selectivity for physicochemical gradients. The
Arkansas River Shiner was described as having a high thermal and oxygen
tolerance, indicating a high capacity to tolerate elevated temperatures
and low dissolved oxygen concentrations (Matthews 1987). Observations
from the Canadian River in New Mexico and Texas revealed that dissolved
oxygen concentrations, conductivity, and pH rarely influenced habitat
selection by the Arkansas River Shiner (Wilde [et]{.underline}
[al]{.underline}. 2000). Arkansas River shiners were collected over a
wide range of conditions\--water temperatures from 0.4 to 36.8 Celsius
(32.7 to 98.2 Fahrenheit), dissolved oxygen from 3.4 to 16.3 parts per
million, conductivity (total dissolved solids) from 0.7 to 14.4
millisiemens per centimeter, and pH from 5.6 to 9.0.

In the Canadian River in central Oklahoma, Polivka and Matthews (1997)
found that Arkansas River Shiner exhibited only a weak relationship
between the environmental variables they measured and the occurrence of
the species within the stream channel. Water depth, current, dissolved
oxygen, and sand ridge and midchannel habitats were the environmental
variables most strongly associated with the distribution of adult
Arkansas River Shiner within the channel. Similarly, microhabitat
selection by Arkansas River Shiner in the Canadian River in New Mexico
and Texas was influenced by water depth, current velocity, and, to a
lesser extent, water temperature (Wilde [et]{.underline}
[al]{.underline}. 2000). Arkansas River shiners generally occurred at
mean water depths between 17 and 21 centimeters (cm) (6.6-8.3 inches
(in)) and current velocities between 30 and 42 cm (11.7 and 16.4 in) per
second. Juvenile Arkansas River Shiner associated most strongly with
current, conductivity, and backwater and island habitat types (Polivka
and Matthews 1997).

Space for Individual and Population Growth and for Normal Behavior

Wilde [et]{.underline} [al]{.underline}. (2000) found no obvious
selection for or avoidance of any particular habitat type (i.e., main
channel, side channel, backwaters, and pools) by Arkansas River Shiner.
Arkansas River shiners did tend to select side channels and backwaters
slightly more than expected based on the availability of these habitats
(Wilde [et]{.underline} [al]{.underline}. 2000). Likewise, they appeared
to make no obvious selection for, or avoidance of, any particular
substrate type. Substrates (i.e. the river bed) in the Canadian River in
New Mexico and Texas were predominantly sand; however, the Arkansas
River Shiner was observed to occur over silt slightly more than expected
based on the availability of this substrate (Wilde [et]{.underline}
[al]{.underline}. 2000).

Successful reproduction by the Arkansas River Shiner appears to be
strongly correlated with streamflow. Moore (1944) believed the Arkansas
River Shiner spawned in July, usually coinciding with elevated flows
following heavy rains associated with summertime thunderstorms. Bestgen
[et]{.underline} [al]{.underline}. (1989) found that spawning in the
non-native population of Arkansas River Shiner in the Pecos River of New
Mexico generally occurred in conjunction with releases from Sumner
Reservoir. However, recent studies by Polivka and Matthews (1997) and
Wilde [et]{.underline} [al]{.underline}. (2000) neither confirmed nor
rejected the hypothesis that elevated streamflow triggered spawning in
the Arkansas River Shiner.

Arkansas River shiners are in-channel, open-water, broadcast spawners
that release their eggs and sperm over an unprepared substrate (Platania
and Altenbach 1998; Johnston 1999). Examination of Arkansas River Shiner
gonadal development between 1996 and 1998 in the Canadian River in New
Mexico and Texas demonstrated that the species undergoes multiple,
asynchronous (not happening at the same time) spawns in a single season
(Wilde [et]{.underline} [al]{.underline}. 2000). The Arkansas River
Shiner appears to be in peak reproductive condition throughout the
months of May, June, and July (Wilde [et]{.underline} [al]{.underline}.
2000; Polivka and Matthews 1997); however, spawning may occur as early
as April and as late as September. Arkansas River shiners may, on
occasion, spawn in standing waters (Wilde [et]{.underline}
[al]{.underline}. 2000), but it is unlikely that such events are
successful.

Both Moore (1944) and Platania and Altenbach (1998) described behavior
of Arkansas River Shiner eggs. The fertilized eggs are nonadhesive and
semibuoyant. Platania and Altenbach (1998) found that spawned eggs
settled to the bottom of the aquaria where they quickly absorbed water
and expanded. Upon absorbing water, the eggs became more buoyant, rose
with the water current, and remained in suspension. The eggs would sink
when water current was not maintained in the aquaria. This led Platania
and Altenbach (1998) to conclude that the Arkansas River Shiner and
other plains fishes likely spawn in the upper to mid-water column during
elevated flows. Spawning under these conditions would allow the eggs to
remain suspended during the 10- to 30- minute period the eggs were
non-buoyant. Once eggs became buoyant, they would remain suspended in
the water column as long as current was present.

In the absence of sufficient streamflows, the eggs would likely settle
to the channel bottom, where silt and shifting substrates would smother
the eggs, hindering oxygen uptake and causing mortality of the embryos.
Spawning during elevated flows appears to be an adaptation that likely
increases survival of the embryo and facilitates dispersal of the young.
Assuming a conservative drift rate of 3 km/hour, Platania and Altenbach
(1998) estimated that the fertilized eggs could be transported 72-144 km
(45-89 mi) before hatching. Developing larvae could then be transported
up to an additional 216 km (134 mi) before they were capable of directed
swimming movements. Bonner and Wilde (2000) speculate that 218 km (135
mi) may be the minimum length of unimpounded river that allows for the
successful completion of Arkansas River Shiner life history, based on
their observations in the Canadian River in New Mexico and Texas.

Rapid hatching and development of the young is likely another adaptation
in plains fishes that enhances survival in the harsh environments of
plains streams. Arkansas River shiner eggs hatch in 24‑48 hours after
spawning, depending upon water temperature (Moore 1944; Platania and
Altenbach 1998). The larvae are capable of swimming within 3‑4 days;
they then seek out low-velocity habitats, such as backwater pools and
quiet water at the mouths of tributaries where food is more abundant
(Moore 1944).

Evidence from Wilde [et]{.underline} [al]{.underline}. (2000) indirectly
supports the speculation by Cross [et]{.underline} [al]{.underline}.
(1985) that the Arkansas River Shiner initiates an upstream spawning
migration. Whether this represents a true spawning migration or just a
general tendency in these fish to orient into the current and move
upstream, perhaps in search of more favorable environmental conditions,
is unknown (Wilde [et]{.underline} [al]{.underline}. 2000). Regardless,
strong evidence suggested the presence of a directed, upstream movement
by the Arkansas River Shiner over the course of a year.

Introductions of nonindigenous species can have a significant adverse
impact on Arkansas River Shiner populations under certain conditions.
The morphological characteristics, population size, and ecological
preferences exhibited by the Red River shiner ([Notropis]{.underline}
[bairdi]{.underline}), a species endemic to the Red River drainage,
suggest that it competes with the Arkansas River Shiner for food and
other essential life requisites (Cross [et]{.underline}
[al]{.underline}. 1983; Felley and Cothran 1981). Since its
introduction, the Red River shiner has colonized much of the Cimarron
River and frequently may be a dominant component of the fish community
(Cross [et]{.underline} [al]{.underline}. 1983; Felley and Cothran
1981). The intentional or unintentional release of Red River shiners, or
other potential competitors, into other reaches of the Arkansas River
drainage by anglers or the commercial bait industry is a potentially
serious threat that could drastically alter habitat availability for the
Arkansas River Shiner in these reaches.

Pursuant to our regulations, we are required to identify the known
physical and biological features, i.e., primary constituent elements,
essential to the conservation of the Arkansas River Shiner, together
with a description of any critical habitat that is proposed. In
identifying the primary constituent elements, we used the best available
scientific and commercial data available. The primary constituent
elements determined essential to the conservation of the Arkansas River
Shiner are:

\(1\) A natural, unregulated hydrologic regime complete with episodes of
flood and drought or, if flows are modified or regulated, a hydrologic
regime characterized by the duration, magnitude, and frequency of flow
events capable of forming and maintaining channel and instream habitat
necessary for particular Arkansas River Shiner life-stages in
appropriate seasons;

\(2\) A complex, braided channel with pool, riffle (shallow area in a
streambed causing ripples), run, and backwater components that provide a
suitable variety of depths and current velocities in appropriate
seasons;

\(3\) A suitable unimpounded stretch of flowing water of sufficient
length to allow hatching and development of the larvae;

\(4\) Substrates of predominantly sand, with some patches of silt,
gravel, and cobble;

\(5\) Water quality characterized by low concentrations of contaminants
and natural, daily and seasonally variable temperature, turbidity,
conductivity, dissolved oxygen, and pH;

\(6\) Suitable reaches of aquatic habitat, as defined by primary
constituent elements 1 through 5 above, and adjacent riparian habitat
sufficient to support an abundant terrestrial, semiaquatic, and aquatic
invertebrate food base; and

\(7\) Few or no predatory or competitive non-native fish species
present.

All areas proposed as critical habitat for the Arkansas River Shiner are
within the historic range occupied by the species and contain one or
more of the primary constituent elements essential for its conservation.

Criteria Used To Define Critical Habitat

We are proposing to designate critical habitat within portions of the
Canadian and CimarronRivers and their associated riparian zones that we
determine are essential to the conservation of the Arkansas River
Shiner. We considered several criteria in the selection and proposal of
Arkansas River Shiner critical habitat. We first determined the
occupancy status of the areas. All of the stream reaches historically
known to support the Arkansas River Shiner at the time of listing,
including portions of the Arkansas, Cimarron, Beaver/North Canadian, and
Canadian Rivers, are considered essential habitat for this species.
However, as discussed in the "Relationship of Section 4(b)(2) of the Act
to Critical Habitat for the Arkansas River Shiner" section below, we are
proposing to exclude those portions of the Arkansas and the Beaver/North
Canadian Rivers determined to be essential for the conservation of the
Arkansas River Shiner. These areas have the primary constituent elements
described above and, as such, provide suitable habitat as defined in
several recent scientific studies including Platania and Altenbach 1998,
Polivka and Matthews 1997, and Wilde [et]{.underline} [al]{.underline}.
2000. We solicited information from knowledgeable biologists and
reviewed available information pertaining to Arkansas River Shiner
biology and life history. We then evaluated suitable habitat as defined
by the primary constituent elements discussed above to assess whether
they may require special management considerations or protection (see
"Special Management Considerations or Protection" section below).

We also reviewed the overall approach to the conservation of the species
undertaken by local, State, tribal, and Federal agencies and private
individuals and organizations since the species' listing in 1998. For
example, we previously designated an area (Unit 4) that was within the
historic distribution of the Arkansas River Shiner but was believed to
be unoccupied. As stated in the final rule (66 FR 18002; April 4, 2001)
this area does not lack protection. The Kansas Department of Wildlife
and Parks (KDWP) has designated critical habitat for the Arkansas River
Shiner in accordance with Kansas State law. Portions of the mainstem
Cimarron, Arkansas, South Fork Ninnescah, and Ninnescah Rivers have been
designated as critical habitat for the Arkansas River Shiner in Kansas.
A permit is required by the State of Kansas for public actions that have
the potential to destroy State-listed individuals or their State
designated critical habitat. Subject activities include any publicly
funded or State or federally assisted action, or any action requiring a
permit from any other State or Federal agency. Violation of the permit
constitutes an unlawful taking, a Class A misdemeanor, and is punishable
by a maximum fine of \$2,500 and confinement for a period not to exceed
1 year.

We repropose the designation on National Park Service lands in the Lake
Meredith National Recreation Area. In addition to federally-owned lands,
we are proposing to designate critical habitat on non-Federal public
lands and privately owned lands including lands owned by the Texas Parks
and Wildlife Department, Oklahoma Department of Wildlife Conservation,
and The Nature Conservancy. All non-Federal lands proposed as critical
habitat meet the definition of critical habitat under 16 USC \'
1532(5)(A)(i) of the Act in that they are within the geographical area
occupied by the species, are essential to the conservation of the
species, and may require special management consideration or protection.
As noted below, we are proposing to exclude the Beaver/North Canadian
River in Oklahoma and the lower Arkansas River in Kansas. As discussed
in this rule, we believe that the Arkansas River Shiner is extirpated
from these river segments; however, we consider these areas to be
essential to the conservation of the Arkansas River Shiner primarily for
future restoration effects.

Important considerations in selection of areas included in the proposed
critical habitat designation include factors specific to each river
system, such as size, connectivity, and habitat diversity, as well as
rangewide recovery considerations, such as genetic diversity and having
populations of the Arkansas River Shiner established throughout major
portions of its historic range. Each area contains stream reaches with
interconnected waters so that individual Arkansas River shiners can move
between areas, at least during certain flows or seasons. The ability of
the fish to repopulate areas where they have been depleted or extirpated
is vital to recovery to help stabilize the population and better ensure
its future persistence. Some areas include stream reaches that do not
exhibit optimal Arkansas River Shiner habitat, but provide movement
corridors. Additionally, these reaches play a vital role in the overall
health of the aquatic ecosystem and, therefore, the integrity of
upstream and downstream Arkansas River Shiner habitats. This proposed
critical habitat designation reflects the need for areas of sufficient
stream length to provide habitat for Arkansas River Shiner populations
large enough to be self-sustaining over time, despite fluctuations in
local conditions.

In considering this proposed designation, we took into account that
preferred habitat for the Arkansas River Shiner is predominantly the
mainstems of larger plains rivers. The best scientific information
available indicates that recovery of this species will depend on
conservation of relatively long stretches of large rivers (Platania and
Altenbach 1998) within Arkansas River Shiner historic range.
Historically, the species has been documented from several smaller
tributaries (e.g., Skeleton Creek, Wildhorse Creek, and others) to these
rivers (Larson [et]{.underline} [al]{.underline}. 1991). Examination of
the collection records provided in Larson [et]{.underline}
[al]{.underline}. (1991) shows that about 53 percent of the reported
capture dates for the Arkansas River Shiner in these smaller tributaries
occurred during the months of June and July. Another 18 percent occurred
during the months of May and August. Consequently, we believe that these
tributaries are occupied only during certain seasons during higher flows
and do not represent optimal habitat. These seasonally occupied habitats
may be important feeding, nursery, or spawning areas and all
tributaries, no matter their size, are important in contributing flows
to the critical habitat reaches. Federal actions that may substantially
reduce these flows may adversely affect critical habitat and will be
subject to consultation provisions outlined in section 7 of the Act.
Because newly hatched Arkansas River Shiner seek mouths of tributaries
where food is more abundant (Moore 1944), this designation (see "Lateral
Extent of Critical Habitat" section) includes small sections of the
tributaries near their confluence, which are important rearing areas for
larval Arkansas River Shiner.

As we stated in the listing rule (63 FR 64772; November 23, 1998),
transplantation of the Arkansas River Shiner from the Pecos River will
be evaluated as a means to recover the Arkansas River Shiner in
unoccupied portions of its historic habitat. In addition, our recovery
outline for the species identified re-establishing the Arkansas River
Shiner into suitable unoccupied historic habitat as a crucial component
of recovery. In accordance with the outline, we have undertaken steps to
develop and document captive propagation techniques for the Arkansas
River Shiner. In November 1999, with the assistance of the New Mexico
Game and Fish Department, we collected over 300 Arkansas River Shiner
from the Pecos River. These fish were transported to the Tishomingo
National Fish Hatchery in Oklahoma where hatchery personnel were
successful in inducing spawning of the species and coaxing the juveniles
to feed in captivity. Future restoration efforts will undoubtedly occur,
pending completion of an approved recovery plan and genetic work to
determine the suitability of using Arkansas River Shiner from the Pecos
River population in transplantation efforts.

Restoration of Arkansas River Shiner populations to additional portions
of their historical range significantly reduces the likelihood of
extinction due to natural or manmade factors, such as the introduction
of the Red River shiner, pollution episodes, or a prolonged period of
low or no flow, that might otherwise further reduce population size. For
example, in July of 2003, an unintentional but unauthorized discharge of
livestock waste entered the Canadian River upstream of Oklahoma City,
Oklahoma. In the ensuing fish kill, an estimated 11,000 Arkansas River
Shiner perished. If recovery actions fail to reverse Arkansas River
Shiner declines in the Canadian River, the species' vulnerability to
similar catastrophic events would increase. A vital recovery component
for this species likely will involve establishment of secure,
self-sustaining populations in habitats from which the species has been
extirpated.

Special Management Considerations or Protection

As discussed in the final listing rule and throughout this proposed
critical habitat rule, the Arkansas River Shiner and its habitat are
threatened by a number of factors including, but not limited to, stream
flow modification, habitat loss by inundation, channel drying by water
diversion and groundwater mining, stream channelization, water quality
degradation, and introduction of nonindigenous plant and animal species.
While many of these threats operate concurrently and cumulatively with
one another and with natural disturbances like drought, habitat loss and
modification represents the most significant threat to the Arkansas
River Shiner. Consequently, each area proposed for designation as
critical habitat may require some level of management and/or protection
to address current and future threats to the Arkansas River Shiner and
maintain the primary constituent elements essential to its conservation
to ensure the overall recovery of the species.

The range and numbers of the species has already been much reduced.
Consequently, the remaining fragmented sections are more likely to be
affected by influences from other factors such as drought, water
withdrawals, and permitted and unpermitted wastewater discharges. Once
the habitats are isolated, other aggregations of Arkansas River Shiner
can no longer disperse into these reaches and help maintain or restore
these populations. Isolation and segregation caused by habitat
fragmentation can lead to a reduction in overall genetic diversity.
Lande (1999) identified reduced genetic diversity as one of several
factors influencing extinction in small populations. Therefore, to
conserve and recover the fishes to the point where they no longer
require the protection of the Act and may be delisted, it is important
to maintain and protect all remaining genetically diverse populations of
this species within its historic range.

Within the historic range of the Arkansas River Shiner, considerable
reaches of formerly occupied habitat have been inundated by reservoirs.
While these losses are permanent and cannot reasonably be restored,
management of water releases, such as those from Ute Reservoir, can be
carried out in a manner that minimizes any adverse impacts and
facilitates maintenance of Arkansas River Shiner habitat. Removal of the
non-native salt cedar ([Tamarix]{.underline} spp.) also can free
additional water that, with management, can further provide for the
habitat needs of the Arkansas River Shiner. Streamflow management
combined with control of salt cedar can retard the channel narrowing
that often occurs following a reduction in streamflow and can improve
Arkansas River Shiner habitat.

In other portions of the historic range, a lack of reservoir releases
and groundwater mining has drastically reduced streamflows necessary for
maintenance of Arkansas River Shiner habitat. In these areas, control of
salt cedar and enhanced water conservation, for both municipal and
agricultural uses, can help ensure adequate streamflow continues to
occur. Considering the amount of free-flowing habitat required to
sustain Arkansas River Shiner reproduction (as discussed in the "Primary
Constituent Element" section above), such management may be particularly
beneficial in ensuring that suitable spawning, rearing, and nursery
habitat persists.

Introductions of non-native species, whether intentional or accidental,
often have deleterious impacts to native species. The accidental
introduction of the non-native Red River shiner has negatively
influenced the distribution and abundance of the Arkansas River Shiner
in the Cimarron River. A further introduction into other portions of its
historic range poses a considerable threat to the Arkansas River Shiner.
Management efforts to eradicate the Red River shiner and eliminate or
reduce the potential for additional releases of this species would be
beneficial to survival of the Arkansas River Shiner.

Proposed Critical Habitat Designation

The areas we are proposing as critical habitat currently provide all of
those habitat components necessary to meet the primary biological needs
of the Arkansas River Shiner, as defined by the primary constituent
elements. The areas proposed for designation are those river reaches
most likely to substantially contribute to conservation of the Arkansas
River Shiner, which when combined with future management of certain
unoccupied habitats suitable for restoration efforts, will contribute to
the long-term survival and recovery of the species.

Included in the proposed designation are areas that contain most, if not
all, of the remaining genetic diversity of the Arkansas River Shiner
within the Arkansas River Basin because the two segments in the Canadian
River and the segment in the Cimarron River represent the largest,
perhaps only, remaining viable aggregations of Arkansas River Shiner.
The designation incorporates more than 90 percent of the currently known
aggregations of Arkansas RIver Shiner in the Arkansas River Basin.

In selecting areas of critical habitat, we made an effort to avoid
developed areas, such as towns and other similar lands that are not
likely to contribute to Arkansas River Shiner conservation. However, the
minimum mapping unit that we used to approximate our delineation of
critical habitat for the Arkansas River Shiner did not allow us to
exclude all developed areas such as roads and rural developed areas or
other lands. Existing features and structures within the boundaries of
the mapped units, such as buildings, roads, railroads, and other urban
landscaped areas removed from essential aquatic and riparian habitat,
are not likely to contain the primary constituent elements essential for
the conservation of the Arkansas River Shiner. Therefore, Federal
actions limited to these areas would not trigger section 7
consultations, unless they affect the species and/or primary constituent
elements in adjacent critical habitat.

Lateral Extent of Critical Habitat

This designation takes into account the naturally dynamic nature of
riverine systems and recognizes that floodplains are an integral part of
the stream ecosystem. Habitat quality within the mainstem river channels
in the historical range of the Arkansas River Shiner is intrinsically
related to the character of the floodplain and the associated
tributaries, side channels, and backwater habitats that contribute to
the key habitat features (e.g., substrate, water quality, and water
quantity) in these reaches. Among other contributions, the floodplain
provides space for natural flooding patterns and latitude for necessary
natural channel adjustments to maintain appropriate channel morphology
and geometry. A relatively intact riparian zone, along with periodic
flooding in a relatively natural pattern, are important in maintaining
the stream conditions necessary for long-term survival and recovery of
the Arkansas River Shiner.

Human activities that occur outside the river channel can have a
demonstrable effect on physical and biological features of aquatic
habitats. However, not all of the activities that occur within a
floodplain will have an adverse impact on the Arkansas River Shiner or
its habitat. Thus, in determining the lateral extent of critical habitat
along riverine systems, we considered the definition of critical habitat
under the Act. That is, critical habitat must contain the elements
essential to a species' conservation and must be in need of special
management considerations or protection. We see no need for special
management considerations or protection for the entire floodplain, and
we are not proposing to designate the whole floodplain as critical
habitat. However, conservation of the river channel alone is not
sufficient to ensure the survival and recovery of the Arkansas River
Shiner. For instance, the diet of the Arkansas River Shiner includes
many species of terrestrial insects and seeds of grasses occurring in
the riparian corridor (Jimenez 1999). We believe the riparian corridors
adjacent to the river channel provide a reasonable lateral extent for
critical habitat designation.

Riparian areas are seasonally flooded habitats (i.e., wetlands) that are
major contributors to a variety of vital functions within the associated
stream channel (Federal Interagency Stream Restoration Working Group
1998; Brinson [et]{.underline} [al]{.underline}. 1981). Riparian zones
are essential for energy and nutrient cycling, filtering runoff,
absorbing and gradually releasing floodwaters, recharging groundwater,
maintaining streamflows, protecting stream banks from erosion, and
providing shade and cover for fish and other aquatic species. Healthy
riparian corridors help ensure water courses maintain the primary
constituent elements essential to stream fishes, including the Arkansas
River Shiner. Although the Arkansas River Shiner cannot be found in
riparian areas when they are dry, riparian areas provide habitat during
high water periods and contribute to the food base utilized by the
Arkansas River Shiner.

The lateral extent (width) of riparian corridors fluctuates considerably
between a stream's headwaters and its mouth. The appropriate width for
riparian buffer strips has been the subject of several studies (Castelle
[et]{.underline} [al]{.underline}. 1994). Most Federal and State
agencies generally consider a zone 23-46 meters (m) (75-150 feet (ft))
wide on each side of a stream to be adequate (NRCS 1998; Moring
[et]{.underline} [al]{.underline}. 1993; Lynch [et]{.underline}
[al]{.underline}. 1985), although buffer widths as wide as 152 m (500
ft) have been recommended for achieving flood attenuation benefits
(Corps 1999). In most instances, however, riparian buffer zones are
primarily intended to reduce (i.e. buffer) detrimental impacts to the
stream from sources outside the river channel. Consequently, while a
riparian corridor 23-46 m (75-150 ft) in width may function adequately
as a buffer, it is likely inadequate to preserve the natural processes
that provide Arkansas River Shiner constituent elements.

Generally, we consider a lateral distance of 91.4 m (300 ft) on each
side of the stream beyond the bankfull width to be an appropriate
riparian corridor width for the preservation of Arkansas River Shiner
constituent elements. The bankfull width is the width of the stream or
river at bankfull discharge, i.e., the flow at which water begins to
leave the channel and move into the floodplain (Rosgen 1996); the
bankfull discharge generally occurs every 1 to 2 years (Leopold
[et]{.underline} [al]{.underline}. 1992). Bankfull discharge, while a
function of the size of the stream, is a fairly consistent feature
related to the formation, maintenance, and dimensions of the stream
channel (Rosgen 1996).

Some developed lands within the 91.4-m (300-ft) lateral extent are not
considered critical habitat because they do not contain the primary
constituent elements and, therefore, are not essential to the
conservation of the Arkansas River Shiner. Lands located within the
boundaries of the critical habitat designation, but that do not contain
any of the primary constituent elements or provide habitat or biological
features essential to the conservation of the Arkansas River Shiner
include: existing paved roads; bridges; parking lots; railroad tracks;
railroad trestles; water diversion and irrigation canals outside of
natural stream channels; active sand and gravel pits; regularly
cultivated agricultural land; and residential, commercial, and
industrial developments. However, activities funded, authorized, or
carried out in these areas by Federal action agencies that may affect
the primary constituent elements of the critical habitat, may require
consultation pursuant to section 7 of the Act.

In summary, the riparian zone included in the lateral extent of proposed
critical habitat for the Arkansas River Shiner serves several functions
vital to ensuring the aquatic habitat continues to provide the primary
constituent elements needed by the shiner. As stated above, a proper
functioning riparian zone helps ensure that the aquatic habitat
continues to function ecologically and riparian areas can provide
habitat during high water periods. Plains rivers are primarily located
in areas with soils predominated by sands. These soils are extremely
susceptible to wind and water erosion. Once erosion starts, channel
characteristics, such as hydraulics, depths, velocity and related
features can change considerably and large volumes of sediment can
become suspended and transported in the channel. The riparian vegetation
is crucial to holding soils in place and avoiding stream bank erosion.
Riparian vegetation also provides shade vital during summer time low
flow events. During these times, stream flows begin to decline and
fishes are often isolated to pools near the margins of the river. The
overhanging vegetation helps shade these pools. Without the shade,
temperatures in these pools can quickly become lethal when they exceed
the thermal capacity of the fish. The riparian zone also provides seeds
and terrestrial invertebrates that form a component of the diet of the
Arkansas River Shiner. In addition, vegetative material from the
riparian zone, along with instream production, drives the
nutrient/energy cycle of the stream. Aquatic invertebrates utilize this
terrestrial vegetative material as food. The Arkansas River Shiner in
turn feeds on the invertebrates. The riparian vegetation is an important
component of the food web that everything else depends upon for energy
and nutrients. The riparian zone also serves to buffer the stream from
impacts that occur within the floodplain but outside of the riparian
zone. However, in determining the lateral extent for the Arkansas River
Shiner, we believe that the riparian zone is capable of supporting most
of these important processes and functions, not just serving as a buffer
zone.

Critical Habitat Unit Descriptions

Critical habitat is being proposed for the Arkansas River Shiner in
three reaches of two different rivers within the Arkansas River basin in
Kansas, New Mexico, Oklahoma, and Texas. During development of the
critical habitat proposal for the Arkansas River Shiner, we determined
which lands are essential to the conservation of the species by defining
the physical and biological features essential to the species'
conservation and delineating the specific areas defined by them. We then
evaluated those lands determined to be essential to ascertain if any
specific areas are appropriate for exclusion from critical habitat
pursuant to section 4(b)(2) of the Act. On the basis of our initial
evaluation, we believe that the benefits of excluding areas in the
Beaver/North Canadian (Unit 2) and the Arkansas River (Unit 4), as
described in the unit descriptions below, outweighs the benefits of
their inclusion, and we are proposing to exclude those lands from the
final designation of critical habitat for this species pursuant to
section 4(b)(2) of the Act (refer to "Relationship of Section 4(b)(2) of
the Act to Critical Habitat for the Arkansas River Shiner" section
below). A description of all areas determined essential to the
conservation of the Arkansas River Shiner follows.

Critical habitat is being proposed for the Arkansas River Shiner on two
reaches of the Canadian River in the states of New Mexico, Texas, and
Oklahoma. The Canadian River from near Ute Dam in New Mexico to the
upper reaches of Eufaula Reservoir in Oklahoma, except for those areas
rendered unsuitable for Arkansas River Shiner by Lake Meredith in Texas,
is currently occupied by the Arkansas River Shiner. These are the
largest, remaining viable aggregations of Arkansas River Shiner, and are
considered to represent the \"core\" of what remains of the species.
Smaller tributary streams, with the exception of Revuelto Creek in New
Mexico and small sections of the tributaries near their confluence may
be seasonally occupied by the Arkansas River Shiner.

Unit 1: Canadian River, Quay County, New Mexico, and Oldham and Potter
counties, Texas:

Critical habitat Unit 1a consists of approximately 248 km (154 mi) of
the Canadian River extending from U.S. Highway 54 bridge near Logan, New
Mexico, downstream to the confluence with Coetas Creek, Texas. Seepage
from Ute Reservoir, inflow from Revuelto Creek, and several springs help
sustain perennial flow in most years. There are occasional periods of no
flow, and prior to 1956, low flows in the lower section were
historically maintained by effluent from the Amarillo, Texas, wastewater
treatment plant. This segment of the Canadian River, despite flows
having been modified by Conchas and Ute reservoirs, still supports a
largely intact plains river fish fauna. This reach is predominantly in
private ownership. The State of New Mexico owns scattered tracts. The
reach in Texas is in private ownership, except for a small segment on
the extreme lower end that is owned by the National Park Service as part
of the Lake Meredith National Recreation Area.

We did not include the following areas in this proposed designation
because we determined that these areas are not to essential to the
conservation of the Arkansas River Shiner and therefore do not meet the
definition of critical habitat. Upstream of Ute Reservoir, the Canadian
River was substantially modified following the construction of Conchas
Reservoir and likely provides little suitable habitat. A small portion
of Arkansas River Shiner historical range occurs upstream of Conchas
Reservoir, but the suitability of that reach for Arkansas River Shiner
is unknown. No extant aggregations of the Arkansas River Shiner are
known from that reach. Arkansas River shiners still occur in portions of
the 3.2 km (2 mi) reach between the U.S. Highway 54 bridge and Ute Dam,
above the reach proposed as critical habitat. We do not consider this
section of the stream to be essential to the conservation of the species
since it rarely contains suitable habitat due to the influence of Ute
Reservoir.

Unit 1b: Canadian River, Hemphill County, Texas, and Blaine, Caddo,
Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Hughes, McClain,
McIntosh, Pittsburg, Pontotoc, Pottawatomie, Roger Mills, and Seminole
counties, Oklahoma: This reach is predominantly in private ownership,
with limited areas of State and tribal ownership (see "American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act" section). The Texas Parks and Wildlife Department owns a
small segment downstream of the town of Canadian, TEXAS (Gene Howe
Wildlife Management Area (WMA)). The Oklahoma Department of Wildlife
Conservation owns a small section near Roll, Oklahoma (Packsaddle WMA).
Small tracts of tribal lands are near Oklahoma City.

Critical habitat Unit 1b consists of approximately 642 km (399 mi) of
river extending from the U.S. Highway 60/83 bridge near Canadian, Texas,
downstream to the Indian Nation Turnpike bridge northwest of McAlester,
Oklahoma. This segment of the Canadian River is the longest unfragmented
reach in the Arkansas River Basin that still supports the Arkansas River
Shiner. Here, the Arkansas River Shiner range from rare to common, with
the species becoming more abundant in a downstream direction.

We did not include the following areas in this proposed designation
because we determined that these areas are not to essential to the
conservation of the Arkansas River Shiner and therefore do not meet the
definition of critical habitat. The Canadian River upstream of the
community of Canadian, Texas, to Sanford Dam at Lake Meredith, supported
Arkansas River Shiner prior to the construction of Lake Meredith.
However, habitat in this segment is degraded and generally unsuitable.
Some aggregations of Arkansas River Shiner may still persist upstream of
Canadian, Texas, primarily on a seasonal basis and in extremely small
numbers. Altered flow regimes will continue to affect habitat quality in
this reach. Aggregations of Arkansas River Shiner also persist in the 49
km (30 mi) section of the Canadian River from the Indian Nation Turnpike
bridge downstream to the upper limits of Eufaula Reservoir. However, the
downstream distributional limit of these populations frequently
fluctuates. Management of water surface elevations in Eufaula Reservoir
for flood control and the resultant backwater effects routinely alter
stream morphology at the downstream extent of the population. Under
elevated surface water conditions, the lower reaches of this segment are
degraded or may be entirely unsuitable for Arkansas River Shiner.

Unit 2: Beaver/North Canadian River, Beaver, Ellis, Harper, Major,
Texas, and Woodward Counties, Oklahoma--340 km (211 mi) of river
extending from Optima Dam in Texas County, Oklahoma, downstream to U.S.
Highway 60/281 bridge in Major County, Oklahoma. Almost the entire
Beaver/North Canadian River mainstem and at least one of the major
tributaries (Deep Fork River) in Oklahoma was historically known to
support Arkansas River shiner aggregations. A small population may still
persist between Optima Dam and the upper reaches of Canton Reservoir,
based on the collection of four individuals since 1990. At present,
habitat in large areas of the drainage are degraded or unsuitable,
either because of reservoirs, reduced stream flow, or water quality
impairment. As previosuly indicated, an assessment of fish communities
and aquatic habitat at 10 sites within this unit was conducted during
2000 and 2001 (Wilde 2002). No Arkansas River Shiner were encountered
and habitat was considered marginal for Arkansas River Shiner (Wilde
2002). While habitat quality in this reach appeArkansas River Shiner
marginal, all of the primary constituent elements are present. However,
we are uncertain if the ARKANSAS RIVER SHINER still inhabits this reach.
The segment between Optima Dam and the upper reaches of Canton Reservoir
offers the best opportunity for recovery of the Arkansas River Shiner in
the Beaver/North Canadian River. Reestablishing Arkansas River Shiner in
this reach would involve some habitat restoration to achieve more
optimal conditions for the Arkansas River Shiner. Recovery activities
will include augmenting existing aggregations of the Arkansas River
Shiner and may involve reestablishing additional populations in this
system. Consequently we believe habitat within this reach is essential
to the conservation of the Arkansas River Shiner but we are proposing,
under section 4(b)(2) of the Act, to exclude this reach from the final
critical habitat determination.

Land ownership for Unit 2 is predominantly private, with limited areas
of State-owned lands. The Oklahoma Department of Wildlife Conservation
owns small sections near Beaver, Oklahoma (Beaver River WMA) and near
Fort Supply, Oklahoma (Cooper WMA). The Oklahoma Department of Parks and
Tourism owns a small section near Woodward, Oklahoma (Boiling Springs
State Park).

Unit 3: Cimarron River, Clark, Comanche, Meade, and Seward Counties,
Kansas, and Beaver, Blaine, Harper, Kingfisher, Logan, Major, Woods, and
Woodward, Counties, Oklahoma, 460 km (286 mi) of river extending from
U.S. Highway 54 bridge in Seward County, Kansas, downstream to U.S.
Highway 77 bridge in Logan County, Oklahoma. Historically, almost the
entire Cimarron River mainstem and several of the major tributaries were
inhabited by the Arkansas River Shiner, including the type locality for
the species (the area from which the specimens that were used to first
describe the species were taken). Between 1985 and 1992, only 16
specimens of the Arkansas River Shiner were collected from the Cimarron
River. Since 1992, no specimens had been reported until 2004. In August
of 2004 eight Arkansas River Shiners were collected near Guthrie,
Oklahoma, by SWCA Environmental Consultants (Stuart Leon, U.S. Fish and
Wildlife Service, [in]{.underline} [litt]{.underline}. 2004). Although
this population is by no means secure, it continues to persist over time
and appears to be at least marginally viable. The diminished
distribution and abundance of the Arkansas River Shiner in the Cimarron
River is due, in part, to the introduction of the Red River shiner and
continuing habitat loss and degradation (Cross [et al]{.underline}.
1983; Felley and Cothran 1981). The Red River shiner, a small minnow
endemic to the Red River, was first recorded from the Cimarron River in
Kansas in 1972 (Cross [et al]{.underline}. 1985) and from the Cimarron
River in Oklahoma in 1976 (Marshall 1978). Since that time, the
nonindigenous Red River shiner has essentially replaced the Arkansas
River shiner throughout much of the Cimarron River. While reduced
streamflow in the upper reaches and the presence of Red River shiners
will likely complicate recovery efforts in the Cimarron River, increased
management efforts would enhance the survival of the Arkansas River
Shiner in this river system. Suitable habitat for the Arkansas River
Shiner appears to exist throughout most of the system, but detailed
studies have not yet been conducted. The Cimarron River is included in
the designation because it is essential habitat and contains all of the
primary constituent elements, except for the presence of a competitive
nonnative species, which we intend to address during recovery planning
efforts for the Arkansas River Shiner. The reach proposed for
designation reflects the need for sufficient lengths of stream that
provide habitat for successful completion of Arkansas River Shiner life
cycle (see "Primary Constituent Elements" section) and to support
populations of Arkansas River Shiner large enough to be self-sustaining
over time, despite fluctuations in local conditions. Based upon the
limited number of Arkansas River Shiner collection records from the
Cimarron River, we are uncertain if this population is self-sustaining
over time. As noted in the "Public Comments Solicited" section above, we
are seeking data on the status and distribution of the Arkansas River
Shiner in the Cimarron River. On the basis of public comment and any new
information received, we may find during the development of the final
rule that this river segment or portions thereof, are not essential, are
appropriate for exclusion under section 4(b)(2), or not appropriate for
exclusion; in all of these cases, this information would be incorporated
into the final designation.

Land ownership for Unit 3 is predominantly in private. Private lands in
this reach are primarily used for grazing and other forms of
agriculture.

We did not include the Cimarron River downstream of the U.S. Highway 77
bridge near Guthrie to Keystone Reservoir because we have no evidence
that this reach is occupied and do not believe that it is an area
essential to the conservation of the Arkansas River Shiner. This area
was also not part of the prior designation of critical habitat for the
Arkansas River Shiner. We believe sufficient habitat for the Arkansas
River Shiner to complete its life cycle exists within the reach proposed
for designation as critical habitat. The lower most reach of the
Cimarron River, including its confluence with the Arkansas River, was
inundated when Keystone Reservoir was impounded in 1964. This area,
including Keystone Reservoir, does not provide suitable habitat because
the Arkansas River Shiner would not be able to persist within the
inundated portions of the River.

Unit 4: Arkansas River, Barton, Cowley, Pawnee Reno, Rice, Sedgwick, and
Sumner Counties, Kansas,--313 km (194 mi) of river extending from the
confluence of the Pawnee River near Larned, Kansas, downstream to
Kansas/Oklahoma State line in Cowley County, Kansas. This distance does
not inlude a 20 km (12.4 mi) reach of the Arkansas River within the City
of Wichita metropolitan area, extending from the westbound lane of
Kansas State Highway 96 crossing downstream to the Interstate 35
crossing. The Arkansas River in Kansas contains a significant portion of
the species' historical range. The Arkansas River shiner historically
inhabited the entire mainstem of the Arkansas River, but had begun to
decline by 1952 due to the construction of John Martin Reservoir 10
years earlier on the Arkansas River in Bent County, Colorado (Cross [et
al]{.underline}. 1985). Typically, releases from John Martin Reservoir
and irrigation return flows from eastern Colorado maintain streamflow in
the Arkansas River as far east as Syracuse, Kansas; but, the river often
ceases to flow between Syracuse and Dodge City, Kansas, due to surface
and groundwater withdrawals. Surface flow then resumes near Larned and
Great Bend, Kansas. Lack of sufficient streamflow and ongoing water
quality degradation renders much of the Arkansas River west of Larned
largely unsuitable for the Arkansas River Shiner. As previously stated,
we are not including the reach upstream of Larned, Kansas, in this
proposed designation because it lacks several of the primary constituent
elements and no longer meets the definition of critical habitat. Stream
flows downstream of the confluence of the Pawnee River near Larned are
more reliable and habitats are characteristic of those used by Arkansas
River Shiner in other portions of its current range. This stream segment
contains one or more of the primary constituent elements and recovery
activities for the Arkansas River Shiner likely will include
reestablishing additional populations in this reach. Consequently, this
segment is considered essential for the conservation of the Arkansas
River Shiner but we are proposing, under section 4(b)(2) of the Act, to
exclude this reach from the final critical habitat determination.

Lands in Unit 4 are entirely in private ownership except for a small
area near the Kansas/Oklahoma State line owned by the U.S. Army Corps of
Engineers (Kaw Wildlife Area). This area is managed by the State of
Kansas (Kansas Department of Wildlife and Parks).

Table 1 below provides approximate area (mi/km) determined to be
essential to the Arkansas River Shiner and area proposed for exclusion
from the final critical habitat designation by State.

  -------------- ------------------------- ------------------------------
                 Essential Area Proposed   Area Proposed for Exclusion
                 as Critical Habitat       from the Final Critical
                                           Habitat Designation

  Kansas         62.5 (100.6)              194.1 (312.4)

  New Mexico     38.0 (61.2)               0

  Oklahoma       595.6 (958.5)             210.8 (339.3)

  Texas          142.6 (229.5)             0

  Total          838.7 (1,349.8)           404.9 (651.6)
  -------------- ------------------------- ------------------------------

[Relationship of Section 4(b)(2) of the Act to Arkansas River Shiner
Critical Habitat]{.underline}

Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data available after taking into consideration the economic impact,
national security impact, and any other relevant impact, of specifying
any particular area as critical habitat. An area may be excluded from
critical habitat if it is determined in our analysis that the benefits
of exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species.

Pursuant to section 4(b)(2) of the Act, we must consider impacts to
national security and other relevant impacts in addition to economic
ones. We have determined that the lands within the designation of
critical habitat for the Arkansas River Shiner are not owned or managed
by the Department of Defense and there are currently no habitat
conservation plans for the Arkansas River Shiner. In developing critical
habitat designations, we have also recognized under section 4(b)(2)
partenerships and conservation programs or efforts that provide a
conservation benefit to the subject species. In the case of Arkansas
River Shiner, it is our intent to recognize future conservation efforts.
In this regard we have met with the Arkansas River Shiner Coalition
(Coalition) whose mission is to ease the regulatory burdens of
designated critical habitat for its members and to work with the Service
toward the eventual recovery of the Arkansas River Shiner. The Coalition
represents several agricultural and ranching associations, water service
providers, groundwater conservation districts, and other groups in
Texas, Oklahoma, and New Mexico. It is the intent of the Coalition to
develop an Arkansas River Shiner management plan that addresses the
conservation needs of the Arkansas River Shiner and to submit their plan
to us during a public comment period for consideration in the final
critical habitat determination. If we receive a plan from the Coalition
we will evaluate the conservation measures being provided to or planned
for the Arkansas River Shiner when making our final determination of
critical habitat, and we may exclude areas pursuant to section 4(b)(2)
of the Act if we find that the benefits of their exclusion outweigh the
benefits of their inclusion.

There are two areas within the proposed designation that are within the
historic range of Arkansas River Shiner, have been determined to be
essential to the conservation of Arkansas River Shiner, currently
contain one or more of the primary constituent elements for Arkansas
River Shiner, and have been identified for future recovery actions that
may include augmentation of existing populations or reestablishment of
populations. These areas are the Beaver/North Canadian River and the
Arkansas River.

Recovery activities for Arkansas River Shiner likely will include
augmenting and restablishing Arkansas River Shiner populations in the
Beaver/North Canadian or the Arkansas River. We believe that the best
way to achieve this objective will be to use the authorities under
section 10(j) of the Act to reestablish the Arkansas River Shiner as
experimental populations within areas of its historic range. Considering
the Arkansas River Shiner may be extirpated or that existing occurrences
may be so small they may not be viable from these reaches and natural
repopulation appears unlikely without human assistance, we believe that
designation of the area to be repopulated using section 10(j) of the Act
is the appropriate tool to utilize in future restoration efforts and to
[encourage future conservation actions]{.mark}. Any future recovery
efforts, including reintroduction of the species to areas of its
historic range, must be conducted in accordance with NEPA and the Act.

In our critical habitat designation we use the provisions outlined in
section 4(b)(2) of the Act to evaluate those specific areas essential to
the conservation of the species to determine which areas to propose and
subsequently finalize (i.e., designate) as critical habitat. On the
basis of our initial evaluation, we believe that the benefits of
excluding the Beaver/North Canadian River in Oklahoma and the lower
Arkansas River in Kansas from the designation of critical habitat for
Arkansas River Shiner outweighs the benefits of their inclusion, and we
are proposing to exclude these lands from final designation pursuant to
section 4(b)(2) of the Act. We note that additional areas may also be
considered for exclusion in the final rule and that any exclusions made
in the final rule will be the result of a reanalysis of new information
received, including consideration of all comments received and the
findings of the economic and NEPA analyses. In this regard, we have
specifically requested public comment on this issue (see "Public
Comments Solicited" section above), and we provide our preliminary
rationale below to further assist the public in commenting on this
issue.

[[(1) Benefits of Inclusion]{.underline}]{.mark}

[]{.mark}

[The principal benefit of any designated critical habitat is that
federally funded or authorized activities in such habitat requires
consultation under section 7 of the Act. Such consultation would ensure
that adequate protection is provided to avoid adverse modification or
destruction of critical habitat.]{.mark} In the absence of designated
critical habitat in these unoccupied reaches, consultation on federally
funded or authorized activities would not occur. [However, few
consultations, all informal, were conducted within these river reaches
prior to vacature of the previously designated critical habitat. Some 25
consultations have been conducted on the Beaver/North Canadian River
since April 4, 2001, but none of those consultations reached the point
of adverse modification. On the Arkansas River in Kansas, we anticipate
even less consultation activity. Since designation of critical habitat
in 2001, only nine informal consultations have been conducted and none
of those reached the point of adverse modification.]{.mark}

In [Sierra Club]{.underline} v. [Fish and Wildlife Service]{.underline},
245 F.3d 434 (5^th^ Cir. 2001), the Fifth Circuit Court of Appeals
stated that the identification of habitat essential to the conservation
of the species can provide informational benefits to the public, State
and local governments, scientific organizations, and Federal agencies.
The court also noted that heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
We agree with these findings; however, we believe that there would be
little additional informational benefit gained from including the
Beaver/North Canadian or the Arkansas River within the final designation
of critical habitat because they were included in the previous
designation, are included in this proposed rule, and will be discussed
in the final rule. Consequently, we believe that the informational
benefits are already provided even though we intend to exclude these
areas from the final designation.

[]{.mark}

[[(2) Benefits of Exclusion]{.underline}]{.mark}

[]{.mark}

[]{.mark}Recovery activities for Arkansas River Shiner likely will
include augmenting and restablishing Arkansas River Shiner populations
in the Beaver/North Canadian or the Arkansas River. We believe that the
best way to achieve this objective will be to use the authorities under
section 10(j) of the Act to reestablish the Arkansas River Shiner as
experimental populations within areas of its historic range. Considering
the Arkansas River Shiner may be extirpated or that existing occurrences
may be so small they may not be viable from these reaches and natural
repopulation appears unlikely without human assistance, we believe that
designation of the area to be repopulated using section 10(j) of the Act
is the appropriate tool to utilize in future restoration efforts and to
encourage future conservation actions. Any future recovery efforts,
including reintroduction of the species to areas of its historic range,
must be conducted in accordance with NEPA and the Act. An overview of
the process to establish an experimental population under section 10(j)
of the Act is described below.

Section 10(j) of the Act enables us to designate certain populations of
federally listed species that are released into the wild as
\"experimental.\" The circumstances under which this designation can be
applied are the following: (1) the population is geographically separate
from non-experimental populations of the same species (e.g., the
population is reintroduced outside the species\' current range but
within its probable historic range); and (2) we determine that the
release will further the conservation of the species. Section 10(j) is
designed to increase our flexibility in managing an experimental
population by allowing us to treat the population as threatened,
regardless of the species status elsewhere in its range. In situations
where we have experimental populations, certain section 9 prohibitions
(e.g., harm, harass, capture) that apply to endangered and threatened
species may no longer apply, and a special rule can be developed that
contains the prohibitions and exceptions necessary and appropriate to
conserve that species. This flexibility allows us to manage the
experimental population in a manner that will ensure that current and
future land, water, or air uses and activities will not be unnecessarily
restricted and the population can be managed for recovery purposes.

We strongly believe that, in order to achieve recovery for the Arkansas
River Shiner, we would need the flexibility provided for in section
10(j) of the Act to help ensure the success of augmenting and
reestablishing Arkansas River Shiner populations in the Beaver/North
Canadian or the Arkansas River. Use of section 10(j) is meant to
encourage local cooperation through management flexibility. Critical
habitat is often viewed negatively by the public since it is not well
understood and there are many misconceptions about how it affects
private landowners (Patlis 2001). We believe it is important for
recovery of this species that we have the support of the public when we
move toward the development and implementation of a recovery plan. It is
critical to the recovery of the Arkansas River Shiner that we
reestablish the species in areas outside of its current occupied range.

When we designate a population as experimental, section 10(j) of the Act
requires that we determine whether that population is either essential
or nonessential to the continued existence of the species, on the basis
of the best available information. Nonessential experimental populations
located outside National Wildlife Refuge System or National Park System
lands are treated, for the purposes of section 7 of the Act, as if they
are proposed for listing. Thus, for nonessential experimental
populations, only two provisions of section 7 would apply outside
National Wildlife Refuge System and National Park System lands: section
7(a)(1), which requires all Federal agencies to use their authorities to
conserve listed species, and section 7(a)(4), which requires Federal
agencies to informally confer with us on actions that are likely to
jeopardize the continued existence of a proposed species. Section
7(a)(2) of the Act, which requires Federal agencies to ensure that their
activities are not likely to jeopardize the continued existence of a
listed species, would not apply except on National Wildlife Refuge
System and National Park System lands. Experimental populations
determined to be essential to the survival of the species would remain
subject to the consultation provisions of section 7(a)(2) of the Act.

In order to establish an experimental population, we must issue a
proposed regulation and consider public comments on the proposed rule
prior to publishing a final regulation. In addition, we must comply with
NEPA. Also, our regulations require that, to the extent practicable, a
regulation issued under section 10(j) of the Act represent an agreement
between us, the affected State and Federal agencies, and persons holding
any interest in land that may be affected by the establishment of the
experimental population (see 50 CFR 17.81(d)).

As discussed above, we believe the flexibility provided for in section
10(j) of the Act is necessary to help ensure the success of augmenting
and restablishing Arkansas River Shiner populations in the Beaver/North
Canadian or the Arkansas Rivers. The flexibility gained by establishment
of an experimental population through section 10(j) would be of little
value if a designation of critical habitat overlaps it. This is because
Federal agencies would still be required to consult with us on any
actions that may adversely modify critical habitat. In effect, the
flexibility gained from section 10(j) would be rendered useless by the
designation of critical habitat. In fact, section 10(j)(2)(C)(ii) of the
Act states that critical habitat shall not be designated under the Act
for any experimental population determined to be not essential to the
continued existence of a species.

[[(3) Benefits of Exclusion Outweigh the Benefits of
Inclusion]{.underline}]{.mark}

[]{.mark}

Through the development of this proposal, we have identified lands that
we believe to be essential to the conservation of the Arkansas River
Shiner. Based on our initial analysis above and our analysis and
treatment of these lands in our previous designation of critical habitat
for the Arkansas River Shiner, we believe that the benefits of excluding
these lands from the final critical habitat designation, as allowed
under section 4(b)(2) of the Act, outweigh the potential benefits of
including these lands. Further, we have determined that excluding these
areas will not result in the extinction of the Arkansas River Shiner, as
the core distribution of the Arkansas River Shiner would remain within
areas proposed for critical habitat designation and section 7(a)(2)
(consultation requirements) and section 9 (prohibitions against take) of
the Act still apply to activities affecting the Arkansas River Shiner.
Publication of this proposed rule would help accomplish the educational
[benefits of critical habitat by informing the public of the importance
of the Beaver/North Canadian River in Oklahoma, and the Arkansas River
in Kansas to recovery of the Arkansas River Shiner.]{.mark}

Effects of Critical Habitat Designation

[Section 7 Consultation]{.underline}

The regulatory effects of a critical habitat designation under the Act
are triggered through the provisions of section 7, which applies only to
activities conducted, authorized, or funded by a Federal agency (Federal
actions). Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR 402. Individuals,
organizations, States, local governments, and other non-Federal entities
are affected by the designation of critical habitat only if their
actions occur on Federal lands, require a Federal permit, license, or
other authorization, or involve Federal funding.

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to insure that their actions are not likely to jeopardize the
continued existence of a listed species or result in the destruction or
adverse modification of designated critical habitat. This requirement is
met through section 7 consultation under the Act. Our regulations define
"jeopardize the continued existence of" as to engage in an action that
reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a listed
species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). "Destruction or adverse
modification of designated critical habitat" is defined as a direct or
indirect alteration that appreciably diminishes the value of the
critical habitat for both the survival and recovery of the species (50
CFR 402.02). Such alterations include, but are not limited to, adverse
changes to the physical or biological features, i.e., the primary
constituent elements, that were the basis for determining the habitat to
be critical. We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.

Section 7(a)(4) of the Act requires Federal agencies to confer with us
on any action that is likely to jeopardize the continued existence of a
proposed species or result in destruction or adverse modification of
proposed critical habitat. Conference reports provide conservation
recommendations to assist Federal agencies in eliminating conflicts that
may be caused by their proposed actions. The conservation measures in a
conference report are advisory.

We may issue a formal conference report, if requested by the Federal
action agency. Formal conference reports include an opinion that is
prepared according to 50 CFR 402.14, as if the species was listed or
critical habitat designated. We may adopt the formal conference report
as the biological opinion when the species is listed or critical habitat
designated, if no substantial new information or changes in the action
alter the content of the opinion (50 CFR 402.10(d)).

If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
Federal action agency would ensure that the permitted actions do not
destroy or adversely modify critical habitat.

If we issue a biological opinion concluding that a project is likely to
result in the destruction or adverse modification of critical habitat,
we also provide "reasonable and prudent alternatives" to the project, if
any are identifiable. Reasonable and prudent alternatives are defined at
50 CFR 402.02 as alternative actions identified during consultation that
can be implemented in a manner consistent with the intended purpose of
the action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Service's Regional Director
believes would avoid the likelihood of jeopardizing the continued
existence of listed species or resulting in the destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions under certain circumstances,
including instances where critical habitat is subsequently designated
and the Federal agency has retained discretionary involvement or control
over the action or such discretionary involvement or control is
authorized by law. Consequently, some Federal agencies may request
reinitiation of consultation or a conference with us on actions for
which formal consultation has been completed, if those actions may
affect designated critical habitat, or adversely modify or destroy
proposed critical habitat.

Federal activities that may affect the Arkansas River Shiner or its
critical habitat will require consultation under section 7. Activities
on private, State, or county lands, or lands under local jurisdictions
requiring a permit from a Federal agency, such as Federal Highway
Administration or Federal Emergency Management Act funding, or a permit
from the Corps under section 404 of the Clean Water Act, will continue
to be subject to the section 7 consultation process. Federal actions not
affecting listed species or critical habitat, and actions on non-Federal
lands that are not federally funded, authorized, or permitted, do not
require section 7 consultations.

Section 4(b)(8) of the Act requires us to evaluate briefly and describe,
in any proposed or final regulation that designates critical habitat,
those activities involving a Federal action that may adversely modify
such habitat or that may be affected by such designation. Activities
that may destroy or adversely modify critical habitat include those that
alter the primary constituent elements to an extent that the value of
critical habitat for both the survival and recovery of Arkansas River
Shiner is appreciably reduced. We note that such activities also may
jeopardize the continued existence of the species.

Activities that, when carried out, funded, or authorized by a Federal
agency, may directly or indirectly destroy or adversely modify critical
habitat for the Arkansas River Shiner include, but are not limited to:

\(1\) Actions that significantly and detrimentally alter the minimum
flow or the natural flow regime of any of the proposed stream segments,
including activities that cause barriers or deterrents to dispersal,
inundates or drains habitat, or significantly converts habitat. Possible
actions would include groundwater pumping, impoundment, water diversion,
and hydropower generation. We note that such flow reductions that result
from actions affecting tributaries of the proposed stream reaches also
may destroy or adversely modify critical habitat.

\(2\) Actions that significantly and detrimentally alter the
characteristics of the riparian zone in any of the proposed stream
segments. Possible actions would include vegetation manipulation, timber
harvest, road construction and maintenance, prescribed fire, livestock
grazing, off-road vehicle use, powerline or pipeline construction and
repair, mining, and urban and suburban development. Some of these
activities, when planned and implemented appropriately, can prove
beneficial to the species and its habitat.

\(3\) Actions that significantly and detrimentally alter the channel
morphology of any of the stream segments listed above. Possible actions
would include channelization, impoundment, road and bridge construction,
deprivation of substrate source, destruction and alteration of riparian
vegetation, reduction of available floodplain, removal of gravel or
floodplain terrace materials, reduction in stream flow, discharge of
dredged or fill material and excessive sedimentation from mining,
livestock grazing, road construction, timber harvest, off-road vehicle
use, and other watershed and floodplain disturbances.

\(4\) Actions that significantly and detrimentally alter the water
chemistry in any of the proposed stream segments. Possible actions would
include intentional or unintentional release of chemical or biological
pollutants into the surface water or connected groundwater at a point
source or by dispersed release (non-point).

\(5\) Introducing, spreading, or augmenting non-native aquatic species
in any of the proposed stream segments. Possible actions would include
fish stocking for sport, aesthetics, biological control, or other
purposes; release of live bait fish; aquaculture; construction and
operation of canals; and interbasin water transfers.

All lands proposed as critical habitat are within the geographical area
currently occupied by the species and are necessary for the conservation
of the Arkansas River Shiner. Federal agencies already consult with us
on actions that may affect the Arkansas River Shiner to ensure that
their actions do not jeopardize the continued existence of the species.
Thus, we do not anticipate substantial additional regulatory protection
will result from critical habitat designation.

If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor, Oklahoma Ecological Services Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and plants and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Division of Threatened
and Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87102
(telephone 505/248-6920; facsimile 505/248-6922).

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical habitat on
the basis of the best scientific and commercial data available, and to
consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion will
result in the extinction of the species.

We are preparing an analysis of the economic impacts of proposing
critical habitat for the Arkansas River Shiner that complies with the
ruling by the Tenth Circuit Court of Appeals in [New Mexico Cattle
Growers Association et al.]{.underline} v. [U.S. Fish and Wildlife
Service]{.underline}. We will announce the availability of the draft
economic analysis as soon as it is completed, at which time we will seek
public review and comment. When published, copies of the draft economic
analysis will be available for downloading from the Internet at
http://ifw2es.fws.gov/Oklahoma, or by contacting the Oklahoma Ecological
Services Office directly (see ADDRESSES section).

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270),
we will solicit the expert opinions of at least three appropriate and
independent specialists regarding this proposed rule. The purpose of
this review is to ensure that our critical habitat designation is based
on scientifically sound data, assumptions, and analyses. We will send
these peer reviewers copies of this proposed rule immediately following
publication in the [Federal Register]{.underline}. We will invite these
peer reviewers to comment, during the public comment period, on the
specific assumptions and conclusions regarding the proposed designation
of critical habitat.

We will consider all comments and information received during the public
comment period on this proposed rule as we prepare our final rulemaking.
Accordingly, the final designation may differ from this proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal, if
requested. We intend to hold three public hearings, one in southwestern
Kansas, one in the Texas Panhandle and one in Central Oklahoma. We will
schedule public hearings on this proposal and announce the dates, times,
and places of those hearings in the [Federal]{.underline}
[Register]{.underline} and local newspapers at least 15 days prior to
the first hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the notice in the SUPPLEMENTARY INFORMATION section of
the preamble helpful in understanding the proposed rule? (5) What else
could we do to make this proposed rule easier to understand?

Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may
e-mail your comments to this address: <Exsec@ios.doi.gov>.

Required Determinations

[Regulatory Planning and Review]{.underline}

In accordance with Executive Order 12866, this document is a significant
rule in that it may raise novel legal and policy issues, but it is not
anticipated to have an annual effect on the economy of \$100 million or
more or adversely affect the economy in a material way. Due to the
timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) has not formally reviewed this rule. The
Service is preparing a draft economic analysis of this proposed action.
The Service will use this analysis to meet the requirement of section
4(b)(2) of the Act to determine the economic consequences of designating
the specific areas as critical habitat. This economic analysis also will
be used to determine compliance with Executive Order 12866, Regulatory
Flexibility Act, Small Business Regulatory Enforcement Fairness Act, and
Executive Order 12630.

The draft economic analysis will be made available for public review and
comment before we finalize this designation. At that time, copies of the
analysis will be available for downloading from the Oklahoma Ecological
Services Office's Internet website at
[http://ifw2es.fws.gov](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://carlsbad.fws.gov)[/Oklahoma]{.underline}
or by contacting the Oklahoma Ecological Services Office directly (see
ADDRESSES section)

[Regulatory Flexibility Act (5 U.S.C. 601 et seq.)]{.underline}

Under the Regulatory Flexibility Act (5 U.S.C. 601 [et]{.underline}
[seq]{.underline}., as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is
required to publish a notice of rulemaking for any proposed or final
rule, it must prepare and make available for public comment a regulatory
flexibility analysis that describes the effects of the rule on small
entities (i.e., small businesses, small organizations, and small
government jurisdictions). However, no regulatory flexibility analysis
is required if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the Regulatory Flexibility Act (RFA) to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. However, the SBREFA does not
explicitly define "substantial number" or "significant economic impact."
Consequently, to assess whether a "substantial number" of small entities
are affected by this proposed designation, the following analysis
considers the relative number of small entities likely to be impacted in
an area.

At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the Act
and E.O. 12866. This draft economic analysis will provide the required
factual basis for the RFA finding. Upon completion of the draft economic
analysis, the Service will publish a notice of availability of the draft
economic analysis of the proposed designation and provide for a public
comment period on the proposed designation. The Service will include
with the notice of availability, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. The Service has
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that the
Service makes a sufficiently informed determination based on adequate
economic information and provides the necessary opportunity for public
comment.

[Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
802(2))]{.underline}

In the draft economic analysis, we will determine whether designation of
critical habitat will cause (a) any effect on the economy of \$100
million or more; (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (c) any significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.

[Executive Order 13211]{.underline}

On May 18, 2001, the President issued an Executive Order (E.O. 13211) on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This proposed rule to
designate critical habitat for the Arkansas River Shiner is considered a
significant regulatory action under Executive Order 12866 as it may
raise novel legal and policy issues. However, this designation is not
expected to significantly affect energy supplies, distribution, or use
because there are few pipelines and no distribution facilities, power
grid stations, etc. within the boundaries of proposed critical habitat.
Therefore, this action is not a significant energy-related action and no
Statement of Energy Effects is required. We will, however, further
evaluate this issue as we conduct our economic analysis and, as
appropriate, review and revise this assessment as warranted.

[Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)]{.underline}

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
[et]{.underline} [seq]{.underline}.), the Service makes the following
findings:

\(a\) This rule will not Asignificantly or uniquely@ affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that any programs having
Federal funds, permits, or other authorized activities must ensure that
their actions will not adversely affect the critical habitat. However,
as discussed above, these actions are currently subject to equivalent
restrictions through the listing protections of the species, and no
further restrictions are anticipated. We will, however, further evaluate
this issue as we conduct our economic analysis and, as appropriate,
review and revise this assessment as warranted.

\(b\) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both "Federal
intergovernmental mandates" and "Federal private sector mandates." These
terms are defined in 2 U.S.C. 658(5)-(7). "Federal intergovernmental
mandate" includes a regulation that "would impose an enforceable duty
upon State, local, or tribal governments" with two exceptions. It
excludes "a condition of federal assistance." It also excludes "a duty
arising from participation in a voluntary Federal program," unless the
regulation "relates to a then-existing Federal program under which
\$500,000,000 or more is provided annually to State, local, and tribal
governments under entitlement authority," if the provision would
"increase the stringency of conditions of assistance" or "place caps
upon, or otherwise decrease, the Federal Government's responsibility to
provide funding" and the State, local, or tribal governments "lack
authority" to adjust accordingly. (At the time of enactment, these
entitlement programs were: Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement.) "Federal private sector mandate" includes a regulation
that "would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program."

The designation of critical habitat does not impose a legally binding
duty on non-Federal government entities or private parties. Under the
Act, the only regulatory effect is that Federal agencies must ensure
that their actions do not destroy or adversely modify critical habitat
under section 7. While non-Federal entities who receive Federal funding,
assistance, or permits or who otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
onto State governments.

[Takings]{.underline}

In accordance with Executive Order 12630 ("Government Actions and
Interference with Constitutionally Protected Private Property Rights"),
this rule is not anticipated to have significant takings implications. A
takings implication assessment is not required. As discussed above, the
designation of critical habitat affects only Federal actions. Although
private parties that receive Federal funding, assistance, or require
approval or authorization from a Federal agency for an action may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Due to current public
knowledge of the species= protections, the prohibition against take of
the species both within and outside of the proposed areaswe do not
anticipate that property values will be affected by the critical habitat
designation. However, we have not yet completed the economic analysis
for this proposed rule. Once the economic analysis is available, we will
review and revise this preliminary assessment as warranted.

[Federalism]{.underline}

In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not required.
In keeping with Department of the Interior and Department of Commerce
policies, we requested information from and coordinated development of
this proposed critical habitat designation with appropriate State
resource agencies in Kansas, New Mexico, Oklahoma, and Texas.

The proposed designation of critical habitat in areas currently occupied
by the Arkansas River Shiner imposes no additional significant
restrictions beyond those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The proposed designation of critical habitat may have some benefit to
the State and local resource agencies in that the areas essential to the
conservation of this species are more clearly defined, and the primary
constituent elements of the habitat necessary to the conservation of
this species are specifically identified. While this definition and
identification does not alter where and what federally sponsored
activities may occur, it may assist local governments in long-range
planning (rather than waiting for case-by-case section 7 consultations
to occur).

[Civil Justice Reform]{.underline}

In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate
critical habitat in accordance with the provisions of the Endangered
Species Act. The rule uses standard property descriptions and identifies
the primary constituent elements within the proposed areas to assist the
public in understanding the habitat needs of the Arkansas River Shiner.

[Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)]{.underline}

This proposed rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays a
currently valid OMB control number.

[National Environmental Policy Act]{.underline}

Our position is that, outside the Tenth Circuit, we do not need to
prepare environmental analyses as defined by the NEPA in connection with
designating critical habitat under the Endangered Species Act of 1973,
as amended. We published a notice outlining our reasons for this
determination in the [Federal]{.underline} [Register]{.underline} on
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts
of the Ninth Circuit ([Douglas County]{.underline} v.
[Babbitt]{.underline}, 48 F.3d 1495 (9th Cir. Ore. 1995), [cert.
denied]{.underline} 116 S. Ct. 698 (1996). However, when the range of
the species includes States within the Tenth Circuit (the States of
Colorado, Kansas, Nebraska, New Mexico, Oklahoma, Utah, and Wyoming),
such as that of the Arkansas River Shiner, pursuant to the Tenth Circuit
ruling in [Catron County Board of Commissioners]{.underline} v. [U.S.
Fish and Wildlife Service]{.underline}, 75 F.3d 1429 (10th Cir. 1996),
we undertake a NEPA analysis for critical habitat designation.
Accordingly, we will be conducting an environmental assessment and
providing that document for public review and comment. In our previous
designation, we prepared an environmental assessment and finding of no
significant impact on the designation of critical habitat for the
Arkansas River Shiner.

[Government-to-Government Relationship With Tribes]{.underline}

In accordance with the President's memorandum of April 29, 1994,
"Government-to-Government Relations with Native American Tribal
Governments" (59 FR 22951), Executive Order 13175, and the Department of
the Interior\'s manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis.

We recognize that we must carry out our responsibilities under the Act
in a manner that harmonizes the Federal trust responsibility to Tribes
and Tribal sovereignty while striving to ensure that Native American
Tribes do not bear a disproportionate burden for the conservation of
listed species. This proposed designation of critical habitat for the
Arkansas River Shiner currently includes tribal lands. Tribal lands
within the proposed designation primarily exist as scattered, fragmented
tracts that are generally held privately by the individual tribal member
or are held in trust for the tribe by the Bureau of Indian Affairs. We
are soliciting information from the Native American Tribes and will
schedule meetings, as requested, with them during the comment period
regarding potential impacts to the Tribes or their resources that may
result from the critical habitat designation, and to discuss whether
they have or would like to prepare conservation plans that address the
Arkansas River Shiner on their lands. We will continue to work with the
Tribes on these issues and provide assistance, if requested, on the
development of management and conservation plans, conservation
agreements, grants and other cooperative projects that could contribute
to the recovery of the Arkansas River Shiner.

References Cited

A complete list of all references cited herein, as well as others, is
available upon request from the Oklahoma Ecological Services Office (see
ADDRESSES section).

Author

The primary authors of this notice are staff located at the Oklahoma
Ecological Services Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations as set forth below:

PART 17‑‑\[AMENDED\]

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

Authority: 16 U.S.C. 1361‑1407; 16 U.S.C. 1531‑1544; 16 U.S.C.
4201‑4245; Pub. L. 99‑625, 100 Stat. 3500; unless otherwise noted.

2\. Amend \' 17.95(e), by revising critical habitat for the Arkansas
River shiner ([Notropis]{.underline} [girardi]{.underline}) \' to read
as follows:

\' 17.95 Critical habitat - - fish and wildlife.

\* \* \* \* \*

\(e\) [Fishes.]{.underline}

\* \* \* \* \*

Arkansas River shiner ([Notropis]{.underline} [girardi]{.underline})

\(1\) Critical habitat units are depicted for Clark, Comanche, Meade,
and Seward Counties, Kansas; Quay County, New Mexico; Beaver, Blaine,
Caddo, Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Harper, Hughes,
Kingfisher, Logan, Major, McClain, McIntosh, Pittsburg, Pontotoc,
Pottawatomie, Roger Mills Seminole, Woods and Woodward Counties,
Oklahoma; and Hemphill, Oldham, and Potter Counties, Texas, on the maps
and as described below.

\(2\) Critical habitat includes the stream channels within the
identified stream reaches indicated on the map below, and includes a
lateral distance of 91.4 m (300 ft) on each side of the stream width at
bankfull discharge. Bankfull discharge is the flow at which water begins
to leave the channel and move into the floodplain and generally occurs
with a frequency of every 1 to 2 years.

\(3\) Within these areas, the primary constituent elements include, but
are not limited to, those habitat components that are essential for the
primary biological needs of foraging, sheltering, and reproduction.
These elements include the following\--(i) a natural, unregulated
hydrologic regime complete with episodes of flood and drought or, if
flows are modified or regulated, a hydrologic regime characterized by
the duration, magnitude, and frequency of flow events capable of forming
and maintaining channel and instream habitat necessary for particular
Arkansas River shiner life-stages in appropriate seasons; (ii) a
complex, braided channel with pool, riffle (shallow area in a streambed
causing ripples), run, and backwater components that provide a suitable
variety of depths and current velocities in appropriate seasons; (iii) a
suitable unimpounded stretch of flowing water of sufficient length to
allow hatching and development of the larvae; (iv) a river bed of
predominantly sand, with some patches of gravel and cobble; (v) water
quality characterized by low concentrations of contaminants and natural,
daily and seasonally variable temperature, turbidity, conductivity,
dissolved oxygen, and pH; (vi) suitable reaches of aquatic habitat, as
defined by primary constituent elements (i) through (v) above, and
adjacent riparian habitat sufficient to support an abundant terrestrial,
semiaquatic, and aquatic invertebrate food base; and (vii) few or no
predatory or competitive non-native fish species present.

\(4\) The minimum mapping unit for this designation of critical habitat
for the Arkansas River shiner does not exclude all developed areas, such
as buildings, roads, bridges, parking lots, railroad tracks, other paved
areas, the lands that support these features, and other lands unlikely
to contain the primary constituent elements. Federal actions limited to
these areas would not trigger a section 7 consultation, unless they
affect protected or restricted habitat and one or more of the primary
constituent elements in adjacent critical habitat.

\(5\) Kansas (Sixth Principal Meridian (SPM)), New Mexico (New Mexico
Principal Meridian (NMPM)), Oklahoma (Cimarron Meridian (CM) and Indian
Meridian (IM)), and Texas (geographic coordinates): Areas of land and
water as follows (physical features were identified using USGS 7.5\'
quadrangle maps; river reach distances were derived from digital data
obtained from USGS National Atlas data set for river reaches, roads, and
county boundaries.

\(6\) Critical habitat units for the Arkansas River shiner are described
below.

\(i\) Unit 1a. Canadian River - approximately 248 kilometers (km) (154
miles (mi)) from U.S. Highway 54 bridge near Logan, Quay County, New
Mexico (NMPM, T.13N., R.33E., NW1/4 Sec. 14) downstream to the
confluence with Coetas Creek, Potter County, Texas (3530 26 N, 101
46 37 W).

\(ii\) Unit 1b. Canadian River- approximately 642 km (399 mi), extending
from U.S. Highway 60/83 bridge near Canadian, Hemphill County, Texas
(3556 02 N, 100 22 00 W) downstream to Indian Nation Turnpike
bridge northwest of McAlester, Oklahoma (IM T.8N., R.13E., SE1/4 SW1/4
SE1/4 Sec. 23).

\(iii\) Unit 2. Beaver/North Canadian River, Texas, Beaver, Harper,
Ellis, Woodward, and Major Counties, Oklahoma -- approximately 340 km
(211 mi) of river extending from Optima Dam in Texas County, Oklahoma
(CM,T.2N., R.18E., NW1/4 SE1/4 SE1/4 Sec. 5) downstream to U.S. Highway
60/281 bridge in Major County, Oklahoma (IM, T.20N., R.16W., west
boundary Sec. 28).

\(iv\) Unit 3. Cimarron River- approximately 460 km (286 mi), extending
from U.S. Highway 54 bridge in Seward County, Kansas (SPM, T. 33 S., R.
32 W., Sec. 25) downstream to U.S. Highway 77 bridge in Logan County,
Oklahoma (IM, T. 17 N., R. 2 W., Sec. 29).

\(v\) Unit 4. Arkansas River, Barton, Cowley, Pawnee, Reno, Rice,
Sedgwick, and Sumner Counties, Kansas -- approximately 313 km (194 mi)
of river extending from confluence with Pawnee River near Larned, Pawnee
County, Kansas (SPM, T. 22 S., R. 16 W., Sec. 5) downstream to
Kansas/Oklahoma State line in Cowley County, Kansas (SPM, T. 35 S., R. 5
E., southern boundary Sec. 18).

\(iv\) Note: Map of critical habitat units follows:

\[Insert Map - critical habitat unit for Arkansas River Basin population
of Arkansas River Shiner - here\]

> \* \* \* \* \*

Dated: September 30, 2004

Signed: /s/ Julie McDonald

Deputy Assistant Secretary for Fish and Wildlife and Parks

Number range CHAPTERBilling Code 4310--55-P