Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59859

(2) [Reserved.]

Dated: September 30, 2004. 

Julie McDonald, 

Acting Deputy Assistant Secretary for Fish 

and Wildlife and Parks.

[FR Doc. 04–22395 Filed 10–5–04; 8:45 am] 

BILLING CODE 4310–55–P

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 girardi) 

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. v. 

Norton, et al. Civ. No. 02–0461). 

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 Register 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: Jerry 

Brabander, 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

59860 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 

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 

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 9th 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United States Fish and 

Wildlife Service, 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 

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 judiciallyimposed 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. 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59861

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 al. 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 litt. 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 

al. 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

v. Bruce Babbitt, et al. 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 Register on June 30, 2000 

(65 FR 40576). On August 15, 2000 (65 

FR 49781), we published a notice in the 

Federal Register 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 

59862 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 

Register 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

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’’ 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59863

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’’ section of this rule. 

Primary Constituent Elements 

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 al. 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 al. 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 litt. 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 lifehistory 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 al.

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 

59864 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 al. 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 al. (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 al. 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 al. 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 

al. (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 al. (2000) neither confirmed nor 

rejected the hypothesis that elevated 

streamflow triggered spawning in the 

Arkansas River Shiner. 

Arkansas River shiners are inchannel, 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 al. 2000). The Arkansas River 

Shiner appears to be in peak 

reproductive condition throughout the 

months of May, June, and July (Wilde et 

al. 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 al. 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 midwater 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 al. (2000) 

indirectly supports the speculation by 

Cross et al. (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 al. 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 bairdi), 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 

al. 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 al. 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59865

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 Cimarron Rivers 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 al.

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 Statelisted 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 

U.S.C. 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 selfsustaining 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 al. 1991). Examination 

of the collection records provided in 

Larson et al. (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 

59866 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 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. 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59867

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 al. 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 al.

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 al. 1993; Lynch et al. 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 al. 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. 

59868 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59869

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 appears 

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 litt. 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. 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. 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. 

59870 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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. 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 as

critical habitat 

Area proposed

for exclusion

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 

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

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59871

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. 

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 

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. 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.

In Sierra Club v. Fish and Wildlife 

Service, 245 F.3d 434 (5th 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. 

(2) Benefits of Exclusion 

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 nonexperimental 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 

59872 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 

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. 

Effects of Critical Habitat Designation 

Section 7 Consultation

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 part 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, 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59873

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.

v. U.S. Fish and Wildlife Service. 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 

59874 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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. 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 Register 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 

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 

Web site at http://ifw2es.fws.gov/

Oklahoma or by contacting the 

Oklahoma Ecological Services Office 

directly (see ADDRESSES section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., 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)) 

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 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59875

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.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), the Service makes the following 

findings: 

(a) This rule will not ‘‘significantly 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 nonFederal 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 

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 

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 caseby-case section 7 consultations to 

occur). 

Civil Justice Reform 

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.) 

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. 

59876 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

National Environmental Policy Act 

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 Register

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 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 v. U.S. Fish 

and Wildlife Service, 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 

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 girardi) § to read as 

follows:

17.95 Critical habitat—-fish and wildlife.

* * * * *

(e) Fishes.

* * * * *

Arkansas River Shiner (Notropis girardi) 

(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 described in 

paragraphs (3)(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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59877

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. 13 N., R. 33 E., NW1⁄4 Sec. 

14) downstream to the confluence with 

Coetas Creek, Potter County, Texas (35°

30′N 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. 8 N., R. 13 E., 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. 2 

N., R. 18 E., NW1⁄4 SE1⁄4 SE1⁄4 Sec. 5) 

downstream to U.S. Highway 60/281 

bridge in Major County, Oklahoma (IM, 

T. 20 N., R. 16 W., 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: 

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59878 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

BILLING CODE 4310–55–C


EP06OC04.016</GPH>
Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 59879

* * * * * Dated: September 30, 2004. 

Julie MacDonald, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks.

[FR Doc. 04–22396 Filed 10–5–04; 8:45 am] 

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