40576 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

to small entities and large entities

equally. At this time, small entities are

not treated differently and might not be

impacted differently, but we seek

comment.

o. Federal Rules Which Duplicate,

Overlap, or Conflict with the

Commission’s Proposals. None.

61. Pursuant to section 1008 of the

Satellite Home Viewer Improvement Act

of 1999, notice is hereby given of the

proposals described in this NPRM.

62. The Consumer Information

Bureau, Reference Information Center,

shall send a copy of this NPRM,

including the Initial Regulatory

Flexibility Analysis, to the Chief

Counsel for Advocacy of the Small

Business Administration.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 00–16185 Filed 6–29–00; 8:45 am]

BILLING CODE 6712–01–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG12

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; availability of

supplementary information.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose

designation of critical habitat pursuant

to the Endangered Species Act of 1973,

as amended (Act), for the Arkansas

River Basin population of the Arkansas

River shiner (Notropis girardi). This

proposal is made in response to a court

settlement in Center for Biological

Diversity v. Bruce Babbitt, et al. C99–

3202 SC, directing us to submit for

publication in the Federal Register a

proposal to withdraw the existing ‘‘not

prudent’’ critical habitat determination

together with a new proposed critical

habitat determination for the Arkansas

River Basin population of the Arkansas

River shiner by June 23, 2000, and to

invite public comment for 60 days. We

are proposing as critical habitat a total

of approximately 1,866 kilometers

(1,160 miles) of rivers and 91.4 meters

(300 feet) of their adjacent riparian

zones. Proposed critical habitat includes

portions of the Arkansas River in

Kansas, the Cimarron River in Kansas

and Oklahoma, the Beaver/North

Canadian River in Oklahoma, and the

Canadian/South Canadian River in New

Mexico, Texas, and Oklahoma. If this

proposed rule is finalized, Federal

agencies proposing actions that may

affect the areas designated as critical

habitat must consult with us on the

effects of the proposed actions, pursuant

to section 7(a)(2) of the Act.

DATES: We will consider all comments

on the proposed rule and the draft

environmental assessment received

from interested parties by August 29,

2000. We will hold public hearings in

Amarillo, Texas, on August 7, 2000; in

Oklahoma City, Oklahoma, on August 9,

2000; and in Pratt, Kansas, on August

11, 2000. We will start all hearings

promptly at 3:00 p.m. and end them no

later than 5:30 p.m. We must publish a

final determination on this proposal by

March 14, 2001, provided we determine

that we do not need to prepare an

Environmental Impact Statement to

comply with NEPA.

ADDRESSES: 1. Send your comments on

the proposed rule and draft

environmental assessment to the U.S.

Fish and Wildlife Service, Oklahoma

Ecological Services Office, 222 S.

Houston, Suite A, Tulsa, Oklahoma

74127–8909.

2. The complete file for this proposed

rule will be available for public

inspection, by appointment, during

normal business hours at the above

address. The draft environmental

assessment is available by writing to the

above address, or by connecting to our

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

oklahoma/. The draft economic analysis

will be available during the public

comment period. We will specify its

availability in local newspapers and

through a notice in the Federal Register.

3. We will hold the Amarillo hearing

at Texas A&M University Agricultural

Research and Extension Center, 6500

Amarillo Boulevard West, Amarillo,

Texas. We will hold the Oklahoma City

hearing at the Conservation Education

Center Auditorium, Oklahoma City Zoo,

2101 NE 50th, Oklahoma City,

Oklahoma. We will hold the Pratt

hearing at the Carpenter Auditorium,

Pratt Community College, 348 NE State

Road 61, Pratt, Kansas.

FOR FURTHER INFORMATION CONTACT: Ken

Collins, Oklahoma Ecological Services

Office, at the above address; telephone

918/581–7458, facsimile 918/581–7467.

SUPPLEMENTARY INFORMATION:

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 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 usually present at the

base of the caudal fin.

The Arkansas River shiner was first

described based on 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 (KS),

New Mexico (NM), Oklahoma (OK), and

Texas (TX). This species has

disappeared from more than 80 percent

of its historical range and is now almost

entirely restricted to about 820

kilometers (km) (508 miles (mi)) of the

Canadian River in OK, TX, and NM

(Larson et al. 1991; Pigg 1991). An

extremely small population may still

persist in the Cimarron River in OK and

KS, based on the collection of only nine

individuals since 1985. A remnant

population also may persist in the

Beaver/North Canadian River of OK,

based on collection of only four

individuals since 1990 (Larson et al.

1991; Jimmie Pigg, Oklahoma

Department of Environmental Quality,

pers. comm., 1993).

In 1999, six Arkansas River shiner

were collected from the Arkansas River

in Wichita, KS, at two locations—four

from near the 47th Street South bridge

and two near the Kansas State Highway

96 crossing (Vernon Tabor, U.S. Fish

and Wildlife Service, Manhattan, KS,

pers. comm., 2000). Prior to this

collection, the Arkansas River shiner

was believed to be extirpated from the

Arkansas River. An accurate assessment

of Arkansas River shiner populations in

the Arkansas, Cimarron, and Beaver/

North Canadian rivers is difficult

because the populations may be so

small that individuals may escape

detection during routine surveys. The

small size of Arkansas River shiner

aggregations in these three rivers

significantly reduces the likelihood that

these populations will persist over

evolutionarily significant timescales in

the absence of intensive conservation

efforts.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40577

The decline of this species throughout

its historical range is primarily the

result of modification of the duration

and timing of stream flows and

inundation by impoundments, channel

desiccation by water diversion and

groundwater mining, stream

channelization, and introduction of non

indigenous species. Additional

information on the biology and status of

this species can be found in the

November 23, 1998, final listing

determination (63 FR 64772). Biological

factors relevant to the species’ habitat

needs are discussed in the Primary

Constituent Elements portion of this

proposed rule.

Previous Federal Action

We included the Arkansas River

shiner in our September 18, 1985,

Review of Vertebrate Wildlife (50 FR

37958) as a category 2 candidate for

listing. Category 2 included those taxa

for which information indicated that a

proposal to list as endangered or

threatened was possibly appropriate,

but for which conclusive data on

biological vulnerability and threats were

not currently available to support a

proposed rule. Our January 6, 1989,

revised Animal Notice of Review (54 FR

554) retained this status for the

Arkansas River shiner.

We first received detailed information

on the status of the species in 1989 (Pigg

1989). A partial status survey by Larson

et al. (1990) was a source of additional

information. We subsequently prepared

a status report on this species (U.S. Fish

and Wildlife Service 1990). Following

this report, Larson et al. (1991) and Pigg

(1991) provided comprehensive status

survey information. In our November

21, 1991, Animal Candidate Review for

Listing as Endangered or Threatened

Species (56 FR 58804), we reclassified

the Arkansas River shiner as a category

1 candidate. At that time, category 1

(now referred to as candidates) included

those taxa for which we had substantial

information on biological vulnerability

and threats to support proposals to list

the taxa as endangered or threatened. In

our February 28, 1996, candidate Notice

of Review (61 FR 7596), we

discontinued the designation of category

2 candidates.

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 nonnative

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 lifting of a

moratorium on issuing final listings or

critical habitat designations 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).

Critical Habitat

Critical habitat is defined in section

3(5)(A) 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. The term

‘‘conservation,’’ as defined in section

3(3) of the Act, means ‘‘to use and the

use of all methods and procedures

which are necessary to bring any

endangered species or threatened

species to the point at which the

measures provided pursuant to this Act

are no longer necessary’’ (i.e., the

species is recovered and removed from

the list of endangered and threatened

species).

Section 4(a)(3) of the Act requires

that, to the maximum extent prudent

and determinable, we designate critical

habitat at the time a species is

determined to be endangered or

threatened. Our regulations (50 CFR

424.12(a)(1)) state that critical habitat is

not prudent if one or both of the

following situations exist—(i) the

species is threatened by taking or other

human activity and identification of

critical habitat can be expected to

increase the degree of this threat, or (ii)

designation of critical habitat would not

be beneficial to the species. In the final

rule listing the Arkansas River Basin

population of the Arkansas River shiner

(63 FR 64772), we found that

designation of critical habitat was not

prudent because we believed critical

habitat would not provide any

additional benefit beyond that provided

through listing as threatened.

In the last few years, a series of court

decisions have overturned several of our

determinations made for different

species that designation of critical

habitat would not be prudent (for

example, Natural Resources Defense

Council v. U.S. Department of the

Interior 113 F. 3d 1121 (9th Cir. 1997);

Conservation Council for Hawaii v.

Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii

1998)). Based on the standards applied

in those judicial opinions, we have

reexamined the question of whether

designation of critical habitat for the

Arkansas River Basin population of the

Arkansas River shiner is prudent.

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 is

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.

Upon further consideration, we

believe designation of critical habitat for

the Arkansas River shiner may be of

some benefit. A critical habitat

designation benefits species

conservation primarily by identifying

important areas and by describing the

features within those areas that are

essential to conservation of the species,

alerting public and private entities to

the areas’ importance. Although the

designation of critical habitat does not,

in and of itself, restrict human activities

within an area or mandate any specific

management or recovery actions, it does

help focus Federal, tribal, State, and

private conservation and management

efforts in such areas. Designating critical

habitat may also provide some

educational or informational benefits.

The primary regulatory impact of a

critical habitat designation is through

the provisions of section 7 of the Act,

which applies only to actions with

Federal involvement (e.g., actions

authorized, funded, or conducted by a

Federal agency) and does not affect

exclusively State or private activities.

Critical habitat designation assists

Federal agencies in planning future

actions, because the designation

establishes, in advance, those habitats

that will be given special consideration

in section 7 consultations. With a

designation of critical habitat, potential

conflicts between Federal actions and

endangered or threatened species can be

identified and possibly avoided early in

the agency’s planning process.

Conservation benefits can occur when

critical habitat is designated in

historically inhabited areas outside the

species’ current range, particularly

where the importance of the area would

have been overlooked had critical

habitat not been designated. For

example, initiation of section 7

consultation may not be required for a

Federal action in unoccupied habitat,

40578 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

but would be required if that area had

been designated critical habitat. The

designation of currently unoccupied

areas as critical habitat is allowed under

section 3(5)(A)(I) of the Act, which

provides that areas outside the

geographical area occupied by the

species at the time it was listed as

endangered or threatened may be

designated critical habitat upon a

determination that such areas are

essential for the conservation (i.e.,

recovery) of the species. We find that all

areas proposed in this rule are essential

for the conservation of the Arkansas

River Basin population of the Arkansas

River shiner.

Given the above, we believe that

designation of critical habitat will likely

provide some conservation benefit to

the Arkansas River Basin population of

the Arkansas River shiner, and can

foresee no detrimental conservation

effects of designation. We therefore find

that critical habitat designation is

prudent.

Section 4(b)(2) of the Act requires that

we base critical habitat proposals upon

the best scientific and commercial data

available, taking into consideration the

economic impact, and any other

relevant impact, of specifying any

particular area as critical habitat. We

can exclude areas from critical habitat

designation if we determine that the

benefits of exclusion outweigh the

benefits of including the areas as critical

habitat, provided the exclusion will not

result in the extinction of the species.

In proposing critical habitat for the

Arkansas River shiner, we 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. We also

solicited information from

knowledgeable biologists and reviewed

the available information pertaining to

habitat requirements of the species. The

proposed critical habitat described

below constitutes our best assessment of

areas essential for the conservation of

the Arkansas River shiner and is based

on the best scientific and commercial

information available. The areas

proposed either currently support

populations of the Arkansas River

shiner, or they currently have, or have

the potential for developing, the

necessary requirements for survival,

growth, and reproduction of the

Arkansas River shiner. All of the

proposed areas require special

management consideration and

protection to ensure their contribution

to the species’ recovery.

Important considerations in selection

of areas proposed in this rule include

factors specific to each river system,

such as size, connectivity, and habitat

diversity, as well as range-wide recovery

considerations, such as genetic diversity

and representation of all major portions

of the species’ historical range. Each

area contains stream reaches with

interconnected waters so that individual

Arkansas River shiner 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. Some areas include stream

reaches that do not have optimum

Arkansas River shiner habitat, but

provide migration 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. The critical

habitat proposed reflects the need for

areas of sufficient stream length to

provide habitat for Arkansas River

shiner populations large enough to be

self-sustaining over time, despite

fluctuations in local conditions.

In considering this designation, we

took into account that preferred habitat

for the Arkansas River shiner is 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.

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

Arkansas River shiner in these smaller

tributaries occurred during the months

of June and July. Another 18 percent

occurred during the months of May and

August. Consequently, we believe that

these tributaries are occupied only

during certain seasons during higher

flows and do not represent optimum

habitat. We note, however, that all

tributaries, no matter their size, are

important in contributing flows to the

proposed critical habitat reaches and

that actions substantially reducing those

flows may adversely affect critical

habitat. Additionally, newly hatched

Arkansas River shiner seek mouths of

tributaries where food is more abundant

(Moore 1944). This proposed

designation (see Lateral Extent of

Critical Habitat) would include small

sections of the tributaries near their

confluence, which are important rearing

areas for larval Arkansas River shiner.

Stabilization of the Arkansas River

shiner at its present population level

and distribution will not achieve

conservation. The overall trend in the

status of the Arkansas River shiner has

been characterized by dramatic declines

in numbers and range despite the fact

that this species evolved in rapidly

fluctuating, harsh environments. None

of the threats affecting the Arkansas

River shiner have been eliminated since

the fish was listed; consequently,

known Arkansas River shiner

aggregations remain vulnerable to those

natural or manmade factors that might

further reduce population size. If

recovery actions fail to reverse Arkansas

River shiner declines in the Canadian/

South Canadian River, the species’

vulnerability to catastrophic events,

such as the introduction of the Red

River shiner (Notropis bairdi), or a

prolonged period of low or no flow,

would increase. The remaining selfsustaining aggregations are fragmented

and isolated to essentially one river

system. Recovery through protection

and enhancement of the existing

populations, plus reestablishment of

populations in suitable areas of

historical range, are necessary for the

species’ survival and recovery.

The inclusion of both occupied and

currently unoccupied areas in the

proposed critical habitat for Arkansas

River shiner is in accordance with the

Act. Restoration of Arkansas River

shiner populations to additional

portions of their historical range

significantly reduces the likelihood of

extinction due to any natural or

manmade factors that might otherwise

further reduce population size. We

anticipate that a vital recovery

component for this species will involve

establishment of secure, self-sustaining

populations in habitats from which the

species has been extirpated. We believe

excluding areas outside the currently

occupied range of the Arkansas River

shiner from the critical habitat

designation would be inadequate to

ensure the conservation of the species.

Therefore, we determine that the

unoccupied areas proposed as critical

habitat are essential for the conservation

of the species.

Proposed Critical Habitat Designation

Table 1 shows approximate river

lengths of occupied and unoccupied

habitat in each county in which critical

habitat is proposed. The proposed

designation encompasses approximately

1,866 km (1,160 mi) of stream channels

and adjacent areas (see Lateral Extent of

Critical Habitat, below). However, the

amount of stream channel actually

proposed for critical habitat in

Oklahoma is less than this amount

because these figures were derived from

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40579

adding county totals, and where the

river forms a county boundary, that

length is included in both county totals.

The proposed designation is divided

among five reaches found within

portions of four river systems. The areas

we selected for proposed critical habitat

designation contain most, if not all, of

the remaining genetic diversity within

the Arkansas River Basin and include a

representation of each major subbasin

within the historical range of the

species. The proposed designation

incorporates more than 95 percent of the

currently known aggregations of

Arkansas River shiner in the Arkansas

River basin, including the remnant

populations that may still persist in the

Arkansas, Cimarron, and Beaver/North

Canadian rivers. The proposed

designation also includes currently

unoccupied areas in the Arkansas,

Cimarron, and Beaver/North Canadian

rivers that are considered essential for

future restoration and recovery of the

species.

TABLE 1.—RIVER DISTANCES, BY COUNTY, FOR OCCUPIED AND UNOCCUPIED PROPOSED CRITICAL HABITAT FOR THE

ARKANSAS RIVER SHINER

[Information derived from USGS National Atlas 1:2,000,000 scale hydrography data sets]

County

Occupied Unoccupied Total

Kilometers Miles Kilometers Miles Kilometers Miles

Kansas:

Barton ............................................... 27.3 16.9 17.1 10.6 44.4 27.5

Clark .................................................. 20.7 12.8 9.2 5.7 29.9 18.5

Comanche ......................................... ........................ 0.0 9.8 6.1 9.8 6.1

Cowley .............................................. 45.4 28.1 ........................ 0.0 45.4 28.1

Edwards ............................................ ........................ 0.0 38.4 23.8 38.4 23.8

Finney ............................................... ........................ 0.0 42.5 26.4 42.5 26.4

Ford ................................................... ........................ 0.0 67 41.5 67 41.5

Gray .................................................. ........................ 0.0 41.6 25.8 41.6 25.8

Hamilton ............................................ ........................ 0.0 20.5 12.7 20.5 12.7

Kearney ............................................. ........................ 0.0 44.3 27.5 44.3 27.5

Meade ............................................... 28.6 17.7 ........................ 0.0 28.6 17.7

Pawnee ............................................. ........................ 0.0 48.1 29.8 48.1 29.8

Reno ................................................. 54.3 33.7 ........................ 0.0 54.3 33.7

Rice ................................................... 32.3 20.0 ........................ 0.0 32.3 20.0

Sedgwick ........................................... 73.3 45.4 ........................ 0.0 73.3 45.4

Seward .............................................. 15 9.3 ........................ 0.0 15 9.3

Sumner ............................................. 32.1 19.9 ........................ 0.0 32.1 19.9

Subtotal ...................................... 329 204.0 338.5 209.9 667.5 413.9

New Mexico:

Quay ................................................. 51.8 32.1 ........................ ........................ 51.8 32.1

Subtotal ...................................... 51.8 32.1 ........................ ........................ 51.8 32.1

Oklahoma:

Beaver ............................................... 137.7 85.4 ........................ 0.0 137.7 85.4

Blaine ................................................ 40.3 25.0 ........................ 0.0 40.3 25.0

Caddo ............................................... 0.8 0.5 ........................ 0.0 0.8 0.5

Canadian ........................................... 71.4 44.3 ........................ 0.0 71.4 44.3

Cleveland .......................................... 81.2 50.3 ........................ 0.0 81.2 50.3

Custer ............................................... 9.6 6.0 ........................ 0.0 9.6 6.0

Dewey ............................................... 98.3 60.9 ........................ 0.0 98.3 60.9

Ellis ................................................... 84.3 52.3 ........................ 0.0 86.1 53.4

Grady ................................................ 37 22.9 ........................ 0.0 37 22.9

Harper ............................................... 61.9 38.4 26.3 16.3 88.2 54.7

Hughes .............................................. 70 43.4 ........................ 0.0 70 43.4

Major ................................................. ........................ 0.0 3.4 2.1 3.4 2.1

McClain ............................................. 104.1 64.5 ........................ 0.0 104.1 64.5

McIntosh ........................................... 8.2 5.1 ........................ 0.0 8.2 5.1

Pittsburg ............................................ 27 16.7 ........................ 0.0 27 16.7

Pontotoc ............................................ 80.4 49.8 ........................ 0.0 80.4 49.8

Pottawatomie .................................... 44.5 27.6 ........................ 0.0 44.5 27.6

Roger Mills ........................................ 84.3 52.3 ........................ 0.0 84.3 52.3

Seminole ........................................... 48.5 30.1 ........................ 0.0 48.5 30.1

Texas ................................................ 16.1 10.0 ........................ 0.0 16.1 10.0

Woods ............................................... ........................ 0.0 214.9 133.2 214.9 133.2

Woodward ......................................... 1.9 1.2 127.6 79.1 129.5 80.3

Subtotal* .................................... 1,107.5 686.7 372.2 230.8 1,481.5 918.5

Texas:

Hemphill ............................................ 35.8 22.2 ........................ ........................ 35.8 22.2

Oldham ............................................. 115.7 71.7 ........................ ........................ 115.7 71.7

Potter ................................................ 47 29.1 ........................ ........................ 47 29.1

40580 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

TABLE 1.—RIVER DISTANCES, BY COUNTY, FOR OCCUPIED AND UNOCCUPIED PROPOSED CRITICAL HABITAT FOR THE

ARKANSAS RIVER SHINER—Continued

[Information derived from USGS National Atlas 1:2,000,000 scale hydrography data sets]

County

Occupied Unoccupied Total

Kilometers Miles Kilometers Miles Kilometers Miles

Subtotal ...................................... 198.5 123.0 ........................ ........................ 198.5 123.0

Total ........................................... 1,686.8 1,045.9 710.7 440.6 2,399.3 1,487.6

* NOTE: Totals and subtotals are higher for Oklahoma than the actual lengths proposed as critical habitat because, where the river forms a

county boundary, that length is included in the table more than once.

For each stream reach proposed for

designation, the up- and downstream

boundaries are described below. The

distances below are approximate due to

the meandering and dynamic nature of

the proposed river reaches. Uncertainty

on upstream and downstream

distributional limits of some Arkansas

River shiner populations may result in

small areas of occupied habitat being

excluded from the designation.

Similarly, the need to identify sufficient

reference points that define the specific

limits of the designation also may result

in small areas of occupied habitat being

excluded from the designation. Finally,

as described previously, this critical

habitat proposal is focused on mainstem

rivers, so some smaller tributaries that

may at least seasonally support

Arkansas River shiner are not included

in this proposal.

In some instances, areas outside of

critical habitat that contain one or more

of the primary constituent elements may

still be important to the conservation of

the Arkansas River shiner even if they

are not designated as critical habitat.

These areas may be of value in

maintaining ecosystem integrity and

supporting other organisms indirectly

contributing to recovery of the species.

Additionally, these areas may have

those missing elements restored in the

future. We have decided that including

these areas in the critical habitat

designation it is not essential to the

conservation of the species. However,

we anticipate that these areas can be

adequately protected under the Act

through section 7 consultation, the

section 9 prohibition against taking

listed species, and the section 10 habitat

conservation planning process, and

through other appropriate State and

Federal statutes and regulations.

We propose the following areas as

critical habitat for the Arkansas River

Basin population of the Arkansas River

shiner (see the Regulation Promulgation

section of this rule for exact

descriptions of boundaries).

1. Canadian/South Canadian River,

NM, TX, and OK. The Canadian/South

Canadian River from near Ute Dam in

NM to the upper reaches of Eufaula

Reservoir in OK, except for those areas

rendered unsuitable for Arkansas River

shiner by Meredith Reservoir in TX, is

currently occupied by the Arkansas

River shiner. These are the largest,

perhaps only, 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 NM and

small sections of the tributaries near

their confluence, which may be

seasonally occupied, are believed to be

currently unoccupied by the Arkansas

River shiner.

a. Canadian River, Quay County, NM,

and Oldham and Potter Counties, TX—

215 km (134 mi) of river extending from

U.S. Highway 54 bridge near Logan,

NM, downstream to confluence with

Coetas Creek, TX. 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 low

flows in the lower section were

historically maintained by effluent from

the Amarillo, TX, 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. 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 for designation. 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

Arkansas River shiner are known from

that reach.

b. Canadian/South Canadian River,

Hemphill County, TX, and Blaine,

Caddo, Canadian, Cleveland, Custer,

Dewey, Ellis, Grady, Hughes, McClain,

McIntosh, Pittsburg, Pontotoc,

Pottawatomie, Roger Mills, and

Seminole Counties, OK—593 km (368

mi) of river extending from the U.S.

Highway 60/83 bridge near Canadian,

TX, downstream to the Indian Nation

Turnpike bridge northwest of

McAlester, OK. This segment of the

Canadian/South Canadian River is the

longest unfragmented reach in the

Arkansas River basin that still supports

the Arkansas River shiner. Here,

Arkansas River shiner range from rare to

common, with the species becoming

more abundant in a downstream

direction. The Canadian River upstream

of the community of Canadian, TX, 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, TX, 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 South 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.

2. Beaver/North Canadian River,

Beaver, Ellis, Harper, Major, Texas, and

Woodward Counties, OK—259 km (161

mi) of river extending from Optima Dam

in Texas County, OK, downstream to

U.S. Highway 60/281 bridge in Major

County, OK. Almost the entire Beaver/

North Canadian River mainstem and at

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40581

least one of the major tributaries (Deep

Fork River) in OK 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. The segment

between Optima Dam and the upper

reaches of Canton Reservoir offers the

best opportunity for restoration of the

Arkansas River shiner in the Beaver/

North Canadian River. Habitat in this

reach appears suitable although detailed

studies have not yet been conducted.

Recovery activities will include

augmenting existing aggregations of the

Arkansas River shiner and

reestablishing additional populations in

this system. Above Optima Reservoir,

pumping from the High Plains aquifer

has considerably reduced streamflow in

the Beaver River (Luckey and Becker

1998), and the habitat is no longer

suitable for Arkansas River shiner.

3. Cimarron River, Clark, Comanche,

Meade, and Seward Counties, KS, and

Beaver, Harper, Woods, and Woodward,

Counties, OK—215 km (134 mi) of river

extending from U.S. Highway 54 bridge

in Seward County, KS, downstream to

U.S. Highway 281 bridge in Woods

County, OK. 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). A

small population of Arkansas River

shiner could still persist in the

Cimarron River in OK and KS, based on

the collection of nine individuals since

1985. Arkansas River shiners were last

reported from the Cimarron River in

1990. At present, habitat appears

suitable throughout most of the system,

but detailed studies have not yet been

conducted. Recovery activities for

Arkansas River shiner will likely

include augmenting existing

populations and reestablishing

additional aggregations in this system or

the Arkansas River in KS. Lack of

adequate streamflow in both systems

and the presence of Red River shiners in

the Cimarron River will hinder recovery

efforts. The introduction of the Red

River shiner, in combination with

habitat loss and degradation, was

responsible for the diminished

distribution and abundance of the

Arkansas River shiner in the Cimarron

River. 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 non indigenous Red River shiner has

essentially replaced the Arkansas River

shiner in this system.

4. Arkansas River, Barton, Cowley,

Edwards, Finney, Ford, Gray, Hamilton,

Kearney, Kiowa, Pawnee, Reno, Rice,

Sedgwick, and Sumner Counties, KS—

584 km (363 mi) of river extending from

Kansas State Highway 27 bridge in

Hamilton County, KS, downstream to

KS/OK State line in Cowley County, KS.

The Arkansas River in Kansas contains

a significant portion of the species’

historical range and was not known to

support Arkansas River shiner until

recently. 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, KS (Kansas Geologic

Survey 1996). Between Syracuse and

Garden City, KS, the river often ceases

to flow due to surface and groundwater

withdrawals. Surface flow then resumes

near Great Bend, KS. At present,

insufficient streamflow and water

quality degradation renders much of the

Arkansas River west of Great Bend

unsuitable for Arkansas River shiner.

However, in early 1995, the U.S.

Supreme Court ruled that Colorado had

violated the Arkansas River Compact by

depleting usable flows of the Arkansas

River in Kansas (Kansas v Colorado, No.

105, Orig., US Supreme Ct, 1995). If

Colorado provides additional water to

Kansas, habitat conditions in the

Arkansas River west of Great Bend

could improve.

Recovery for Arkansas River shiner

will include reestablishing additional

populations in this system or the

Cimarron River. Downstream of the KS/

OK State line, large areas of the basin

are unsuitable for Arkansas River

shiner, either because of reservoirs (i.e.,

Kaw and Keystone) and the associated

streamflow alterations, or because of

stream channel alteration for navigation

and are not included in the proposed

designation. Even if modifications of

releases from these reservoirs become

feasible in the future, we suspect that

the reaches below Kaw and Keystone

reservoirs would never provide suitable

habitat. The distance between Kaw Dam

and the upper reaches of Keystone

Reservoir is only 139 river km (86 river

mi), and the distance between Keystone

Dam and the McClellan-Kerr Navigation

System is only about 130 river km (81

river mi). These distances are likely

insufficient to sustain reproducing

populations (see ‘‘Primary Constituent

Elements’’ below).

The 1998 listing rule for the Arkansas

River shiner estimated that at least 3,900

km (2,450 mi) of habitat within the

species’ range was occupied

historically. This proposal involves

approximately half that amount.

However, the estimate for the listing

rule was likely conservative, in that it

did not take into account probable

occupancy of smaller tributaries in the

Arkansas River Basin. Considering the

amount of historically occupied habitat

that occurred in the smaller tributaries,

the amount being considered for critical

habitat designation is much less than

one-half. Although amount of habitat

proposed for designation is less than

one-half the historical range of the

species, we believe that conservation of

the Arkansas River shiner within the

proposed areas can secure the long-term

survival and recovery of this species.

Lateral Extent of Critical Habitat

This proposal 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

things, 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 must

40582 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

consider 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. 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). They are

responsible 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.

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) (75.4–150.9 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

detrimental impacts to the stream from

sources outside the river channel.

Consequently, a buffer width of 23–46

m (75.4–150.9 ft) may be 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); this activity

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).

Primary Constituent Elements

In identifying areas as critical habitat,

50 CFR 424.12 provides that we

consider those physical and biological

features that are essential to

conservation of the species and that may

require special management

considerations or protection. These

physical and biological features, as

outlined in 50 CFR 424.12, include, but

are not limited to, the following:

Space for individual and population

growth, and for normal behavior;

Food, water, 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 important habitat features that

provide for the physiological,

behavioral, and ecological requirements

of the Arkansas River shiner include

adequate spawning flows; habitat for

food organisms; appropriate water

quality; a natural flow regime; rearing

and juvenile habitat appropriate for

growth and development to adulthood;

and flows sufficient to allow Arkansas

River shiner to recolonize upstream

habitats. Given the large geographic

range the species historically occupied,

and the diverse habitats used by the

various life-history stages, describing

specific values or conditions for each of

these habitat features is not always

possible . However, the following

discussion summarizes the biological

requirements of the Arkansas River

shiner relevant to identifying the

primary constituent elements of its

critical habitat.

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). Adults are

uncommon in quiet pools or backwaters

lacking streamflow, and almost never

occurred in habitats having deep water

and bottoms of mud or stone (Cross

1967). Cross (1967) believed that adults

prefer to orient into the current on the

‘‘lee’’ sides of large transverse sand

ridges and prey upon food organisms

washed downstream in the current.

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 South Canadian River of central OK,

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 NM and TX, the

diet of Arkansas River shiner was

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 nonnative

population of the Arkansas River shiner

inhabiting the Pecos River in NM (Keith

Gido, University of Oklahoma, in litt.

1997).

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 NM and TX 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

from 0.7 to 14.4 millisiemens per

centimeter, and pH from 5.6 to 9.0.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40583

In the South Canadian River of central

OK, Polivka and Matthews (1997) found

that Arkansas River shiner exhibited

only a weak relationship between the

environmental variables they measured

and the occurrence of the species within

the stream channel. Water depth,

current, dissolved oxygen, and sand

ridge and midchannel habitats were the

environmental variables most strongly

associated with the distribution of

Arkansas River shiner within the

channel. Similarly, microhabitat

selection by Arkansas River shiner in

the Canadian River of NM and TX 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 (6.6–8.3 in.) and

current velocities between 30 and 42

centimeters (11.7 and 16.4 in.) per

second. Juvenile Arkansas River shiner

associated most strongly with current,

conductivity (total dissolved solids),

and backwater and island habitat types

(Polivka and Matthews 1997).

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 in the Canadian River

in NM and TX were predominantly

sand; however, Arkansas River shiner

were observed to occur over silt slightly

more than expected based on the

availability of this substrate (Wilde et al.

2000).

Successful reproduction by 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

nonnative 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 openwater, 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 of NM and

TX 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 egg behavior

in the Arkansas River shiner. 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 the egg

became buoyant, it 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

would then be transported an additional

216 km (134 mi). 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 the life-history

for the Arkansas River shiner, 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 initiate 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.

As previously discussed,

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, 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

quality in these reaches.

We determined the primary

constituent elements for Arkansas River

shiner from studies on their habitat

requirements and population biology, as

outlined above. These primary

constituent elements are the following:

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

40584 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

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. Abundant terrestrial, semiaquatic,

and aquatic invertebrate food base; and

7. Few or no predatory or competitive

nonnative species present.

The areas we are proposing for

designation as critical habitat for

Arkansas River shiner provide the above

primary constituent elements or will be

capable, with restoration, of providing

them. All of the proposed areas require

special management considerations or

protection to ensure their contribution

to the species’ recovery.

Land Ownership

The vast majority (about 98 percent)

of proposed critical habitat is in private

ownership, with relatively small,

scattered tracts of State, and Federal

lands. Private lands are primarily used

for grazing and agriculture, but also

include towns, small-lot residences, and

industrial areas. A general description

of land ownership in each complex

follows:

1a. Canadian River—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

that is owned by the National Park

Service as part of the Lake Meredith

National Recreation Area.

1b. Canadian/South Canadian River—

This reach is predominantly in private

ownership, with limited areas of State

and tribal ownership. The Texas Parks

and Wildlife Department owns a small

segment downstream of the town of

Canadian, TX (Gene Howe Wildlife

Management Area (WMA)). The

Oklahoma Department of Wildlife

Conservation owns a small section near

Roll, OK (Packsaddle WMA). Small

tracts of tribal lands are near Oklahoma

City.

2. Beaver/North Canadian River—The

ownership is predominantly private,

with limited areas of State-owned lands.

The Oklahoma Department of Wildlife

Conservation owns small sections near

Beaver, OK (Beaver River WMA) and

near Fort Supply, OK (Cooper WMA).

The Oklahoma Department of Parks and

Tourism owns a small section near

Woodward, OK (Boiling Springs State

Park).

3. Cimarron River—Land here is

entirely in private ownership.

4. Arkansas River—This area is

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).

Effect of Critical Habitat Designation

Section 7(a) of the Act requires

Federal agencies to ensure that actions

they fund, authorize, or carry out do not

destroy or adversely modify critical

habitat to the extent that the action

appreciably diminishes the value of the

critical habitat for the survival and

recovery of the species. Individuals,

organizations, States, local and tribal

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. Thus, activities on Federal

lands that may affect the Arkansas River

shiner or its critical habitat, if

designated, will require section 7

consultation. Actions on private or State

lands receiving funding or requiring a

permit from a Federal agency also will

be subject to the section 7 consultation

process if the action may affect critical

habitat. Federal actions not affecting the

species or its critical habitat, as well as

actions on non-Federal lands that are

not federally funded or permitted, will

not require section 7 consultation.

Federal agencies are required to

evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened and with

respect to its proposed or designated

critical habitat. Regulations

implementing these interagency

cooperation provisions of the Act are

codified at 50 CFR part 402. Section

7(a)(4) of the Act and regulations at 50

CFR 402.10 require Federal agencies to

confer with us on any action that is

likely to jeopardize the continued

existence of a proposed species or to

result in destruction or adverse

modification of proposed critical

habitat. A section 7 conference on

proposed critical habitat results in a

report that may provide conservation

recommendations to assist the action

agency in eliminating or minimizing

adverse effects to the proposed critical

habitat that may be caused by the

proposed agency action. The

conservation recommendations in a

conference report are advisory. We may

issue a formal conference report, if

requested by a Federal agency. Formal

conference reports on proposed critical

habitat contain a conference opinion as

to whether the proposed action is likely

to destroy or adversely modify proposed

critical habitat. This biological opinion

is prepared as if critical habitat were

designated as final, in accordance with

50 CFR 402.13.

If we subsequently finalize the

proposed critical habitat designation,

then section 7(a)(2) will require Federal

agencies to enter into consultation with

us on agency actions that may affect

critical habitat. Consultations on agency

actions that will likely adversely affect

critical habitat will result in issuance of

a biological opinion. We may adopt a

formal conference report as the

biological opinion if no significant new

information or changes in the action

alter the content of the opinion (see 50

CFR 402.10(d)).

If we find a proposed agency action is

likely to destroy or adversely modify the

critical habitat, our biological opinion

may include reasonable and prudent

alternatives to the action that are

designed to avoid destruction or adverse

modification of critical habitat.

Reasonable and prudent alternatives are

defined at 50 CFR 402.02 as alternative

actions that can be implemented in a

manner consistent with the intended

purpose of the action, that are consistent

with the scope of the Federal agency’s

legal authority and jurisdiction, that are

economically and technologically

feasible, and that we believe would

avoid 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 vary accordingly.

Regulations at 50 CFR 402.16 also

require Federal agencies to reinitiate

consultation in instances where we have

already reviewed an action for its effects

on a listed species if 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 if their actions may affect

designated critical habitat, or

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40585

conferencing with us on actions likely

to destroy or adversely modify proposed

critical habitat.

Section 4(b)(8) of the Act requires us

to describe in any proposed or final

regulation that designates critical

habitat, a description and evaluation of

those activities involving a Federal

action that may adversely modify such

habitat or that may be affected by such

designation. A wide range of Federal

activities have the potential to destroy

or adversely modify critical habitat for

the Arkansas River shiner. These

activities may include land and water

management actions of Federal agencies

(e.g., U.S. Army Corps of Engineers,

Natural Resources Conservation Service,

Bureau of Reclamation, and the Bureau

of Indian Affairs) and related or similar

actions of other federally regulated

projects (e.g., road and bridge

construction activities by the Federal

Highway Administration; dredge and

fill projects, sand and gravel mining,

and bank stabilization activities

conducted or authorized by the U.S.

Army Corps of Engineers; and, National

Pollutant Discharge Elimination System

permits authorized by the

Environmental Protection Agency).

Specifically, activities that may destroy

or adversely modify critical habitat are

those that alter the primary constituent

elements (defined above) to an extent

that the value of critical habitat for both

the survival and recovery of the

Arkansas River shiner is appreciably

reduced. Such activities include, but are

not limited to:

(1) Significantly and detrimentally

altering the minimum flow or the

natural flow regime of any of the

designated stream segments. 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 may also

destroy or adversely modify critical

habitat.

(2) Significantly and detrimentally

altering the characteristics of the

riparian zone in any of the designated

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.

(3) Significantly and detrimentally

altering 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, and

excessive sedimentation from mining,

livestock grazing, road construction,

timber harvest, off-road vehicle use, and

other watershed and floodplain

disturbances.

(4) Significantly and detrimentally

altering the water chemistry in any of

the designated stream segments.

Possible actions would include 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 nonnative aquatic species

in any of the designated stream

segments. Possible actions would

include fish stocking for sport,

aesthetics, biological control, or other

purposes; use of live bait fish;

aquaculture; construction and operation

of canals; and interbasin water transfers.

Not all of the identified activities are

necessarily of current concern within

the Arkansas River basin; however, they

do indicate the potential types of

activities that will require consultation

in the future and, therefore, that may be

affected by critical habitat designation.

We do not expect that designation of

critical habitat in areas occupied by the

Arkansas River shiner will result in a

regulatory burden above that already in

place, due to the presence of the listed

species. However, areas designated as

critical habitat that are not currently

occupied by the species may require

protections similar to those provided to

occupied areas under past

consultations.

As discussed previously, Federal

actions that are found likely to destroy

or adversely modify critical habitat may

often be modified, through development

of reasonable and prudent alternatives,

in ways that will remove the likelihood

of destruction or adverse modification

of critical habitat. Such project

modifications may include such things

as adjustment in timing of projects to

avoid sensitive periods for the species

and its habitat; replanting of riparian

vegetation; minimization of work and

vehicle use in the wetted channel;

restriction of riparian and upland

vegetation clearing; fencing to exclude

livestock and limit recreational use; use

of alternative livestock management

techniques; avoidance of pollution;

minimization of ground disturbance in

the floodplain; use of alternative

material sources; storage of equipment

and staging of operations outside the

floodplain; use of sediment barriers;

access restrictions; and use of best

management practices to minimize

erosion.

If you have questions regarding

whether specific activities will likely

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

inquiries about prohibitions and permits

may be addressed to the U.S. Fish and

Wildlife Service, Division of

Endangered Species, P.O. Box 1306,

Albuquerque, New Mexico 87103

(telephone 505–248–6920; facsimile

505–248–6788).

We are in the process of developing

a recovery plan for the Arkansas River

Basin population of the Arkansas River

shiner. The recovery plan, when

finalized, will provide

recommendations on recovering this

species, including recommendations on

management of its critical habitat.

Further, should the recovery plan

recommend adding or deleting areas as

critical habitat, we will consider

whether a future revision of critical

habitat is appropriate.

Economic Analysis

Section 4(b)(2) of the Act requires that

we designate critical habitat on the basis

of the best scientific and commercial

information available and that we

consider the economic and other

relevant impacts of designating a

particular area as critical habitat. The

economic impacts to be considered in a

critical habitat designation are the

incremental effects of the designation

over and above the economic impacts

attributable to listing of the species. In

general, these incremental impacts are

more likely to result from management

activities in areas outside the present

distribution of the listed species.

We may exclude areas from critical

habitat upon a determination that the

benefits of such exclusions outweigh the

benefits of specifying those areas as

critical habitat; however, we cannot

exclude areas from critical habitat when

the exclusion will result in the

extinction of the species. A draft

economic analysis will be available for

public review and comment (see

ADDRESSES section). We will utilize the

economic analysis, and take into

consideration all comments and

information submitted during the public

hearing and comment period, to

determine whether areas should be

excluded from the final critical habitat

designation.

40586 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities,

and the Endangered Species Act

In accordance with the Presidential

Memorandum of April 29, 1994, we

believe that, to the maximum extent

possible, tribes should be the

governmental entities to manage their

lands and tribal trust resources. To this

end, we support tribal measures that

preclude the need for conservation

regulations, and we provide technical

assistance to Indian tribes who wish

assistance in developing and expanding

tribal programs for the management of

healthy ecosystems so that Federal

conservation regulations, such as

designation of critical habitat, on tribal

lands are unnecessary.

The Presidential Memorandum of

April 29, 1994, also requires us to

consult with the tribes on matters that

affect them, and section 4(b)(2) of the

Act requires us to gather information

regarding the designation of critical

habitat and the effects thereof from all

relevant sources, including the tribes.

Recognizing a government-togovernment relationship with tribes and

our Federal trust responsibility, we

consulted to the extent possible with the

Indian tribes having tribal trust

resources, tribally owned fee lands, or

tribal rights that might be affected by the

designation of critical habitat.

In our deliberations over this critical

habitat proposal, we identified two

categories of possible effects to tribes or

tribal resources. These include: (1)

Effects resulting from designation of

critical habitat on Tribal lands; and (2)

effects on tribal resources, such as water

deliveries, resulting from designation of

critical habitat on nontribal lands. We

identified tribal lands belonging to the

Choctaw and Chickasaw Nations as

containing stream reaches that may be

appropriate for designation of critical

habitat. Additionally, several tribes may

have lands located downstream from

proposed critical habitat.

1. Designation of Critical Habitat on

Tribal Lands

We met with representatives of the

Cherokee, Chickasaw, Creek, and

Seminole Nations on April 6, 2000, to

discuss the proposed designation. The

Chickasaw and Choctaw Nations are the

two tribes that have habitat for Arkansas

River shiner on their lands. Given our

obligations under the Presidential

Memorandum, we are not proposing

critical habitat on Tribal land. However,

as provided under section 4(b)(2) of the

Act, we are soliciting information

during the comment period as to

whether these areas should be

designated as critical habitat and will be

continuing our discussions with the

tribes to determine whether voluntary

measures implemented by the tribes are

adequate to achieve conservation of the

Arkansas River shiner on tribal lands.

We will consider this information in

determining which, if any, tribal land

should be included in the final

designation as critical habitat for the

Arkansas River shiner.

2. Effects on Tribal Trust Resources

From Critical Habitat Designation on

Nontribal Lands

We do not anticipate that proposal of

critical habitat on nontribal lands will

result in any impact on tribal trust

resources or the exercise of tribal rights.

However, as stated above, some tribes

may have lands located downstream

from proposed critical habitat for the

Arkansas River shiner.

In complying with our tribal trust

responsibilities, we must communicate

with all tribes potentially affected by the

designation. Therefore, we are soliciting

information during the comment period

on potential effects to tribes or tribal

resources that may result from critical

habitat designation.

Public Comments Solicited

We intend for any final action

resulting from this proposal to be as

accurate and as effective as possible.

Therefore, we are soliciting comments

or suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule. We particularly seek

comments concerning:

(1) The reasons why any habitat

should or should not be determined to

be critical habitat as provided by section

4 of the Act, including whether the

benefits of excluding areas will

outweigh the benefits of including areas

as critical habitat;

(2) Specific information on the

abundance of Arkansas River shiner and

the amount and distribution of its

habitat;

(3) Areas that are essential to the

conservation of the species and that may

require special management

considerations or protection and why;

(4) Land use practices and current or

planned activities in the subject areas

and their possible impacts on proposed

critical habitat;

(5) Any foreseeable economic or other

impacts resulting from the proposed

designation of critical habitat, in

particular, any impacts on small entities

or families; and

(6) Economic and other values

associated with designating critical

habitat for the Arkansas River shiner,

such as those derived from

nonconsumptive uses (e.g., hiking,

camping, birding, enhanced watershed

protection, increased soil retention,

‘‘existence values,’’ and reductions in

administrative costs).

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 document clearly stated? (2) Does

the proposed rule contain technical

language or jargon that interferes with

the clarity? (3) Does the format of the

proposed rule (grouping and order of

sections, use of headings, paragraphing,

etc.) aid or reduce its clarity? (4) Is the

description of the proposed rule in the

SUPPLEMENTARY INFORMATION section of

the preamble helpful in understanding

the document? (5) What else could we

do to make the proposed rule easier to

understand?

Our practice is to make comments

that we receive on this rulemaking,

including names and home addresses of

respondents, available for public review

during regular business hours.

Individual respondents may request that

we withhold their home address from

the rulemaking record, which we will

honor to the extent allowable by law. In

some circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish for us to withhold your

name and/or address, you must state

this request prominently at the

beginning of your comment. However,

we will not consider anonymous

comments. We will make all

submissions from organizations or

businesses, including the individuals

identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Peer Review

In accordance with our policy

published on July 1, 1994 (59 FR

34270), we will seek the expert opinions

of at least three appropriate and

independent specialists regarding this

proposed rule. The purpose of such

review is to ensure listing decisions are

based on scientifically sound data,

assumptions, and analyses. We will

send copies of this proposed rule

immediately following publication in

the Federal Register to these peer

reviewers. We will invite these peer

reviewers to comment, during the

public comment period, on the specific

assumptions and conclusions regarding

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40587

the proposed designation of critical

habitat.

We will consider all comments and

information received during the

comment period on this proposed rule

during preparation of a final

rulemaking. Accordingly, the final

decision may differ from this proposal.

Public Hearings

The Act provides for one or more

public hearings on this proposal, if

requested. Given the large geographic

extent covered by this proposal, the

high likelihood of multiple requests,

and the need to publish a final

determination by March 14, 2001, we

have scheduled three public hearings

(see DATES and ADDRESSES sections).

Written comments submitted during

the comment period receive equal

consideration with those comments

presented at a public hearing.

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in

Executive Order 12866, this rule is a

significant regulatory action and has

been reviewed by the Office of

Management and Budget (OMB). We

will prepare a draft economic analysis

of this proposed action to determine the

economic consequences of designating

the specific areas as critical habitat. The

draft economic analysis will be

available for public review and

comment.

(a) This rule will not have an annual

economic effect of $100 million or

adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. A costbenefit analysis is not required for

purposes of Executive Order 12866. The

Arkansas River shiner was listed as a

threatened species in 1998. Currently,

we have not conducted any formal

section 7 consultation with other

Federal agencies to ensure that their

actions would not jeopardize the

continued existence of the Arkansas

River shiner.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; critical habitat does not

impose any restrictions on non-Federal

persons unless they are conducting

activities funded or otherwise

sponsored or permitted by a Federal

agency (see Table 2 below). Section 7

requires Federal agencies to ensure that

they do not jeopardize the continued

existence of the species. Based upon our

experience with the species and its

needs, we conclude that any Federal

action or authorized action that could

potentially cause an adverse

modification of the proposed critical

habitat would currently be considered

as ‘‘jeopardy’’ to the species under the

Act. Accordingly, the designation of

currently occupied areas as critical

habitat does not have any incremental

impacts on what actions may or may not

be conducted by Federal agencies or

non-Federal persons that receive

Federal authorization or funding. NonFederal persons who do not have a

Federal ‘‘sponsorship’’ of their actions

are not restricted by the designation of

critical habitat (however, they continue

to be bound by the provisions of the Act

concerning ‘‘take’’ of the species).

Designation of unoccupied areas as

critical habitat may have impacts on

what actions may or may not be

conducted by Federal agencies or nonFederal persons that receive Federal

authorization or funding. We will

evaluate this impact through our

economic analysis (under section 4 of

the Act; see Economic Analysis section

of this rule).

(b) This rule will not create

inconsistencies with other agencies’

actions. Federal agencies have been

required to ensure that their actions do

not jeopardize the continued existence

of the Arkansas River shiner since its

listing in 1998. The prohibition against

adverse modification of critical habitat

is not expected to impose any additional

restrictions to those that currently exist

in occupied areas of proposed critical

habitat. Additional restrictions may be

imposed in unoccupied areas proposed

as critical habitat; we will evaluate this

possibility through our economic

analysis under section 4 of the Act.

Because of the potential for impacts on

other Federal agency activities, we will

continue to review this proposed action

for any inconsistencies with other

Federal agency actions.

(c) The proposed rule, if made final,

will not significantly impact

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and,

as discussed above, we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

incremental effects in areas of occupied

habitat. However, we will review the

effects of this proposed action on

Federal agencies or non-Federal persons

that receive Federal authorization or

funding in unoccupied critical habitat

areas.

(d) This rule will not raise novel legal

or policy issues. The proposed rule

follows the requirements for

determining critical habitat contained in

the Endangered Species Act.

TABLE 2.—IMPACTS OF DESIGNATING CRITICAL HABITAT FOR ARKANSAS RIVER SHINER

Categories of activities

Activities potentially affected

by the designation of critical

habitat in areas occupied by

the Species (in addition to

those affected from listing

the species)

Activities potentially affected by the designation of critical habitat in unoccupied

areas

Federal activities potentially

affected 1.

None .................................... Activities such as those affecting waters of the United States by the U.S. Army

Corps of Engineers under section 404 or by the Environmental Protection Agency under section 402 of the Clean Water Act; natural gas/petroleum pipeline

and hydropower development/licensing by the Federal Energy Regulatory Commission; construction of communication sites licensed by the Federal Communications Commission; road construction and maintenance, vegetation manipulation, right-of-way designation, regulation of agricultural activities, and other activities funded by any Federal agency.

40588 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

TABLE 2.—IMPACTS OF DESIGNATING CRITICAL HABITAT FOR ARKANSAS RIVER SHINER—Continued

Categories of activities

Activities potentially affected

by the designation of critical

habitat in areas occupied by

the Species (in addition to

those affected from listing

the species)

Activities potentially affected by the designation of critical habitat in unoccupied

areas

Private or other non-Federal

Activities Potentially Affected 2.

None .................................... Activities that require a Federal action (permit, authorization, or funding) and that

involve such activities as removing or destroying Arkansas River shiner habitat

(as defined in the primary constituent elements discussion), whether by mechanical, chemical, or other means (e.g., channelization, flood control, water diversions, etc.), including indirect effects (e.g., edge effects, invasion of exotic

plants or animals, or fragmentation); and that appreciably decrease habitat

value or quality.

1Activities initiated by a Federal agency.

2Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

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

et seq.

In the draft economic analysis, we

will determine if designation of critical

habitat will have a significant effect on

a substantial number of small entities.

As discussed under Regulatory Planning

and Review above, this rule is not

expected to result in any restrictions in

addition to those currently in existence

for areas of occupied critical habitat.

However, for areas of unoccupied

habitat, we will review the effects of this

proposed action on small entities.

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In our 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. As

discussed above, we anticipate that the

designation of critical habitat will not

have any additional effects on these

activities in areas of critical habitat

occupied by the species. However, we

will review the effects of this proposed

action as there may be additional effects

in areas of unoccupied habitat.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

Mandates Reform Act:

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 involving Federal funds,

permits, or other authorized activities

must ensure that their actions will not

destroy or adversely modify 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 in

areas of occupied proposed critical

habitat. However, we will review the

effects of this proposed action as there

may be additional effects in areas of

unoccupied habitat.

b. This rule will not produce a

Federal mandate on State, local or tribal

governments or the private sector of

more than $100 million or greater in any

year, i.e., it is not a ‘‘significant

regulatory action’’ under the Unfunded

Mandates Reform Act. The designation

of critical habitat imposes no obligations

on State or local governments.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications, and a

takings implication assessment is not

required. This proposed rule, if made

final, will not ‘‘take’’ private property.

The designation of critical habitat

affects only Federal agency actions. The

rule will not increase or decrease the

current restrictions on private property

concerning take of the Arkansas River

shiner. Additionally, critical habitat

designation does not preclude

development of habitat conservation

plans and issuance of incidental take

permits. Landowners in areas that are

included in the designated critical

habitat will continue to have

opportunity to utilize their property in

ways consistent with the survival of the

Arkansas River shiner.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. The

designation of critical habitat in areas

currently occupied by the Arkansas

River basin population of the Arkansas

River shiner imposes no additional

restrictions to those currently in place,

and therefore has little incremental

impact on State and local governments

and their activities.

In keeping with Department of the

Interior policy, we requested

information from and coordinated

development of this critical habitat

designation with appropriate State

resource agencies in Kansas, New

Mexico, Oklahoma, and Texas. We also

utilized information on critical habitat

submitted by the States during the

listing of the Arkansas River shiner. We

anticipate that the affected States will

have representatives on our recovery

team for this species. Consequently, we

will continue to coordinate this and any

future designation of critical habitat for

the Arkansas River shiner with the

appropriate State agencies.

Civil Justice Reform

In accordance with Executive Order

12988, the Department of the Interior’s

Office of the Solicitor 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. The Office of the Solicitor

will review the final determination for

this proposal. We will make every effort

to ensure that the final determination

contains no drafting errors, provides

clear standards, simplifies procedures,

reduces burden, and is clearly written

such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which OMB approval under the

Paperwork Reduction Act is required.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40589

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 CO, KS, NE, NM, OK, UT,

and WY) , 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. Send your

requests for copies of the draft

environmental assessment for this

proposal to the Oklahoma Ecological

Services Office or visit our web site (see

ADDRESSES section).

References Cited

A complete list of all references cited

in this proposed rule is available upon

request from the Oklahoma Ecological

Services Office (see ADDRESSES section).

Author

The primary author of this notice is

Ken Collins (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 § 17.11(h), by revising the

entry for ‘‘shiner, Arkansas River’’

under ‘‘FISHES’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate

population

where endangered or

threatened

Status When listed Critical

habitat

Special

Common rules

name

Scientific

name

*******

FISHES

*******

Shiner, Arkansas River.Notropis

girardi.

U.S.A. (AR,

KS, NM,

OK, TX).

Arkansas

River Basin

(AR, KS,

NM, OK,

TX).

T 653 § 17.95(e) NA

*******

3. Amend section 17.95(e) by adding

critical habitat for the Arkansas River

shiner (Notropis girardi) in the same

alphabetical order as this species occurs

in 17.11(h).

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(e) Fishes.

* * * * *

Arkansas River Shiner (Notropis Girardi)

1. Critical habitat is depicted for

Barton, Clark, Comanche, Cowley,

Edwards, Finney, Ford, Gray, Hamilton,

Kearny, Kiowa, Meade, Pawnee, Reno,

Rice, Sedgwick, Seward, and Sumner

counties, Kansas; Quay County, New

Mexico; Beaver, Blaine, Caddo,

Canadian, Cleveland, Custer, Dewey,

Ellis, Grady, Harper, Hughes, Major,

McClain, McIntosh, Pittsburg, Pontotoc,

Pottawatomie, Roger Mills, Seminole,

Texas, 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 maps 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 (Rosgen 1996) and

generally occurs with a frequency of

every 1 to 2 years (Leopold et al. 1992).

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—(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, 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 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) abundant terrestrial, semiaquatic,

and aquatic invertebrate food base; and

(7) few or no predatory or competitive

nonnative species present.

4. Kansas (Sixth Principal Meridian

(SPM)), New Mexico (New Mexico

Principal Meridian (NMPM)), Oklahoma

(Cimarron Meridian (CM) and Indian

40590 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

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.

BILLING CODE 4310–55–P

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40591

40592 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

[Arkansas River Shiner Map 1,

General Map]

Arkansas River Shiner (Notropis Girardi)

Reach 1. Canadian/South Canadian

River, New Mexico, Texas, and

Oklahoma.

a. Canadian River-approximately 215

km (134 mi) from U.S. Highway 54

bridge near Logan, Quay County, New

Mexico (NMPM, T.13N., R.33E., NW1⁄4

Sec. 14) downstream to the confluence

with Coetas Creek, Potter County, Texas

(35°27′53′′ N, 101°52′46′′ W).

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40593

40594 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

[Arkansas River Shiner Map 2, Unit

1a]

b. Canadian River—approximately

593 km (368 mi), extending from U.S.

Highway 60/83 bridge near Canadian,

County, Texas (35°56′02′′ N, 100°22′00′′

W) downstream to Indian Nation

Turnpike bridge northwest of

McAlester, Oklahoma (IM T.8N., R.13E.,

SE1⁄4 SW1⁄4 SE1⁄4 Sec. 23).

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40595

40596 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

[Arkansas River Shiner Map 3, Unit

1b]

Reach 2. Beaver/North Canadian

River, Texas, Beaver, Harper, Ellis,

Woodward, and Major counties,

Oklahoma—259 km (161 mi) of river

extending from Optima Dam in Texas

County, Oklahoma (CM,T.2N., R.18E.,

NW1⁄4 SE1⁄4 SE1⁄4 Sec. 5) downstream to

U.S. Highway 60/281 bridge in Major

County, Oklahoma (IM, T.20N., R.16W.,

west boundary Sec. 28).

Reach 3. Cimarron River, Seward,

Meade, Clark and Comanche counties,

Kansas and Beaver, Harper, Woods, and

Woodward, counties, Oklahoma—215

km (134 mi) of river 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 281

bridge in Woods County, Oklahoma (IM,

T.24N., R.16W., Sec. 35).

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40597

40598 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

[Arkansas River Shiner Map 4, Units

2 and 3]

Reach 4. Arkansas River, Hamilton,

Kearny, Finney, Gray, Ford, Edwards,

Kiowa, Pawnee, Barton, Rice, Reno,

Sedgwick, Sumner, and Cowley

counties, Kansas—584 km (363 mi) of

river extending from Kansas State

Highway 27 bridge in Hamilton County,

Kansas (SPM, T. 24 S., R. 40 W., Sec.

18). downstream to KS/OK State line in

Cowley County, Kansas (SPM, T.35S.,

R.5E., southern boundary Sec. 18).

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules 40599

40600 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Proposed Rules

[Arkansas River shiner Map 5, Unit 4]

Dated: June 20, 2000.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 00–16399 Filed 6–29–00; 8:45 am]

BILLING CODE 4310–55–C

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 622

[I.D. 061900E]

Caribbean Fishery Management

Council; Public Hearings

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of public hearings.

SUMMARY: The Caribbean Fishery

Management Council will hold a series

of public hearings in Puerto Rico and

the U.S. Virgin Islands on Draft

Amendment 1 to the Fishery

Management Plan for Queen Conch

Resources of Puerto Rico and the U.S.

Virgin Islands (FMP). The objectives of

Amendment 1 are to address the issues

of overfishing of the queen conch

resource and apparent resource declines

and to collect additional fishery

information necessary for improved

management.

DATES: The Council will accept written

comments on the draft Amendment 1

through July 31, 2000. The public

hearings will be held July 10–26, 2000.

See SUPPLEMENTARY INFORMATION for

specific dates, times, and locations of

the public hearings.

ADDRESSES: Written comments should

be sent to Miguel A. Rolon, Executive

Director, Caribbean Fishery

Management Council, 268 Munoz

Rivera Avenue, Suite 1108, San Juan,

Puerto Rico, 00918–2577. The Council’s

telephone number is (787) 766–5926.

Copies of draft Amendment 1 and an

executive summary will be available at

the hearings or may be obtained from

the Council at preceding address. See

SUPPLEMENTARY INFORMATION for specific

hearing locations.

FOR FURTHER INFORMATION CONTACT:

Contact Miguel A. Rolon, Executive

Director, or Graciela Garcia-Moliner,

FMP and Habitat Specialist, Caribbean

Fishery Management Council, 268

Munoz Rivera Avenue, Suite 1108, San

Juan, Puerto Rico, 00918–2577. The

Council’s telephone number is (787)

766–5926. E-mail addresses are

Miguel.A.Rolon@noaa.gov or

Graciela.Garcia-Moliner@noaa.gov.

SUPPLEMENTARY INFORMATION:

Management Measures

The Caribbean Fishery Management

Council will hold a series of public

hearings in Puerto Rico and the U.S.

Virgin Islands to obtain input from

fishers and the general public on the

following draft Amendment 1

alternative management measures

(corresponding draft Amendment 1

sections are referenced):

Alternative 1 (section 5.1 -Preferred

Alternative): Prohibit the harvest and

possession of queen conch in the

exclusive economic zone (EEZ);

Alternative 2 (section 5.2): Prohibit

the harvest and possession of queen

conch by recreational fishers in the EEZ;

Alternative 3 (section 5.3): Prohibit

the harvest of queen conch in the EEZ

by all fishers using SCUBA gear;

Alternative 4 (section 5.4): Prohibit

the harvest of queen conch in the EEZ

by recreational fishers using SCUBA;

Alternative 5 (section 5.5): Establish a

permit for queen conch for fishers and

dealers.

Alternative 6 (section 5.6): Establish a

limited entry system for queen conch

fishers;

Alternative 7 (section 5.7): Establish a

trip limit for commercial fishers of 100

pounds (45.4 kg) of queen conch meat

per vessel per trip, and not more than

300 pounds (136.1 kg) per week for each

vessel;

Alternative 8 (section 5.8): Establish a

trip limit of 150 queen conch per

commercial fisher per trip;

Alternative 9 (section 5.9): Change the

dates for the annual closed harvest

season for queen conch from July 1–

September 30 to July 1–October 31 of

each consecutive year;

Alternative 10 (section 5.10): Change

the dates for the annual closed harvest

season for queen conch from July 1–

September 30 to June 1–September 30 of

each consecutive year;

Alternative 11 (section 5.11): Change

the current annual closed harvest season

for queen conch from the 3-month

period of July 1–September 30 to a 4-

month period (could be two separate

sub-periods) other than those under

Alternatives 9 and 10; and

Alternative 12 (section 5.12): No

management action taken.

Time and Location for Public

Hearings

Public hearings for the draft

Amendment 1 will be held at the

following dates, times, and locations:

1. Monday, July 10, 2000—Travelodge

Hotel, Isla Verde Avenue, Isla Verde,

Puerto Rico, from 7 p.m. to 10 p.m.;

2. Tuesday, July 11, 2000—Asociacion

de Pescadores la Villa del Ojo, Bo.

Borinquen, Sector Crash Boat,

Aguadilla, Puerto Rico, from 7 p.m. to

10 p.m.;

3. Wednesday, July 12, 2000—Villa

Parguera Hotel, Carr. 304, Km. 3.3, La

Parguera, Lajas, Puerto Rico, from 7 p.m.

to 10 p.m.;

4. Thursday, July 13, 2000—Reserva

Estuarina Bahia de Jobos, Carr. 705, Km.

2.3, Main Street, Aguirre, Puerto Rico,

from 2 p.m. to 5 p.m.;

5. Tuesday, July 18, 2000—Holiday

Inn, Veterans Drive, Charlotte Amalie,

St. Thomas, U.S.V.I., from 7 p.m. to 10

p.m.; 6. Wednesday, July 19, 2000—

Legislature Building, Hilltop building,

Cruz Bay, St. John, U.S.V.I., from 7 p.m.

to 10 p.m.;

7. Thursday, July 20, 2000—Caravelle

Hotel, 44A Queen Cross St., St. Croix,

U.S.V.I., from 7 p.m. to 10 p.m.;

8. Wednesday, July 26, 2000—Maries

Restaurant, Rd. #3, Km. 70.3, Punta

Santiago, Humacao, Puerto Rico, from 7

p.m. to 10 p.m.;

Special Accommodations

These meetings are physically

accessible to people with disabilities.

For more information or request for sign

language interpretation and other

auxiliary aids, please contact Mr.

Miguel A. Rolon, Executive Director,

Caribbean Fishery Management Council,

268 Munoz Rivera Avenue, Suite 1108,

San Juan, Puerto Rico, 00918–2577,

telephone (787) 766–5926, at least 5

days prior to the meeting date.

Dated: June 26, 2000.

Bruce Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 00–16637 Filed 6–29–00; 8:45 am]

BILLING CODE 3510–22–F