[Federal Register Volume 65, Number 127 (Friday, June 30, 2000)]
[Proposed Rules]
[Pages 40576-40600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16399]


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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.

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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.

[[Page 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,

[[Page 40578]]

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 self-sustaining 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

[[Page 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]
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                                                                     Occupied                       Unoccupied                         Total
                         County                          -----------------------------------------------------------------------------------------------
                                                            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
                                                         -----------------------------------------------------------------------------------------------

[[Page 40580]]

 
        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

[[Page 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

[[Page 40582]]

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 life-history 
strategies and microhabitat preferences that enable them to cope with 
these conditions. Matthews (1987) classified several species of fishes, 
including the Arkansas River shiner, based on their tolerance for 
adverse conditions and selectivity for physicochemical gradients. The 
Arkansas River shiner was described as having a high thermal and oxygen 
tolerance, indicating a high capacity to tolerate elevated temperatures 
and low dissolved oxygen concentrations (Matthews 1987). Observations 
from the Canadian River in 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  deg.Celsius (32.7 to 98.2 
deg.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.

[[Page 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 open-water, broadcast spawners that 
release their eggs and sperm over an unprepared substrate (Platania and 
Altenbach 1998, Johnston 1999). Examination of Arkansas River shiner 
gonadal development between 1996 and 1998 in the Canadian River 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 mid-
water column during elevated flows. Spawning under these conditions 
would allow the eggs to remain suspended during the 10- to 30-minute 
period the eggs were non-buoyant. Once 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

[[Page 40584]]

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

[[Page 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.

[[Page 40586]]

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-to-
government 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

[[Page 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 cost-benefit 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. Non-Federal 
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 non-Federal 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
----------------------------------------------------------------------------------------------------------------
                                        Activities potentially
                                           affected by the
                                       designation of critical
                                           habitat in areas          Activities potentially affected by the
       Categories of activities        occupied by the Species    designation of critical habitat in unoccupied
                                        (in addition to those                         areas
                                        affected from listing
                                             the species)
----------------------------------------------------------------------------------------------------------------
Federal activities potentially         None...................  Activities such as those affecting waters of the
 affected \1\.                                                   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.

[[Page 40588]]

 
Private or other non-Federal           None...................  Activities that require a Federal action
 Activities Potentially Affected \2\.                            (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.
----------------------------------------------------------------------------------------------------------------
\1\ Activities initiated by a Federal agency.
\2\ Activities 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.

[[Page 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 Sec. 17.11(h), by revising the entry for ``shiner, 
Arkansas River'' under ``FISHES'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                       Vertebrate
----------------------------------------------------------                          population where                                                           Critical     Special
                                                               Historic range         endangered or          Status                  When listed               habitat       rules
            Common name                Scientific name                                 threatened
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                       *                  *                  *                  *                  *                  *                  *
              Fishes
 
                                       *                  *                  *                  *                  *                  *                  *
Shiner, Arkansas River............  Notropis girardi.....  U.S.A. (AR, KS, NM,    Arkansas River Basin  T                                               653  Sec.  17.95           NA
                                                            OK, TX).               (AR, KS, NM, OK,                                                                  (e)
                                                                                   TX).
 
                                       *                  *                  *                  *                  *                  *                  *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    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).


Sec. 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

[[Page 40590]]

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

[[Page 40591]]

[GRAPHIC] [TIFF OMITTED] TP30JN00.000


[[Page 40592]]


    [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., 
NW\1/4\ Sec. 14) downstream to the confluence with Coetas Creek, Potter 
County, Texas (35 deg.27'53" N, 101 deg.52'46" W).

[[Page 40593]]

[GRAPHIC] [TIFF OMITTED] TP30JN00.001


[[Page 40594]]


    [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 deg.56'02" 
N, 100 deg.22'00" W) downstream to Indian Nation Turnpike bridge 
northwest of McAlester, Oklahoma (IM T.8N., R.13E., SE\1/4\ SW\1/4\ 
SE\1/4\ Sec. 23).

[[Page 40595]]

[GRAPHIC] [TIFF OMITTED] TP30JN00.002


[[Page 40596]]


    [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., 
NW\1/4\ SE\1/4\ SE\1/4\ 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).

[[Page 40597]]

[GRAPHIC] [TIFF OMITTED] TP30JN00.003


[[Page 40598]]


    [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).

[[Page 40599]]

[GRAPHIC] [TIFF OMITTED] TP30JN00.004


[[Page 40600]]


    [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