[Federal Register Volume 62, Number 206 (Friday, October 24, 1997)]
[Proposed Rules]
[Pages 55381-55388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28231]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE42


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list 
the Topeka shiner (Notropis topeka) as an endangered species under the 
authority of the Endangered Species Act of 1973 (Act), as amended (16 
U.S.C. 1531 et seq.). The Topeka shiner is a small fish presently known 
from small tributary streams in the Kansas and Neosho river basins in 
Kansas; the Missouri, Grand, Lamine, Chariton, and Des Moines river 
basins in Missouri; the North Raccoon River basin in Iowa; the James 
and Vermillion river watersheds in South Dakota; and, the Rock River 
watershed in Minnesota. The Topeka shiner is threatened by habitat 
destruction, degradation, modification, and fragmentation resulting 
from siltation, reduced water quality, tributary impoundment, stream 
channelization, and stream dewatering. The species is also impacted by 
introduced predaceous fishes. This proposal, if made final, will 
implement Federal protection provided by the Act for Notropis topeka. A 
determination of critical habitat is neither beneficial nor prudent.

DATES: Comments from all interested parties must be received by 
December 23, 1997. Public hearing requests must be received by December 
8, 1997.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to: Field Supervisor, Ecological Services Field Office, 315 
Houston Street, Suite E, Manhattan, Kansas 66502. Comments and 
materials received will be available for public inspection, by 
appointment,

[[Page 55382]]

during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: William H. Gill, Field Supervisor, or 
Vernon M. Tabor, Fish and Wildlife Biologist, at the above address 
(913/539-3474).

SUPPLEMENTARY INFORMATION:

Background

    The Topeka shiner was first described by C.H. Gilbert in 1884, 
using specimens captured from Shunganunga Creek, Shawnee County, Kansas 
(Gilbert 1884). The Topeka shiner is a small, stout minnow, not 
exceeding 75 millimeters (mm) (3 inches (in)) in total length. The head 
is short with a small, moderately oblique mouth. The eye diameter is 
equal to or slightly longer than the snout. The dorsal fin is large, 
with the height more than one half the predorsal length of the fish, 
originating over the leading edge of the pectoral fins. Dorsal and 
pelvic fins each contain 8 rays. The anal and pectoral fins contain 7 
and 13 rays respectively, and there are 32 to 37 lateral line scales. 
Dorsally the body is olivaceous (olive-green), with a distinct dark 
stripe preceding the dorsal fin. A dusky stripe is exhibited along the 
entire longitudinal length of the lateral line. The scales above this 
line are darkly outlined with pigment, appearing cross-hatched. Below 
the lateral line the body lacks pigment, appearing silvery-white. A 
distinct chevron-like spot exists at the base of the caudal fin (Cross 
1967; Pflieger 1975; Service 1993).
    The Topeka shiner is characteristic of small, low order 
(headwater), prairie streams with high water quality and cool 
temperatures. These streams generally exhibit perennial flow, however, 
some approach intermittency during summer. At times when surface flow 
ceases, pool levels and cool water temperatures are maintained by 
percolation through the streambed, spring flow and/or groundwater 
seepage. The predominant substrate types within these streams are clean 
gravel, cobble and sand. However, bedrock and clay hardpan overlain by 
a thin layer of silt are not uncommon (Minckley and Cross 1959). Topeka 
shiners most often occur in pool and run areas of streams, seldom being 
found in riffles. They are pelagic (living in open water) in nature, 
occurring in mid-water and surface areas, and are primarily considered 
a schooling fish. Occasionally, individuals of this species have been 
found in larger streams, downstream of known populations, presumably as 
migrants (Cross 1967; Pflieger 1975; Tabor in litt. 1992a).
    Data regarding the food habits and reproduction of Topeka shiners 
are limited and detailed reports have not been published. However, 
Pflieger (Missouri Department of Conservation, in litt. 1992) reports 
the species as a nektonic (swimming independently of currents) 
insectivore. In a graduate research report, Kerns (University of 
Kansas, in litt. 1983) states that the species is primarily a diurnal 
or daytime feeder on insects, with chironomids (midges), other 
dipterans (true flies), and ephemeropterans (mayflies), making up the 
bulk of the diet. However, the microcrustaceans cladocera and copapoda 
(zooplanktons) also contribute significantly to the species' diet. The 
Topeka shiner is reported to spawn in pool habitats, over green sunfish 
(Lepomis cyanellus) and orangespotted sunfish (Lepomis humilis) nests, 
from late May through July in Missouri and Kansas (Pflieger 1975; Kerns 
in litt. 1983). Males of the species are reported to establish small 
territories near these nests. Pflieger (in litt. 1992) states that the 
Topeka shiner is an obligate spawner on silt-free sunfish nests, while 
Cross (University of Kansas, pers. comm. 1992) states that it is 
unlikely that the species is solely reproductively dependent on 
sunfish, and suggests that the species also utilizes other silt-free 
substrates as spawning sites. Data concerning exact spawning behavior, 
larval stages, and subsequent development is lacking. Maximum known 
longevity for the Topeka shiner is three years, however, only a very 
small percent of each year class attains the third summer. Young-of-
the-year attain total lengths of 20 mm to 40 mm (.78 to 1.6 in) age 1 
fish 35 mm to 55 mm (1.4 to 2.2 in), and age 2 fish 47 mm to 65 mm (1.8 
to 2.5 in) (Cross and Collins 1975; Pflieger 1975).
    Historically, the Topeka shiner was widespread and abundant 
throughout low order tributary streams of the central prairie regions 
of the United States. The Topeka shiner's historic range includes 
portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South 
Dakota. Stream basins within the range historically occupied by Topeka 
shiners include the Des Moines, Raccoon, Boone, Missouri, Big Sioux, 
Cedar, Shell Rock, Rock, and Iowa basins in Iowa; the Arkansas, Kansas, 
Big Blue, Saline, Solomon, Republican, Smoky Hill, Wakarusa, 
Cottonwood, and Blue basins in Kansas; the Des Moines, Cedar, and Rock 
basins in Minnesota; the Missouri, Grand, Lamine, Chariton, Des Moines, 
Loutre, Middle, Hundred and Two, and Blue basins in Missouri; the Big 
Blue, Elkhorn, Missouri, and lower Loup basins in Nebraska; the Big 
Sioux, Vermillion, and James basins in South Dakota. The number of 
known occurrences of Topeka shiners has been reduced by approximately 
80 percent, with approximately 50 percent of this decline occurring 
within the last 25 years. The species now primarily exists as isolated 
and fragmented populations.
    Recent fish surveys were conducted across the Topeka shiner's 
range. In Missouri, 42 of the 72 sites historically supporting Topeka 
shiners were resurveyed in 1992. The species was collected at 8 of the 
42 surveyed locales (Pflieger, in litt. 1992). In 1995, the remaining 
30 historical sites not surveyed in 1992 and an additional 64 locales, 
thought to have potential to support the species, were sampled. Topeka 
shiners were found at 6 of the 30 remaining historical locations and at 
6 of the 64 additional sites sampled. In total, recent sampling in 
Missouri identified Topeka shiners at 14 of 72 (19 percent) historic 
localities, and at 20 of 136 (15 percent) total sites sampled (Gelwicks 
and Bruenderman 1996). Gelwicks and Bruenderman (1996) also note that 
the species has apparently experienced substantial declines in 
abundance in the remaining extant populations in Missouri, with the 
exception of Moniteau Creek.
    In Iowa, 24 locales within 4 drainages were sampled in 1994 at or 
near sites from which the species was reported extant during surveys 
conducted between 1975 and 1985. The Topeka shiner was captured at 3 of 
24 sites, with these 3 captures occurring in the North Raccoon River 
basin (Tabor, U.S. Fish and Wildlife Service, in litt. 1994). Menzel 
(in litt. 1996) reports 6 collections of the species in 1994 and 1995, 
also from the same drainage.
    In Kansas, 128 sites at or near historic collection localities for 
the Topeka shiner were sampled in 1991 and 1992, The species was 
collected at 22 of 128 (17 percent) sites sampled (Tabor, in litt. 
1992a; Tabor, in litt. 1992b). Extensive stream surveys completed in 
1995 and 1996 identified 10 new localities for Topeka shiners and 
reconfirmed the species in a historic locale where it was believed 
extirpated (Mammoliti, in litt. 1996).
    In South Dakota, the species was recently captured in low numbers 
from one stream in the James River basin and four streams in the 
Vermillion River basin. (Braaten, South Dakota State University, in 
litt. 1991; Schumacher, South Dakota State University, in litt. 1991).
    In Minnesota, 14 streams in the area likely to be occupied by 
Topeka shiners

[[Page 55383]]

were surveyed over the past 10 years. The species was collected from 5 
of 9 (56 percent) streams with historic occurrences, and was not found 
in the 5 streams with no historic occurrences. These locales are all in 
the Rock River drainage (Baker, in litt. 1996).
    In Nebraska, the species was assumed extirpated from all historic 
locales. However, in 1989 the species was discovered in the upper Loup 
River drainage, outside its former known range, where two specimens 
were collected (Michl and Peters 1993). In 1996, a single specimen was 
collected from a stream in the Elkhorn River basin, within the species' 
historic range (Nebraska Game and Parks Commission, in litt. 1997). In 
Nebraska, this was the first collection of a Topeka shiner within the 
known historic range since 1940. It is presently considered extant at 
these two localities (Cunningham, University of Nebraska--Omaha, pers. 
comm. 1996).
    The Topeka shiner began to decline throughout the central and 
western portions of the Kansas River basin in the early 1900's. Cross 
and Moss (1987) report the species present at sites in the Smoky Hill 
and Solomon River watersheds in 1887, but by the next documented fish 
surveys in 1935, the Topeka shiner was absent. The Topeka shiner was 
extirpated from the Wakarusa River watershed during the 1970's (Cross, 
University of Kansas, pers. comm. 1995). The species disappeared from 
the Big Blue River watershed (Kansas River basin) in Nebraska after 
1940 (Clausen, Nebraska Game and Parks Commission, in litt. 1992). The 
last record of the Topeka shiner from the Arkansas River basin, 
excluding the Neosho River watershed, was 1891 near Wichita, Kansas 
(Cross and Moss 1987). In Iowa, the species was extirpated from all 
Missouri River tributaries except the Rock River watershed prior to 
1945. It was also eliminated from the Cedar and Shell Rock River 
watersheds prior to 1945. Since 1945, the Topeka shiner has 
subsequently been extirpated from the Boone, Iowa, and Des Moines 
drainages, with the exception of the North Raccoon River watershed 
(Harlan and Speaker 1951; Harlan and Speaker 1987; Menzel, Iowa State 
University, in litt. 1980; Dowell, University of Northern Iowa, in 
litt. 1980; Tabor in litt. 1994). In Missouri, since 1940 the species 
has been apparently extirpated from many of the tributaries to the 
Missouri River where it formerly occurred, including Perche Creek, 
Petite Saline Creek, Tavern Creek, Auxvasse Creek, Middle River, Moreau 
River, Splice Creek, Slate Creek, Crooked River, Fishing River, Shoal 
Creek, Hundred and Two River, and Blue River watersheds.

Previous Federal Action

    The Topeka shiner first received listing consideration when the 
species was included in the Animal Candidate Review for Listing as 
Endangered or Threatened Species, as a category 2 candidate species, 
published in the Federal Register (56 FR 58816) on November 21, 1991. 
In 1991, the Service's Kansas Field Office began a status review of the 
Topeka shiner, including information gathered from stream sampling and 
requests from knowledgeable individuals and agencies. Included were 
State fish and wildlife conservation agencies, State health and 
pollution control agencies, colleges and universities, and other 
Service offices. The Service subsequently prepared a status report on 
this species dated February 16, 1993 (Service 1993). In the November 
15, 1994, Animal Candidate Review for Listing as Endangered or 
Threatened Species, published in the Federal Register (59 FR 58999), 
the Topeka shiner was reclassified as a category 1 candidate species. 
Category 1 candidates comprised taxa for which the Service had 
substantial information on biological vulnerability and threats to 
support proposals to list the taxa as endangered or threatened. The 
Service has since discontinued the category designations for candidates 
and has established a new policy on the definition of candidate species 
(formerly category 1 candidates). In the February 28, 1996, Review of 
Plant and Animal Taxa That Are Candidates for Listing as Endangered or 
Threatened Species, published in the Federal Register (61 FR 7596), the 
Topeka shiner was reclassified as a candidate species. Candidate 
species are those species for which the Service has on file sufficient 
information on biological vulnerability and threats to support issuance 
of a proposed rule to list as endangered or threatened species.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act and regulations (50 CFR part 424) 
promulgated to implement the listing provisions of the Act set forth 
the procedures for adding species to the Federal ``List of Endangered 
and Threatened Wildlife and Plants.'' A species may be determined to be 
an endangered or threatened species due to one or more of the five 
factors described in Section 4(a)(1). These factors and their 
application to the Topeka shiner (Notropis topeka) throughout the 
species range are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Once abundant and widely 
distributed throughout the central Great Plains and western tallgrass 
prairie regions, the Topeka shiner now inhabits less than 10 percent of 
its original geographic range. The action most likely impacting the 
species to the greatest degree in the past is sedimentation and 
eutrophication resulting from intensive agricultural development. Most 
populations of Topeka shiners occurring west of the Flint Hills region 
of Kansas are believed to have been extirpated prior to 1935 (Cross and 
Moss 1987). Minckley and Cross (1959) report that watersheds with high 
levels of cultivation, and subsequent siltation, and domestic pollution 
are unsuitable for the species. These streams often cease to flow and 
become warm and muddy during the summer months. Cross (1970) indicates 
that some of the areas where depletion of the species has occurred also 
coincide with areas having poor aquifers. Pflieger (1975) reports that 
increased siltation as a result of intensive cultivation may have 
reduced the amount of Topeka shiner habitat in Missouri. Pflieger (in 
litt. 1991) also reports that a known population of the species in 
Boone County, Missouri was extirpated between 1970 and 1976, presumably 
due to increased turbidity and nutrient enrichment resulting from 
urbanization and highway construction. Feedlot operations on or near 
streams are also known to impact prairie fishes due to organic input 
resulting in eutrophication (Cross and Braasch 1968).
    The species was historically known from open pools of small prairie 
streams with cool, clear water. Many streams of this nature reportedly 
existed throughout the geographic range of the Topeka shiner ``prior to 
the plowing of the prairie sod'' (Cross 1967). These conditions 
continue to exist in many of the streams in the Flint Hills region of 
Kansas, primarily due to shallow, rocky soils with numerous limestone 
exposures which prevent cultivation. This is in contrast to the 
perturbation of the natural fish faunas and their associated habitats 
in prairie areas more suitable to intensive rowcrop agriculture, which 
is characteristic of the vast majority of the natural range of the 
species (Menzel et al. 1984). Menzel et al. (1984) also notes 
accelerated rates of soil erosion and instream deposition of fluvium 
(deposits caused by the action of flowing water) throughout many former 
prairie streams in Iowa,

[[Page 55384]]

encompassed by the former range of the species. Today, outside the 
Flint Hills region of Kansas, only a few, small isolated areas not 
severely impacted, or impacted to an extent within the tolerance of the 
species, continue to exist.
    Mainstem reservoir development, tributary impoundment, and 
channelization have also impacted the species in some areas. 
Populations located within small tributary streams upstream from both 
mainstem and tributary impoundments attempt to utilize these water 
bodies as refuges from drying streams during periods of drought. During 
this time, the populations are subject to predation by larger predatory 
fish inhabiting the impounded water bodies. In unaltered systems, fish 
move downstream during drought to find suitable habitat. Deacon (1961) 
reports fishes characteristic of the small and mid-sized tributaries of 
the Neosho and Marais des Cygnes rivers' watersheds occurred in the 
mainstems following several years of protracted drought in the mid-
1950's. Tributary dams also serve to block migration of fishes upstream 
following drought, effectively prohibiting recolonization of upstream 
reaches.
    Several recently extant populations have been extirpated from 
tributaries to Tuttle Creek and Clinton reservoirs, both mainstem 
impoundments in the Kansas River basin of eastern Kansas. The species 
continues to exist in two tributaries to Tuttle Creek Reservoir; 
however, during sampling on one of these streams in 1994 only a single 
Topeka shiner was captured. All populations within the Wakarusa River 
watershed (Clinton Reservoir) are believed extirpated. Clinton 
Reservoir's completion coincided with large scale development of 
tributary impoundments throughout the Wakarusa's upper basin which may 
have compounded impacts to the species. Layher (1993) reports the 
extirpation of Topeka shiners from a stream following construction of a 
single tributary impoundment in Chase County, Kansas. Layher reported 
that the species had disappeared both upstream and downstream of the 
dam site, and noted significant habitat changes below the impoundment. 
Pflieger (in litt. 1992) reports that an abundant population of the 
species in Missouri was extirpated following construction of an 
impoundment. This population, located downstream from the dam site, was 
not present when revisited several years after construction. The 
habitat had changed from clear rocky pools, to pools filled with 
gravel, layered over by silt and choked with filamentous algae. 
Pflieger further reports that ``the SCS (Soil Conservation Service) 
reservoir has profoundly altered the hydrology and biota of this stream 
by eliminating the scouring floods that formerly created pool habitat 
and maintained the rocky, silt-free substrate.'' During 1994 sampling 
efforts in southeast Iowa, a stream with recent records of the species 
was found to have been impacted by the construction of multiple 
impoundments throughout its upper reaches and tributaries. No Topeka 
shiners were captured (Tabor in litt. 1994). Impoundment of prairie 
streams has also resulted in the documented extirpation of other 
prairie stream minnow species (Winston et al. 1991).
    In Kansas, substantial tributary impoundment is occurring 
throughout the Flint Hills region, threatening Topeka shiners in these 
locales. As of 1993, 46 tributary impoundments had been completed in or 
near habitat for the Topeka shiner in the Cottonwood River basin, with 
an additional 115 planned for construction (Service in litt. 1993). 
Presently in the Mill Creek watershed, the largest remaining complex of 
habitat for the species, 16 dams have been completed, with an 
additional 48 planned (Hund, Mill Creek Watershed District, pers. comm. 
1997; State Conservation Commission of Kansas, in litt. 1992). Dam 
construction is also a threat to the species throughout the rest of the 
species' range, but to a lower degree due to less immediate and 
intensive development.
    Stream channelization has also occurred throughout much of the 
Topeka shiner's range. Channelization negatively impacts many aquatic 
species, including the Topeka shiner, by eliminating and degrading 
instream habitat types, altering the natural hydrography (physical 
characteristics of surface waters), and by changing water quality 
(Simpson et al. 1982). Intensive channelization of low order streams 
throughout the species' Iowa and Minnesota range is suspect in the 
species' drastic decline in these areas. Menzel (in litt. 1980) reports 
the extirpation of Topeka shiners from previous collection sites 
following stream channelization projects in Iowa. During 1994 status 
surveys across this portion of the range, most streams were found to 
have been severely altered from natural conditions (Tabor in litt. 
1994). Changes included elimination of pool habitats, instream debris, 
and woody riparian vegetation. Water velocities were consistently high 
throughout the channel and deep silt was the dominant substrate. It is 
suspected that the Topeka shiner is an obligate spawner on sunfish 
(Lepomis spp.) nests (Pflieger in litt. 1992) or other silt-free 
substrates, but no sunfish were captured, nor suitable sunfish spawning 
habitat observed in these channelized streams. At Iowa sites where 
Topeka shiners were captured, streams were not intensively channelized 
and many natural conditions persisted.
    Intensive land-use practices, dewatering of streams, and continuing 
tributary impoundment and channelization represent the greatest 
existing threats to the Topeka shiner. Grazing of riparian zones and 
the removal of riparian vegetation to increase tillable acreage greatly 
diminish a watershed's ability to filter sediments, organic wastes and 
other impurities from the stream system (Manci 1989). Irrigation draw-
down of groundwater levels affect surface and subsurface flows which 
can impact the species. At present, both Federal and State planning for 
development of watershed impoundments and channelization continue in 
areas with populations of Topeka shiners. Several impoundments are 
planned for construction on streams with abundant numbers of the 
species. Portions of these stream reaches will be inundated by the 
permanent pools of the reservoirs, imperiling the species' future 
existence in these localities. Prior to the planning of the 
impoundments, these populations of Topeka shiners were considered to be 
the most stable range-wide, due to their occurrence in watersheds 
dominated by high quality prairie with generally very good grazing 
management and land stewardship.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Some collecting of Topeka shiners by individuals 
for use as bait fish and display in home aquaria does occur. However, 
overutilization is not thought to currently contribute to the decline 
of the Topeka shiner.
    C. Disease or predation. There have been no studies conducted on 
the impacts of disease or predation upon the Topeka shiner; therefore, 
the significance of such threats to the species is presently unknown. 
Disease is not likely to be a significant threat except under certain 
habitat conditions, such as crowding during periods of reduced flows, 
or episodes of poor water quality, such as low dissolved oxygen or 
elevated nutrient levels. During these events, stress reduces 
resistance to pathogens and disease outbreaks may occur. Parasites, 
bacteria, and viral agents are generally the most common causes of 
mortality. Lesions caused by

[[Page 55385]]

injuries, bacterial infections, and parasites often become the sites of 
secondary fungal infections. However, Topeka shiners captured from a 
Missouri stream in 1996 were discovered to be afflicted with scoliosis, 
a condition of deformity affecting the vertebrae. Scoliosis can result 
from contact with environmental contaminants, or severely reduced 
genetic variability resulting from geographic isolation. No causal 
factor for this occurrence has been identified.
    The green sunfish (Lepomis cyanellus) is the most common predator 
typical of Topeka shiner habitat throughout its range. The spotted bass 
(Micropterus punctulatus) and largemouth bass (M. salmoides) are also 
naturally occurring predators of the Topeka shiner in portions of its 
range but to a much lower degree due to minimal habitat overlap. These 
bass species typically occur in only the downstream extremes of Topeka 
shiner habitat. The construction of impoundments on streams with Topeka 
shiners and the subsequent introduction of piscivorous (fish eating) 
fish species not typically found in headwater habitats, such as 
largemouth bass, crappie (Pomoxis spp.), white bass (Morone chrysops), 
northern pike (Esox lucius), and channel catfish (Ictalurus punctatus), 
may affect the species during drought or periods of low flows when 
Topeka shiners seek refuge in the impoundments or permanent stream 
pools now occupied by these introduced fishes. The most common fishes 
captured in streams directly upstream and downstream of tributary 
impoundments in Kansas are largemouth bass, crappie, and bluegill 
(Lepomis macrochirus), and these species are often captured to the 
exclusion of cyprinids, including Topeka shiner (Mammoliti, Kansas 
Department of Wildlife and Parks, pers. comm., 1997). Tabor (in litt. 
1994) captured only largemouth bass from a stream segmented by numerous 
dams in Iowa. A cooperative report completed by the Soil Conservation 
Service and Kansas Department of Health and Environment (1981) on the 
effects of watershed impoundments on Kansas streams states that 
predacious game fishes increased in abundance, and several minnow 
species, including the Topeka shiner, decreased in abundance upstream 
and downstream from dam sites following impoundment. While the extent 
of predation is undocumented, known populations have apparently been 
extirpated in the time period immediately following impoundment of 
several low order streams (Layher 1993; Pflieger, in litt. 1992; Tabor, 
in litt. 1992b). Topeka shiners were also reportedly extirpated from a 
small impoundment previously lacking largemouth bass, following 
stocking of largemouth bass (Prophet et al. 1981). Extirpation of the 
Topeka shiner from small, direct tributary streams to large mainstem 
impoundments has also been documented. These extirpations presumably 
occurred in part due to predation by introduced piscivorous fishes 
during drought and low flow periods when Topeka shiners seek refuge in 
permanent water downstream from their typical headwater habitats 
(Service 1993).
    D. The inadequacy of existing regulatory mechanisms. In Kansas, the 
Topeka shiner is listed as ``species in need of conservation,'' under 
the Kansas Nongame and Endangered Species Conservation Act of 1975. 
This status prohibits the direct taking of specimens but does not 
protect habitat or give opportunity to review actions or projects which 
may affect the species in Kansas. Under Missouri law, the species is 
listed as endangered. This status prohibits direct taking of specimens 
and provides a limited review process to suggest remediation for 
actions potentially impacting the species' habitat. Minnesota, 
Nebraska, and South Dakota consider it a species of concern, with no 
legal protection. In Iowa, the species has no legal status.
    At present, only Missouri provides statutory protection for both 
the species and its habitat. No significant protections exist for the 
Topeka shiner and its habitat in the other states encompassing its 
range. Listing under the Act would provide significant protection 
against taking of the species, ensure coordinated review of Federal 
actions which may affect its habitat, and encourage proactive 
management throughout its range.
    E. Other natural and manmade factors affecting its continued 
existence. In the species' Missouri range, possible interspecific 
competition between the Topeka shiner and the introduced blackstripe 
topminnow (Fundulus notatus) has been suggested (Pflieger, in litt. 
1992). The absence of the Topeka shiner from suitable habitat, with 
blackstripe topminnow present, has also been observed in Kansas 
(Mammoliti, pers. comm. 1997). Both species are nektonic insectivores 
utilizing similar pool habitat. At present, the extent of possible 
competition between these species is undocumented. In degraded or 
suboptimal habitat conditions where Topeka shiners persist, competition 
by species more tolerant to these conditions, such as red shiner 
(Cyprinella lutrensis), may negatively affect the species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in determining to propose this 
rule. Based on this evaluation, the preferred action is to list the 
Topeka shiner as endangered. Endangered status, which means that the 
species is in danger of extinction throughout all or a significant 
portion of its range, is appropriate for the Topeka shiner because of 
its significantly reduced range, including the apparent extirpation of 
the species throughout most of its historic range. Threatened status 
does not appear appropriate considering the extent of the species' 
population decline and the vulnerability of the remaining populations.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection and; (ii) specific areas outside the geographic areas 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for the 
Topeka shiner at this time. The Service's regulations (50 CFR 
424.12(a)(1)) state that a designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    Section 7 of the Act requires that Federal agencies refrain from 
contributing to the destruction or adverse modification of critical 
habitat in any action authorized, funded or

[[Page 55386]]

carried out by such agency (agency action). This requirement is in 
addition to the section 7 prohibition against jeopardizing the 
continued existence of a listed species, and it is the only mandatory 
legal consequence of a critical habitat designation. Implementing 
regulations (50 CFR part 402) define ``jeopardize the continuing 
existence of'' and ``destruction or adverse modification of'' in very 
similar terms. To jeopardize the continuing existence of a species 
means to engage in an action ``that reasonably would be expected to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species.'' Destruction or adverse modification of habitat 
means an ``alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed species.'' 
Common to both definitions is an appreciable detrimental effect to both 
the survival and the recovery of a listed species. In the case of 
adverse modification of critical habitat, the survival and recovery of 
the species has been significantly diminished by reducing the value to 
the species' designated critical habitat. Thus, actions satisfying the 
standard for adverse modification also jeopardize the continued 
existence of the species concerned.
    Many activities that pose threats to the continued existence of the 
Topeka shiner are funded, permitted, or carried out by Federal agencies 
(e.g., channelization, impoundment, dredge and fill, and other stream 
and wetland modification projects). Programs that result in these 
activities in Topeka shiner habitat are most often regulated by the 
U.S. Army Corps of Engineers and the U.S. Department of Agriculture, 
Natural Resources Conservation Service, under a variety of authorities, 
and are thus subject to section 7 consultation under the Act. In areas 
where suitable habitat exists within the historical range of the Topeka 
shiner, but the species is not present, the section 7 process would 
still allow for the jeopardy threshold to be reached. Considerations in 
such cases would include, but not be restricted to, proximity to extant 
populations and areas essential for the recovery of the species. As 
explained above, designation of critical habitat would not provide any 
additional protection to the species beyond those already provided by 
listing the species.
    Other State or private actions resulting in ``take'' of Topeka 
shiners would be prohibited by section 9 of the Act, and remediation of 
those potential threats would not be significantly advanced by 
designation of critical habitat.
    Recovery activities to assist landowners in maintaining or 
improving the habitat quality of their streams or otherwise addressing 
known threats to Topeka shiners would not benefit from a designation of 
critical habitat. However, such conservation and recovery actions could 
be significantly impaired by public apprehension or misunderstanding of 
a critical habitat designation.
    Intentional taking of the Topeka shiner is not known to be a 
problem. The Topeka shiner is found in very specialized, easily 
accessible and identifiable habitat characterized by small volumes of 
flow. It is possible that a local population could be intentionally 
eliminated. Publication of maps providing its precise locations and 
descriptions of critical habitat, as required for the designation of 
critical habitat, would reasonably be expected to increase the degree 
of threat to the species, increase the difficulties of enforcement, and 
could further contribute to the decline of the Topeka shiner.
    In light of the above, the Service concludes that designation of 
critical habitat would not be beneficial to the species and could 
increase the degree of threat to the species from taking. Therefore, 
designation of critical habitat for the Topeka shiner is neither 
beneficial nor prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against taking and harm are 
discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer with the Service on 
any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    A number of Federal agencies have jurisdiction and responsibilities 
potentially affecting the Topeka shiner, and section 7 consultation may 
be required in a number of instances. Federal involvement is expected 
to include the Corps of Engineers throughout the species' range in the 
administration of Section 404 of the Clean Water Act. The U.S. 
Environmental Protection Agency will consider the Topeka shiner in the 
registration of pesticides, adoption of water quality criteria, and 
other pollution control programs. The U.S. Department of 
Transportation, Federal Highway Administration, will consider the 
effects of bridge and road construction at locations where known 
habitat may be impacted. The U.S. Department of Agriculture, Natural 
Resources Conservation Service and Farm Service Agency, will need to 
consider the effects of structures and channelization projects 
installed under the Watershed Protection and Flood Prevention Act, (16 
U.S.C. 1001-1009, Chapter 18; Pub.L. 83-566, August 4, 1954, c 656, 
Sec. 1, 68 Stat. 666; as amended), ``Farm Bill'' programs, and other 
activities which may impact water quality, quantity, or timing of 
flows. The Federal Energy Regulatory Commission will consider potential 
impacts to the Topeka shiner and its habitat resulting from gas 
pipeline construction over streams and from hydroelectric development.
    Private actions, that are not federally funded or permitted, 
undertaken within or near habitat occupied by Topeka shiners, would not 
be subject to the regulations as stated above in section 7 of the Act. 
Some examples of private actions not subject to section 7 consultation 
include, but are not limited to: farming and ranching practices, 
construction of private stock watering ponds on normally dry channels, 
and fuelwood harvest. However, private actions that result in ``take'' 
of Topeka shiners, as discussed below, would be prohibited by section 9 
of the Act.
    The Act and its implementing regulations set forth a series of 
general

[[Page 55387]]

prohibitions and exceptions that apply to all endangered wildlife. The 
prohibitions, codified at 50 CFR 17.21, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or 
collect; or to attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any species that has been taken illegally. Certain exceptions apply to 
agents of the Service and State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and/or for incidental take in 
connection with otherwise lawful activities.
    Requests for copies of the regulations regarding listed wildlife 
and inquiries about prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, 
Denver, Colorado 80225 (303/236-8189) or fax (303/236-0027).
    It is the policy of the Service to identify, to the extent known at 
the time a species is listed, specified activities that will and will 
not be considered likely to result in violation of section 9 of the 
Act. The intent of this policy is to increase public awareness of the 
effect of the listing on ongoing and likely activities within a 
species' range. The Service believes the actions listed below would not 
result in a violation of section 9.
    (1) Grazing within watersheds at levels consistent with the long 
term management of the range or prairie ecosystem, thus precluding 
water quality and stream habitat degradation, except where the Service 
has determined that such activity would negatively impact the species;
    (2) Cropping within stream corridors where stable riparian 
vegetation buffers exist, with the buffers serving as filtering 
mechanisms for non-point source runoff, decreasing sediment, nutrient, 
and pesticide input into streams, except where the Service has 
determined that such activity would negatively impact the species;
    (3) Construction of small stock watering ponds in upland areas on 
normally dry drainage; and
    (4) Prescribed burns at levels consistent with the long-term 
management of the range or prairie ecosystem, except where the Service 
has determined that such activity would negatively impact the species.
    The Service believes that the actions listed below may result in a 
violation of section 9; however, possible violations are not limited to 
these actions alone:
    (1) Unauthorized collecting or handling of the species;
    (2) Destruction or alteration of the species' habitat (i.e., 
actions that change water quality, quantity, and/or timing of flows; 
dredging or other physical modifications that impact instream habitat;
    (3) The introduction of nonnative species;
    (4) Use of fertilizers or pesticides inconsistent with approved 
labeling and application procedures; and
    (5) Contamination of soil, streams, or groundwater by spills, 
discharges, or dumping of chemicals, silt, or other pollutants.
    Questions regarding whether a specified activity will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Manhattan, Kansas Field office (see ADDRESSES section).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on the species.
    Final promulgation of the regulation(s) on this species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of the publication of the proposal in the Federal 
Register. Such requests must be made in writing and addressed to Field 
Supervisor, Manhattan, Kansas (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determination

    The Service has examined the regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Manhattan, Kansas Field Office (See 
ADDRESSES section).

Author

    The primary author of this proposed rule is Vernon M. Tabor, U.S. 
Fish and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes 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. Section 17.11(h) is amended by adding the following, in 
alphabetical order under ``FISHES,'' to the List of Endangered and 
Threatened Wildlife:

[[Page 55388]]

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate                                                           
--------------------------------------------------------                        population where                                  Critical     Special  
                                                            Historic range       endangered or         Status      When listed    habitat       rules   
           Common name                Scientific name                              threatened                                                           
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Fishes                                                                                                                                                  
                                                                                                                                                        
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Shiner, Topeka...................  Notropis Topeka.....  U.S.A. (KS, IA, MN,  Entire.............  E               ...........           NA           NA
                                                          MO, E, SD).                                                                                   
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: October 2, 1997
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-28231 Filed 10-23-97; 8:45 am]
BILLING CODE 4310-55-P