Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules 55381

SUPPLEMENTARY INFORMATION:

Background

The Coast Guard’s Vessel Information

System (VIS) would collect manage the

data needed to provide a nationwide

pool of vessel and vessel owner

information that will help in

identification and recovery of stolen

vessels, and deter vessel theft and fraud.

Establishment of VIS is required by

statute. 46 U.S.C. 12501–07.

Because of the capability to retrieve

information by the names or other

unique identifiers of individuals, VIS is

subject to the Privacy Act, which would

impose many restrictions on the use and

dissemination of information in the

system. However, because VIS would be

used for law enforcement purposes, it

may be exempted from some of these

restrictions.

Privacy Act Exemption

Under subsection (k) of the Privacy

Act (5 U.S.C. 552a(k)), qualifying

records may be exempted from various

provisions of the Act. Among these

provisions are the requirement in

subsection (c)(3) to maintain an

accounting of disclosures of information

from a system of records and make that

accounting available on request to the

record subject; in subsection (d) to grant

to a record subject access to information

maintained on him/her under the Act;

in subsection (e)(1) to maintain only

such information as is relevant and

necessary to accomplish a purpose of

the agency under statute or Executive

Order; in subsection (e)(4)(G), (H), and

(I) to advise record subjects of the

agency procedures to request if a system

of records contains records pertaining to

them, how they can gain access to such

records and contest their content, and

the categories of sources of such

records; and in subsection (f) to

establish rules governing the procedures

above.

Under Subsection (k)(2) of the Privacy

Act (5 U.S.C. 552a(k)(2)), investigatory

material compiled for law enforcement

purposes, other than material

encompassed within Subsection (j)(2),

may be exempted from these provisions,

and DOT proposes to exempt VIS

accordingly; however, if an individual

would be denied any right, privilege, or

benefit to which he/she would

otherwise be entitled by Federal law, of

for which he/she would otherwise be

eligible, as a result of the maintenance

of such material, such material shall be

provided to such individual, except to

the extent that the disclosure of such

material would reveal the identity of a

source who furnished information to the

Government under an express promise

that the identity of the source would be

held in confidence.

Analysis of Regulatory Impacts

This amendment is not a ‘‘significant

regulatory action’’ within the meaning

of Executive Order 12866. It is also not

significant within the definition in

DOT’s Regulatory Policies and

Procedures, 49 FR 11034 (1979), in part

because it does not involve any change

in important Departmental policies.

Because the economic impact should be

minimal, further regulatory evaluation

is not necessary. Moreover, I certify that

this proposal will not have a significant

economic impact on a substantial

number of small entities.

This proposal does not significantly

affect the environment, and therefore an

environmental impact statement is not

required under the National

Environmental Policy Act of 1969. It has

also been reviewed under Executive

Order 12612, Federalism, and it has

been determined that it does not have

sufficient implications for federalism to

warrant preparation of a Federalism

Assessment. This rule does not impose

any unfunded mandates as defined by

the Unfunded Mandates Reform Act of

1995.

Finally, the proposal does not contain

any collection of information

requirements, requiring review under

the Paperwork Reduction Act of 1995.

List of Subjects in 49 CFR Part 10

Penalties, Privacy.

Accordingly, DOT proposes to amend

49 CFR part 10 as follows:

PART 10—[AMENDED]

1. The authority citation to part 10

would continue to read as follows:

Authority: 5 U.S.C. 552a; 49 U.S.C. 322.

2. Part II.A of the Appendix would be

amended by republishing the

introductory text and adding a new

paragraph 15, to read as follows:

Appendix to Part 10—Exemptions

* * * * *

Part II. Specific exemptions.

A. The following systems of records are

exempt from subsection (c)(3) (Accounting of

Certain Disclosures), (d) (Access to Records),

(e)(4)(G), (H), and (I) (Agency Requirements),

and (f) (Agency Rules) of 5 U.S.C. 552a, to

the extent that they contain investigatory

material compiled for law enforcement

purposes in accordance with 5 U.S.C.

552a(k)(2):

* * * * *

15. Vessel Information System, maintained

by the Operations Systems Center, U.S. Coast

Guard (DOT/CG 590). The purpose of this

exemption is to prevent persons who are the

subjects of criminal investigations from

learning too early in the investigative process

that they are subjects, what information there

is in Coast Guard files that indicates that they

may have committed unlawful conduct, and

who provided such information.

* * * * *

Issued in Washington, DC, on October 15,

1997.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 97–27974 Filed 10–23–97; 8:45 am]

BILLING CODE 4910–62–P

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.

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,
55382 Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules

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 (olivegreen), 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 crosshatched. 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. Youngof-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
Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules 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,
55384 Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules

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 rangewide, 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
Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules 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
55386 Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules

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, § 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
Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules 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:
55388 Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Proposed Rules

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or

threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

FISHES

* * * * * * *

Shiner, Topeka ........ Notropis Topeka ..... U.S.A. (KS, IA, MN,

MO, E, SD).

Entire ....................... E .................... NA NA

* * * * * * *

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