[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Rules and Regulations]
[Pages 59808-59846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20048]



[[Page 59807]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Designation of 
Critical Habitat for the Arkansas River Basin Population of the 
Arkansas River Shiner (Notropis girardi); Final Rule

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / 
Rules and Regulations

[[Page 59808]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT84


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for the Arkansas River Basin Population of the 
Arkansas River Shiner (Notropis girardi)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Arkansas River Basin population of 
the Arkansas River shiner (Notropis girardi) pursuant to the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 856 
kilometers (532 miles) of linear distance of rivers, including 91.4 
meters (300 feet) of adjacent riparian areas measured laterally from 
each bank are included within the boundaries of the critical habitat 
designation. The areas that we have determined to possess the features 
that are essential to the conservation of the Arkansas River shiner 
include portions of the Canadian River (often referred to as the South 
Canadian River) in New Mexico, Texas, and Oklahoma, the Beaver/North 
Canadian River in Oklahoma, and the Cimarron River in Kansas and 
Oklahoma, and the Arkansas River in Kansas. As presented in the 
proposed rule, we have excluded from this designation all previously 
designated critical habitat in the Beaver/North Canadian River in 
Oklahoma and the Arkansas River in Kansas under authority of section 
4(b)(2) of the Act. In addition, we have excluded all previously 
proposed critical habitat in Unit 1a of the Canadian River in New 
Mexico and Texas and a portion of Unit 1b in Texas and Oklahoma under 
authority of section 4(b)(2) of the Act.

EFFECTIVE DATE: November 14, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Oklahoma Ecological Services Office, U.S. Fish and Wildlife 
Service, 222 South Houston, Tulsa, Oklahoma 74127-8909 (telephone 918/
581-7458). The final rule, maps, economic analysis, and environmental 
assessment also will be available via the Internet at http://ifw2es.fws.gov/Oklahoma.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Oklahoma Ecological 
Services Office (telephone 918/581-7458; facsimile 918/581-7467).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service, et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force, et al. v. United 
States Fish and Wildlife Service). On December 9, 2004, the Director 
issued guidance to be used in making section 7 adverse modification 
determinations.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides little additional 
protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the

[[Page 59809]]

species that is not already afforded by the protections of the Act 
enumerated earlier, and they directly reduce the funds available for 
direct and tangible conservation actions.

Background

    Background information on the Arkansas River shiner and its habitat 
requirements can be found in our previous final designation of critical 
habitat for this species, published in the Federal Register on April 4, 
2001 (66 FR 18002). Additional background information is also available 
in our recent proposal of critical habitat for the Arkansas River 
shiner, published on October 6, 2004 (69 FR 59859). That information is 
incorporated by reference into this final rule. This rule, which 
becomes effective on the date listed under EFFECTIVE DATE at the 
beginning of this document, replaces the April 4, 2001, critical 
habitat designation for this species.

Previous Federal Actions

    We previously designated a total of approximately 1,846 kilometers 
(1,148 miles) of rivers, and 91.4 meters (300 feet) of their adjacent 
riparian zones, encompassing portions of the Arkansas River in Kansas, 
the Cimarron River in Kansas and Oklahoma, the Beaver/North Canadian 
River in Oklahoma, and the Canadian River in New Mexico, Texas, and 
Oklahoma on April 4, 2001 (66 FR 18002). On April 25, 2002, the New 
Mexico Cattle Growers Association and 16 other plaintiffs filed a 
complaint in United States District Court for the District of New 
Mexico for alleged violations of the Act, the Administrative Procedure 
Act, and NEPA. A Memorandum Opinion in that case was issued by Senior 
U.S. District Judge C. LeRoy Hansen in September of 2003 that vacated 
critical habitat for the Arkansas River shiner and ordered the Service 
to complete a final rulemaking to redesignate critical habitat by 
September 30, 2005. In accordance with this Memorandum Opinion, we 
published a proposed rule to designate 2,002 kilometers (1,244 miles) 
of linear distance of rivers, including 91.4 meters (300 feet) of 
adjacent riparian areas measured laterally from each bank on October 6, 
2004. This distance included areas that were proposed to be excluded in 
the final rule. We extended the comment period associated with this 
proposed rule on April 28, 2005 (70 FR 21987). On August 1, 2005, we 
published a notice announcing the availability of the draft economic 
analysis (DEA) and draft environmental assessment, public hearing 
locations and dates, and reopening of the public comment period (70 FR 
44078).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Arkansas River shiner in the 
proposed rule published on October 6, 2004 (69 FR 59859). We also 
contacted the appropriate Federal, State, and local agencies, Tribes, 
scientific organizations, and other interested parties and invited them 
to comment on the proposed rule. The initial comment period was open 
from October 6, 2004 through April 30, 2005. We extended this comment 
period until June 17, 2005 (April 28, 2005, 70 FR 21987). A second 
comment period was open from August 1, 2005 to August 31, 2005, to also 
solicit comments on the draft environmental assessment and draft 
economic analysis and to announce the dates, locations, and times of 
the public hearings (70 FR 44078). In addition, we published newspaper 
notices inviting public comment and announcing the public hearings in 
the following newspapers in New Mexico: Quay County Sun; Kansas: Dodge 
City Globe, Hutchinson News Herald, and Wichita Eagle Beacon; Oklahoma: 
Woodward News, The Daily Oklahoman, and Tulsa World; Texas: Amarillo 
Globe News and Lubbock Avalanche Journal. We held three public hearings 
on the proposed rule: Oklahoma City, Oklahoma (August 15, 2005); 
Amarillo, Texas (August 17, 2005); and Liberal, Kansas (August 18, 
2005). Transcripts of these hearings are available for inspection (see 
ADDRESSES section). All comments and new information received during 
the two comment periods have been incorporated into this final rule as 
appropriate.
    A total of 255 commenters responded during the two comment periods, 
including 11 Federal agencies (including elected officials), 7 State 
agencies, 11 private organizations, and 226 individuals. Several 
commenters individually submitted more than one set of comments. We 
received 5 comments after the close of the second comment period, but 
those comments were similar in nature to comments we had already 
received. During the comment period that opened on October 6, 2004, and 
closed on June 17, 2005, we received 26 comments directly addressing 
the proposed critical habitat designation: 2 from peer reviewers, 4 
from Federal agencies, 3 from State agencies, and 5 from private 
organizations. Of the 26 parties responding to the proposal during the 
first comment period, 2 supported the proposed designation, 15 were 
opposed, and 9 provided additional information or otherwise expressed 
no position on the proposal. During the second comment period that 
opened on August 1, 2005, and closed on August 31, 2005, we received 
235 comments directly addressing the proposed critical habitat 
designation, DEA, and draft environmental assessment. Of these latter 
comments, 8 were from a Federal agency, 7 from members of Congress, 7 
from State agencies, 8 from private organizations, and 212 from 
individuals. Many of the comments (138) from private individuals were 
signed form letters. During the second comment period a total of 2 
commenters supported the designation of critical habitat for the 
Arkansas River shiner and 71 opposed the designation. Many of those 
opposing the designation or not expressing a position did express 
support for excluding one or more of the proposed critical habitat 
units. We reviewed all comments for substantive information and new 
data regarding the Arkansas River shiner and its critical habitat. 
Comments have been grouped together by issue and are addressed in the 
following summary. All comments and information have been incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from at least three 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the species occurs, and/or familiarity with the 
principles of conservation biology. Of the six individuals contacted, 
two responded. The peer reviewers who submitted comments generally 
supported the proposal and their comments are included in the summary 
below and incorporated into the final rule, as appropriate.

Peer Review Comments

    (1) Comment: A peer reviewer at an academic institution who 
conducts research on a variety of fish species found our proposal to be 
extremely thorough and appropriate for an understanding of the needs of 
the Arkansas River shiner. He stated that the life history of the 
Arkansas River shiner dictates that long stretches of free-flowing 
water are critical Arkansas River shiner habitats.
    Our Response: As noted by the peer reviewer, we have tried to be as 
thorough as possible, and have considered and applied every known

[[Page 59810]]

study describing the life history and habitat requirements of the 
species when determining critical habitat for the Arkansas River 
shiner.
    (2) Comment: This peer reviewer found the argument for excluding 
the Beaver/North Canadian River in Oklahoma and the Arkansas River in 
Kansas to be convincing and supported using these areas to establish 
experimental populations of the Arkansas River shiner.
    Our Response: We agree that excluded areas still have the features 
that are essential for the Arkansas River shiner and we intend to 
utilize many recovery tools throughout the range of the species, 
including establishing experimental populations, as appropriate.
    (3) Comment: Another peer reviewer at a different academic 
institution who has extensive experience with riverine systems in 
Kansas, New Mexico, and Oklahoma expressed concern regarding proposed 
exclusion of Beaver/North Canadian River in Oklahoma and the Arkansas 
River in Kansas. He stated that our position is based on the assumption 
that Arkansas River shiner populations in these two reaches are either 
so small that they cannot recover or that these populations are 
extirpated. In his opinion, these two reaches have not been sampled 
adequately for us to reach this conclusion. The recent capture of the 
Arkansas River shiner from the Cimarron River near Guthrie, Oklahoma is 
used as an example of our inability to conclude that the Arkansas River 
shiner has been extirpated from any particular reach.
    Our Response: We agree that only a small percentage of either of 
these two reaches have been extensively searched for the Arkansas River 
shiner. We strive to base our listing decisions on the best scientific 
and commercial data available. Unfortunately, extensive survey data for 
both of these reaches were unavailable. We will not designate critical 
habitat in areas outside the geographic area occupied by the species at 
the time of listing when the best available scientific and commercial 
data do not demonstrate that the conservation needs of the species 
require such designation. Additionally, designation of critical habitat 
may not include all of the habitat areas that may eventually be 
determined to be necessary for the recovery of the species. For these 
reasons, critical habitat designations do not mean that habitat outside 
the designation is unimportant or may not be required for recovery. 
Before initiating any efforts to establish experimental populations in 
these reaches, we intend, subject to available funding, to conduct more 
exhaustive surveys of both units.
    We believe a major benefit of excluding areas from critical habitat 
designation is that landowners, local jurisdictions, and other entities 
involved in recovery efforts for the Arkansas River shiner will be more 
willing to work with us in a spirit of cooperation and partnership. A 
possible benefit of including critical habitat on such lands is 
education about the species and its habitat needs. We considered that 
this educational benefit has largely already been met by the public 
participation process, and therefore, that this would not be a 
particularly important benefit of critical habitat designation. We have 
concluded, therefore, that the benefits of excluding critical habitat 
from such lands exceed the value of including the lands as critical 
habitat. See additional discussion under ``Exclusion Under Section 
4(b)(2) of the Act.''
    (4) Comment: This peer reviewer, in his best professional judgment, 
suggested that restoring Arkansas River shiners in the Beaver/North 
Canadian River in Oklahoma and the Arkansas River in Kansas would be 
extremely beneficial considering these repatriated populations would 
help ensure that multiple populations of the species persist. However, 
he expressed reservation that repatriation of the species was the only 
means to accomplish this objective. Instead both habitat restoration 
and repatriation might be necessary or habitat restoration alone would 
be sufficient should remnant populations still persist.
    Our Response: We agree that restoration of Arkansas River shiner 
populations to additional portions of their historical range 
significantly reduces the likelihood of extinction and that some 
habitat restoration may also be necessary. A vital recovery component 
for this species will likely involve establishment of secure, self-
sustaining populations in habitats from which the species has been 
extirpated. While we believe excluding historically occupied areas from 
the critical habitat designation could be detrimental to conservation 
of the species, we also believe negative public perceptions with 
respect to critical habitat could seriously hamper voluntary 
restoration efforts. Establishing experimental populations under 
section 10(j) of the Act appears to be the most appropriate tool to 
utilize in future restoration efforts. We believe the provisions of 
section 10(j) would help foster an atmosphere of cooperation that would 
encourage future voluntary conservation actions. Section 10(j) of the 
Act enables us to designate certain populations of federally listed 
species that are released into the wild as ``experimental.'' The 
circumstances under which this designation can be applied are the 
following: (1) The population is geographically separate from non-
experimental populations of the same species (e.g., the population is 
reintroduced outside the species' current range but within its probable 
historic range); and (2) we determine that the release will further the 
conservation of the species. Section 10(j) is designed to increase our 
flexibility in managing an experimental population by allowing us to 
treat the population as threatened, regardless of the species status 
elsewhere in its range. In situations where we have experimental 
populations, certain section 9 prohibitions (e.g., harm, harass, 
capture) that apply to endangered and threatened species may no longer 
apply, and a special rule can be developed that contains the 
prohibitions and exceptions necessary and appropriate to conserve that 
species. This flexibility allows us to manage the experimental 
population in a manner that will ensure that current and future land, 
water, or air uses and activities will not be unnecessarily restricted 
and the population can be managed for recovery purposes. Please see the 
``Units 2 and 4'' discussion under the ``Exclusion Under Section 
4(b)(2) of the Act'' section below for more detailed information on the 
section 10(j) regulation and process.
    (5) Comment: This peer reviewer expressed concern that we proposed 
to exclude the Beaver/North Canadian River in Oklahoma and the Arkansas 
River in Kansas and was unclear why reintroduction of the Arkansas 
River shiner could not occur in these units if they were designated as 
critical habitat. The importance of these units to the conservation of 
the species would seem to outweigh the benefit of not designating these 
reaches as critical habitat.
    Our Response: We strongly believe that, in order to achieve 
recovery for the Arkansas River shiner, we would need the flexibility 
provided for in section 10(j) of the Act to help ensure the success of 
augmenting and reestablishing Arkansas River Shiner populations in the 
Beaver/North Canadian River and/or the Arkansas River. Use of section 
10(j) is meant to encourage local cooperation through management 
flexibility. Section 10(j)(2)(C)(ii) of the Act states that critical 
habitat shall not be designated under the Act for any experimental 
population determined to be not

[[Page 59811]]

essential to the continued existence of a species. In the case of the 
Arkansas River shiner, the flexibility gained by establishment of an 
experimental population through section 10(j) would be of little value 
if a designation of critical habitat overlaps it. This is because 
Federal agencies would still be required to consult with us on any 
actions that may adversely modify critical habitat. In effect, the 
flexibility gained from section 10(j) would be rendered useless by the 
designation of critical habitat.
    If, during the recovery planning process we determine a revision is 
warranted, we can amend critical habitat at that time. Provided such a 
revision is warranted, and funding available, we could propose revised 
critical habitat and consider any new information provided, both on 
additional areas to be considered in the revision as well as areas 
included in the current designation as essential (i.e., excluded and 
designated areas). Based on the best available science at this time, we 
determine that the areas designated by this rule are sufficient to 
conserve the species.
    (6) Comment: This peer reviewer stated the proposal did a good job 
referencing the existing literature and outlining the factors limiting 
the existence of the Arkansas River shiner. However, he expressed 
concern that much was still unknown and management actions should 
proceed with caution. What was clear was the critical importance of 
habitats in the Arkansas and Beaver/North Canadian Rivers for recovery 
of the species.
    Our Response: We have based this proposal on the best scientific 
and commercial data available but we agree that many details of 
Arkansas River shiner life history and habitat requirements are still 
unknown. Our intent is to implement conservation actions for the 
species in a manner consistent with the available information but which 
avoids or minimizes the risk to the species. We agree that these 
habitats are important for recovery of the species and intend to 
address appropriate conservation of these habitats during the recovery 
planning process. However, based on the current information, which 
indicates these two reaches are unoccupied, we have excluded these 
areas from the final critical habitat designation.

Comments Related to Previous Federal Actions, the Act, and Implementing 
Regulations

    (7) Comment: Designating critical habitat prior to development of a 
recovery plan for the Arkansas River shiner is inappropriate. The 
public should be allowed to participate in developing a recovery plan 
for the species, which would be far more effective than designating 
critical habitat.
    Our Response: We agree that, in an ideal situation, we would have a 
recovery plan in place for any species prior to designating its 
critical habitat. In that way, the public would have input into the 
recovery process, and enough would be known about the species to help 
determine what areas should be designated as critical habitat. However, 
the Act requires that critical habitat be designated concurrently with 
a species' listing or, in some circumstances, within one year of a 
final listing determination. Unfortunately, the Act does not allow for 
a delay in critical habitat designation until after a recovery plan is 
in place.
    It is important to note that the recovery planning process, which 
will allow the involvement of affected individuals; local, state, and 
tribal governments; and others interested in conservation of the 
Arkansas River shiner, will result in development of specific recovery 
actions to be implemented on behalf of the species' conservation. 
Although implementation is not mandatory, the recovery plan provides a 
``blueprint'' for achieving recovery and substantially influences how 
the species is managed under the Act. Thus, although critical habitat 
is usually designated prior to recovery plan development, its on-the-
ground recovery implementation can be influenced by a final recovery 
plan.
    (8) Comment: Critical habitat designation is not necessary and 
provides little conservation benefit or protection to the species.
    Our Response: The Act under section 4(a)(3) requires that critical 
habitat be designated for species listed as threatened or endangered 
unless such designation would not be prudent. We believe such 
designation would be prudent for the Arkansas River shiner. Critical 
habitat designation is only one facet of species conservation. The 
protections afforded listed species under sections 7 and 9 are 
substantial, and a critical habitat designation usually adds only 
marginal protections above those already afforded listed species. 
Partnerships with individual landowners and a variety of stakeholders 
can provide a much greater conservation benefit for listed species, as 
they offer positive management actions that cannot be achieved through 
a critical habitat designation. We agree that designation of critical 
habitat often provides little or no additional benefit to species 
conservation (see ``Designation of Critical Habitat Provides Little 
Additional Protection to Species'').
    (9) Comment: The Service has underestimated the degree to which 
federal actions will trigger section 7 consultation for actions that 
occur within or near critical habitat.
    Our Response: We disagree. As described in the ``Section 7 
Consultation'' section below, consultation would occur when the action 
agency determines that activities they sponsor, fund, or authorize may 
affect federally listed species or are likely to destroy or adversely 
modify their critical habitat. The threshold for triggering section 7 
consultation is clear. During the informal section 7 consultation 
process, we will assist Federal agencies in making a determination if 
their action is likely to affect critical habitat. However, the Federal 
Action Agency has the responsibility to make that determination, not 
us.
    (10) Comment: The comment period for the NEPA document and economic 
analysis were inadequate to allow the public to understand and comment 
meaningfully and should be extended.
    Our Response: The notice of availability for the NEPA document and 
economic analysis published August 1, 2005. We accepted comments on 
these two documents, in addition to the proposed rule, for 30 days 
ending on August 31, 2005. We believe this public comment period 
provided adequate opportunity for public comment. In addition, due to 
the large scope of this rule and in order to comply with our September 
30, 2005, court ordered date for completion of the final rule it would 
not have been possible to extend the comment period beyond August 31, 
2005.

Comments Related to Critical Habitat, Primary Constituent Elements, and 
Methodology

    (11) Comment: The 300-foot lateral extent or ``buffer zone'' is 
excessive and unnecessary.
    Our Response: Critical habitat includes the area of bankfull width 
plus 300 feet on either side of the banks. This is not for the purpose 
of creating a ``buffer zone.'' Rather, it defines the lateral extent of 
those areas we believe contain the features that are essential to the 
species' conservation. Although the Arkansas River shiner cannot be 
found in the riparian areas when they are dry, these areas are 
sometimes flooded and provide habitat during high-water periods. In 
addition, the riparian vegetation within these lateral areas

[[Page 59812]]

provides seeds and insects eaten by Arkansas River shiners, and thus 
contains a primary constituent element of critical habitat.
    The riparian zone also provides an array of important watershed 
functions that directly benefit plains fishes. Vegetation in the 
corridor shades the stream, stabilizes banks, and provides organic 
litter and large woody debris. The riparian zone stores sediment, 
recycles nutrients and chemicals, mediates stream hydraulics, and 
controls microclimate. Healthy riparian zones help ensure water quality 
essential to aquatic life. Conversely, human activities in the riparian 
zone can harm stream function and fishes by directly and indirectly 
interfering with these important functions. Because the riparian 
corridor is particularly susceptible to degradation, we concluded that 
the adjacent riparian corridor would require special management 
consideration and therefore was appropriate for inclusion in critical 
habitat.

Comments Related to Site-Specific Areas

    The following comments and responses involve issues related to the 
inclusion or exclusion of specific stream reaches or our methods for 
selecting appropriate areas for designation as critical habitat.
    (12) Comment: Several commenters expressed support for exclusion of 
various units or portions of those units. One supported exclusion of 
the City of Wichita from Unit 4, four supported exclusion of the 
entirety of Unit 4, four supported exclusion of Units 2 and 4, and 141 
supported exclusion of Unit 2 alone. Others (15) expressed support for 
exclusion of all or a portion of Unit 1a, including the segment within 
the upper reaches of Lake Meredith.
    Our Response: Areas in Unit 1a, Unit 2, and Unit 4 are excluded 
from critical habitat (see ``Exclusion Under Section 4(b)(2) of the 
Act'' section below for a detailed discussion).
    (13) Comment: Several commenters expressed support for exclusion of 
Units 1b and 3 or exclusion of all of the units from the designation.
    Our Response: All proposed areas in Unit 1b and Unit 3, with the 
exception of a 204 km (127 mi) long reach of Unit 1b, were not excluded 
from critical habitat (see ``Exclusion Under Section 4(b)(2) of the 
Act'' section below for a detailed discussion). Units 1b and 3 contain 
all of the primary constituent elements and require special management. 
We cited streamflow alteration, introductions of nonnative species and 
water quality degradation as some of the threats in those areas that 
require special management considerations.
    (14) Comment: Several commenters expressed concern regarding the 
designation of Unit 3. One stated the Cimarron River does not support a 
viable population, two stated the unit is unoccupied by the Arkansas 
River shiner, four stated the portion of Unit 3 in Kansas is 
unoccupied, and five stated the Cimarron River does not support the 
primary constituent elements.
    Our Response: The Cimarron River is included in the designation 
because it contains all of the primary constituent elements and is 
occupied by the species. As stated in this final rule, 16 specimens of 
the Arkansas River shiner were reported captured from the Cimarron 
River between 1985 and 1992. In August of 2004, eight Arkansas River 
shiners were collected near Guthrie, Oklahoma, by SWCA Environmental 
Consultants (Stuart Leon, U.S. Fish and Wildlife Service, in litt. 
2004). While this population is undoubtedly small and is by no means 
secure, it continues to persist over time. Because the Arkansas River 
shiner has a maximum life span of about 3 years, with the majority not 
surviving past two years of age, it is doubtful that the species would 
continue to be collected if a small population did not persist. We 
cannot reasonably conclude the species is extirpated from any portion 
of the Cimarron River unit based on the continued, although infrequent, 
observation of the Arkansas River shiner. Failure to record Arkansas 
River shiner from specific locations in the past several years is 
generally indicative of low population levels but does not necessarily 
support a declaration of extirpation from the entire stream. 
Documentation of small populations is very difficult and often results 
in false declarations of extirpation (Mayden and Kuhajda 1996). At the 
least, this illustrates the need for caution in concluding that a 
population has been extirpated. Fish, particularly small species, are 
often very difficult to locate when population levels are very low.
    We agree that the Cimarron River and many of the other rivers and 
streams historically occupied by the Arkansas River shiner have 
portions that dry either seasonally, during drought conditions, or for 
other natural reasons. This species is adapted to this phenomenon and 
often persists in isolated pools and tributary refugia only to 
recolonize these dewatered areas once flow resumes. If sufficient areas 
of flow persist, and if all other habitat requirements are met, the 
stream is suitable for the species whether or not there is flow 
throughout all areas at all times. Consequently, the absence of the 
Arkansas River shiner from an area during certain periods or under 
certain conditions does not necessarily demonstrate that they are not 
present at other times. As long as a permanent barrier does not exist, 
Arkansas River shiners move fairly long distances within these streams.

Comments Related to National Environmental Policy Act (NEPA) Compliance

    (15) Comment: An Environmental Assessment (EA) is not adequate for 
an action of this magnitude; instead an Environmental Impact Statement 
(EIS) is required.
    Our Response: Our EA considered a no-action alternative and several 
action alternatives and discussed the adverse and beneficial 
environmental impacts of each. We determined through the EA that the 
overall environmental effects of this action are insignificant. An EIS 
is required only if we find that the proposed action is expected to 
have a significant impact on the human environment. Based on our 
analysis and comments received from the public, we prepared a final EA 
and made a Finding of No Significant Impact (FONSI), negating the need 
for preparation of an EIS. We believe our EA was consistent with the 
spirit and intent of NEPA. The final EA, FONSI, and final economic 
analysis provide our rationale for determining that critical habitat 
designation would not have a significant effect on the human 
environment. Those documents are available for public review (see 
ADDRESSES section).

Comments Related to Section 7 Consultation

    (16) Comment: Consultation will result in project-related delays.
    Our Response: As described in the ``Section 7 Consultation'' 
section below, consultation would occur when the action agency 
determines that activities they permit, fund, authorize, or undertake 
may affect federally listed species or destroy or adversely modify 
their critical habitat. The designation of critical habitat only 
affects these activities. Absent Federal permitting, funding, or 
authorization, critical habitat designation on private (non-Federal) 
lands would not obligate or trigger any consultation requirement for 
private (non-Federal) actions on private land.
    Section 3 of the draft economic analysis addressed the 
administrative costs associated with section 7 consultation. The 
duration and complexity of any particular section 7

[[Page 59813]]

consultation can be influenced by a number of factors and may require 
substantial administrative effort on the part of all participants. 
Generally most delays related to project implementation can be avoided 
or minimized if consultation is initiated early during the project 
planning process. The Act specifies timeframes under which 
consultations are to be completed and we strive to meet those 
timeframes.

Comments Related to Biological Concerns

    The following comments and responses involve issues related to the 
biological basis for the designation and status of the Arkansas River 
shiner.
    (17) Comment: The Arkansas River shiner does not require the 
protection of the Act.
    Our Response: The Arkansas River Basin population of the Arkansas 
River shiner was listed as threatened in 1998. Additional information 
on the biology and status of this species and our rationale for the 
listing can be found in the November 23, 1998, final listing 
determination (63 FR 64772).
    (18) Comment: Current soil conservation practices keep runoff from 
entering the river and such measures would likely preclude existence of 
Arkansas River shiner habitat.
    Our Response: Some soil conservation practices, such as terracing, 
are very effective at reducing run-off and may contribute to overall 
declines in peak discharge during rainfall events. However many 
conservation practices, such as construction of terraces, shelterbelts, 
grassed waterways, and certain vegetative plantings, are specifically 
designed to minimize soil erosion and control sedimentation. Without 
these practices in place, soil erosion and ensuing increased siltation 
would likely occur in rivers and streams of the Arkansas River basin. 
We do not believe that construction of terraces, shelterbelts, grassed 
waterways, and other vegetative plantings for conservation are likely 
to significantly impact habitat or threaten survival of the Arkansas 
River shiner.
    (19) Comment: Grazing by livestock will not have an adverse impact 
on the Arkansas River shiner, at least no more significant than grazing 
by other ungulates such as deer or bison.
    Our Response: As stated in the final listing determination (63 FR 
64772), we believe well-managed, free-range livestock grazing is 
compatible with viable Arkansas River shiner populations and will not 
cause significant degradation of the riparian zone. In fact, low to 
moderate grazing and seasonal or rotational grazing practices are 
compatible with many natural resource objectives.
    (20) Comment: The Arkansas River shiner has no lasting value and 
should be allowed to become extinct.
    Our Response: Congress, in section 2 of the Act (Findings, 
Purposes, and Policy), found that numerous species of fish, wildlife, 
and plants had become extinct or were in danger of, or, threatened 
with, extinction due to a lack of concern for their conservation. 
Furthermore, Congress found that these species of fish, wildlife, and 
plants are intrinsically valuable to the nation and its people for 
reasons of aesthetic, ecological, educational, historical, 
recreational, and scientific value (section 2(a)(3)). These findings 
are the basis of the Act.
    A variety of opinions likely exist as to a particular species' 
contribution to society. We believe that conserving all species of 
wildlife has a positive effect on society. Society, like the Arkansas 
River shiner, depends upon reliable supplies of clean water. Conserving 
water resources will help to provide a necessary resource for future 
generations of people and maintain a healthy aquatic ecosystem for fish 
and wildlife. As the health of ecosystems declines, the number of 
species inhabiting those systems decline. In general, the presence of 
rare and declining species is very often a good indicator of failing 
ecosystem health. It would be contrary to the Act and our mission to 
allow the Arkansas River shiner to become extinct without undertaking 
all reasonable conservation actions.
    (21) Comment: The Arkansas River shiner and Red River shiner 
(Notropis bairdi) are not distinct species.
    Our Response: We disagree. While the morphological characteristics, 
life history, and phylogeny of the two fishes are similar, all of the 
published scientific literature concludes the two fishes are separate 
and taxonomically distinct. For example, the scholarly publications on 
the fishes of Oklahoma (Miller and Robison 1973), Arkansas (Robison and 
Buchanan 1988), and Kansas (Cross 1967) all show the two fishes to be 
distinct species. Other scientific publications such as Felley and 
Cothran (1981), Marshall (1978), Cross et al. (1983), and Gilbert 
(1980) also consider these fishes to be separate, distinct taxa. Hubbs 
and Ortenburger (1929) provided the first description of both the 
Arkansas River shiner and the Red River shiner. They considered both to 
be separate and taxonomically distinct. Most recently, Mayden (1989) 
thoroughly examined the phylogenetic relationships of all North 
American minnows. He concluded that the two species are valid and 
distinct. We are not aware of any studies, scholarly or otherwise, 
which suggest these two species are not separate and taxonomically 
distinct.
    (22) Comment: Several commenters provided additional information or 
confirmed the existence of numerous threats to the Arkansas River 
shiner including: impoundments, predation, introduction of Red River 
shiner, water quality degradation, and declining stream flows.
    Our Response: We agree that these and other threats have influenced 
the distribution and abundance of the Arkansas River shiner. Please 
refer to information in this rule or refer to the ``Summary of Factors 
Affecting the Species'' section of our final listing determination (63 
FR 64772).

Comments Related to the Effects of Designation

    The following comments and responses involve issues related to the 
effects of critical habitat designation on land management or other 
activities.
    (23) Comment: We received many comments from individuals expressing 
their concern that critical habitat designation will infringe on their 
rights as private property owners and that the designation could result 
in a reduction in their property's value.
    Our Response: Only activities taking place on private property 
having some sort of Federal nexus (e.g., Federal funding, permitting, 
authorization) could potentially be affected. Our experience has shown 
that the majority of such activities have rarely triggered formal 
section 7 consultation. Please see our economic analysis for further 
information about economic effects of this designation.
    (24) Comment: Numerous commenters expressed concern that the 
designation of critical habitat will restrict access to the affected 
areas, impose land use restrictions, force fencing of the riparian 
zone, further regulate the oil and gas industry, or restrict off-road 
and recreational vehicle use.
    Our Response: Individuals, organizations, States, local and tribal 
governments, and other non-Federal entities could potentially be 
affected by the designation of critical habitat only if their actions 
occur on Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding and the action has the 
potential to affect the species or its critical habitat. In this 
instance, Federal agencies are required to enter into section 7 
consultation with us. Effects of

[[Page 59814]]

the designation on projects with a Federal nexus are explained in the 
``Effect of Critical Habitat Designation'' section. Designation of 
critical habitat does not prescribe specific management actions but 
does serve to identify areas that are in need of special management 
considerations.
    (25) Comment: Off-road vehicle (ORV) use is not affecting the 
Arkansas River shiner.
    Our Response: Specific information on this issue is lacking, 
however it is possible that heavy recreation use may adversely impact 
the stream and habitat for the Arkansas River shiner, particularly 
during periods of low flow. Recreational activities involving a Federal 
nexus are rare within any of the units and occur primarily within Unit 
1a. The entirety of Unit 1a, including the Rosita ORV area, has been 
excluded from the final critical habitat designation, thus should not 
be influenced by the designation of critical habitat. However, the 
National Park Service is contemplating restrictions within the Rosita 
ORV area to prevent potential adverse impacts to the Arkansas River 
shiner under the jeopardy standard. The primary adverse impacts involve 
use of the river channel during the spawning season and during 
summertime low-flow periods when fish are concentrated in isolated 
pools. The Rosita ORV area is considered to be occupied by the Arkansas 
River shiner; therefore, this restriction is being considered 
regardless of the critical habitat designation.
    (26) Comment: The designation of critical habitat will result in 
control of, or ``taking'' of, private property in violation of the 
rights granted under the Fifth and Tenth Amendments to the U.S. 
Constitution.
    Our Response: The mere promulgation of a regulation, like the 
enactment of a statute, does not take private property unless the 
regulation on its face denies the property owners all economically 
beneficial or productive use of their land (Agins v. City of Tiburon, 
447 U.S. 255, 260-263 (1980); Hodel v. Virginia Surface Mining and 
Reclamation Ass'n, 452 U.S. 264, 195 (1981); Lucas v. South Carolina 
Coastal Council, 505 U.S. 1003, 1014 (1992)). The Act does not 
automatically restrict all uses of critical habitat, but only imposes 
requirements under section 7(a)(2) on Federal agency actions that may 
result in destruction or adverse modification of designated critical 
habitat. This requirement does not apply to private actions that do not 
need Federal approvals, permits, or funding. Furthermore, as discussed 
above, if a biological opinion concludes that a proposed action is 
likely to result in destruction or modification of critical habitat, we 
are required to suggest reasonable and prudent alternatives. In 
accordance with Executive Order 12630, we conclude that this 
designation does not have significant takings implications (see 
``Required Determinations'' section below).

Comments Related to Recovery

    The following comments and responses involve issues related to 
recovery and recovery planning for the Arkansas River shiner. Although 
not relevant to the designation of critical habitat, we chose to 
address some of the comments related to this issue.
    (27) Comment: Some comments expressed concern regarding 
implementation of unfavorable recovery actions or noted that the 
details, costs, and recovery goals of the recovery program have not 
been provided. Others mentioned specific tasks, such as further 
research, captive propagation, control of salt cedar (Tamarix spp.), 
stream flow restoration, control of nonnative fishes, and restoration 
of the Arkansas River shiner to unoccupied habitat, which we might 
implement during recovery.
    Our Response: On July 1, 1994, the Secretaries of the Interior and 
Commerce set forth an interagency policy to minimize social and 
economic impacts of the Act consistent with timely recovery of listed 
species (59 FR 34272). Consistent with this policy, we intend to work 
closely with stakeholders throughout the Arkansas River basin regarding 
development of recovery actions for the Arkansas River shiner and will 
strive to balance implementation of those recovery actions with social 
and economic concerns.
    The ultimate purpose of listing a species as threatened or 
endangered under the Act is to recover the species to the point at 
which it no longer needs the Act's protections. The Act mandates the 
conservation of listed species through different mechanisms. Section 
4(f) of the Act authorizes us to develop and implement recovery plans 
for listed species. A recovery plan delineates reasonable actions which 
are believed to be required to recover and delist the species, and 
which may include measures specifically mentioned during the comment 
period. Recovery plans do not, of themselves, commit personnel or funds 
nor obligate an agency, entity, or person to implement the various 
tasks listed in the plan. Recovery plans serve to bring together 
Federal, State, and private stakeholders in the development and 
implementation of conservation actions for the species, by providing a 
framework to identify site specific management actions necessary to 
achieve conservation and survival of the species, set recovery 
priorities, and estimate costs of various tasks necessary to accomplish 
the goals of the plan. One of the main emphases of recovery plans is to 
address threats affecting the survival of the species and to remove or 
minimize their influence. However, we have no intention of restoring 
these ecosystems to pristine conditions.
    In the ``Available Conservation Measures'' section of the final 
listing determination, we listed four general conservation measures 
that could be implemented to help conserve the Arkansas River shiner. 
While this list does not constitute the entire scope of a recovery plan 
as discussed in the provisions of section 4(f) of the Act, it does 
provide an indication of measures we intend to investigate during 
preparation of a recovery plan.
    Future conservation and recovery of the shiner will emphasize 
remaining aggregations and habitats in the Canadian, Cimarron, and 
Beaver[bs<pound><script-l>]North Canadian Rivers. We also intend to 
address the implications of groundwater withdrawals and diversions of 
surface water during the recovery process. Generally, we will support 
and encourage the States in their efforts to increase irrigation 
efficiency and improve conservation of groundwater sources in the High 
Plains. Conservation of the High Plains aquifer, and the resulting 
benefits to streamflow within the Arkansas River basin, will not occur 
without the participation of the States. We believe voluntary 
conservation of the groundwater resource will be more effective in 
recovery efforts for the Arkansas River shiner than restricting or 
otherwise regulating withdrawals.
    Introductions of non-indigenous species, such as the Red River 
shiner, will be closely monitored. Where needed, we will develop and 
implement measures to minimize or eliminate the accidental or 
intentional release of these species. Studies will be initiated to 
determine the feasibility of, and techniques for, eradicating or 
controlling Red River shiners in the Cimarron River. If control or 
eradication is feasible, a control program will likely be implemented.
    We have already begun steps to evaluate and study captive 
propagation of the Arkansas River shiner using the non-native Pecos 
River population. And we have begun participating in a joint effort to 
investigate the feasibility of controlling salt cedar as a means of 
enhancing stream flow in western portions of the basin. The State of 
Texas

[[Page 59815]]

has also initiated similar efforts in the Canadian River. We believe 
such efforts will be beneficial to recovery of the species.
    At the time of final listing, we prepared a recovery outline for 
the shiner and have begun to implement some preliminary recovery tasks 
identified in the outline. Recovery outlines are brief internal 
planning documents that are prepared within 60 days after the date of 
publication of the final rule. These documents are intended to direct 
recovery efforts pending completion of the recovery plan. We have not, 
to this point, completed or even begun drafting a recovery plan. 
Considering the first two sections of a recovery plan present 
information on the biology, life history, and threats to the species, 
the final listing determination and this document will be used in the 
preparation of these sections. As such, much of the work required to 
draft a recovery plan has been completed. However, an implementation 
schedule, which details estimates of the time required to complete 
identified tasks and costs to carry out those measures needed to 
achieve the plan's goal is far from complete. We hope to utilize the 
expertise of the many stakeholders in the completion of this section of 
the plan. Once a recovery plan for the Arkansas River shiner has been 
developed, the plan will be available for public review and comment 
prior to adoption.

Comments Related to Economic Impacts and Analysis--General Comments on 
Methodology

    (28) Comment: A comment offers that the Draft Economic Analysis 
(DEA) should present results at a more disaggregated spatial level than 
watersheds to facilitate land exclusions by the Secretary of the 
Interior. The aggregated level at which impacts are presented fails to 
pinpoint specific areas of high economic impact.
    Our Response: We believe that the level of resolution of impact 
estimates presented in the DEA is appropriate for this rulemaking. The 
Service identified five critical habitat units, which are subdivided 
into 18 watersheds. The watershed level is an appropriate geographic 
boundary for disaggregating economic impacts associated with protecting 
aquatic species, because it provides important information about the 
linkage between upstream economic activities and downstream impacts. As 
described in Appendix C, the DEA uses the smallest delineation of a 
watershed provided consistently across all States by the U.S. 
Geological Survey (i.e., watersheds named using an eight-digit 
hydrologic unit code, or ``HUC''). In addition, the eight-digit HUC is 
currently used by U.S. Environmental Protection Agency (EPA) and the 
Service as it considers which Concentrated Animal Feeding Operations 
(CAFOs) will be required to take additional action to protect the 
shiner. The State of Oklahoma has mapped smaller watersheds, naming 
them using 11-digit HUCs. If the analysis were to subdivide shiner 
habitat by 11-digit HUCs in Oklahoma, the analysis would mistakenly 
exclude impacts to CAFOs in 11-digit HUCs that do not intersect 
habitat. This erroneous exclusion of potential costs would also occur 
if some other, smaller geographic boundaries such as census tracts, 
were used. Finally, economic activity within this habitat is relatively 
homogenous, and much of the data used to project future economic 
activity is not detailed enough to allow for further, meaningful 
disaggregation. As a result, presentation of costs at a more 
disaggregated spatial level is unlikely to pinpoint smaller areas 
bearing disproportionate costs.
    (29) Comment: One comment states that most oil and gas operators 
are not familiar with references to watersheds provided in Exhibits 5-1 
and 5-2, and a list or map of counties associated with each watershed 
would be helpful to clarify what areas are included and which wells are 
encompassed.
    Our Response: The information requested is available in Exhibit ES-
2 of the DEA, which provides a map overlaying the watersheds on county 
and State boundaries in addition to the names of each.
    (30) Comment: One commenter stated that that the DEA neglects to 
consider the role of risk and uncertainty about future impacts. Because 
future scenarios are difficult to predict, the commenter asserts that 
the DEA should acknowledge the effect of altering assumptions.
    Our Response: The DEA provides extensive discussion of the 
likelihood and uncertainty about future impacts and the bias associated 
with key assumptions. For example, discussion of factors influencing 
the frequency and impact of administrative efforts is discussed in 
paragraph 107. The potential for impacts at Lake Meredith, other 
Canadian River Municipal Water Authority (CRMWA) projects, and Ute Dam, 
and uncertainty surrounding the quantification of costs, is discussed 
in paragraphs 119, 121, and 126 through 128. Key assumptions, 
probability of impact, and areas of uncertainty in the estimation of 
impacts to the oil and gas industry are discussed in paragraphs 148 
through 149, 152 through 157, 162, 165, 171, 175, and 178. The 
likelihood and uncertainty about future impacts to CAFOs, and the 
effect of key assumptions are discussed in paragraphs 181, 190 through 
193, and 196 through 199. The effect of major assumptions and areas of 
uncertainty in estimating other agricultural impacts are described in 
paragraphs 202 through 203, 207 through 209, 212 through 213, 217, 222, 
227, 229, 233, 235 through 236, 240, 244 through 247, and 252 through 
253. In the analysis of transportation-related impacts, paragraph 255 
provides information about the uncertainty associated with estimated 
impacts. Issues related to the estimation of impacts to recreators are 
discussed in paragraphs 273, 275, 278, and 279. Paragraphs 283 through 
285 describe the uncertainty associated with predicting impacts to 
utility projects. Uncertainty regarding other types of effects, such as 
impacts to exotic plant control, wildlife management areas, real estate 
development activities, and the development of management plans is 
discussed in paragraphs 286 through 287, 293, 295, and 297 through 298.
    (31) Comment: One comment states that the annualizing of total cost 
in the CAFO section of the DEA is not consistent with the annualization 
method applied in other sections of the DEA.
    Our Response: We disagree. The DEA uses a consistent method to 
calculate annualized costs for each category of impact, as described in 
note (a) of Exhibit ES-4b and ES-4c.
    (32) Comment: A comment notes that in estimating the impact to row 
cropping activities, the DEA considers two alternate scenarios. The 
projected total costs for row-cropping are presented as the sum of the 
two scenarios, while it's more likely that either one or the other will 
occur.
    Our Response: We provide the following clarification. Paragraph 15 
notes: ``The analysis assumes that farmers may discontinue 
participation in Federal farm assistance programs and retire cropland/
pastureland in proposed habitat from productive economic activity, but 
that a choice of one option or the other is more likely.'' In Exhibits 
ES-4a through ES-4c, the total lower bound impact estimate assumes 
neither of these scenarios takes place, while the high-end impact 
estimate assumes that they both occur. It is likely that the actual 
level of impact that occurs equals an amount between these two 
estimates, consistent with the statement in paragraph 15.
    We acknowledge that the text in paragraph 15 of the Executive 
Summary

[[Page 59816]]

is incorrect, specifically under the fifth bullet point in which the 
DEA states: ``Therefore, the analysis does not sum costs of 
agricultural land retirement and non-participation in Federal farm 
programs.'' In fact, as stated above, the DEA does sum the costs of 
agricultural land retirement and non-participation in Federal farm 
programs for the high-end impact estimate in Exhibits ES-4a through ES-
4c.
    (33) Comment: One comment on the DEA states that the impact to 
water supplies and wastewater treatment in communities along these 
rivers is not completely addressed. The additional cost of upgrading 
wastewater treatment is $1,000,000 per 1,000 people. It lists 40 
communities in Units 1b and 3 that would be directly impacted.
    Our Response: Impacts of water management activities at dams are 
estimated in Section 4 of the DEA. Impacts of potential reductions in 
groundwater withdrawals are estimated in Section 7. The DEA estimates 
the impacts of wastewater management associated with CAFOs in Section 
6. The impacts to small entities associated with regulating water 
supplies and wastewater treatment is estimated separately in Appendix 
A.
    In addition, paragraph 282 of the DEA explains that since the 
shiner's listing, 77 utility-related consultations, which include 
projects related to wastewater treatment facility management and 
construction and construction of water and transmission lines, have 
occurred. Only eight of the consultations resulted in project 
modifications. Interviews with a regional engineering firm typically 
involved with such projects revealed that the costs associated with the 
project modifications were comparable to costs for the originally-
designed project. Paragraphs 283 through 285 forecast the rate of 
future consultations for utility projects, discuss the uncertainty 
associated with predicting future costs for large projects, and provide 
a case study of potential costs for the Norman, Oklahoma Wastewater 
Treatment Division. This represents the best available information at 
this time.
    (34) Comment: One commenter stated that the assumption that the 
impact to CAFO operations would be passed on to the consumer is 
incorrect, because cattle owners don't price the cattle but take 
whatever they can get for them.
    Our Response: We agree with this comment. The DEA does not assume 
that costs are passed on to the consumer. It assumes that compliance 
costs are borne entirely by the CAFO operators.
    (35) Comment: A comment states that critical habitat designation 
has a negative impact on the value of properties within the boundaries 
of the designation, regardless of whether any future regulatory action 
is taken by the Service in connection with the activities on those 
properties.
    Our Response: As stated in paragraph 40 of the DEA, we agree that 
critical habitat designation may stigmatize properties, resulting in a 
decrease in property value. However, empirical data measuring the 
difference in property values before and after critical habitat 
designation in this region are not available.

Comments Related to Economic Impacts and Analysis--Clarification of 
Costs Attributed to Particular Consultations Or Actions

    (36) Comment: A comment states that the DEA projects a formal 
consultation if the CRMWA expands its wellfield but does not make clear 
the costs associated with this potential consultation.
    Our Response: As shown in Exhibit 3-5, the analysis assumes that 
the Bureau of Reclamation will undergo a formal section 7 consultation 
on the potential development of its wellfields. The range of 
administrative costs of a typical section 7 consultation are presented 
in Exhibit 3-1 and are applied to this project. Paragraph 120 provides 
information about the general costs of the wellfield project. It also 
notes that data to estimate the incremental cost of pipeline placement 
related to shiner protection were requested but not received.
    (37) Comment: A comment notes that costs associated with 
consultations for brush control are not clear.
    Our Response: Exotic plant control activities are discussed in 
Section 9.3 of the DEA; associated administrative costs are discussed 
in Section 3 of the report at paragraph 103 and Exhibit 3-5. Formal 
consultation on exotic plant control activities in Texas is 
anticipated. As shown in Exhibit 3-5, the costs of these consultations 
between the National Resources Conservation Service (NRCS) and the 
Service are included in future administrative costs related to shiner 
conservation activities and spread across all watersheds in Texas that 
contain shiner habitat. As stated in paragraph 286, the DEA does not 
estimate project modification costs associated with exotic plant 
control for two reasons: (1) these activities are generally not 
undertaken specifically for the shiner; and (2) because exotic plant 
control generally benefits the species, shiner-specific project 
modifications are typically not required by the Service. Therefore, the 
DEA limits future impacts to exotic plant control activities to 
administrative costs only.
    (38) Comment: One comment states that the economic impact analysis 
references the potential for stormwater discharge permits to trigger 
consultation with the Service on every proposed oil and gas location. 
The comment requests clarification of if or how this information was 
used in the cost impact analysis.
    Our Response: As described in paragraph 148, the DEA assumes a 
greater number of oil and gas development wells will be subject to 
consultation under the new National Pollutant Discharge Elimination 
System (NPDES) permit regulations. Project modification costs 
associated with oil and gas well development activities are estimated 
in Section 5 of the DEA and summarized in paragraph 162. Administrative 
costs of consultation associated with oil and gas well development 
activities are estimated in Section 3 of the DEA and summarized in 
paragraph 106 and Exhibit 3-9.
    (39) Comment: A comment letter requested that the DEA explain what 
is included in the annualized costs presented in Exhibits 5-1 and 5-2.
    Our Response: Exhibits 5-1 and 5-2 summarize impacts to oil and gas 
well development and pipeline activity that are explained in greater 
detail later in Section 5 of the DEA. Detailed information about the 
number of projects affected, potential types of project modifications, 
and associated costs are presented in paragraphs 143 through 157, 161 
through 171, and 174 through 178.
    (40) Comment: Several comments state that the DEA does not clearly 
identify and outline assumptions, uncertainties, scenarios considered, 
and best management practices required along with the cost for each 
requirement used in the cost impact scenarios in the analysis of 
impacts to the oil and gas industry. They suggest that the DEA clarify 
in Exhibits 5-4, 5-6, 5-8, 5-9, and 5-11 the cost associated with the 
highlighted project modifications and which modifications were used in 
the cost impact analysis.
    Our Response: Key assumptions, probability of impact, and areas of 
uncertainty in the estimation of impacts to the oil and gas industry 
are discussed in paragraphs 148 through 149, 152 through 157, 162, 165, 
171, 175, and 178. However, for clarification:
    The project modifications described qualitatively in Exhibit 5-4 
summarize available historical information about the types of project 
modifications requested of oil and gas drilling projects

[[Page 59817]]

by the Service's Ecological Services Field Office in Tulsa, Oklahoma. 
Based on conversations with the Service and review of information 
provided by the Department of Energy (DOE), costs associated with the 
modifications that are most likely to be required--directional drilling 
and erosion control measures--are provided in Exhibit 5-5. Exhibit 5-6 
summarizes the results of the analysis applying project modification 
costs provided in Exhibit 5-5 to past oil and gas well development 
consultations that considered the shiner. Exhibit 5-8 applies these 
same costs (Exhibit 5-5) to forecasted oil and gas well development in 
shiner habitat, signified by the column labeled ``Total Potential Wells 
in CHD (critical habitat designation) (20 years).'' Note that based on 
new information provided in public comment, the unit cost estimates 
provided in Exhibit 5-5 have been revised and impacts to this industry 
are recalculated. These revised estimates flow through Exhibits 5-6 and 
5-8 in the final economic analysis.
    Exhibit 5-9 provides historical information about the types of 
project modification requested in Oklahoma for oil and gas pipeline 
construction and maintenance activities. Exhibit 5-10 provides the unit 
cost estimates for cost of the project modifications most likely to be 
requested for future projects. Exhibit 5-11 summarizes the results of 
the analysis applying pipeline project modification costs of 
approximately $17,000 to $22,000 as provided in Exhibit 5-10 to past 
pipeline consultations.
    (41) Comment: One comment states that based on Exhibit 5-10, it 
does not appear that consideration was given to consultation costs, 
clearance under the Act, installation of best management practices, 
loss of a project, project delays, and the delay of production to 
market for pipeline projects.
    Our Response: Consultation costs and clearance under the Act for 
pipeline activity are captured in Section 3 of the DEA. No information 
was provided during industry interviews or in public comment about 
shiner-related best-management practices (BMPs) on pipeline projects 
aside from the setback requirement described in Exhibit 5-10. Lacking 
data, we are unable to estimate costs associated with delay at this 
time.
    (42) Comment: One commenter requested the DEA clarify what BMPs for 
oil and gas drilling include and what the associated costs are. In 
addition, the comment asserts the DEA cost estimate for soil erosion is 
low and that implementing basic BMPs may cost $3,500 per day for one to 
two days, and could be greater depending on location.
    Our Response: We acknowledge that Exhibit 5-5 might be confusing to 
the commenter, because it suggests that BMPs other than soil erosion 
control have been considered in the cost analysis. In fact, the BMPs 
included in the cost analysis of potential project modification costs 
for oil and gas well development activities are limited to soil erosion 
control. We appreciate the submission by the commenter of more accurate 
data for soil erosion costs, and have incorporated this information 
into our revised impact estimates.
    (43) Comment: One commenter stated that the Service needs to 
examine the economic impact to an individual grower within the proposed 
critical habitat designation.
    Our Response: Underlying all of the impacts measured in the DEA are 
individual impacts to farmers. In particular, paragraphs 302 through 
308 and 318 through 323 provide some information about the financial 
resources of small farmers and potential impacts to these entities. 
However, the scope of this analysis does not allow for complete 
disaggregation of impacts to every farming entity.

Comments Related to Economic Impacts and Analysis--Potential Impacts on 
Groundwater Withdrawals

    (44) Comment: Several comments expressed concern that while the DEA 
provides some information on the value of groundwater in shiner 
habitat, it excludes the potential economic impact of restricting 
groundwater withdrawals from the analysis. One comment states that 
these impacts are excluded on the grounds that there is no Federal 
nexus for groundwater pumping by private entities, and it would be 
difficult for the Service to assert that individual users were 
violating the Act's ``take'' prohibitions. The comment notes that, in 
the future, it is possible for groundwater withdrawals to be subject to 
consultation due, for example, to new or revised NPDES permits or other 
Federal programs, as well as other regulatory actions to curtail 
groundwater withdrawals for the benefit of the shiner.
    Our Response: The DEA acknowledges in paragraphs 208 and 245 the 
significant role groundwater plays in the economies of counties that 
contain shiner habitat, and the possibility that groundwater pumping 
may be limited where pumping leads to dewatering of streams. However, 
the DEA does not base the treatment of potential impacts to groundwater 
solely on the absence of a Federal nexus and the difficulty in 
attributing ``take'' on an individual groundwater pumper. Instead, the 
DEA also recognizes in paragraph 246 that data required to conduct such 
an analysis are not available. These data are: the conjunctive 
characteristics of surface and groundwater; the level of pumping that 
would allow for recovery of historic groundwater levels; and the 
geographic area within which users would be required to reduce pumping. 
Additional data that would be necessary to complete this type of 
analysis and that are currently unavailable include a minimum 
streamflow for the shiner, information on groundwater use patterns of 
all impacted groundwater users, and the specific quantities of water 
that would need to be withheld from each water user in order to reach 
the minimum streamflow. Overall, the hydrologic relationships between 
groundwater pumping and the quality of habitat for the shiner are not 
defined, which precludes the analysis from considering how much, if 
any, reduction in groundwater pumping would be required to protect the 
species or its habitat.
    Due to limitations in data availability, the DEA utilizes available 
data and simplifying assumptions to bound the potential magnitude of 
impacts to groundwater pumping from shiner conservation activities. 
Paragraph 247 discusses the methodology and data used in order to 
estimate the total value of groundwater to potentially affected users. 
The resulting implied values of groundwater presented in Exhibit 7-21 
serve as an upper-bound estimate of potential impacts to groundwater 
users for the scenario in which users halt pumping altogether and 
convert irrigated land to non-irrigated uses. These implied values, are 
not, however, included in the aggregate cost estimates presented in the 
Executive Summary of the report given the highly speculative nature of 
the vehicles through which groundwater users may be impacted and the 
significant uncertainty regarding the potential magnitude of pumping 
restrictions discussed in the previous paragraph.
    (45) Comment: A comment provided states that, in calculating the 
value of groundwater resources, the DEA considers only crop irrigation 
and not its use in other industries and for residential consumption.
    Our Response: In determining the most likely uses of groundwater in 
the counties that contain shiner habitat, the DEA relies on information 
contained within Exhibits 2-7 through 2-10. With the exception of 
Exhibit 2-9, which summarizes water use in Texas counties

[[Page 59818]]

that contain shiner habitat for both surface and groundwater combined, 
the exhibits demonstrate that groundwater is used predominantly for 
irrigation in Kansas, Oklahoma, and New Mexico. Further, Exhibit 7-19 
demonstrates that in these counties, the overwhelming majority of 
irrigation water in counties that contain shiner habitat and overlay 
the High Plains Aquifer is drawn from groundwater sources. Given these 
data, and the predominantly rural, agricultural nature of the region 
that contains shiner habitat, the analysis limits the valuation of 
groundwater to its value as capitalized into the value of agricultural 
lands. To the extent that industrial or residential consumption in 
cities is affected, this analysis may understate the value of 
groundwater to these users.
    (46) Comment: One commenter expressed concern that the rule will 
affect not only agricultural operations, but also water rights and 
water use patterns similar to the controversies regarding the Rio 
Grande silvery minnow and the aquatic species in the Klamath River 
Basin in Oregon and California.
    Our Response: The DEA does not consider the need for water 
diverters to reduce groundwater and/or surface water use, due to 
uncertainty regarding the likelihood of such restrictions and data 
limitations. Estimating these potential impacts requires information on 
minimum streamflow required to maintain shiner habitat, as well as 
hydrological data on current and future streamflow, water consumption 
patterns for specific users; and conjunctive use hydrological data 
linking specific water users to streamflow in shiner habitat. These 
data and information on requirements are currently unavailable.

Comments Related to Economic Impacts and Analysis--Estimation of 
Potential Impacts to CAFOs

    (47) Comment: One comment noted that the DEA assumes that each CAFO 
within proposed critical habitat will be required to implement general 
permit conditions required by the Service but does not consider the 
impact of more stringent regulatory requirements.
    Our Response: As described in paragraphs 189 and 191, all CAFOs are 
assumed to implement the requirements described in Exhibit 6-3, which 
are applied in addition to the general permit requirements. In other 
words, the requirements in Exhibit 6-3 represent measures designed to 
protect shiner habitat that are more stringent than what is required by 
the general permit. The analysis applies these requirements to all 
States and all CAFOs, regardless of the location of the CAFO within the 
watershed.
    (48) Comment: Two organizations comment that the DEA considers only 
costs of project modifications to CAFOs but not the possibility of 
production effects and/or regional impacts associated with lost 
revenues and jobs. For example, if acreage devoted to a vegetative 
buffer is taken out of production, then the requirements would reduce 
the total CAFO sales revenue and create regional economic impacts. The 
potential loss of output and accompanying distributional economic 
impacts should be included in the DEA and have the potential to double 
or triple impact estimates.
    Our Response: To the extent that CAFOs may have to cease or alter 
operations because of burdensome regulatory costs, reduced revenues may 
have regional impacts. Paragraphs 302 through 307 discuss the 
affordability of CAFOs requirements and the potential for these 
requirements to cause financial stress. Because compliance costs are 
relatively constant across CAFOs size classes, while revenues are not, 
the regulation is likely to be the most burdensome for the smallest 
operations. The analysis predicts that 33 to 67 small CAFOs could 
experience financial stress; the impact of which could cause these 
entities to go out of business. This represents approximately 1.5 
percent of all small animal feeding operations in Kansas, Oklahoma, and 
Texas, so regional effects in these States in terms of indirect effects 
and job losses may exist, but are likely to be small.
    In addition, evidence suggests that the national markets for CAFOs 
products are unlikely to be affected by designation. In 2003, EPA 
promulgated a final rule revising NPDES and Effluent Limitation 
Guidelines (ELG) for CAFOs. Among other requirements, the new rule 
required CAFOs to implement a 100-foot vegetated buffer next to 
conduits to surface waters. Its economic analysis supporting the 
proposed rule, which looked at all of the new requirements including 
the buffer, estimated annual compliance costs two orders of magnitude 
greater than those estimated for CAFOs as a result of shiner critical 
habitat designation. EPA conducted a separate partial equilibrium 
analysis to determine whether market effects would result from the 
regulation and determined that industry-level changes in production and 
prices would not be significant for most sectors (i.e., consumer prices 
were expected to rise by less than one percent for all but the hog 
sector, where the increase was slightly more than one percent) (68 FR 
7248). Although the potential buffer requirements are more stringent in 
watersheds with shiner critical habitat, the number of CAFOs affected 
is a fraction of those affected by the NPDES requirements. The EPA 
analysis suggests that a partial equilibrium analysis of the effects of 
shiner conservation activities is unlikely to find a significant 
production effect.
    (49) Comment: A commenter states that the DEA does not address the 
potential complexities for CAFOs caused by the confounding effects of 
reducing or eliminating land application areas for manure, wastewater, 
and sludge, and reducing the availability of groundwater for production 
of crops and forage necessary for nutrient utilization.
    Our Response: As discussed in paragraphs 246 through 247, whether 
groundwater pumping by farmers will be affected is difficult to 
predict. No Federal nexus exists for private groundwater pumping, and 
it is difficult to link take, as defined by section 9 of the ESA, to 
individual users. In addition, the quantity of water required for 
shiner protection is unknown, as no minimum or maximum flow 
requirements are specified as primary constituent elements (PCEs). To 
the extent that a CAFO operator reduces or eliminates land application 
areas and also must reduce groundwater usage, impacts could be 
compounded. However, data are not available to reasonably estimate the 
probability and magnitude of impacts under such a scenario.
    (50) Comment: A commenter states that the DEA does not consider 
costs associated with CAFO permitting and other regulatory activities 
that may be required prior to implementation of recommendations made by 
the Service, such as preparation of permitting documentation, 
completion of permit applications, meetings with regulatory agencies, 
and administrative and technical requirements.
    Our Response: The DEA assumes that each CAFO within the watersheds 
analyzed consults with the Service once over the time period of the 
analysis. The administrative costs of these consultations are described 
in paragraphs 93 through 99 and included in Exhibit 3-9.
    (51) Comment: A commenter states that the DEA costs of developing a 
spill plan include only testing and plan-related costs and not the cost 
of implementing mitigation measures in the event a leak is detected or 
a spill occurs.
    Our Response: The analysis assumes that CAFOs operators are 
obligated to

[[Page 59819]]

mitigate leaks and spills, regardless of the presence of the shiner or 
its habitat.

Comments Related to Economic Impacts and Analysis--Estimation of 
Impacts to Reservoir Operations

    (52) Comment: One organization comments that the DEA does not 
estimate costs to Lake Meredith for the modification of reservoir 
operations to provide instream flows for the shiner. The comment notes 
that this lack of a quantified estimate is based on the fact that no 
target flow is established for shiner, uncertainty regarding whether 
flood control would be halted as a result of any consultation, and a 
lack of a Federal nexus associated with the operation of Lake Meredith 
other than for flood control (DEA, footnote 42). The comment also notes 
that the DEA states that if releases were required to benefit the 
shiner, the CRMWA member cities may have to find a replacement water 
supply but does not evaluate the costs of this scenario. The DEA should 
either analyze the impact of requiring releases for the benefit of the 
shiner or determine that this is not a possibility.
    Our Response: In the absence of a minimum flow requirement for the 
shiner, it would be highly speculative to quantify any quantity of 
water required to be released from Lake Meredith. In addition, 
paragraph 119 states: ``In addition, the analysis notes that critical 
habitat is not proposed directly downstream of Sanford Dam. The 
potential for releases from Sanford to augment flow in Unit 1b, a 
distance of roughly 80 miles from the dam, is unknown.'' Despite the 
lack of information about specific changes to reservoir operations, the 
DEA provides an economic valuation of water held at Lake Meredith of 
$14 million (see paragraph 118). Note that the cost per thousand 
gallons is $0.51, not $51 as stated in this paragraph (this is a 
typographical error and does not affect the value estimate).
    (53) Comment: A comment notes that paragraph 118 of the DEA 
provides a cost estimate of $51 per thousand gallons of water to CRMWA 
member cities in Fiscal Year 2001-2002 whereas the correct estimate 
would be $0.51 per thousand gallons. Further, that time period should 
not be considered predictive of future costs as it was the first year 
of operation of the Groundwater Supply Project. Costs to member cities 
per thousand gallons in 2003-2004 rose to $0.62.
    Our Response: As discussed in response to the previous comment, the 
reported $51 per 1,000 gallons is a typographical error that does not 
affect the estimate of the cost of water to cities served by the CRMWA. 
However, using the higher value provided by the commenter of $0.62 per 
thousand gallons, the value of water delivered to municipalities from 
Lake Meredith in FY 03-04 is approximately $18 million.
    (54) Comment: One commenter expressed confusion at the DEA's 
inclusion of impacts related to requiring releases at Ute Dam while 
excluding impacts related to the same at Lake Meredith. The commenter 
believes that the eventuality of these impacts is equally likely at 
both sites.
    Our Response: Two fundamental differences between Ute and Sanford 
Dams make the analysis of potential impacts to Ute Dam operations less 
speculative than those to Sanford Dam operations: (1) critical habitat 
for the shiner is proposed directly downstream of Ute Dam, while it is 
proposed 80 miles downstream of Sanford Dam; and (2) a seepage rate is 
available for Ute Dam that contributes to maintaining the shiner 
population downstream as discussed in paragraph 125. Such a seepage 
rate is not available for Sanford Dam.
    (55) Comment: Two commenters state that the DEA should include 
economic impacts to flood control. They state that Section 4 of the DEA 
contains little information on the Upstream Flood Control Program. Each 
dam site must have an EIS completed before its construction or 
rehabilitation. These dams were designed to control flooding, and 
provide municipal and agricultural water. The DEA conclusion that they 
are not likely to be impacted is misleading because of the required EIS 
and consultation with the Service and other groups. The new effort to 
rehabilitate the aging flood control sites may be impacted by the 
proposed critical habitat designation.
    Our Response: The Upstream Flood Control Program, administered by 
the Oklahoma Conservation Commission, constructs small flood control 
dams on tributaries upstream from rivers or large streams. Watershed 
projects are sponsored locally, and receive planning and financial 
assistance from the NRCS. Of 2,540 dams planned through the Program, 
2,101 were constructed as of March 2005. The majority of these projects 
are PL-566 and PL-534 dams. Based on extensive conversation with NRCS 
personnel in Oklahoma, the DEA discusses potential impacts to PL-566 
dams that may impact shiner habitat in Section 4.6. In paragraph 133, 
the DEA identifies 16 PL-566 dams that may be impacted by shiner 
habitat and states that ``The NRCS does not anticipate findings of 
adverse impact from the Service; therefore, future consultations on 
these projects are assumed to be informal and project modifications are 
not anticipated.'' The DEA estimates the administrative costs of 
consultation for these 16 dams in Section 3.
    (56) Comment: One comment stated that the DEA should consider how 
reducing water releases at Ute Dam by 12 percent will affect the 
wholesale price of water.
    Our Response: Because water delivery from Ute Dam has not occurred 
yet, estimating the potential impact on water prices would be 
speculative. Such an estimate requires data on the amount of water 
likely consumed by water communities, availability of alternate sources 
of water and prices of those sources, and an understanding of the 
relationship between delivery costs and water quantity. Data 
limitations make the calculation of price changes infeasible at this 
time.
    (57) Comment: One commenter states that the DEA should not limit 
consideration of water management costs to Ute Dam. The commenter notes 
that, according to the NRCS, 16 PL-566 dams are scheduled for 
construction in Oklahoma upstream of the proposed critical habitat 
designation and may be affected.
    Our Response: Section 4.6 of the DEA considers potential impacts to 
sixteen PL-566 dams scheduled for construction in Oklahoma and states 
that: ``The NRCS does not anticipate findings of adverse impact from 
the Service; therefore, future consultations on these projects are 
assumed to be informal and project modifications are not anticipated.'' 
Informal consultation costs are captured in Section 3 of the DEA, as 
referenced in paragraph 106 and Exhibit 3-7.

Comments Related to Economic Impacts and Analysis--Estimation of 
Impacts to Oil and Gas Development

    (58) Comment: A comment updates information provided by the 
Oklahoma Independent Petroleum Association (OIPA) during the 
development of the DEA. The comments states that basic directional 
drilling costs range from $7,500 to $12,000 per day in addition to the 
daily conventional drilling costs of approximately $10,000 to $17,500 
per day. Further, drilling fluids, rental equipment, supervision, and 
other costs can increase the cost per day to $35,000. OIPA also states 
that vertical hole drilling costs approximately $25,000 per day. In 
contrast, another comment states that an average well drilling cost for 
a 12,000 foot well is $5 million, not including the costs of re-routing 
pipelines.

[[Page 59820]]

    Our Response: As stated in paragraph 159 of the DEA, the Service 
notes that directional drilling has been required twice to protect the 
shiner since the listing of the species in 1998 at a cost of roughly 
$200,000 per project. In estimating future project modification costs 
to oil and gas well development activities, at paragraph 162 the DEA 
assumes that the equivalent percentage of future oil and gas well 
development projects (five percent) will require directional drilling 
to protect the shiner at an additional cost of $200,000 per project. We 
assume that the daily costs provided in the comment are within the 
range of the $200,000 per project estimate used in the DEA.
    (59) Comment: Two comments provided state that the assumption that 
oil and gas well development increases by one percent per year over the 
forecast period is a conservative assumption and that the DEA confuses 
production rates and drilling activity. OIPA asserts that the projected 
production rate information should not be used to infer a similar rate 
on the number of wells that may be drilled in the future and presents 
evidence that drilling rates increase when production rates decrease. 
One comment states that the DEA use information in the Oklahoma 
Corporation Commission's 2004 annual report to project future drilling 
activity. The comment cites information from this report suggesting 
that between 1994 and 2004, oil and gas approved intents to drill 
increased 30 percent and, therefore, a three percent annual increase 
should be applied to forecast annual drilling rates. Another comment 
suggests that the DEA should also consider alternative scenarios in 
which energy prices are higher in future years than in the recent past 
as drilling activity is positively related to the price of energy.
    Our Response: We agree that applying information specific to 
drilling rates is more appropriate than projecting future growth in 
drilling rates based on production rates. Therefore, we revise our 
estimate of the number of wells likely to be drilled applying the three 
percent annual increase recommended in public comment (note that a 30 
percent increase over ten years translates to an annual growth rate of 
approximately 2.7 percent, however we believe rounding to three is 
appropriate given the uncertainty inherent in this analysis). We 
describe the relationship between drilling activity and energy prices 
in paragraph 153 of the DEA and note that drilling rates are also 
affected by the available oil and gas reserves that underlie habitat 
and the maximum number of wells that could be supported in this area. 
Given these uncertainties, along with the uncertainty associated with 
forecasting oil and natural gas prices for 20 years into the future, we 
believe that revising our growth rate based on the three percent rate 
provided in comment will address this concern about the impact of 
future energy prices on drilling activity. We note that more 
significant year to year fluctuations may occur.
    (60) Comment: Two comments state that the DEA neglects to consider 
additional pipelines, including flow lines and gathering lines, which 
are necessary for the production of crude oil and natural gas. The 
comment states that 76 percent of the wells (1,011 wells) drilled in 
the counties containing proposed critical habitat are gas wells and 
will require gathering lines. A cost impact scenario should be analyzed 
that includes the installation of more pipelines.
    Our Response: The current methodology for estimating future 
pipelines potentially impacting habitat is described in paragraphs 171 
and 174 through 176. Given the uncertainties discussed in these 
paragraphs, and a lack of available information about the number of 
pipelines supporting each well and that may impact habitat, we assume 
that growth in oil and gas pipeline activities will be similar to 
growth in drilling activities. Therefore, we adjust our impact 
estimates by assuming a three percent growth rate in pipeline activity, 
based on information provided in public comment.
    (61) Comment: Several comments note the potential for conservation 
efforts to lead to reduced and/or delayed production of oil and natural 
gas. One comment offered that a reduction in overall production levels 
will result in regional impacts. A separate comment suggests that the 
Service consider a scenario where consultation delays or stops 
production, impacting gross production tax payments to the state and 
royalty payments to mineral owners. A third comment states that delays 
in drilling could result in the expiration of leases before drilling 
occurs or loss of the use of a rig to another site for six or more 
months. Finally, a comment notes that delay costs estimated in the DOE 
report for storm water discharge requirements should be applied in the 
analysis.
    Our Response: The DEA includes costs associated with delaying 
drilling in essential habitat, as discussed in paragraphs 149 and 162, 
and shown in Exhibits 5-5 and 5-8. These estimates are derived from the 
DOE report. The DEA does not anticipate an overall reduction in 
drilling activity (see paragraph 150). The availability of drilling 
equipment is constrained, as noted in public comments which state that 
small delays can result in the loss of drilling equipment and labor to 
other locations. These comments suggest that if drilling were prevented 
in essential habitat, substitute sites outside of habitat are 
available. Individuals operating in essential habitat may be affected 
negatively as activity moves to other locations, resulting in 
distributional effects, but no net change in social welfare.
    Support for the assertion that local individuals may experience 
losses related to lost or delayed production and lower royalties is 
provided in the DOE report cited in paragraph 148 of the DEA. This 
report estimates impacts of proposed storm water discharge requirements 
on the oil and gas industry nationwide. It includes cost information 
related to species-specific requirements of a NPDES permit, including 
section 7 consultation under the Act. Using information provided in the 
report about potential delay time (see Exhibit 5-5 of the DEA), we 
estimate the potential value of lost production may range from 
approximately $500,000 to $1.7 million (assumes a discount rate of 
seven percent).
    (62) Comment: A comment expressed concern that the 1998 cost 
information applied in the DEA in estimating impacts to oil and gas 
drilling and production is outdated.
    Our Response: As described in paragraph 149, project modification 
costs for drilling activities were obtained from a 2004 study completed 
by the DOE. As noted elsewhere in this response to comment, these cost 
estimates have been updated with information provided as part of public 
comment. Costs associated with pipeline activities are based on 
interviews conducted in 2005 with an engineering firm currently 
conducting this type of work (see Exhibit 5-10).
    (63) Comment: A comment states that the consultation process would 
be especially burdensome on small oil and gas operators as they may not 
have the personnel or expertise to consult with the Service or 
implement best management practices.
    Our Response: In Appendix A of the report, the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) Screening Analysis 
estimates the level of impact of shiner conservation activities on 
small oil and gas operators in counties that contain shiner habitat.
    (64) Comment: A comment states that the 2003 data applied in the 
DEA estimate 1,312 wells were drilled within the counties containing 
proposed

[[Page 59821]]

critical habitat. The 2004 data, however, indicate that 1,332 wells 
were drilled in those same Counties. These wells comprise 62 percent of 
the total wells drilled in Oklahoma and the Service should consider 
that in its assessment of impacts to the oil and gas industry.
    Our Response: Information contained within Exhibit 5-3 of the DEA, 
to which this comment refers, provides data and information on oil and 
gas well activity and production levels for counties that contain 
shiner habitat. We agree that the counties in Oklahoma that contain 
shiner habitat do contain a significant percentage of total wells 
located within Oklahoma. The analysis of potential impacts to oil and 
gas well development from shiner conservation activities considers only 
those wells located within and adjacent to shiner habitat. Therefore, 
wells under consideration in the DEA reflect a smaller percentage of 
statewide well activity in Oklahoma.
    (65) Comment: A comment notes that following the method outlined in 
the DEA, the impact of shiner conservation efforts on oil and gas 
pipelines should range from $4.4 million to $5.7 million. The costs 
presented in paragraph 177 and Exhibit 5-13 of the DEA, however, 
present a range of $3.8 million to $4.4 million.
    Our Response: We acknowledge a mistake in the calculation of oil 
and gas pipeline impacts and appreciate the submission of corrected 
information. The cost model associated with oil and gas pipelines has 
been modified to correctly reflect project modification costs provided 
in Exhibit 5-10 of the DEA.
    (66) Comment: A party requests that comments with corresponding 
footnotes 84 and 87 be removed as the discussions did not relate to 
national trends, which were not known at that time.
    Our Response: We will remove these footnotes from the final 
economic analysis.

Comments Related to Economic Impacts and Analysis--Estimation of 
Impacts to Grazing Activities

    (67) Comment: Two comments expressed concern that cattle currently 
water from the rivers and graze in the riparian area and that finding 
an alternative water source or additional seasonal grazing meadows 
would be difficult or impossible. As a result, the comments state that 
the value of this water and sub-irrigated meadows incalculable. The 
comments further note that because the river meadows are sub-irrigated, 
the value of lost irrigated cropland should be used to value grazing 
lands.
    Our Response: The Service agrees that finding substitute water 
sources or lands for cattle could be difficult. Consistent with the 
comment, the DEA does not assume that cattle will be moved to other 
areas. Rather, it assumes that the ability to graze these areas is lost 
completely and values this loss based on the number of cattle 
supportable on habitat lands and perpetuity value of fees paid by 
ranchers to graze these lands (see paragraphs 234 through 238). In 
other words, the analysis provides an estimate of the total value of 
these lands to ranchers as a bound on magnitude of potential losses 
given significant regulatory uncertainty. Note that the value of 
grazing activity on these lands is derived from market prices for 
grazing rights, which implicitly include values for the attributes of 
that land, including hydrologic features such as subirrigation. Because 
the permit values cited in the DEA represent average prices across each 
State, they likely incorporate values for both subirrigated and lower 
quality grazing lands. To the extent that this is the case, the total 
value of these grazing lands may be understated.
    (68) Comment: Two comments state that the costs of fencing for 
livestock and other project modification costs are not included in the 
DEA. In particular, the Hughes County Conservation District estimates 
that fencing the tributaries of the South Canadian River will cost 
$168,962 and that it is likely that costs will be incurred for off-site 
watering facilities of $80,000. The estimated original cost of 
implementing practices to fulfill the recommendations of the Service 
would be $412,960.
    Our Response: The DEA estimates a total loss in value of grazing 
activity in proposed habitat. The analysis assumes that ranchers will 
only undertake project modifications if they can do so without 
incurring a net loss. Thus, the analysis assumes that to the extent 
that ranchers continue to operate, the costs of project modifications 
must be less than the total value of their operation. Therefore, the 
estimate of the total value of grazing activity presented in the DEA is 
the upper bound estimate of potential impacts to ranchers.
    (69) Comment: The Hughes County Conservation District estimates 
that 4,000 acres in Hughes County, Oklahoma will be affected by the 
CHD. These acres have a total production value of $41 per acre per 
year.
    Our Response: The DEA estimates affected acreage using USGS land 
coverage geographic information system (GIS) data (see paragraph 235), 
and its estimate of affected acres in Hughes County is consistent with 
this comment. It estimates the value of lost production, used to 
calculate regional impacts, to be $32 per animal unit month (AUM), 
which can be converted to an estimate of $51 per acre using information 
provided in paragraphs 236 and 242. As a result, the value of lost 
production is calculated using a higher per acre value in the DEA than 
reported by Hughes County.
    (70) Comment: Two comments provided on the DEA state that the DEA 
should consider the impact of designation on invasive species 
management efforts. Water is retained in the river when efforts are 
undertaken to control invasive species such as salt cedar and Russian 
olives. One organization comments that on the Canadian River, CRMWA 
treats salt cedar averaging 50 acres per mile, $200 per acre. Another 
comment notes the potential for curtailment of invasive species 
management if herbicides are found to harm the shiner.
    Our Response: As stated in the response to the comment regarding 
the impacts to ranchers of fencing and other project modification 
costs, the DEA estimates a total loss in value of grazing activity in 
habitat. This value exceeds any project modification costs, such as 
invasive species control, that would practicably be implemented. The 
analysis assumes that ranchers will only undertake project 
modifications if they can do so without incurring a net loss. Thus this 
analysis assumes that to the extent that ranchers continue to operate, 
the costs of project modifications must be less than the total value of 
their operation. Therefore, the estimate of the total value of grazing 
activity presented in the DEA is the upper bound estimate of potential 
impacts to ranchers.
    (71) Comment: One commenter stated that the economic analysis 
should forecast impacts over at least 100 years as the majority of 
ranchers along the Cimarron River have been owned by the same families 
for 100 or more years.
    Our Response: Forecasting economic activity in areas of habitat is 
speculative beyond a 20-year time horizon. However, data are provided 
in the DEA that can be used to calculate the lost value of farming and 
ranching activities in perpetuity. The value of lost farming in the DEA 
is calculated by multiplying the value of crop production reported in 
Exhibit 7-6 by the estimated crop reduction reported in the same 
exhibit. For grazing, the perpetuity value of grazing permits (dollars 
per AUM) is provided in Exhibit 7-13. This value, multiplied by the 
number of lost AUMs reported in Exhibit 7-14, provides the total value 
of lost grazing in perpetuity. For both categories, the 20-year loss is

[[Page 59822]]

equivalent to approximately 46 percent of the perpetuity value assuming 
a three percent discount rate and 65 percent of the perpetuity value 
assuming a seven percent discount rate.
    (72) Comment: One commenter stated that cattle grazing is not 
considered in the DEA.
    Our Response: Grazing related impacts are discussed in detail in 
the Executive Summary and Section 7 of the DEA.

Comments Related to Economic Impacts and Analysis--Estimation of 
Impacts to Recreation

    (73) Comment: A comment notes that the State Departments of 
Agriculture, Food and Forestry, Tourism, and Wildlife Conservation are 
promoting agro-tourism in the region. This effort is intended to bring 
dollars to rural areas. The comment states that impacts to this 
emerging industry are tremendous.
    Our Response: Without information about the type of agro-tourism 
(e.g., hunting, fishing, visiting working farms, ranches or vineyards) 
taking place within the proposed designation habitat, current and 
projected visitation rates, and an indication of how shiner 
conservation activities would impact this industry, we are unable to 
estimate losses associated with this activity. These data are not 
readily available at this time.
    (74) Comment: One comment states that the DEA underestimates 
visitation to the Rosita area by two to three times, which effects the 
results of the analysis.
    Our Response: As described in paragraph 275, the DEA relies on 
visitation data provided by National Park Service (NPS) staff at the 
Lake Meredith National Recreation Area specifically for Rosita (note 
that visitation to the entire National Recreation Area, which includes 
other areas not proposed for critical habitat designation, is greater 
than visitation to Rosita alone). Data were provided by month for years 
2000 through 2004 for each of the two areas. Although the data indicate 
an overall decline in visitation over this time period, the analysis 
assumes future visitation remains constant at the five-year historical 
average rate.
    (75) Comment: Multiple comments confirm the importance of the off-
road vehicle (ORV) land along the Canadian River. They note that it is 
the only public ORV land within 300 miles, and related businesses would 
suffer if this activity was limited within the proposed critical 
habitat designation. One commenter estimates that 50 to 60 percent of 
all off-road vehicles sold in the region are used at the Canadian River 
and estimates lost sales in the Panhandle area to be approximately $20 
million. Including parts and accessories sales, taxes, and job losses, 
the total economic loss could be $200 million. Another commenter 
estimates that for the two major motorcycle dealers in Amarillo, Texas, 
there would be a potential loss of $80 million in revenue over the next 
20 years.
    Our Response: The Service agrees that restricting ORV use in the 
Rosita section of the Lake Meredith National Recreation Area could 
negatively impact businesses in the Pan Handle supplying goods and 
services to recreators. Using the IMPLAN model, the DEA estimates an 
initial impact to the regional economy of up to $1.6 million in the 
first year, along with a potential for 44 lost jobs and $168,000 in 
lost tax revenues (see paragraphs 277 through 279). These impacts would 
occur once and persist for some period of time until the economy 
adjusts to the change. In addition, paragraph 325 summarizes 
information about current annual sales of ORVs provided by ORV-business 
owners in the Amarillo-Lubbock business area.
    It is difficult to compare the impact estimates provided by these 
business owners and generated from the IMPLAN model with the estimates 
provided in public comment. It is unclear whether the comments report 
total sales for ORV retail businesses, or only the portion of sales 
that would be lost due to shiner-related restrictions. Closures in 
Rosita are likely to occur between July and September, and account for 
only 25 percent of the total trips taken to Rosita annually. In 
addition, another ORV area located within Lake Meredith National 
Recreation Area, Big Blue, is not proposed for critical habitat 
designation. Estimated lost trips to Rosita account for approximately 
15 percent of total ORV visitors annually to Lake Meredith National 
Recreation Area. To the extent that recreators substitute trips to 
Rosita with trips to Big Blue, losses to local businesses will be less 
than estimated in the DEA.

Comments Related to Economic Impacts and Analysis--Estimation of Impact 
to Transportation Projects

    (76) Comment: One comment states that the new Federal Highway Bill 
calls for additional funding for roads and bridges and inquires if 
these new projects may be impacted by the designation.
    Our Response: Federal Highway funding allocations to State 
Departments of Transportation (DOTs) are subject to section 7 
consultation requirements. The DEA describes interviews with State DOTs 
to identify reasonably foreseeable projects and potential modification 
costs associated with shiner protection (see paragraphs 261 through 
268). In addition, Section 3 estimates the administrative costs of 
future section 7 consultations, including those for transportation 
projects (see paragraphs 105 through 106).
    (77) Comment: The Arkansas River Shiner Coalition comments that the 
DEA should consider the effects on project delay to transportation 
projects.
    Our Response: The Service acknowledges that delayed completion of 
transportation projects resulting from consultation with the Service 
may result in additional economic impacts that are not quantified in 
the DEA. Considering that planning for projects generally takes years, 
if not decades, future projects are likely to be able to incorporate 
consideration of the shiner into their project schedule. However, 
projects intersecting habitat and slated to begin construction within 
the next one to two years may experience delays.

Comments from States

    Section 4(f) of the Act states, ``the Secretary shall submit to the 
State Agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition.'' 
Comments received from States regarding the proposal to designate 
critical habitat for the Arkansas River shiner are addressed below.
    (78) State Comment: A comment expressed support that the proposed 
rule adequately articulated that designation of critical habitat 
provides no substantial recovery benefit or additional measure of 
protection beyond that provided by the Act.
    Our Response: As stated in the proposed rule and this final rule, 
we agree that critical habitat provides little additional protection 
beyond that provided by the Act.
    (79) State Comment: A comment expressed support for exclusion of 
the Beaver/North Canadian River (Unit 2) from the final designation.
    Our Response: As provided in this final rule, we have excluded Unit 
2, the Beaver/North Canadian River, from the designation.

Summary of Changes From the Proposed Rule

    In developing this final designation of critical habitat for the 
Arkansas River shiner, we reviewed public comments received on the 
proposed designation of critical habitat published on October 6, 2004 
(69 FR 59859), and the draft economic analysis and draft

[[Page 59823]]

environmental assessment published on August 1, 2005 (70 FR 44082). In 
addition to minor modifications and corrections, we conducted further 
evaluation of lands proposed as critical habitat and excluded 
additional habitat from the final designation. Table 1, included at the 
end of this section, outlines changes in stream length for each unit. 
Specifically, we are making the following changes to the final rule 
from the proposed rule published on October 6, 2004:
    (1) In the proposed rule, we stated our intent to exclude from this 
designation all habitats in the Beaver/North Canadian River (Unit 2) in 
Oklahoma and the Arkansas River (Unit 4) in Kansas. After reviewing 
public comment, including that provided by our peer reviewers, we have 
determined to exclude these areas under the authority of section 
4(b)(2) of the Act. While these two river systems are important to 
recovery of the species, we believe conservation of the species can 
best be accomplished by using our authorities under section 10(j) of 
the Act. Therefore we have concluded that the benefits of exclusion 
outweigh the benefits of designating critical habitat in these two 
rivers (see the ``Exclusion Under Section 4(b)(2) of the Act'' section 
below for a more detailed discussion).
    (2) We have excluded from designation the proposed critical habitat 
unit in the Canadian River of New Mexico and Texas between Ute 
Reservoir and Lake Meredith. This 255 km (158.4 mi) long stream reach 
area was previously identified as Unit 1a and is excluded under the 
authority of section 4(b)(2) of the Act. The Canadian River Municipal 
Water Authority (CRMWA), in cooperation with at least 23 other Federal, 
State, and private partners, completed a special management plan for 
the Arkansas River shiner within this unit. After reviewing the plan, 
we believe that a reasonable certainty of execution and effectiveness 
exists such that conservation of the Arkansas River shiner would be 
promoted. Therefore we have concluded that the benefits of exclusion 
outweigh the benefits of designating critical habitat in this area (see 
``Exclusion Under Section 4(b)(2) of the Act'' section below for a more 
detailed discussion).
    (3) Within Unit 1b, we have excluded a reach of the Canadian River 
approximately 204 km (127 mi) long, extending from the Oklahoma state 
line, downstream to the State Highway 33 bridge near Thomas, Oklahoma, 
from the final critical habitat designation under section 4(b)(2) of 
the Act (see ``Exclusion Under Section 4(b)(2) of the Act'' section 
below for a detailed discussion). This reach includes the Packsaddle 
Wildlife Management Area (WMA) and the Four Canyons Preserve. An 
ongoing, funded conservation program to control salt cedar and other 
invasive plant species exists within this reach. Funding for this 
program has been secured through a Private Stewardship Grant and the 
goal of this program is to work with private landowners to increase 
stream flow in this reach of the Canadian River and thus providing a 
clear conservation benefit to the Arkansas River shiner. Excluding 
these lands preserves the partnerships that we developed with the 
Oklahoma Farm Bureau and other stakeholders. Therefore we have 
concluded that the benefits of exclusion outweigh the benefits of 
designating critical habitat in this area (see ``Exclusion Under 
Section 4(b)(2) of the Act'' section below for a more detailed 
discussion).
    (4) Within Unit 1b, we identified a 42 km (26 mi) reach of the 
Canadian River upstream of the Oklahoma state line and extending to the 
U.S. Highway 60/83 bridge near Canadian, Texas. As a result of this 
segment being surrounded by conservation lands and detached from a 
considerably larger designated reach, it is our determination that this 
segment no longer meets the definition of critical habitat and was 
removed from consideration.
    Table 1 below provides the approximate area (in miles (km)) 
designated as critical habitat for the Arkansas River shiner and areas 
excluded from the final critical habitat designation by State.

----------------------------------------------------------------------------------------------------------------
                                                                                 Areas excluded from the final
                 State                  Areas designated as critical habitat     critical habitat designation
----------------------------------------------------------------------------------------------------------------
Kansas................................  62.5 (100.6)                          194.1 (312.4)
New Mexico............................  0                                     38.0 (61.2)
Oklahoma..............................  470.2 (756.7)                         336.2 (541.1)
Texas.................................  0                                     142.6 (229.6)
    Total.............................  532.7 (857.3)                         710.9 (1,084.3)
----------------------------------------------------------------------------------------------------------------

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
that are necessary to bring an endangered or a threatened species to 
the point at which listing under the Act is no longer necessary. No 
specific areas outside the geographical area occupied by the Arkansas 
River shiner at the time of listing are designated as critical habitat 
in this final rule.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are ``essential to the conservation of the 
species.'' Critical habitat designations identify, to the extent known 
using the best scientific and commercial data available, habitat areas 
that provide essential life cycle needs of the species (i.e., areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only

[[Page 59824]]

if the essential features located there may require special management 
or protection. Thus, we do not include areas where existing management 
is sufficient to conserve the species. (As discussed below, such areas 
may also be excluded from critical habitat pursuant to section 
4(b)(2).) Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species at the time of 
listing. An area currently occupied by the species but not known to be 
occupied at the time of listing will often contain the PCEs that are 
essential to the conservation of the species and, therefore, be 
included in the critical habitat designation for that species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658), and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific and 
commercial data available. They require Service biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are designated as critical 
habitat, a primary source of information is generally the listing 
package for the species. Additional information sources include a 
recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (P.L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available in determining areas that 
contain the features that are essential to the conservation of the 
Arkansas River shiner. Our methods for identifying the Arkansas River 
shiner critical habitat included in this final designation are those 
methods we used to make our final designation for this species on April 
4, 2001 (66 FR 18002) and in our subsequent proposal of critical 
habitat for the Arkansas River shiner, published on October 6, 2004 (69 
FR 59859) as modified in accordance with our discussion in the Summary 
of Changes section above. These included data from research and survey 
observations published in peer-reviewed articles, academic theses, and 
agency reports, including those that were conducted by the Service; 
regional Geographic Information System (GIS) watershed and species 
coverages; and data compiled in the Oklahoma Natural Heritage Inventory 
Database. In addition, we used information and data received during the 
public comment periods on the proposed critical habitat designation, 
draft environmental assessment, and draft economic analysis, and 
communications with individuals inside and outside the Service who are 
knowledgeable about the species and its habitat needs.
    Conservation measures described in the final listing determination 
(63 FR 64772) and in the Issue 8: Recovery section of the prior final 
critical habitat determination (66 FR 18002); and our recovery outline 
also were used. Although a recovery plan has not yet been prepared for 
this species, the areas we have designated as critical habitat 
represent those that currently support viable populations of the 
Arkansas River shiner or are areas where we have data that the Arkansas 
River shiner is still extant (i.e., the Cimarron River). Full recovery 
of the species likely will require conservation of existing populations 
and establishment of at least one additional viable population in an 
additional stream drainage within the historic range of the Arkansas 
River shiner.
    Physical features were identified using U.S. Geological Survey 
(USGS) 7.5' quadrangle maps. River reach distances, as noted in Table 1 
above, were calculated from TIGER 2000 water line and water polygon GIS 
files.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base our determinations on the best 
scientific and commercial data available and to consider those physical 
and biological features (primary constituent elements (PCEs)) that are 
essential to the conservation of the species, and that may require 
special management considerations and protection. These features 
include, but are not limited to: space for individual and population 
growth and for normal behavior; food, water, light, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The specific biological and physical features, referred to as the 
primary constituent elements, that provide for the physiological, 
behavioral, and ecological requirements of the Arkansas River shiner 
are derived from its biological needs. These features include adequate 
spawning flows over sufficient distances; habitat for food organisms; 
appropriate water quality; a natural flow regime; rearing and juvenile 
habitat appropriate for growth and development to adulthood; and 
suitable habitat (e.g., sufficient flows and lack of barriers) 
sufficient to allow Arkansas River shiner to recolonize upstream 
habitats.

[[Page 59825]]

Special management, such as habitat rehabilitation efforts (e.g., 
removal or control of non-native competitors), also may be necessary 
over much of the area being designated as critical habitat.
    Given the large geographic range the species historically occupied, 
and the diverse habitats used by the various life-history stages, the 
specific values or conditions described for each of these habitat 
features may not capture all of the variability that is inherent in 
natural systems supporting the Arkansas River shiner. However, the 
identified lands provide aquatic and riparian (areas near a source of 
water) habitat containing the essential PCEs supporting the maintenance 
of self-sustaining populations throughout the range of the Arkansas 
River shiner. The following discussion summarizes the PCEs determined 
to be essential to the conservation of the Arkansas River shiner.

Space for Individual and Population Growth and for Normal Behavior

    The Arkansas River shiner historically inhabited the main channels 
of wide, shallow, sandy-bottomed rivers and larger streams of the 
Arkansas River Basin (Gilbert 1980). Adult Arkansas River shiners are 
uncommon in quiet pools or backwaters lacking streamflow, and almost 
never occur in habitats having deep water and bottoms of mud or stone 
(Cross 1967). Cross (1967) believed that adult Arkansas River shiner 
prefer to orient into the current on the ``lee'' sides of large 
transverse sand ridges and prey upon food organisms washed downstream 
with the current.
    Wilde et al. (2000) found no obvious selection for or avoidance of 
any particular habitat type (i.e., main channel, side channel, 
backwaters, and pools) by Arkansas River shiner. Arkansas River shiners 
did tend to select side channels and backwaters slightly more than 
expected based on the availability of these habitats (Wilde et al. 
2000). Likewise, they appeared to make no obvious selection for, or 
avoidance of, any particular substrate type. Substrates (i.e., the 
river bed) in the Canadian River in New Mexico and Texas were 
predominantly sand; however, the Arkansas River shiner was observed to 
occur over silt slightly more than expected based on the availability 
of this substrate (Wilde et al. 2000).
    Introductions of nonindigenous species can have a significant 
adverse impact on Arkansas River shiner populations under certain 
conditions. The morphological characteristics, population size, and 
ecological preferences exhibited by the Red River shiner (Notropis 
bairdi), a species endemic to the Red River drainage, suggest that it 
competes with the Arkansas River shiner for food and other essential 
life requisites (Cross et al. 1983; Felley and Cothran 1981). Since its 
introduction, the Red River shiner has colonized much of the Cimarron 
River and frequently may be a dominant component of the fish community 
(Cross et al. 1983; Felley and Cothran 1981). The intentional or 
unintentional release of Red River shiners, or other potential 
competitors, into other reaches of the Arkansas River drainage by 
anglers or the commercial bait industry is a potentially serious threat 
that could drastically alter habitat availability for the Arkansas 
River shiner in these reaches.

Food

    The Arkansas River shiner is believed to be a generalized forager 
and feeds upon both items suspended in the water column and items lying 
on the substrate (Jimenez 1999; Bonner et al. 1997). In the Canadian 
River of central Oklahoma, Polivka and Matthews (1997) found that gut 
contents were dominated by sand/sediment and detritus (decaying organic 
material) with invertebrate prey being an incidental component of the 
diet. In the Canadian River of New Mexico and Texas, the stomach 
contents of Arkansas River shiner were dominated by detritus, 
invertebrates, grass seeds, and sand and silt (Jimenez 1999). 
Invertebrates were the most important food item, followed by detrital 
material.
    Terrestrial and semiaquatic invertebrates were consumed at higher 
levels than were aquatic invertebrates (Jimenez 1999). With the 
exception of the winter season, when larval flies were consumed much 
more frequently than other aquatic invertebrates, no particular 
invertebrate taxa dominated the diet (Bonner et al. 1997). Fly larvae, 
copepods, immature mayflies, insect eggs, and seeds were the dominant 
items in the diet of the non-native population of the Arkansas River 
shiner inhabiting the Pecos River in New Mexico (Keith Gido, University 
of Oklahoma, in litt. 1997).

Water

    Most plains streams are highly variable environments. These streams 
can have either intermittent or perennial streamflow, and typically 
experience periodic flooding that scours vegetation and replenishes 
fine sediments. Water temperatures, flow regimes, and overall 
physicochemical conditions (e.g., quantity of dissolved oxygen) 
typically fluctuate so drastically that fishes native to these systems 
often exhibit life-history strategies and microhabitat preferences that 
enable them to cope with these conditions. Matthews (1987) classified 
several species of fishes, including the Arkansas River shiner, based 
on their tolerance for adverse conditions and selectivity for 
physicochemical gradients. The Arkansas River shiner was described as 
having a high thermal and oxygen tolerance, indicating a high capacity 
to tolerate elevated temperatures and low dissolved oxygen 
concentrations (Matthews 1987). Observations from the Canadian River in 
New Mexico and Texas revealed that dissolved oxygen concentrations, 
conductivity, and pH rarely influenced habitat selection by the 
Arkansas River shiner (Wilde et al. 2000). Arkansas River shiners were 
collected over a wide range of conditions--water temperatures from 0.4 
to 36.8[deg] Celsius (32.7 to 98.2[deg] Fahrenheit), dissolved oxygen 
from 3.4 to 16.3 parts per million, conductivity (total dissolved 
solids) from 0.7 to 14.4 millisiemens per centimeter, and pH from 5.6 
to 9.0.
    In the Canadian River in central Oklahoma, Polivka and Matthews 
(1997) found that Arkansas River shiner exhibited only a weak 
relationship between the environmental variables they measured and the 
occurrence of the species within the stream channel. Water depth, 
current, dissolved oxygen, and sand ridge and midchannel habitats were 
the environmental variables most strongly associated with the 
distribution of adult Arkansas River shiner within the channel. 
Similarly, microhabitat selection by Arkansas River shiner in the 
Canadian River in New Mexico and Texas was influenced by water depth, 
current velocity, and, to a lesser extent, water temperature (Wilde et 
al. 2000). Arkansas River shiners generally occurred at mean water 
depths between 17 and 21 centimeters (cm) (6.6-8.3 inches (in)) and 
current velocities between 30 and 42 cm (11.7 and 16.4 in) per second. 
Juvenile Arkansas River shiners selected habitat influenced strongly by 
current, conductivity, and backwater and island habitat types (Polivka 
and Matthews 1997).

Sites for Breeding, Reproduction and Rearing of Offspring

    Successful reproduction by the Arkansas River shiner appears to be 
strongly correlated with streamflow. Moore (1944) believed the Arkansas 
River shiner spawned in July, usually coinciding with elevated flows 
following heavy rains associated with summertime thunderstorms. Bestgen 
et al. (1989) found that spawning in the non-native population of 
Arkansas River

[[Page 59826]]

shiner in the Pecos River of New Mexico generally occurred in 
conjunction with releases from Sumner Reservoir. However, recent 
studies by Polivka and Matthews (1997) and Wilde et al. (2000) neither 
confirmed nor rejected the hypothesis that elevated streamflow 
triggered spawning in the Arkansas River shiner.
    Arkansas River shiners are in-channel, open-water, broadcast 
spawners that release their eggs and sperm over an unprepared substrate 
(Platania and Altenbach 1998; Johnston 1999). Examination of Arkansas 
River shiner gonadal development between 1996 and 1998 in the Canadian 
River in New Mexico and Texas demonstrated that the species undergoes 
multiple, asynchronous (not happening at the same time) spawns in a 
single season (Wilde et al. 2000). The Arkansas River shiner appears to 
be in peak reproductive condition throughout the months of May, June, 
and July (Wilde et al. 2000; Polivka and Matthews 1997); however, 
spawning may occur as early as April and as late as September. Arkansas 
River shiners may, on occasion, spawn in standing waters (Wilde et al. 
2000), but it is unlikely that such events are successful.
    Both Moore (1944) and Platania and Altenbach (1998) described 
behavior of Arkansas River shiner eggs. The fertilized eggs are 
nonadhesive and semibuoyant. Platania and Altenbach (1998) found that 
spawned eggs settled to the bottom of the aquaria where they quickly 
absorbed water and expanded. Upon absorbing water, the eggs became more 
buoyant, rose with the water current, and remained in suspension. The 
eggs would sink when water current was not maintained in the aquaria. 
This led Platania and Altenbach (1998) to conclude that the Arkansas 
River shiner and other plains fishes likely spawn in the upper to mid-
water column during elevated flows. Spawning under these conditions 
would allow the eggs to remain suspended during the 10-to 30-minute 
period the eggs were non-buoyant. Once eggs became buoyant, they would 
remain suspended in the water column as long as current was present.
    In the absence of sufficient streamflows, the eggs would likely 
settle to the channel bottom, where silt and shifting substrates would 
smother the eggs, hindering oxygen uptake and causing mortality of the 
embryos. Spawning during elevated flows appears to be an adaptation 
that likely increases survival of the embryo and facilitates dispersal 
of the young. Assuming a conservative drift rate of 3 km/hour, Platania 
and Altenbach (1998) estimated that the fertilized eggs could be 
transported 72-144 km (45-89 mi) before hatching. Developing larvae 
could then be transported up to an additional 216 km (134 mi) before 
they were capable of directed swimming movements. Bonner and Wilde 
(2000) speculate that 218 km (135 mi) may be the minimum length of 
unimpounded river that allows for the successful completion of Arkansas 
River shiner life history, based on their observations in the Canadian 
River in New Mexico and Texas.
    Rapid hatching and development of the young is likely another 
adaptation in plains fishes that enhances survival in the harsh 
environments of plains streams. Arkansas River shiner eggs hatch in 24-
48 hours after spawning, depending upon water temperature (Moore 1944; 
Platania and Altenbach 1998). The larvae are capable of swimming within 
3-4 days; they then seek out low-velocity habitats, such as backwater 
pools and quiet water at the mouths of tributaries where food is more 
abundant (Moore 1944).
    Evidence from Wilde et al. (2000) indirectly supports the 
speculation by Cross et al. (1985) that the Arkansas River shiner 
initiates an upstream spawning migration. Whether this represents a 
true spawning migration or just a general tendency in these fish to 
orient into the current and move upstream, perhaps in search of more 
favorable environmental conditions, is unknown (Wilde et al. 2000). 
Regardless, strong evidence suggested the presence of a directed, 
upstream movement by the Arkansas River shiner over the course of a 
year.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the Arkansas River shiner primary constituent elements (PCEs) are:
    (1) A natural, unregulated hydrologic regime complete with episodes 
of flood and drought or, if flows are modified or regulated, a 
hydrologic regime characterized by the duration, magnitude, and 
frequency of flow events capable of forming and maintaining channel and 
instream habitat necessary for particular Arkansas River shiner life-
stages in appropriate seasons;
    (2) A complex, braided channel with pool, riffle (shallow area in a 
streambed causing ripples), run, and backwater components that provide 
a suitable variety of depths and current velocities in appropriate 
seasons;
    (3) A suitable unimpounded stretch of flowing water of sufficient 
length to allow hatching and development of the larvae;
    (4) Substrates of predominantly sand, with some patches of silt, 
gravel, and cobble;
    (5) Water quality characterized by low concentrations of 
contaminants and natural, daily and seasonally variable temperature, 
turbidity, conductivity, dissolved oxygen, and pH;
    (6) Suitable reaches of aquatic habitat, as defined by primary 
constituent elements 1 through 5 above, and adjacent riparian habitat 
sufficient to support an abundant terrestrial, semiaquatic, and aquatic 
invertebrate food base; and
    (7) Few or no predatory or competitive non-native fish species 
present.
    All areas designated as critical habitat for the Arkansas River 
shiner are within the historic range occupied by the species and 
contain one or more of the primary constituent elements essential for 
its conservation. These aquatic and riparian habitat PCEs form the 
basis of our critical habitat units. These features are essential to 
the conservation of the Arkansas River shiner.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat within portions of the Canadian 
and Cimarron Rivers and their associated riparian zones that we 
determine have the features that are essential to the conservation of 
the Arkansas River shiner. We considered several criteria in the 
selection and proposal of Arkansas River shiner critical habitat. 
Initially, we solicited information from knowledgeable biologists and 
reviewed available information pertaining to Arkansas River shiner 
biology and life history. The best scientific information available 
indicates that recovery of this species will depend on conservation of 
relatively long stretches of large rivers (Platania and Altenbach 1998) 
within Arkansas River shiner historic range. Accordingly, this critical 
habitat designation reflects the need for areas of sufficient stream 
length to provide habitat for Arkansas River shiner populations large 
enough to be self-sustaining over time, despite fluctuations in local 
conditions.
    We then determined the occupancy status of the areas. Areas 
supporting extant populations represent the foundation for continued 
persistence of the species.
    We considered that the preferred habitat for the Arkansas River 
shiner is predominantly the mainstems of larger

[[Page 59827]]

plains rivers. Historically, the species has also been documented from 
several smaller tributaries (e.g., Skeleton Creek, Wildhorse Creek, and 
others) to these rivers (Larson et al. 1991). Examination of the 
collection records provided in Larson et al. (1991) shows that about 53 
percent of the reported capture dates for the Arkansas River shiner in 
these smaller tributaries occurred during the months of June and July, 
while another 18 percent occurred during the months of May and August. 
Consequently, we believe that these tributaries are occupied only 
during certain seasons associated with higher flows and do not 
represent optimal habitat for all life stages. However, these 
seasonally occupied habitats may be important feeding, nursery, or 
spawning areas, and all tributaries, no matter their size, are 
important in contributing flows to the critical habitat reaches. 
Federal actions that may substantially reduce these flows may adversely 
affect critical habitat and will be subject to consultation provisions 
outlined in section 7 of the Act. Because newly hatched Arkansas River 
shiners seek mouths of tributaries where food is more abundant (Moore 
1944), this designation (see ``Lateral Extent of Critical Habitat'' 
section) includes small sections of the tributaries near their 
confluence, which are important rearing areas for larval Arkansas River 
shiner.
    Other important considerations in selection of areas included in 
this critical habitat designation include factors specific to each 
river system, such as size, connectivity, and habitat diversity, as 
well as rangewide recovery considerations, such as genetic diversity 
and resilience to periodic extirpations in adjacent habitat patches. 
Each area contains stream reaches with interconnected waters so that 
individual Arkansas River shiners can move between areas, at least 
during certain flows or seasons. The ability of the fish to repopulate 
areas where they have been depleted or extirpated is vital to recovery 
by helping to stabilize the population and better ensuring its future 
persistence. Some areas include stream reaches that do not exhibit 
optimal Arkansas River shiner habitat, but provide movement corridors 
or connections between adjacent segment of optimal habitat. 
Additionally, these reaches play a vital role in the overall health of 
the aquatic ecosystem and, therefore, the integrity of upstream and 
downstream Arkansas River shiner habitats.
    We then evaluated suitable habitat as defined by the primary 
constituent elements discussed above to assess whether they may require 
special management considerations or protection (see ``Special 
Management Considerations or Protection'' section below). During this 
evaluation, we reviewed the overall approach to the conservation of the 
species undertaken by local, State, Tribal, and Federal agencies and 
private individuals and organizations since the listing of this species 
in 1998. For example, the Kansas Department of Wildlife and Parks has 
designated critical habitat for the Arkansas River shiner in accordance 
with Kansas State law. Portions of the mainstem Cimarron, Arkansas, 
South Fork Ninnescah, and Ninnescah Rivers have been designated as 
critical habitat for the Arkansas River shiner in Kansas. A permit is 
required by the State of Kansas for public actions that have the 
potential to destroy State-listed individuals or their State designated 
critical habitat. Subject activities include any publicly funded or 
State or federally assisted action, or any action requiring a permit 
from any other State or Federal agency. Violation of the permit 
constitutes an unlawful taking, a Class A misdemeanor, and is 
punishable by a maximum fine of $2,500 and confinement for a period not 
to exceed 1 year. However, similar habitat protections for the Arkansas 
River shiner do not exist in Arkansas, New Mexico, Oklahoma, or Texas.
    All of the stream reaches historically known to support the 
Arkansas River shiner at the time of listing, including portions of the 
Arkansas, Cimarron, Beaver/North Canadian, and Canadian Rivers, also 
contain the features that are considered essential habitat for this 
species. These areas have the primary constituent elements described 
above and, as such, provide suitable habitat as defined in several 
recent scientific studies including Platania and Altenbach 1998, 
Polivka and Matthews 1997, and Wilde et al. 2000. However, as discussed 
in the ``Exclusion Under Section 4(b)(2) of the Act'' section below, we 
are excluding those portions of the Arkansas and the Beaver/North 
Canadian Rivers proposed as critical habitat for the Arkansas River 
shiner.
    As noted below, we are excluding the Beaver/North Canadian River in 
Oklahoma and the lower Arkansas River in Kansas. As discussed in this 
rule, we believe that the Arkansas River shiner is extirpated from 
these river segments; however, we believe they are important for future 
restoration effects. As we stated in the listing rule (63 FR 64772; 
November 23, 1998), transplantation of the Arkansas River shiner from 
the Pecos River will be evaluated as a means to recover the Arkansas 
River shiner in unoccupied portions of its historic habitat. In 
addition, our recovery outline for the species identified re-
establishing the Arkansas River shiner into suitable unoccupied 
historic habitat as a crucial component of recovery. In accordance with 
the outline, we have undertaken steps to develop and document captive 
propagation techniques for the Arkansas River shiner. In November 1999, 
with the assistance of the New Mexico Game and Fish Department, we 
collected over 300 Arkansas River shiner from the Pecos River. These 
fish were transported to the Tishomingo National Fish Hatchery in 
Oklahoma where hatchery personnel were successful in inducing spawning 
of the species and coaxing the juveniles to feed in captivity. Future 
restoration efforts will undoubtedly occur, pending completion of an 
approved recovery plan and genetic work to determine the suitability of 
using Arkansas River shiner from the Pecos River population in 
transplantation efforts.
    Restoration of Arkansas River shiner populations to additional 
portions of their historical range significantly reduces the likelihood 
of extinction due to natural or manmade factors, such as the 
introduction of the Red River shiner, pollution episodes, or a 
prolonged period of low or no flow, that might otherwise further reduce 
population size. For example, in July of 2003, an unintentional but 
unauthorized discharge of livestock waste entered the Canadian River 
upstream of Oklahoma City, Oklahoma. In the ensuing fish kill, an 
estimated 11,000 Arkansas River shiners perished. If recovery actions 
fail to reverse Arkansas River shiner declines in the Canadian River, 
the species' vulnerability to similar catastrophic events would 
increase. A vital recovery component for this species likely will 
involve establishment of secure, self-sustaining populations in 
habitats from which the species has been extirpated.
    We also considered the existing status of Federal, non-Federal 
public, and private lands in designating areas as critical habitat. 
This included land owned by the Texas Parks and Wildlife Department, 
Oklahoma Department of Wildlife Conservation, and The Nature 
Conservancy. We also attempted to determine the extent of Tribal land 
areas as part of the critical habitat designation process. We have 
informally coordinated with the respective Tribes on this designation 
under the guidance of the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, Secretarial Order 3206, and 
512

[[Page 59828]]

DM 2, which require us to coordinate with federally-recognized Tribes 
on a Government-to-Government basis. All non-Federal lands designated 
as critical habitat meet the definition of critical habitat under 16 
U.S.C.' 1532(5)(A)(i) of the Act in that they are within the 
geographical area occupied by the species, contain the features that 
are essential to the conservation of the species, and may require 
special management consideration or protection.
    In determining critical habitat boundaries, we made an effort to 
avoid developed areas, such as buildings, paved areas and other similar 
lands that do not support the PCEs essential for Arkansas River shiner 
conservation. Any structures, paved areas, or otherwise developed areas 
inside critical habitat boundaries are specifically excluded by text 
and not part of the designated units.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas that 
contain the features determined to be essential for conservation may 
require special management considerations or protections. As we 
undertake the process of designating critical habitat for a species, we 
first evaluate lands defined by those physical and biological features 
essential to the conservation of the species for inclusion in the 
designation pursuant to section 3(5)(A) of the Act. Secondly, we then 
evaluate lands defined by those features to assess whether they may 
require special management considerations or protection.
    As discussed in this final rule, our proposed rule published on 
October 6, 2004 (69 FR 59859), and our previous final designation of 
critical habitat (66 FR 18002, April 4, 2001), the Arkansas River 
shiner and its habitat are threatened by a multitude of human-related 
activities, including but not limited to, stream flow modification, 
habitat loss by inundation, channel drying by water diversion and 
groundwater mining, stream channelization, water quality degradation, 
and introduction of nonindigenous plant and animal species. While many 
of these threats operate concurrently and cumulatively with one another 
and with natural disturbances like drought, habitat loss and 
modification represents the most significant threat to the Arkansas 
River shiner. Consequently, we believe each area designated as critical 
habitat may require some level of management and/or protection to 
address current and future threats to the Arkansas River shiner, 
maintain the primary constituent elements essential to its 
conservation, and ensure the overall recovery of the species. Further 
discussion of the threats specific to each unit that may require 
special management considerations or protection are further discussed 
in the ``Unit Descriptions'' section below.
    The range and numbers of the species has already been much reduced 
by these threats. Consequently, the remaining fragmented sections are 
more likely to be affected by influences from other factors such as 
drought, water withdrawals, and permitted and unpermitted wastewater 
discharges. Once habitats are isolated, other aggregations of Arkansas 
River shiner can no longer disperse into these reaches and help 
maintain or restore these populations. Isolation and segregation caused 
by habitat fragmentation can lead to a reduction in overall genetic 
diversity. Lande (1999) identified reduced genetic diversity as one of 
several factors influencing extinction in small populations. Therefore, 
to conserve and recover the fishes to the point where they no longer 
require the protection of the Act and may be delisted, it is important 
to maintain and protect all remaining genetically diverse populations 
of this species within its historic range.
    Within the historic range of the Arkansas River shiner, 
considerable reaches of formerly occupied habitat have been inundated 
by reservoirs. While these losses are permanent and cannot reasonably 
be restored, management of water releases, such as those from Ute 
Reservoir, can be carried out in a manner that minimizes any adverse 
impacts and facilitates maintenance of Arkansas River shiner habitat. 
Removal of the nonnative salt cedar also can free additional water 
that, with management, can further provide for the habitat needs of the 
Arkansas River shiner. Streamflow management combined with control of 
salt cedar can retard the channel narrowing that often occurs following 
a reduction in streamflow and can improve Arkansas River shiner 
habitat.
    In other portions of the historic range, a lack of reservoir 
releases and groundwater mining has drastically reduced streamflows 
necessary for maintenance of Arkansas River shiner habitat. In these 
areas, control of salt cedar and enhanced water conservation, for both 
municipal and agricultural uses, can help ensure adequate streamflow 
continues to occur. Considering the amount of free-flowing habitat 
required to sustain Arkansas River shiner reproduction (as discussed in 
the ``Primary Constituent Element'' section above), such management may 
be particularly beneficial in ensuring that suitable spawning, rearing, 
and nursery habitat persists.
    Introductions of nonnative species, whether intentional or 
accidental, often have deleterious impacts to native species. The 
accidental introduction of the nonnative Red River shiner has 
negatively influenced the distribution and abundance of the Arkansas 
River shiner in the Cimarron River. A further introduction into other 
portions of its historic range poses a considerable threat to the 
Arkansas River shiner. Management efforts to eradicate the Red River 
shiner and eliminate or reduce the potential for additional releases of 
this species would be beneficial to the survival of the Arkansas River 
shiner.

Critical Habitat Designation

    We are designating two units as critical habitat for the Arkansas 
River shiner. The critical habitat areas described below constitute our 
best assessment at this time of areas we determined to be occupied at 
the time of listing, to contain the primary constituent elements, and 
that may require special management. The river reaches designated are 
those most likely to substantially contribute to conservation of the 
Arkansas River shiner, which when combined with future management of 
certain unoccupied habitats suitable for restoration efforts, will 
contribute to the long-term survival and recovery of the species. 
Included in the designation are areas that contain most, if not all, of 
the remaining genetic diversity of the Arkansas River shiner within the 
Arkansas River Basin. The two segments in the Canadian River and the 
segment in the Cimarron River represent the largest, and perhaps only, 
remaining viable aggregations of Arkansas River shiner. The two areas 
designated as critical habitat, plus the three units that have been 
excluded from critical habitat designation, are shown in Table 1 above.

Lateral Extent of Critical Habitat

    This designation takes into account the naturally dynamic character 
of riverine systems and recognizes that floodplains are an integral 
part of the stream ecosystem. Habitat quality within the mainstem river 
channels in the historical range of the Arkansas River shiner is 
intrinsically related to the character of the floodplain and the

[[Page 59829]]

associated tributaries, side channels, and backwater habitats that 
contribute to the key habitat features (e.g., substrate, water quality, 
and water quantity) in these reaches. Among other contributions, the 
floodplain provides space for natural flooding patterns and latitude 
for necessary natural channel adjustments to maintain appropriate 
channel morphology and geometry. Relatively intact riparian zones, 
along with periodic flooding in a relatively natural pattern, are 
important in maintaining the stream conditions necessary for long-term 
survival and recovery of the Arkansas River shiner.
    Human activities that occur outside the river channel can have a 
demonstrable effect on the physical and biological features of aquatic 
habitats. However, not all of the activities that occur within a 
floodplain will have an adverse impact on the Arkansas River shiner or 
its habitat. Thus, in determining the lateral extent of critical 
habitat along riverine systems, we considered the definition of 
critical habitat under the Act. That is, critical habitat must contain 
the elements essential to a species' conservation and must be in need 
of special management considerations or protection. We see no need for 
special management considerations or protection for the entire 
floodplain, and we are not proposing to designate the entire floodplain 
as critical habitat. However, conservation of the river channel alone 
is not sufficient to ensure the survival and recovery of the Arkansas 
River shiner. For instance, the diet of the Arkansas River shiner 
includes many species of terrestrial insects and seeds of grasses 
occurring in the riparian corridor (Jimenez 1999). We believe the 
riparian corridors adjacent to the river channel provide a reasonable 
lateral extent for critical habitat designation.
    Riparian areas are seasonally flooded habitats (i.e., wetlands) 
that are major contributors to a variety of vital functions within the 
associated stream channel (Federal Interagency Stream Restoration 
Working Group 1998; Brinson et al. 1981). Riparian zones are essential 
for energy and nutrient cycling, filtering runoff, absorbing and 
gradually releasing floodwaters, recharging groundwater, maintaining 
streamflows, protecting stream banks from erosion, and providing shade 
and cover for fish and other aquatic species. Healthy riparian 
corridors help ensure water courses maintain the primary constituent 
elements essential to stream fishes, including the Arkansas River 
shiner. Although the Arkansas River shiner cannot be found in riparian 
areas when they are dry, riparian areas provide habitat during high 
water periods and contribute to the food base utilized by the Arkansas 
River shiner.
    The lateral extent (width) of riparian corridors fluctuates 
considerably between a stream's headwaters and its mouth. The 
appropriate width for riparian buffer strips has been the subject of 
several studies (Castelle et al. 1994). Most Federal and State agencies 
generally consider a zone 23-46 m (75-150 ft) wide on each side of a 
stream to be adequate (NRCS 1998; Moring et al. 1993; Lynch et al. 
1985), although buffer widths as wide as 152 m (500 ft) have been 
recommended for achieving flood attenuation benefits (Corps 1999). In 
most instances, however, riparian buffer zones are primarily intended 
to reduce (i.e., buffer) detrimental impacts to the stream from sources 
outside the river channel. Consequently, while a riparian corridor 23-
46 m (75-150 ft) in width may function adequately as a buffer, it is 
likely inadequate to preserve the natural processes that provide 
Arkansas River shiner primary constituent elements.
    Generally, we consider a lateral distance of 91.4 m (300 ft) on 
each side of the stream beyond the bankfull width to be an appropriate 
riparian corridor width for the preservation of Arkansas River shiner 
constituent elements. The bankfull width is the width of the stream or 
river at bankfull discharge. Bankfull discharge is significant because 
it is the flow at which water begins to leave the active channel and 
move into the floodplain (Rosgen 1996) and serves to identify the point 
at which the active channel ceases and the floodplain begins. Bankfull 
discharge, while a function of climate and the size of the stream, is a 
fairly consistent feature related to the formation, maintenance, and 
dimensions of the stream channel (Rosgen 1996). Trained individuals can 
readily approximate the upper limits of bankfull discharge in the field 
using physical indicators such as depositional features, scour lines, 
and changes in vegetation. Bankfull discharge is generally accepted as 
the flow that occurs every 1 to 2 years (Leopold et al. 1992).
    Some developed lands within the 91.4 m (300 ft) lateral extent are 
not considered critical habitat because they do not contain the primary 
constituent elements and, therefore, do not have the features that are 
essential to the conservation of the Arkansas River shiner. Lands 
located within the boundaries of the critical habitat designation, but 
that do not contain any of the primary constituent elements or provide 
habitat or biological features essential to the conservation of the 
Arkansas River shiner include: existing paved roads; bridges; parking 
lots; railroad tracks; railroad trestles; water diversion and 
irrigation canals outside of natural stream channels; active sand and 
gravel pits; regularly cultivated agricultural land; and residential, 
commercial, and industrial developments. However, activities funded, 
authorized, or carried out in these areas by Federal action agencies 
that may affect the primary constituent elements of the critical 
habitat, may require consultation pursuant to section 7 of the Act.
    In summary, the riparian zone included in the lateral extent of 
critical habitat for the Arkansas River shiner serves several functions 
vital to ensuring the aquatic habitat continues to provide the primary 
constituent elements needed by the shiner. As stated above, a proper 
functioning riparian zone helps ensure that the aquatic habitat 
continues to function ecologically and riparian areas can provide 
habitat during high water periods. Plains rivers are primarily located 
in areas with soils predominated by sands. These soils are extremely 
susceptible to wind and water erosion. Once erosion starts, channel 
characteristics, such as hydraulics, depths, velocity and related 
features can change considerably and large volumes of sediment can 
become suspended and transported in the channel. The riparian 
vegetation is crucial to holding soils in place and avoiding stream 
bank erosion. Riparian vegetation also provides shade vital during 
summer time low flow events. During these times, stream flows begin to 
decline and fishes are often isolated to pools near the margins of the 
river. The overhanging vegetation helps shade these pools. Without the 
shade, temperatures in these pools can quickly become lethal as they 
exceed the thermal capacity of the fish. The riparian zone also 
provides seeds and terrestrial invertebrates that form a component of 
the diet of the Arkansas River shiner. In addition, vegetative material 
from the riparian zone, along with instream production, drives the 
nutrient/energy cycle of the stream. Aquatic invertebrates utilize this 
terrestrial vegetative material as food. The Arkansas River shiner in 
turn feeds on the invertebrates. The riparian vegetation is an 
important component of the food web that everything else depends upon 
for energy and nutrients. The riparian zone also serves to buffer the 
stream from impacts that occur within the floodplain but outside of the 
riparian zone. However, in determining the lateral extent for the 
Arkansas River

[[Page 59830]]

shiner, we believe that the riparian zone is capable of supporting most 
of these important processes and functions, not just serving as a 
buffer zone.

Unit Descriptions

    Critical habitat and habitat that has been excluded includes 
Arkansas River shiner habitat in five reaches of four different rivers 
within the Arkansas River basin in Kansas, New Mexico, Oklahoma, and 
Texas. Lands we considered for critical habitat are largely under 
private, State, and Federal ownership. We are designating critical 
habitat in two reaches (i.e., units) and excluding the remaining three 
units for various reasons, as described in the ``Exclusion Under 
Section 4(b)(2) of the Act'' section below. For those areas that have 
been excluded, the unit description is provided only to define the 
unit. Although all of the units are within the geographic range of the 
species, we are not designating all of the areas known to be occupied 
by the Arkansas River shiner. A brief description of each unit, reasons 
why it contains the features essential for the conservation of the 
Arkansas River shiner, and the special management considerations 
particular to each unit, are presented below.

Unit 1a. Canadian River, Quay County, New Mexico, and Oldham and Potter 
Counties, Texas

    The Canadian River from near Ute Dam in New Mexico to the upper 
reaches of Eufaula Reservoir in Oklahoma, except for those areas 
rendered unsuitable for Arkansas River shiner by Lake Meredith in 
Texas, is currently occupied by the Arkansas River shiner. These are 
the largest, remaining viable aggregations of Arkansas River shiner, 
and are considered to represent the ``core'' of what remains of the 
species. Smaller tributary streams, with the exception of Revuelto 
Creek in New Mexico and small sections of the tributaries near their 
confluence, may be seasonally occupied by the Arkansas River shiner.
    We have excluded all areas in Unit 1a from the final critical 
habitat designation under section 4(b)(2) of the Act (see ``Exclusion 
Under Section 4(b)(2) of the Act'' section below for a detailed 
discussion). Unit 1a consists of approximately 248 km (154 mi) of the 
Canadian River extending from U.S. Highway 54 bridge near Logan, New 
Mexico, downstream to the confluence with Coetas Creek, Texas. Seepage 
from Ute Reservoir, inflow from Revuelto Creek, and several springs 
help sustain perennial flow in most years. There are occasional periods 
of no flow, and prior to 1956, low flows in the lower section were 
historically maintained by effluent from the Amarillo, Texas, 
wastewater treatment plant. This segment of the Canadian River, despite 
flows having been modified by Conchas and Ute reservoirs, still 
supports a largely intact plains river fish fauna. Within New Mexico, 
this reach is predominantly in private ownership, although the State of 
New Mexico owns scattered tracts. The reach in Texas is in private 
ownership, except for a small segment on the extreme lower end that is 
owned by the National Park Service as part of the Lake Meredith 
National Recreation Area.
    We did not consider including the following additional areas in 
this designation because we determined that these areas do not meet the 
definition of critical habitat. Upstream of Ute Reservoir, the Canadian 
River was substantially modified following the construction of Conchas 
Reservoir and likely provides little suitable habitat. A small portion 
of Arkansas River shiner historical range occurs upstream of Conchas 
Reservoir, but the suitability of that reach for Arkansas River shiner 
is unknown. No extant aggregations of the Arkansas River shiner are 
known from these reaches. Arkansas River shiners persist in portions of 
the 3.2 km (2 mi) reach between the U.S. Highway 54 bridge and Ute 
Dam.; however, we did not consider this section of the stream to have 
the features essential to the conservation of the species because it 
rarely contains suitable habitat due to the influence of Ute Reservoir.

Unit 1b. Canadian River, Hemphill County, Texas, and Blaine, Caddo, 
Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Hughes, McClain, 
McIntosh, Pittsburg, Pontotoc, Pottawatomie, Roger Mills, and Seminole 
Counties, Oklahoma

    This reach is predominantly in private ownership, with limited 
areas of State and tribal ownership (see ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act'' section). The Oklahoma Department of Wildlife 
Conservation owns a small section near Roll, Oklahoma (Packsaddle WMA). 
The Nature Conservancy also owns a small tract near Roll, Oklahoma 
(Four Canyons Preserve). Small tracts of tribal lands are located near 
Oklahoma City.
    Essential lands in Unit 1b consist of approximately 600 km (373 mi) 
of river extending from the Oklahoma state line, downstream to the 
Indian Nation Turnpike bridge northwest of McAlester, Oklahoma. This 
segment of the Canadian River is the longest unfragmented reach in the 
Arkansas River Basin that still supports the Arkansas River shiner. 
Arkansas River shiner abundance in this reach varies from rare to 
common, with the species generally becoming more abundant in a 
downstream direction.
    Of these essential areas, we have excluded a portion of lands in 
Unit 1b, extending from the Oklahoma state line, downstream to the 
State Highway 33 bridge near Thomas, Oklahoma, from the final critical 
habitat designation under section 4(b)(2) of the Act (see ``Exclusion 
Under Section 4(b)(2) of the Act'' section below for a detailed 
discussion). This 204 km (127 mi) long reach includes the Packsaddle 
WMA and the Four Canyons Preserve. As a result, the final designation 
of critical habitat within Unit 1b encompasses a 396 km (246 mi) 
stretch from the State Highway 33 bridge near Thomas, Oklahoma, 
downstream to the Indian Nation Turnpike bridge northwest of McAlester, 
Oklahoma.
    Within Unit 1b, we identified a 42 km (26 mi) reach of the Canadian 
River upstream of the Oklahoma state line and extending to the U.S. 
Highway 60/83 bridge near Canadian, Texas. This area was proposed as 
essential habitat for the Arkansas River shiner; however, as a result 
of this segment being surrounded by conservation lands, detached from a 
considerably larger designated reach, and too small to support 
successful completion of Arkansas River shiner life history (i.e., less 
than 218 km (135 mi)), it is our determination that this segment does 
not meet the definition of critical habitat and was removed from 
consideration.
    We did not consider including the following areas in Unit 1b 
because we determined that these areas do not meet the definition of 
critical habitat. The Canadian River upstream of the community of 
Canadian, Texas, to Sanford Dam at Lake Meredith, frequently supported 
Arkansas River shiners prior to the construction of Lake Meredith. 
However, habitat in this segment is currently degraded and generally 
unsuitable. Some aggregations of Arkansas River shiner may still 
persist upstream of Canadian, Texas, although primarily on a seasonal 
basis and in extremely small numbers. Altered flow regimes will 
continue to affect habitat quality in this reach. Aggregations of 
Arkansas River shiner also persist in the 49 km (30 mi) section of the 
Canadian River from the Indian Nation Turnpike bridge downstream to the 
upper limits of Eufaula Reservoir. However, the downstream 
distributional limit of these populations frequently fluctuates. 
Management of water surface

[[Page 59831]]

elevations in Eufaula Reservoir for flood control and the resultant 
backwater effects routinely alter stream morphology at the downstream 
extent of the population. Under elevated surface water conditions, the 
lower reaches of this segment are degraded or may be entirely 
unsuitable for Arkansas River shiner.

Unit 2. Beaver/North Canadian River, Beaver, Ellis, Harper, Major, 
Texas, and Woodward Counties, Oklahoma

    We have excluded all lands in Unit 2 from the final critical 
habitat designation under section 4(b)(2) of the Act (see ``Exclusion 
Under Section 4(b)(2) of the Act'' section below for a detailed 
discussion). Unit 2 consists of 340 km (211 mi) of river extending from 
Optima Dam in Texas County, Oklahoma, downstream to U.S. Highway 60/281 
bridge in Major County, Oklahoma. Almost the entire Beaver/North 
Canadian River mainstem and at least one of the major tributaries (Deep 
Fork River) in Oklahoma were historically known to support Arkansas 
River shiner aggregations. At present, aquatic habitats in large areas 
of the drainage are degraded or unsuitable, either because of 
reservoirs, reduced stream flow, or water quality impairment. A small 
aggregation of Arkansas River shiners may still persist between Optima 
Dam and the upper reaches of Canton Reservoir, based on the collection 
of four individuals since 1990. However, an assessment of fish 
communities and aquatic habitat was conducted at 10 sites within this 
unit during 2000 and 2001 (Wilde 2002). During this assessment, 
Arkansas River shiners were not encountered and available habitat was 
considered marginal (Wilde 2002). While habitat quality in this reach 
appears marginal, all of the primary constituent elements are present. 
However, we are uncertain if the Arkansas River shiner still inhabits 
this reach. The segment between Optima Dam and the upper reaches of 
Canton Reservoir offers an opportunity for recovery of the Arkansas 
River shiner in the Beaver/North Canadian River. Reestablishing 
Arkansas River shiner in this reach would involve some habitat 
restoration to achieve more optimal conditions for the Arkansas River 
shiner. Recovery activities will likely include augmenting existing 
aggregations of the Arkansas River shiner and may involve 
reestablishing additional populations in this system.
    Land ownership for Unit 2 is predominantly private, with limited 
areas of State owned lands. The Oklahoma Department of Wildlife 
Conservation owns small sections near Beaver, Oklahoma (Beaver River 
WMA) and near Fort Supply, Oklahoma (Cooper WMA). The Oklahoma 
Department of Parks and Tourism owns a small section near Woodward, 
Oklahoma (Boiling Springs State Park).

Unit 3. Cimarron River, Clark, Comanche, Meade, and Seward Counties, 
Kansas, and Beaver, Blaine, Harper, Kingfisher, Logan, Major, Woods, 
and Woodward Counties, Oklahoma

    Lands in Unit 3 consist of approximately 460 km (286 mi) of river 
extending from U.S. Highway 54 bridge in Seward County, Kansas, 
downstream to U.S. Highway 77 bridge in Logan County, Oklahoma. 
Historically, almost the entire Cimarron River mainstem, including the 
type locality for the species (the area from which the specimens that 
were used to first describe the species were taken), and several of the 
major tributaries were inhabited by the Arkansas River shiner. Between 
1985 and 1992, only 16 specimens of the Arkansas River shiner were 
collected from the Cimarron River. Arkansas River shiner specimens 
where not reported again until 2004 when eight Arkansas River shiners 
were collected near Guthrie, Oklahoma, by SWCA Environmental 
Consultants (Stuart Leon, U.S. Fish and Wildlife Service, in litt. 
2004). Although this population is by no means secure, it continues to 
persist over time and appears to be at least marginally viable despite 
low numbers being captured over the last 13 years.
    The diminished distribution and abundance of the Arkansas River 
shiner in the Cimarron River is due, in part, to the introduction of 
the Red River shiner and continuing habitat loss and degradation (Cross 
et al. 1983; Felley and Cothran 1981). The Red River shiner, a small 
minnow endemic to the Red River, was first recorded from the Cimarron 
River in Kansas in 1972 (Cross et al. 1985) and from the Cimarron River 
in Oklahoma in 1976 (Marshall 1978). Since that time, the nonindigenous 
Red River shiner has essentially replaced the Arkansas River shiner 
throughout much of the Cimarron River. While reduced streamflow in the 
upper reaches and the presence of Red River shiners will likely 
complicate recovery efforts in the Cimarron River, increased management 
efforts would enhance the survival of the Arkansas River shiner in this 
river system. Suitable habitat for the Arkansas River shiner appears to 
exist throughout most of the system, although detailed studies have not 
yet been conducted.
    The Cimarron River is included in the designation because it 
contains all of the primary constituent elements, except for the 
presence of a competitive nonnative species, which we intend to address 
during recovery planning efforts for the Arkansas River shiner. This 
long, unimpounded reach is occupied by the Arkansas River shiner, based 
on the captures in 2004, and maintains adequate stream flows to support 
an intact prairie stream fish community. Although site specific capture 
information is missing in some areas, the lack of such information does 
not confirm the Arkansas River shiner has been extirpated from this 
area. The low numbers of Arkansas River shiners within this unit make 
frequent capture of specimens extremely unlikely. The protection of 
this area is important to maintaining the complete genetic variability 
of the species and the full range of ecological settings within which 
the Arkansas River shiner is found, and therefore maintaining the 
ability of the species to adapt to changing environmental conditions.
    The reach designated as critical habitat reflects the need for 
lengths of stream sufficient to provide habitat for successful 
completion of Arkansas River shiner life cycle (see ``Primary 
Constituent Elements'' section) and to support populations of Arkansas 
River shiner large enough to be self-sustaining over time, despite 
fluctuations in local conditions. Based upon the limited number of 
Arkansas River shiner collection records from the Cimarron River, we 
are uncertain if this population is self-sustaining over time. Although 
we specifically solicited information on the status of Arkansas River 
shiners in the Cimarron River, we did not receive information from any 
knowledgeable fishery scientist which confirms the reach encompassing 
the Oklahoma/Kansas State boundary is unoccupied.
    Land ownership for Unit 3 is predominantly private. Private lands 
in this reach are primarily used for livestock grazing and other types 
of agriculture.
    We did not include the Cimarron River downstream of the U.S. 
Highway 77 bridge near Guthrie to Keystone Reservoir in the proposal or 
designation because we have no evidence supporting that this reach is 
occupied. We believe sufficient habitat for the Arkansas River shiner 
to complete its life cycle exists within the reach designated as 
critical habitat, as discussed above. The lower most reach of the 
Cimarron River, including its confluence with the Arkansas River, was 
inundated when Keystone

[[Page 59832]]

Reservoir was impounded in 1964. This area, including Keystone 
Reservoir, does not provide suitable habitat because the Arkansas River 
shiner would not be able to persist within the inundated portions of 
the River.

Unit 4: Arkansas River, Barton, Cowley, Pawnee Reno, Rice, Sedgwick, 
and Sumner Counties, Kansas

    We have excluded all lands in Unit 4 from the final critical 
habitat designation under section 4(b)(2) of the Act (see ``Exclusion 
Under Section 4(b)(2) of the Act'' section below for a detailed 
discussion). Unit 4 consists of 313 km (194 mi) of river extending from 
the confluence of the Pawnee River near Larned, Kansas, downstream to 
the Kansas/Oklahoma State line in Cowley County, Kansas. This distance 
does not include a 20 km (12.4 mi) reach of the Arkansas River within 
the City of Wichita metropolitan area, extending from the westbound 
lane of Kansas State Highway 96 crossing downstream to the Interstate 
35 crossing. Stream flows downstream of the confluence of the Pawnee 
River near Larned are more reliable and habitats are characteristic of 
those used by Arkansas River shiner in other portions of its current 
range. This stream segment contains one or more of the primary 
constituent elements, and recovery activities for the Arkansas River 
shiner likely will include reestablishing additional populations in 
this reach.
    The Arkansas River in Kansas contains a significant portion of the 
species' historical range. The Arkansas River shiner historically 
inhabited the entire mainstem of the Arkansas River, but had begun to 
decline by 1952 due to the construction of John Martin Reservoir 10 
years earlier on the Arkansas River in Bent County, Colorado (Cross et 
al. 1985). Typically, releases from John Martin Reservoir and 
irrigation return flows from eastern Colorado maintain streamflow in 
the Arkansas River as far east as Syracuse, Kansas; however, the river 
often ceases to flow between Syracuse and Dodge City, Kansas, due to 
surface and groundwater withdrawals. Surface flow then resumes near 
Larned and Great Bend, Kansas. Lack of sufficient streamflow and 
ongoing water quality degradation renders much of the Arkansas River 
west of Larned largely unsuitable for the Arkansas River shiner. As 
stated in the proposed rule, we did not include the reach upstream of 
Larned, Kansas, in this designation because it lacks several of the 
primary constituent elements and no longer meets the definition of 
critical habitat.
    Lands in Unit 4 are entirely in private ownership except for a 
small area near the Kansas/Oklahoma State line owned by the U.S. Army 
Corps of Engineers (Kaw Wildlife Area). This area is managed by the 
State of Kansas (Kansas Department of Wildlife and Parks).

Effects of Critical Habitat Designation

Section 7 Consultation

    If a species is listed or critical habitat is designated, 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 such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Arkansas River shiner or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
some other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency funding), will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the Arkansas River shiner. In some cases, the PCEs exist 
as a result of ongoing federal actions. As a result, ongoing federal 
actions at the time of designation will be included in the baseline in 
any consultation conducted subsequent to this designation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat also may jeopardize the continued existence of the Arkansas 
River shiner. Federal activities that, when carried out, may adversely 
affect critical habitat for the Arkansas River shiner include, but are 
not limited to:
    (1) Actions that significantly and detrimentally alter the natural 
flow regime of any of the designated stream segments, including 
activities that cause barriers or deterrents to dispersal, inundate or 
drain habitat, or significantly convert habitat. Possible actions would 
include groundwater pumping, impoundment, water diversion, and 
hydropower generation. These activities could eliminate or reduce the 
habitat necessary for the reproduction, sheltering, or growth of 
Arkansas River shiners. We note that such flow reductions that result 
from actions affecting tributaries of the designated stream reaches 
also may destroy or adversely modify critical habitat.
    (2) Actions that significantly and detrimentally alter the 
characteristics of the riparian zone in any of the

[[Page 59833]]

designated stream segments. Possible actions would include vegetation 
manipulation, timber harvest, road construction and maintenance, 
prescribed fire, livestock grazing, off-road vehicle use, powerline or 
pipeline construction and repair, mining, and urban and suburban 
development. These activities could eliminate or reduce the habitat 
necessary for the reproduction, sheltering or growth of Arkansas River 
shiners. Some of these activities, when planned and implemented 
appropriately, can prove beneficial to the species and its habitat.
    (3) Actions that significantly and detrimentally alter the channel 
morphology of any of the stream segments listed above. Possible actions 
would include channelization, impoundment, road and bridge 
construction, deprivation of substrate source, destruction and 
alteration of riparian vegetation, reduction of available floodplain, 
removal of gravel or floodplain terrace materials, reduction in stream 
flow, discharge of dredged or fill material and excessive sedimentation 
from mining, livestock grazing, road construction, timber harvest, off-
road vehicle use, and other watershed and floodplain disturbances.
    (4) Actions that significantly and detrimentally alter the water 
chemistry in any of the designated stream segments. Possible actions 
would include intentional or unintentional release of chemical or 
biological pollutants into the surface water or connected groundwater 
at a point source or by dispersed release (non-point).
    (5) Introducing, spreading, or augmenting nonnative aquatic species 
in any of the designated stream segments. Possible actions would 
include fish stocking for sport, aesthetics, biological control, or 
other purposes; release of live bait fish; aquaculture; construction 
and operation of canals; and interbasin water transfers.
    All units are within the geographic range of the species, all are 
occupied by the species (based on observations made within the last 20 
years), and are likely to be used by the Arkansas River shiner, whether 
for foraging, breeding, growth of larvae and juveniles, intra-specific 
communication, dispersal, migration, genetic exchange, or sheltering. 
Federal agencies already consult with us on activities in areas 
currently occupied by the species or if the species may be affected by 
the action to ensure that their actions do not jeopardize the continued 
existence of the species.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
please contact the Field Supervisor, Oklahoma Ecological Services 
Office (see ADDRESSES section). Requests for copies of the regulations 
on listed wildlife and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Division of Threatened 
and Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87102 
(telephone 505/248-6920; facsimile 505/248-6922).

Exclusion Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use the provision outlined 
in section 4(b)(2) of the Act to evaluate those specific areas that 
contain the features essential to the conservation of the species to 
determine which areas to propose and subsequently finalize (i.e., 
designate) as critical habitat. On the basis of our evaluation, we have 
determined that the benefits of excluding certain lands from the 
designation of critical habitat for the Arkansas River shiner outweigh 
the benefits of their inclusion, and have subsequently excluded those 
lands from this designation pursuant to section 4(b)(2) of the Act as 
discussed below.
    Areas excluded pursuant to section 4(b)(2) may include those 
covered by the following types of plans/programs if the plans/programs 
provide assurances that the conservation measures they outline will be 
implemented and effective: (1) Legally operative Habitat Conservation 
Plans (HCPs) that cover the species; (2) draft HCPs that cover the 
species and have undergone public review and comment (i.e., pending 
HCPs); (3) Tribal conservation plans/programs that cover the species; 
(4) State conservation plans/programs that cover the species; (5) 
National Wildlife Refuges with Comprehensive Conservation Plans (CCPs) 
or other applicable programs that provide assurances that the 
conservation measures for the species will be implemented and 
effective, and; (6) Partnerships, conservation plans/easements, or 
other type of formalized relationship/agreement on private lands. The 
relationship of critical habitat to these types of areas is discussed 
in detail in the following paragraphs.
    After consideration under section 4(b)(2), the following areas of 
habitat have been excluded from critical habitat for the Arkansas River 
shiner: Units 2 (Beaver/North Canadian River) and 4 (Arkansas River), 
private lands within Unit 1a covered by the Canadian River Municipal 
Water Authority management plan (CRMWA Plan), and some private lands 
within Unit 1b encompassed by a portion of a plan developed by the 
Oklahoma Farm Bureau Legal Foundation where a partnership/commitment 
with the Service for the Arkansas River shiner exists. A detailed 
analysis of our exclusion of these lands under section 4(b)(2) of the 
Act is provided in the paragraphs that follow.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat,

[[Page 59834]]

with separate analyses being made under both the jeopardy and the 
adverse modification standards. For critical habitat, a biological 
opinion that concludes in a determination of no destruction or adverse 
modification may contain discretionary conservation recommendations to 
minimize adverse effects to primary constituent elements, but it would 
not contain any mandatory reasonable and prudent measures or terms and 
conditions. Mandatory reasonable and prudent alternatives to the 
proposed Federal action would only be issued when the biological 
opinion results in a jeopardy or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species. However, we believe the 
conservation achieved through implementing management plans is 
typically greater than would be achieved through multiple site-by-site, 
project-by-project, section 7 consultations involving consideration of 
critical habitat. Management plans commit resources to implement long-
term management and protection to particular habitat for at least one 
and possibly other listed or sensitive species. Section 7 consultations 
only commit Federal agencies to prevent adverse modification to 
critical habitat caused by the particular project and they are not 
committed to provide conservation or long-term benefits to areas not 
affected by the proposed project. Thus, any management plan which 
considers enhancement or recovery as the management standard will 
always provide as much or more benefit than a consultation for critical 
habitat designation conducted under the standards required by the Ninth 
Circuit in the Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the Arkansas River shiner. In general the educational benefit of a 
critical habitat designation always exists, although in some cases it 
may be redundant with other educational effects. For example, habitat 
conservation plans have significant public input and may largely 
duplicate the educational benefit of a critical habitat designation. 
This benefit is closely related to a second, more indirect benefit; in 
that designation of critical habitat would inform State agencies and 
local governments about areas that could be conserved under State laws 
or local ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are making in this rule because these areas were 
included in the proposed rule as having essential Arkansas River shiner 
habitat. Consequently, we believe that the informational benefits are 
already provided even though these areas are not designated as critical 
habitat. Additionally, the purpose normally served by the designation 
of informing State agencies and local governments about areas which 
would benefit from protection and enhancement of habitat for the 
Arkansas River shiner is already well established among State and local 
governments, and Federal agencies in those areas which we are excluding 
in this rule on the basis of other existing habitat management 
protections.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.

Units 2 and 4

    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that all habitat in the Beaver/North 
Canadian River in Oklahoma (Unit 2) and the Arkansas River in Kansas 
(Unit 4) will not be designated as critical habitat in this final rule. 
We have reached this determination because we believe the benefits of 
excluding these units from this final critical habitat designation 
outweigh the benefits of designating the units as critical habitat.
    At the time of the final listing determination (63 FR 64772), we 
prepared a recovery outline for the Arkansas River shiner and we have 
begun to implement some preliminary recovery tasks identified in the 
outline. Recovery outlines are brief internal planning documents that 
are prepared within 60 days after the date of publication of the final 
listing rule. These documents are intended to direct recovery efforts 
pending completion of the recovery plan. Although a recovery plan has 
not yet been prepared, recovery activities for Arkansas River shiner 
likely will include augmenting and reestablishing Arkansas River shiner 
populations in the Beaver/North Canadian River and/or the Arkansas 
River. We believe that the best way to achieve this objective will be 
to use the authorities under section 10(j) of the Act to reestablish 
experimental populations of Arkansas River shiner within additional 
areas of its historic range. Considering that the Arkansas River shiner 
in these reaches may be extirpated or existing occurrences so small 
they may not be viable, and that natural repopulation appears unlikely 
without human assistance, we believe that designation of the area to be 
repopulated using section 10(j) of the Act is the appropriate tool to 
utilize in future restoration efforts.
(1) Benefits of Inclusion
    As noted above, the primary regulatory benefit of any designated 
critical habitat is that federally funded or authorized activities in 
such habitat requires consultation pursuant to section 7 of the Act. 
Such consultation would ensure that adequate protection is provided to 
avoid destruction or adverse modification of critical habitat. However, 
consultation on critical habitat will only address those activities 
associated with a Federal nexus. Much of the lands within both units 
are in private ownership with only limited opportunities for 
consultation under section 7 of the Act. Since April 4, 2001, some 25 
consultations have been conducted on the Beaver/North Canadian River 
but none of those consultations reached the point of adverse 
modification. On the Arkansas River in Kansas, only nine informal 
consultations have been conducted within that timeframe and none of 
those reached the point of adverse modification.
    In the environmental assessment conducted for this designation 
under NEPA, it states that the primary conservation value of the 
proposed critical habitat in Units 2 and 4 would be to facilitate full 
consideration of impacts to recovery of the Arkansas River shiner. 
Recovery of the species will likely require repatriation of the fish to 
areas of suitable unoccupied habitat. In these unoccupied areas, a 
critical habitat designation may aid the

[[Page 59835]]

Service in addressing longer-term, more subtle impacts to recovery, 
such as continuing habitat degradation and loss. These benefits could 
accrue to other rare or sensitive species, including the peppered chub 
(Macrhybopsis aestivalis) and Arkansas darter (Etheostoma cragini). At 
the same time, opposition to designation of critical habitat could 
create controversy and hostility towards recovery where it would not 
otherwise exist.
    With regard to the effects of Federal actions within these two 
units, designation of critical habitat may not provide substantial 
habitat protection due to the predominance of private lands and paucity 
of Federal actions in these areas. Federal water resource projects in 
the two units are very rare. Although the beginning point of the 
proposed designation for Unit 2 begins below Optima Dam, a project of 
the U.S. Army Corps of Engineers, the reservoir has never filled due to 
insufficient inflows. As stated in the previous final designation (66 
FR 18002), pumping from the High Plains Aquifer has considerably 
reduced streamflow in the Beaver River upstream of Optima Reservoir. 
Water levels in Optima Reservoir, in over 27 years of operation, have 
never risen to the conservation pool elevation and are currently some 
0.9 m (3 ft) below the top of the inactive pool. Lacking significant 
streamflow events of sufficient magnitude to raise water surface 
elevations into the conservation pool, securing beneficial releases 
from this reservoir would not be possible. We doubt future conditions 
would improve under the designation to ever secure such releases. There 
are no existing or proposed Federal water resource development projects 
within Unit 4. Designation of critical habitat in Units 2 or 4, with 
respect to water resources, is not likely to provide a benefit since 
there is a rarity of Federal involvement in water resource projects in 
this area.
    Agricultural practices in Units 2 and 4 primarily involve livestock 
production on native rangeland and in confined feeding operations, and 
irrigated and dryland crop production. As noted in the environmental 
assessment, there have not been any section 7 consultations on 
cultivation or irrigation activities and there have only been eight 
informal consultations on livestock grazing since the species was 
listed in 1998. Most agricultural activities in the vicinity of these 
units are conducted almost entirely on private lands. With the 
exception of CAFOs, there is little or no Federal involvement in 
livestock or crop production and these activities are not generally 
subject to section 7 consultation. In Unit 4, the Environmental 
Protection Agency (EPA) has delegated the National Pollutant Discharge 
Elimination System (NPDES) permitting authority for CAFOs to the State 
of Kansas, a non-Federal entity. Within Unit 4, this program would not 
be subject to the section 7 consultation requirements unless the 
program undergoes another review by EPA.
    However, within Unit 2 and the rest of Oklahoma, EPA is considering 
but has not yet delegated this program to the State. Because the best 
available scientific information indicates Unit 2 is not likely 
occupied by the Arkansas River shiner, NPDES permitting of CAFO waste 
discharge would not likely be triggered under the jeopardy standard for 
the species. Accordingly, exclusion of Unit 2 from critical habitat 
would eliminate consideration of potential effects of Federal 
agriculture-related actions on critical habitat. Within the 6 counties 
encompassed by Unit 2, there are some 2,620 existing animal feeding 
operations. However, only a small subset of these operations are CAFOs. 
The DEA estimated that there are some 74 CAFOs within the watersheds 
encompassed by Unit 2 (see exhibit 6-5 of DEA). The majority of these 
(51) occur within the uppermost watershed unit, which includes a large, 
but unknown number of CAFOS located upstream of Optima Reservoir. The 
CAFOs located upstream of Optima Reservoir would not be subject to 
section 7 consultation requirements because the reach is unoccupied and 
does not contain any essential habitat. Consequently, we expect the 
benefit of including this area in critical habitat would be minimal due 
to the small number of CAFOs within Unit 2.
    As noted in the environmental assessment, oil and gas production 
and transmission is an important activity in Units 2 and 4, with 
production exceeding 5 million barrels of oil in Unit 2 and 4 million 
barrels in Unit 4. Natural gas production exceeded 209 million Mcf 
(thousand cubic ft) in Unit 2 and 4 million Mcf in Unit 4. Some 126 
informal section 7 consultations involving oil and gas production and 
transmission actions have been conducted since the species was listed 
in 1998. To date, no oil and gas or pipeline projects have resulted in 
formal consultations involving the Arkansas River shiner. However, 
exclusion of Units 2 and 4 from critical habitat designation would 
eliminate consideration of potential effects of oil and gas production 
and pipeline projects having a Federal nexus on critical habitat. Oil 
and gas drilling operations typically result in removal of all 
vegetation prior to initiation of drilling activities. Such vegetation 
removal can have short-term adverse impacts due to erosion of bare 
soil. However, oil and gas drilling operations are required to utilize 
BMPs designed to reduce or eliminate erosion. Once drilling operations 
are complete, the sites are then revegetated in accordance with the 
landowners wishes. When conducted in accordance with existing 
regulations, oil and gas drilling operations should have minimal long-
term impacts on Arkansas River shiner habitat. Because substrates in 
the Beaver/North Canadian and Arkansas rivers are predominantly sand, 
pipeline trenching activities tend not to have lasting impacts on the 
stream bed. The stream bed generally will return to preexisting 
conditions following an occurrence of bankfull discharge.
    Transportation activities in Units 2 and 4 consist largely of 
Federal or State highway or railway line crossings over the Beaver/
North Canadian and Arkansas River, respectively. Collectively the two 
units have 21 Federal or State highway or railway line crossings. 
Exclusion of Units 2 and 4 would eliminate consideration of potential 
effects of transportation related actions on critical habitat. As 
stated in the environmental assessment, critical habitat considerations 
in section 7 consultations are not likely to result in substantial 
changes, modifications or additional costs to Federal transportation 
actions in Units 2 or 4. However, there would be no section 7 trigger 
under the destruction or adverse modification standard for Arkansas 
River shiner critical habitat in these units. Since 1999, we have 
conducted 10 consultations on transportation projects which were 
located in critical habitat. Of those 10, four were formal 
consultations, one of which is ongoing. None of the consultations on 
those projects reached the destruction or adverse modification 
threshold and none of those formal consultations occurred in Units 2 or 
4. While bridge and railroad construction projects can result in 
substantial disturbance within the project site, almost all of these 
impacts are anticipated to be of short duration. As indicated above, 
the stream beds in these two units are predominantly sand. Streamflows 
equivalent to bankfull discharge, due to bed load movement, generally 
result in restoration of the streambed to preexisting conditions. 
Although the placement of piers and support columns associated with 
bridge projects permanently eliminates habitat once the piers are in 
place, it is not likely that

[[Page 59836]]

placement of such piers will reach the destruction or adverse 
modification threshold.
    There are no known recreational activities involving a Federal 
nexus within either Unit 2 or Unit 4. Because of the lack of Federal 
involvement in recreational activities, designation of critical habitat 
is not likely to provide any benefits to species conservation with 
respect to such activities within either the Beaver/North Canadian or 
Cimarron River.
    As discussed above, we expect that little additional educational 
benefits would be derived from including these two units as critical 
habitat. The additional educational benefits that might arise from 
critical habitat designation are largely accomplished through the 
multiple notice and comments which accompanied the development of this 
and prior critical habitat designations.
(2) Benefits of Exclusion
    As stated above, recovery activities for the Arkansas River shiner 
likely will include augmenting and reestablishing Arkansas River shiner 
populations in the Beaver/North Canadian River and/or the Arkansas 
River. We believe that the best way to achieve this objective will be 
to use the authorities under section 10(j) of the Act to reestablish 
experimental populations of Arkansas River shiner within additional 
areas of its historic range. We believe that designation of the area to 
be repopulated using section 10(j) of the Act is the appropriate tool 
to utilize in future restoration efforts. An overview of the process to 
establish an experimental population under section 10(j) of the Act is 
described below.
    Section 10(j) of the Act enables us to designate certain 
populations of federally listed species that are released into the wild 
as ``experimental.'' The circumstances under which this designation can 
be applied are the following: (1) The population is geographically 
separate from nonexperimental populations of the same species (e.g., 
the population is reintroduced outside the species' current range but 
within its probable historic range); and (2) we determine that the 
release will further the conservation of the species. Section 10(j) is 
designed to increase our flexibility in managing an experimental 
population by allowing us to treat the population as threatened, 
regardless of the status of the species elsewhere in its range. In 
situations where we have experimental populations, portions of the 
statutory section 9 prohibitions (e.g., harm, harass, capture) that 
apply to all endangered species and most threatened species may no 
longer apply, and a special rule can be developed that contains the 
specific prohibitions and exceptions necessary and appropriate to 
conserve that species. This flexibility allows us to manage the 
experimental population in a manner that will ensure that current and 
future land, water, or air uses and activities will not be 
unnecessarily restricted and that the population can be managed for 
recovery purposes.
    When we designate a population as experimental, section 10(j) of 
the Act requires that we determine whether that population is either 
essential or nonessential to the continued existence of the species, on 
the basis of the best available information. Nonessential experimental 
populations located outside National Wildlife Refuge System or National 
Park System lands are treated, for the purposes of section 7 of the 
Act, as if they are proposed for listing. Thus, for nonessential 
experimental populations, only two provisions of section 7 would apply 
outside National Wildlife Refuge System and National Park System lands: 
section 7(a)(1), which requires all Federal agencies to use their 
authorities to conserve listed species, and section 7(a)(4), which 
requires Federal agencies to informally confer with us on actions that 
are likely to jeopardize the continued existence of a proposed species. 
Section 7(a)(2) of the Act, which requires Federal agencies to ensure 
that their activities are not likely to jeopardize the continued 
existence of a listed species, would not apply except on National 
Wildlife Refuge System and National Park System lands. Experimental 
populations determined to be ``essential'' to the survival of the 
species would remain subject to the consultation provisions of section 
7(a)(2) of the Act.
    In order to establish an experimental population, we must issue a 
proposed regulation and consider public comments on the proposed rule 
prior to publishing a final regulation. In addition, we must comply 
with NEPA. Also, our regulations require that, to the extent 
practicable, a regulation issued under section 10(j) of the Act 
represent an agreement between us, the affected State and Federal 
agencies, and persons holding any interest in land that may be affected 
by the establishment of the experimental population (see 50 CFR 
17.81(d)).
    The flexibility gained by establishment of an experimental 
population through section 10(j) would be of little value if a 
designation of critical habitat overlaps it. This is because Federal 
agencies would still be required to consult with us on any actions that 
may adversely modify critical habitat. In effect, the flexibility 
gained from section 10(j) would be rendered useless by the designation 
of critical habitat. In fact, section 10(j)(2)(C)(ii) of the Act states 
that critical habitat shall not be designated under the Act for any 
experimental population determined to be not essential to the continued 
existence of a species.
    We strongly believe that, in order to facilitate recovery for the 
Arkansas River shiner, we would need the flexibility provided for in 
section 10(j) of the Act to help ensure the success of augmenting and 
reestablishing Arkansas River Shiner populations in the Beaver/North 
Canadian River and/or the Arkansas River. Use of section 10(j) is meant 
to encourage local cooperation through management flexibility. Because 
critical habitat is often viewed negatively by the public, we believe 
it is important for recovery of this species that we have the support 
of the public when we develop and implement a recovery plan for the 
Arkansas River shiner. It is critical to the recovery of the Arkansas 
River Shiner that we reestablish the species in areas outside of its 
current occupied range.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe the Beaver/North Canadian River in Oklahoma and the 
Arkansas River in Kansas offer the greatest potential for repatriating 
the species within an area of its historic range and that the reaches 
encompassed by Units 2 and 4 have the greatest potential for the 
development of an experimental population under section 10(j) of the 
Act. In order for a reintroduction to be successful, the support of 
local stakeholders, including the States of Oklahoma and Kansas, 
private landowners, and other potentially affected entities, is 
crucial. The management or regulatory flexibility provided by the 
establishment of a nonessential experimental population under section 
10(j) of the Act would enhance recovery opportunities for the Arkansas 
River shiner. Exclusion allows us to utilize our flexibility to enhance 
the partnership efforts focused on long-term recovery of the Arkansas 
River shiner within these reaches and encourages other stakeholders to 
become a part of this cooperative effort. Inclusion of these two units 
would only allow us to address relatively short-term habitat 
alterations that generally do not reach the destruction or adverse 
modification

[[Page 59837]]

threshold. In light of this, we find that significant benefits result 
from excluding these units from designation of critical habitat.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered unoccupied habitat 
based on the most recent information available to us. Designating 
critical habitat in the Beaver/North Canadian River or Arkansas River 
would not reduce the likelihood of extinction of the species from 
occupied reaches. Critical habitat designation is not a process to 
reestablish additional populations within areas outside of the current 
known distribution. On the contrary, reestablishing the Arkansas River 
shiner to formerly occupied reaches would reduce the likelihood of 
extinction by ensuring several viable populations exist throughout the 
former range of the species.

Unit 1a

    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that all habitat in the Canadian 
River upstream of Lake Meredith to near Ute Reservoir in New Mexico 
(Unit 1a) will not be designated as critical habitat in this final 
rule. We have reached this determination because we believe the 
benefits of excluding these units from this final critical habitat 
designation outweigh the benefits of designating the units as critical 
habitat.
    For several months we have been assisting the CRMWA and other 
partners in the development of a management plan/program for the 
Arkansas River shiner within this unit. A final approved version of the 
CRMWA Plan was provided to us during the second comment period. The 
following entities signed a Memorandum of Understanding (Planning 
Agreement) to govern the implementation of the CRMWA Plan: Canadian 
River Municipal Water Authority, New Mexico Interstate Stream 
Commission, Texas Parks and Wildlife Department, Texas Natural 
Resources Conservation Service, New Mexico Natural Resources 
Conservation Service, National Park Service, Oklahoma Farm Bureau, 
Texas Off Roaders Association, and U.S. Fish and Wildlife Service-
Southwest Region. Other entities, such as the Texas Department of 
Transportation and New Mexico Department of Agriculture also submitted 
letters in support of the CRMWA Plan.
    The overall goal of the CRMWA Plan is to maintain and enhance 
habitat integrity within this reach. The primary mechanisms to 
accomplish this goal are: the removal of invasive plant species, such 
as salt cedar, that reduce the amount of water available to support 
stream flow and to encourage the implementation of conservation 
programs that provide for preservation and protection of riparian 
zones. The plan includes a population monitoring and a public outreach/
education component. The plan will reduce threats to the PCEs for 
Arkansas River shiner by maintaining habitat quality through control of 
invasive plants, ensuring seepage flows from Ute Dam continue, managing 
the amount and timing of releases from Ute Reservoir to benefit 
spawning conditions, and encouraging implementation of appropriate 
erosion control measures in the riparian zones. The plan commits to 
working with the off-road vehicle industry to minimize impacts from 
these activities on Arkansas River shiner habitat, particularly during 
the critical summer low flow conditions.
    The CRMWA Plan clearly provides conservation benefits to the 
species. A number of entities have signed the plan demonstrating their 
willingness to fund and implement the actions presented in the plan. 
Several efforts related to control of non-native salt cedar have 
already been initiated. For example, the State of New Mexico has 
initiated a Non-native Phreatophyte Eradication Control Program 
targeting the control of salt cedar growth in the tributaries and 
mainstem of the Canadian River. Funds have already been expended to 
treat 1,407 hectares (3,476 acres) in Colfax, Mora, and Harding 
Counties at a cost of $800,000. The total program proposed for the 
Canadian River Basin in New Mexico involves treatment of some 12,843 
hectares (ha, 31,734 acres).
    Within the upper Canadian River watershed of Texas, the CRMWA has 
initiated a program to provide financial assistance to landowners, 
using the continuous sign-up provisions of the Conservation Reserve 
Program (CRP), for treatment of salt cedar infestations. In 2004, the 
CRMWA facilitated the treatment of 346 ha (855 acres (ac)) downstream 
of Ute Reservoir. To date 11 landowners have signed agreements to treat 
salt cedar on areas under their ownership totaling some 847 ha (2,094 
ac). Contracts for an additional 1,295 ha (3,200 ac) of salt cedar 
downstream of Ute Reservoir remains to be signed. Initial treatment of 
these areas are expected to be complete by 2007.
    Control of phreatophytes (i.e., a deep rooted plant that obtains 
water from a permanent source such as groundwater) like salt cedar can 
free additional water that, with appropriate management, can provide 
for the habitat needs of the Arkansas River shiner. Salt cedar has been 
found to utilize as much as 7,398 cubic meters (six ac-ft) of water for 
each 0.4 ha (1 ac) of heavily infested growth (Mooney and Hobbs 2000). 
Considering large areas (e.g., thousands of acres) of the Canadian 
River basin have been invaded by these shrubs, control of these plants 
could release significant quantities of water that would improve stream 
flow conditions and provide benefits to the Arkansas River shiner.
    Additionally, streamflow management, combined with control of salt 
cedar, can retard the channel narrowing that often occurs following 
impoundment and subsequent reductions in streamflow. Under natural 
flood regimes, frequent bank to bank flooding helped maintain wide, 
braided stream channels preferred by Arkansas River shiner. However, as 
flood regimes were altered over time by impoundments, the reduced flows 
often facilitated the encroachment of woody vegetation into formerly 
unvegetated portions of the stream channel. Once established, this 
woody vegetation may become resistant to the influence of flood flows, 
particularly when the duration and magnitude of the flood flows are 
diminished. The result is a modified stream channel that is much 
narrower than that which previously existed prior to impoundment. The 
overall outcome is a reduction in the amount of suitable Arkansas River 
shiner habitat. When releases are required from Ute Reservoir in 
adherence to the Canadian River Compact, CRMWA coordinates with us and 
other partners to seek releases that would be beneficial to the 
Arkansas River shiner. Because an increase in streamflow is known to 
trigger spawning in Arkansas River shiners, releases from Ute Reservoir 
during the June through August spawning period would likely encourage 
and sustain spawning efforts. Such releases, although infrequent, when 
made in concert with salt cedar control efforts are anticipated to 
further enhance the quality of habitat for the Arkansas River shiner.
(1) Benefits of Inclusion
    As noted above, the primary regulatory benefit of any designated 
critical habitat is that federally funded or authorized activities in 
such habitat require consultation pursuant to section 7 of the Act. 
Consultation in this unit could be triggered by federal actions that 
affect the shiner. The potential for

[[Page 59838]]

federal actions to affect the shiner are discussed below.
    The environmental assessment found that relatively little 
groundwater use occurs in Unit 1a as most of the adjacent area is used 
as rangeland for livestock grazing. With respect to Lake Meredith, 
located on the Canadian River near the downstream limit of proposed 
critical habitat in Unit 1a, there is a possibility for a Federal nexus 
with the U.S. Army Corps of Engineers for flood control operations when 
the level of the lake is at or above an elevation of 2,941.3 ft are 
under the discretion of the U. S. Army Corps of Engineers. A portion of 
proposed Unit 1a extends into the flood pool. If pool levels reach this 
elevation, flood storage operation would be subject to section 7 
consultation. However, the highest pool level recorded over the 40 year 
history of the project was 2,914.8 ft, which occurred in 1973. The 
downstream end of Unit 1a, the mouth of Coetas Creek, has an elevation 
of 2,950 ft and has never been inundated by Lake Meredith. Unless 
rainfall patterns change considerably, we believe it is unlikely that 
pool levels in Lake Meredith will inundate any portion of Unit 1a or 
trigger section 7 consultation.
    As discussed above, a program of salt cedar control is currently 
being implemented in Unit 1a (Canadian River from Ute Dam to Lake 
Meredith). Salt cedar removal and control efforts in this unit are 
being conducted in order to achieve substantial water savings in the 
basin, as well as for the benefit of Arkansas River shiner and other 
species. Ongoing salt cedar control is funded by Federal entities and 
therefore triggers consultation pursuant to section 7. It is not 
expected, however, that consultations on salt cedar control would 
result in any substantial changes to projects based on their impacts on 
critical habitat, as these projects are beneficial to shiners.
    We conclude that a designation of critical habitat in Unit 1a with 
respect to water resources is not likely to provide a benefit since 
there is limited Federal involvement in water resource projects in this 
area. In addition, salt cedar control programs would not likely reach 
the threshold of adverse modification since they can provide benefits 
to Arkansas River shiner habitat.
    With regard to agricultural practices in Unit 1a, activities 
include livestock production on native rangeland and irrigated crop 
land. As noted in the environmental assessment, there have not been any 
section 7 consultations on cultivation or irrigation activities and 
there have only been eight informal consultations on livestock grazing 
since the species was listed in 1998. The environmental assessment 
concludes that the exclusion of Unit 1a from critical habitat would 
eliminate consideration of potential effects of Federal agriculture-
related actions on critical habitat, which would not be considered 
under the jeopardy standard. However, no change is expected because 
agricultural activities in the vicinity of the Canadian River are 
conducted almost entirely on private lands with little or no Federal 
involvement and are therefore not subject to section 7 consultation.
    Oil and gas production and transmission is an important activity in 
Unit 1a, with production exceeding 248,000 barrels of oil and 19 
million Mcf of natural gas. As stated in the environmental assessment, 
there have been about 126 informal section 7 consultations on oil and 
gas production and transmission since the species was listed in 1998. 
The majority of those consultations occurred in Texas and primarily 
involved new wells and pipeline construction and maintenance. Benefits 
from critical habitat designation may occur to the species for these 
projects, if they are found to adversely modify critical habitat. 
However, it is unlikely that would be the case, since recommendations 
on these action normally would include only measures to minimize or 
prevent the likelihood of pollutants entering surface waters inhabited 
by the species. With regard to pipeline crossings of stream channels 
occupied by the species, we have recommended directional boring of 
pipelines under the stream bed in order to protect the Arkansas River 
shiner and its habitat.
    Transportation activities in Unit 1a consist largely of Federal or 
State highway or railway line crossings over the Canadian River. 
However, Unit 1a has only two U.S. Highway crossings and three railroad 
crossings, the fewest number of any of the units. Because bridge 
construction projects often involve stream channel alteration, bridge 
construction projects have been the subject of three of the four formal 
consultations involving the species. We would likely required 
revegetation of disturbed areas following completion of construction 
activities. The environmental assessment concludes that the exclusion 
of Unit 1a from critical habitat would eliminate consideration of 
potential effects of Federal transportation related actions on critical 
habitat, which would not be considered under the jeopardy standard. 
Designation of critical habitat might result in the identification of 
additional discretionary conservation measures related to 
transportation projects which might not be identified if Unit 1a is 
excluded from the designation. However, the benefit should be 
relatively insignificant considering the limited number of 
transportation related projects in this unit and the fact that Unit 1a 
is occupied by the Arkansas River shiner, thus section 7 consultation 
and analysis of effects to habitat already occur and we would likely 
continue to make the same or similar discretionary recommendations as 
noted above.
    Recreational activities involving a Federal nexus are rare within 
any of the units and occur primarily within Unit 1a. Off-road vehicle 
(ORV) use is allowed in two areas within the Lake Meredith National 
Recreation Area: The Big Blue Creek and the Rosita ORV areas. The Big 
Blue Creek ORV area is not located within Unit 1a and should not be 
influenced by the designation of critical habitat. However, the 
National Park Service is contemplating restrictions within the Rosita 
ORV area to prevent potential adverse impacts to the Arkansas River 
shiner under the jeopardy standard. The primary adverse impacts involve 
use of the river channel during the spawning season and during 
summertime low-flow periods when fish are concentrated in isolated 
pools. The Arkansas River shiner occurs within the Rosita ORV; 
therefore, this restriction is being considered regardless of the 
critical habitat designation and thus, we do not believe that critical 
habitat will provide additional benefit to this area.
    As discussed above, we believe that the additional educational 
benefits which might arise from critical habitat designation are 
largely accomplished through the multiple notice and comments which 
accompanied the development of this regulation, as evidenced by the 
various agencies and community members who have come together in order 
to develop the CRMWA Plan.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be about $2.5 to $2.7 million annually. Almost 
all of this cost is related to any water releases and/or modified 
operation from Ute Reservoir required for conservation of the Arkansas 
River shiner. Excluding this reach could allow some or all of these 
costs to be avoided. However, considering that this area is currently 
occupied by the species, consultation for activities which might 
adversely impact the species, including

[[Page 59839]]

possible habitat modification, would be required even without the 
critical habitat designation, thus the possible economic benefits might 
not materialize.
    Another benefit of excluding Unit 1a from the critical habitat 
designation includes relieving additional regulatory burden and costs 
associated with the preparation of portions of section 7 documents 
related to critical habitat. While the cost of adding these additional 
sections to assessments and consultations is relatively minor, there 
could be delays which can generate real costs to some project 
proponents. However, because critical habitat is only proposed for 
occupied areas already subject to section 7 consultation and a jeopardy 
analysis, it is anticipated this reduction would be minimal.
    The CRMWA Plan provides conservation benefits to the species 
through implementation of on-the-ground actions undertaken by 
partnership effort and promotes an ecosystem approach to conservation. 
The plan provides assurances that the conservation efforts will be 
implemented and helps ensure the long-term conservation of the Arkansas 
River shiner. The stakeholders have demonstrated a willingness to 
cooperatively facilitate recovery of the Arkansas River shiner. By 
excluding this area from the designation, we maintain this cooperative 
spirit and encourage future partnerships with similarly situated 
industry, communities, and landowners within this reach. Recovery of 
listed species is often achieved through partnerships and voluntary 
actions. Such cooperative efforts are expected to lead to greater 
conservation success than would be achieved strictly through regulatory 
approaches, such as critical habitat designation or multiple section 7 
consultations. Collaborative approaches built upon a foundation of 
mutual trust and understanding are often the most successful. Excluding 
this area from critical habitat would promote and honor that trust, 
reinforcing their commitment to Arkansas River shiner conservation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
Arkansas River shiner in Unit 1a are small in comparison to the 
benefits of exclusion. Exclusion would enhance the partnership efforts 
focused on recovery of the Arkansas River shiner within this reach and 
encourage other stakeholders to become a part of this cooperative 
effort. Excluding this area also would reduce some of the 
administrative costs during consultation pursuant to section 7 of the 
Act.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands from the critical habitat 
designation will not result in extinction of the species. Because this 
unit is occupied by the Arkansas River shiner which is protected from 
take under section 9 of the Act, any actions that might adversely 
affect the Arkansas River shiner, regardless of whether a Federal nexus 
is present, must undergo a consultation with the Service under the 
requirements of section 7 of the Act or receive a permit from us under 
section 10 of the Act. This exclusion leaves these protections 
unchanged from those which would exist if the excluded areas were 
designated as critical habitat. In addition, the CRMWA Plan and 
partnership address specific threats, such as invasion by salt cedar 
and impacts from ORV activities within the unit, that cannot be 
adequately addressed by the section 7 consultation process. This is 
because section 7 consultations for critical habitat only consider 
listed species in the project area evaluated and Federal agencies are 
only committed to prevent adverse modification to critical habitat 
caused by the particular project and are not committed to provide 
conservation or long-term benefits to areas not affected by the 
proposed project. Furthermore, the willingness of the CRMWA to secure 
releases from Ute Reservoir, although infrequent, in a manner that 
maximizes benefits to Arkansas River shiner spawning efforts likely 
would not occur outside this partnership. Such efforts provide greater 
conservation benefit than would result for designation as critical 
habitat since the reservoir is not federally operated and, as noted 
above, does not trigger consultation. There is no reason to believe 
that these exclusions would result in extinction of the species.

Unit 1b

    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that habitat in the Canadian River 
downstream of the Oklahoma state line to near Thomas, Oklahoma (a 
portion of Unit 1b), will be excluded from the final designation of 
critical habitat. We have reached this determination because we believe 
the benefits of excluding this portion of Unit 1b from this final 
critical habitat designation outweigh the benefits of designating the 
units as critical habitat.
    During the second comment period, we received a draft management 
plan from the Oklahoma Farm Bureau Legal Foundation (OFB Plan) for the 
Arkansas River shiner within the entirety of Units 1b and 3. This plan 
was prepared by a coalition of state, industry, and Federal 
conservation interests in Kansas, Oklahoma, and Texas. While the OFB 
Plan included several actions that work towards conservation of the 
Arkansas River shiner, the plan was still in draft form and 
implementation had not begun. Accordingly, the Service was unable to 
accept the benefits of the conservation plan in lieu of critical 
habitat. We understand it is the intention of the coalition to finalize 
and implement the plan. Once the OFB Plan has been finalized and is 
being implemented, we will review the need to have designated critical 
habitat for the Arkansas River shiner in the subject areas. If we find 
this conservation plan provides sufficient benefits to the species and 
the habitat, the Service will propose to exclude appropriate areas from 
the designation.
    A portion of the OFB Plan referred to an ongoing program to control 
salt cedar within Dewey and Ellis counties of Oklahoma. Funding for 
this program has been secured through a Private Stewardship Grant in 
the amount of about $160,000. The goal of this program is to work with 
private landowners to control invasive plant species, which should 
increase stream flow in this reach of the Canadian River, and thus 
provides a clear conservation benefit to the Arkansas River shiner. 
Excluding these lands pursuant to section 4(b)(2) is based upon the 
partnerships that we developed with the Oklahoma Farm Bureau and other 
stakeholders and the conservation benefit being provided to this area 
via the grant issued to private landowners to control invasive species.
(1) Benefits of Inclusion
    As noted above, the primary regulatory benefit of any designated 
critical habitat is that federally funded or authorized activities in 
such habitat require consultation pursuant to section 7 of the Act. 
Such consultation would ensure that adequate protection is provided to 
avoid destruction or adverse modification of critical habitat. However, 
the area is predominantly rural and there is little or no Federal 
involvement throughout much of this reach. Therefore, very few actions 
would be subject to section 7 consultation.
    Some limited groundwater use occurs in this reach but no major 
Federal water resource projects exist or have been

[[Page 59840]]

proposed for this reach. As indicated for Unit 1a, salt cedar control 
programs would not be expected to reach the threshold of adverse 
modification because they generally provide benefits to Arkansas River 
shiner habitat. Agricultural activities in this reach are conducted 
almost entirely on private lands with little or no Federal involvement 
and would rarely be subject to section 7 consultation. Some oil and gas 
production and transmission occurs within the counties encompassed by 
this reach, with production exceeding 2.8 million barrels of oil and 
340 million Mcf of natural gas. However, very little production occurs 
in close proximity to the river. There are only five U.S. and State 
Highway crossings and three railroad crossings, including the crossings 
at Canadian, Texas and Thomas, Oklahoma. Federal recreational 
opportunities, with the exception of public hunting and fishing, which 
would not impact critical habitat, do not exist in this reach.
    As discussed above, we believe that the additional educational 
benefits which might arise from critical habitat designation are 
largely accomplished through the multiple notice and comments which 
accompanied the development of this regulation, as evidenced by the 
various agencies and community members who have come together in order 
to develop and support the OFB Plan.
(2) Benefits of Exclusion
    Excluding the 204 km (127 mi) long reach will enhance our ability 
to work with stakeholders in the spirit of cooperation and partnership. 
The conservation program for this area will be conducted under a 
Private Stewardship Grant that provides conservation benefits to the 
species within this reach through implementation of on-the-ground 
actions undertaken by partnership efforts. This invasive control 
program should be effective and there is a high level of certainty that 
the conservation efforts will be implemented since funding is secured 
through a grant. Such efforts help ensure the long term conservation of 
the Arkansas River shiner. The stakeholders have demonstrated a 
willingness to cooperatively facilitate recovery of the Arkansas River 
shiner. By excluding this area from the designation, we maintain this 
cooperative spirit and encourage future partnerships with similarly 
situated industry, communities, and landowners within this reach and 
perhaps the remainder of Units 1b and 3. Recovery of listed species is 
often achieved through partnerships and voluntary actions. Such 
cooperative efforts are expected to lead to greater conservation 
success than would be achieved strictly through regulatory approaches, 
such as critical habitat designation or multiple section 7 
consultations. Collaborative approaches built upon a foundation of 
mutual trust and understanding are often the most successful. Excluding 
this area from critical habitat would promote and honor that trust, 
reinforcing their commitment to Arkansas River shiner conservation.
    Excluding these privately owned lands from critical habitat may, by 
way of example, provide positive legal, economic, and other social 
incentives to other non-Federal landowners having lands that could 
contribute to listed species recovery if voluntary conservation 
measures, such as salt cedar control and similar activities, are 
implemented.
    Another benefit of excluding this reach of Unit 1b from the 
critical habitat designation includes relieving additional regulatory 
burden and costs associated with the preparation of portions of section 
7 documents related to critical habitat. While the cost of adding these 
additional sections to assessments and consultations is relatively 
minor, there could be delays which can generate real costs to some 
project proponents. Because critical habitat is only proposed for 
occupied areas already subject to section 7 consultation and a jeopardy 
analysis, it is anticipated this reduction would be minimal.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
Arkansas River shiner in this reach of Unit 1b are small in comparison 
to the benefits of exclusion. Exclusion would enhance the partnership 
efforts focused on recovery of the Arkansas River shiner within this 
reach and encourage other stakeholders to become a part of this 
cooperative effort. Excluding this area also would reduce some of the 
administrative costs during consultation pursuant to section 7 of the 
Act.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands from the critical habitat 
designation will not result in extinction of the species. Because this 
unit is occupied by the Arkansas River shiner which is protected from 
take under section 9 of the Act, any actions which might adversely 
affect the Arkansas River shiner, regardless of whether a Federal nexus 
is present, must undergo a consultation with the Service under the 
requirements of section 7 of the Act or receive a permit from us under 
section 10 of the Act. The exclusion leaves these protections unchanged 
from those which would exist if the excluded areas were designated as 
critical habitat. In addition, this partnership provides opportunities 
for improved streamflow and habitat conditions over a large, 
unfragmented stream reach which would not otherwise be available. 
Considering a Federal nexus for water resource projects and management 
does not exist within this reach, avenues to secure conservation 
benefits through section 7 consultation are rare. The water management 
benefits provided through this partnership provide greater conservation 
benefit than would result from designation as critical habitat. There 
is accordingly no reason to believe that these exclusions would result 
in extinction of the species.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate potential 
economic effects of the proposed Arkansas River shiner critical habitat 
designation (Industrial Economics 2004). The draft analysis was made 
available for public review on August 1, 2005 (70 FR 44078). We 
accepted comments on the draft analysis until August 31, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Arkansas River shiner. This information is intended to 
assist the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive

[[Page 59841]]

with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline. The total 
conservation costs from reported efficiency effects associated with the 
designation of critical habitat in this rule are approximately $17 to 
$36 million on an annualized basis.
    A copy of the final economic analysis and description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting the Oklahoma 
Field Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used this analysis to determine whether to exclude any 
area from critical habitat pursuant to section 4(b)(2), if we 
determined that the benefits of exclusion outweigh the benefits of 
including an area as critical habitat, unless we determine, based on 
the best scientific and commercial data available, that the failure to 
designate such area as critical habitat will result in the extinction 
of the species.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of factual basis for certifying that the rule will 
not have a significant economic impact on a substantial number of small 
entities. The SBREFA also amended the RFA to require a certification 
statement. In our proposed rule, we withheld our determination of 
whether this designation would result in a significant effect as 
defined under SBREFA until we completed our draft economic analysis of 
the proposed designation so that we would have the factual basis for 
our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this designation of critical habitat for the 
Arkansas River shiner would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., concentrated animal 
feeding operations, oil and gas, agriculture, livestock grazing, and 
recreation). We considered each industry or category individually to 
determine if certification is appropriate. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation.
    When this critical habitat designation is effective, Federal 
agencies must consult with us if their activities may affect designated 
critical habitat. Consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.
    In our draft economic analysis of this proposed designation, we 
evaluated the potential economic effects on small business entities and 
small governments resulting from conservation actions related to the 
listing of this species and proposed designation of its critical 
habitat. We evaluated small business entities in five categories: 
concentrated animal feeding operations, oil and gas, agriculture, 
livestock grazing, and recreation. The following summary of the 
information contained in Appendix A of the draft economic analysis 
provides the basis for our determination.

Concentrated Animal Feeding Operations (CAFOs)

    Arkansas River shiner conservation activities have the potential to 
affect approximately 67 of the 4,125 small animal feeding businesses 
(roughly 1.6 percent) located within States that contain proposed 
shiner habitat and impacted CAFOs (Oklahoma, Texas, and Kansas). The 
watersheds with highest potential impacts to small CAFOs are the Lower 
Canadian (Unit 1b) and the Lower Cimarron-Skeleton (Unit 3). Impacts 
are possible in the form of additional compliance costs related to a 
number of potential requirements, including increased storage capacity 
in wastewater retention structures and various monitoring and testing 
activities. These compliance costs may lead to financial stress at up 
to 33 facilities. Upper-bound estimates of

[[Page 59842]]

potential impacts result from conservative assumptions (that is, 
assumptions that are intended to overstate rather than understate 
costs) regarding the number and type of project modifications required 
of CAFO facilities as summarized in Section 6 of the draft economic 
analysis.

Oil and Gas Production Activities

    Project modifications to oil and gas activities resulting from 
Arkansas River shiner conservation activities will have minimal effects 
on small oil and gas and pipeline businesses in counties that contain 
proposed Arkansas River shiner habitat. Impacts are expected to be 
limited to additional costs of compliance for oil and gas projects. 
Assuming that each potentially impacted well and pipeline represent 
individual well and pipeline businesses, annual compliance costs are 
roughly 1.1 percent of estimated 1997 revenues for potentially impacted 
small oil and gas well production businesses and 0.12 percent of 
estimated 1997 revenues for potentially impacted small pipeline 
businesses in these counties. As noted in the draft economic analysis, 
1997 revenue data is the most current available data from the United 
States Economic Census.

Agriculture

    While Arkansas River shiner conservation activities have not 
impacted private crop production since the listing of the species in 
1998, the draft economic analysis considers that farmers may make 
decisions that lead to reductions in crop production within proposed 
critical habitat. Section 7 of the draft economic analysis presents a 
scenario in which farmers choose to retire agricultural land from 
production in order to avoid section 9 take of the species (``take'' 
means to harass, harm, pursue, or collect, or attempt to engage in any 
such conduct). The screening analysis estimates that up to 14 small 
farms in States that contain proposed Arkansas River shiner habitat 
could be impacted under this scenario. This represents a small 
percentage (less than one percent) of total farm operations in these 
States.

Livestock Grazing

    Limitations on livestock grazing may impact ranchers in the region. 
As discussed in Section 7 of the draft economic analysis, Arkansas 
River shiner conservation activities could result in a reduction in the 
level of grazing effort within proposed Arkansas River shiner habitat 
on non-Federal lands. On non-Federal lands, however, impacts are 
uncertain, because maps describing the overlap of privately grazed 
lands and the proposed designation are not available (i.e., that 
portion of each ranch which could be impacted by the designation). If 
each affected ranch is small, then approximately 20 to 43 ranches 
annually could experience losses in cattle grazing opportunities as a 
result of Arkansas River shiner conservation activities on non-Federal 
lands. This represents a small percentage (less than one percent for 
the upper-bound estimate) of beef cow operations in those States where 
habitat is proposed for designation.

Recreation

    As detailed in Section 9 of the draft economic analysis, 
limitations on off road vehicle (ORV) use at the Rosita ORV area within 
Lake Meredith National Recreation Area in Hutchinson County, Texas, 
during the months of July to September may result in up to 23,299 lost 
visitor days annually. These lost visitor days represent 2.4 percent of 
the three-year average of total visitor trips to Lake Meredith National 
Recreation Area (2002 to 2004), and roughly 25 percent of annual ORV 
visitor trips to Rosita from 2000 to 2004. Recreation-related sales 
generated by small businesses in Hutchinson County, Texas, are 
estimated at $88.5 million. Thus, the total annual impact of reduced 
consumer expenditure ($897,00 to $1.3 million annually) is equivalent 
to 1.0 to 1.5 percent of small business revenues of affected industries 
in Hutchinson County. While small business impacts are likely to be 
minimal at the county level, some individual small businesses may 
experience greater impacts. However, data to identify which businesses 
will be affected or to estimate specific impacts to individual small 
businesses are not available. In addition, the entirety of Unit 1a, 
including Lake Meredith National Recreation Area, has been excluded 
from the final critical habitat designation, thus no impacts to small 
business would be expected in this area.
    Based on this data, and the additional exclusions of units made in 
this final rulemaking, we have determined that this designation would 
not affect a substantial number of small businesses involved in 
concentrated animal feeding operations, oil and gas, agriculture, 
livestock grazing, and recreation. Further, we have determined that 
this designation also would not result in a significant effect to the 
annual sales of those small businesses impacted by this proposed 
designation. As such, we are certifying that this designation of 
critical habitat would not result in a significant economic impact on a 
substantial number of small entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. Executive Order 13211 requires agencies to prepare Statements 
of Energy Effects when undertaking certain actions. This final rule to 
designate critical habitat for the Arkansas River shiner is not 
expected to significantly affect energy supplies, distribution, or use. 
Appendix B of the draft economic analysis provides a detailed 
discussion and analysis of this determination. Specifically, three 
criteria were determined to be relevant to this analysis: (1) 
Reductions in crude oil supply in excess of 10,000 barrels per day 
(bbls); (2) reductions in natural gas production in excess of 25 
million Mcf per year; and (3) increases in the cost of energy 
production in excess of one percent. The draft economic analysis 
determined that the oil and gas industry is not likely to experience 
``a significant adverse effect'' as a result of Arkansas River shiner 
conservation activities. Therefore, this action is not a significant 
energy action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide

[[Page 59843]]

funding,'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance, or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) The economic analysis discusses potential impacts of critical 
habitat designation for the Arkansas River shiner including 
administrative costs, water management activities, oil and gas 
activities, concentrated animal feeding operations, agriculture, and 
transportation. The analysis estimates that annual costs of the rule 
could range from $17 to $36 million per year. Oil and gas production, 
CAFOs, and water management activities are expected to experience the 
greatest economic impacts related to shiner conservation activities, in 
that order of relevant impact. Impacts on small governments are not 
anticipated, or they are anticipated to be passed through to consumers. 
For example, costs to CAFOs would be expected to be passed on to 
consumers in the form of price changes. Consequently, for the reasons 
discussed above, we do not believe that the designation of critical 
habitat for the Arkansas River shiner will significantly or uniquely 
affect small government entities. As such, a Small Government Agency 
Plan is not required.

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Arkansas River shiner in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for the Arkansas 
River shiner does not pose significant takings implications.

Federalism

    In accordance with E.O. 13132, this rule does not have significant 
Federalism effects. A Federalism assessment is not required. In keeping 
with Department of Interior and Department of Commerce policies, we 
requested information from, and coordinated development of, this final 
critical habitat designation with appropriate State resource agencies 
in Kansas, New Mexico, Oklahoma, and Texas. The designation of critical 
habitat in areas currently occupied by the Arkansas River shiner 
imposes no additional restrictions to those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The designation may have some benefit to the 
States and local resource agencies in that the areas that contain the 
features essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While 
making this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988, the Department of the Interior's 
Office of the Solicitor has determined that this rule does not unduly 
burden the judicial system and meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We are designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This rule 
uses standard property descriptions and identifies the primary 
constituent elements within the designated areas to assist the public 
in understanding the habitat needs of the Arkansas River shiner.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain new or revised information collection 
for which OMB approval is required under the Paperwork Reduction Act. 
This rule will not impose recordkeeping or reporting requirements on 
State or local governments, individuals, businesses, or organizations. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). However, when the range of the species 
includes States within the Tenth Circuit (the States of Colorado, 
Kansas, Nebraska, New Mexico, Oklahoma, Utah, and Wyoming), such as 
that of the Arkansas River shiner, pursuant to the Tenth Circuit ruling 
in Catron County Board of Commissioners v. U.S. Fish and Wildlife 
Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis 
for critical habitat designation. Accordingly, we completed an 
environmental assessment and finding of no significant impact on the 
designation of critical habitat for the Arkansas River shiner.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, Secretarial Order 
3206, and the Department of the Interior's manual at 512 DM 2, we have 
coordinated with federally-recognized Tribes on a Government-to-
Government basis. We attempted to carry out our responsibilities under 
the Act in a manner that harmonizes the Federal trust responsibility to 
Tribes and Tribal sovereignty while striving to ensure that Native 
American Tribes do not bear a disproportionate burden for the

[[Page 59844]]

conservation of listed species. This designation of critical habitat 
for the Arkansas River shiner includes tribal lands. Tribal lands 
within the designation primarily exist as scattered, fragmented tracts 
that are generally held privately by the individual tribal member or 
are held in trust for the tribe by the Bureau of Indian Affairs.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Oklahoma Ecological 
Services Office (see ADDRESSES section).

Author

    The primary authors of this notice are the staff of the U.S. Fish 
and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
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. 
4201-4205; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.95(e) by revising critical habitat for the Arkansas 
River Basin population of the Arkansas River shiner (Notropis girardi) 
to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *

Arkansas River Shiner (Notropis girardi)

    (1) Critical habitat units are depicted for Clark, Comanche, Meade, 
and Seward Counties, Kansas; and Beaver, Blaine, Caddo, Canadian, 
Cleveland, Custer, Grady, Harper, Hughes, Kingfisher, Logan, Major, 
McClain, McIntosh, Pittsburg, Pontotoc, Pottawatomie, Seminole, Woods 
and Woodward Counties, Oklahoma, on the maps and as described below.
    (2) Critical habitat includes the stream channels within the 
identified stream reaches indicated on the map below, and includes a 
lateral distance of 91.4 m (300 ft) on each side of the stream width at 
bankfull discharge. Bankfull discharge is the flow at which water 
begins to leave the channel and move into the floodplain and generally 
occurs with a frequency of every 1 to 2 years.
    (3) Within these areas, the primary constituent elements include, 
but are not limited to, those habitat components that are essential for 
the primary biological needs of foraging, sheltering, and reproduction. 
These elements include the following--(i) a natural, unregulated 
hydrologic regime complete with episodes of flood and drought or, if 
flows are modified or regulated, a hydrologic regime characterized by 
the duration, magnitude, and frequency of flow events capable of 
forming and maintaining channel and instream habitat necessary for 
particular Arkansas River shiner life-stages in appropriate seasons; 
(ii) a complex, braided channel with pool, riffle (shallow area in a 
streambed causing ripples), run, and backwater components that provide 
a suitable variety of depths and current velocities in appropriate 
seasons; (iii) a suitable unimpounded stretch of flowing water of 
sufficient length to allow hatching and development of the larvae; (iv) 
a river bed of predominantly sand, with some patches of gravel and 
cobble; (v) water quality characterized by low concentrations of 
contaminants and natural, daily and seasonally variable temperature, 
turbidity, conductivity, dissolved oxygen, and pH; (vi) suitable 
reaches of aquatic habitat, as defined by primary constituent elements 
(i) through (v) above, and adjacent riparian habitat sufficient to 
support an abundant terrestrial, semiaquatic, and aquatic invertebrate 
food base; and (vii) few or no predatory or competitive non-native fish 
species present.
    (4) Developed areas, such as buildings, roads, bridges, parking 
lots, railroad tracks, other paved areas, and the lands that support 
these features are excluded from this designation. They are not 
designated as critical habitat and Federal actions limited to these 
areas would not trigger a section 7 consultation, unless they affect 
protected or restricted habitat and one or more of the primary 
constituent elements in adjacent critical habitat.
    (5) Kansas (Sixth Principal Meridian (SPM)) and Oklahoma (Indian 
Meridian (IM)): Areas of land and water as follows (physical features 
were identified using USGS 7.5' quadrangle maps; river reach distances 
were derived from digital data obtained from USGS National Atlas data 
set for river reaches, roads, and county boundaries.
    (6) Critical habitat units for the Arkansas River shiner are 
described below.
    (i) Unit 1b. Canadian River--approximately 396 km (246 mi), 
extending from the State Highway 33 bridge near Thomas, Oklahoma (IM 
T.15 N., R. 14 W., SW\1/4\ SE\1/4\ Sec. 15) downstream to Indian Nation 
Turnpike bridge northwest of McAlester, Oklahoma (IM T.8N., R.13E., 
SE\1/4\ SW\1/4\ SE\1/4\ Sec. 23).
    (ii) Unit 3. Cimarron River--approximately 460 km (286 mi), 
extending from U.S. Highway 54 bridge in Seward County, Kansas (SPM, T. 
33 S., R. 32 W., Sec. 25) downstream to U.S. Highway 77 bridge in Logan 
County, Oklahoma (IM, T. 17 N., R. 2 W., Sec. 29).
    (iii) Note: Map of critical habitat units follows:
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[[Page 59845]]

[GRAPHIC] [TIFF OMITTED] TR13OC05.000


[[Page 59846]]


* * * * *

    Dated: September 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-20048 Filed 10-12-05; 8:45 am]
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