59808 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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. 

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 courtordered 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 

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

59810 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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, selfsustaining 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 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 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 

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

59812 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 (nonFederal) 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 

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

59814 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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\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 

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

59816 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 originallydesigned 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 

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

59818 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 planrelated 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 

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

59820 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

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

59822 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 shinerrelated 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 

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

State Areas designated as 

critical habitat 

Areas excluded from 

the final 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 

59824 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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. 

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

preferences that enable them to cope 

with these conditions. Matthews (1987) 

classified several species of fishes, 

including the Arkansas River shiner, 

based on their tolerance for adverse 

conditions and selectivity for 

physicochemical gradients. The 

Arkansas River shiner was described as 

having a high thermal and oxygen 

tolerance, indicating a high capacity to 

tolerate elevated temperatures and low 

dissolved oxygen concentrations 

(Matthews 1987). Observations from the 

Canadian River in 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° Celsius (32.7 to 98.2° 

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 

59826 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 inchannel, 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 midwater column during elevated flows. 

Spawning under these conditions would 

allow the eggs to remain suspended 

during the 10-to 30-minute period the 

eggs were non-buoyant. Once 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 selfsustaining 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 

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

59828 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 humanrelated 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 

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

59830 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

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

59832 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59833 

designated stream segments. Possible 

actions would include vegetation 

manipulation, timber harvest, road 

construction and maintenance, 

prescribed fire, livestock grazing, offroad 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 (nonpoint). 

(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, 

59834 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 longterm 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 

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

59836 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

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

59838 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

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

59840 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

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

59842 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

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

59844 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as follows: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4205; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. Amend § 17.95(e) by revising 

critical habitat for the Arkansas River 

Basin population of the Arkansas River 

shiner (Notropis girardi) to read as 

follows: 

§ 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., SW1⁄4 SE1⁄4 Sec. 15) 

downstream to Indian Nation Turnpike 

bridge northwest of McAlester, 

Oklahoma (IM T.8N., R.13E., SE1⁄4 SW1⁄4

SE1⁄4 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: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59845 


ER13OC05.000</GPH>
59846 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

* * * * * 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] 

BILLING CODE 4310–55–C