Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arkansas River Basin Population of the Arkansas River Shiner (Notropis girardi, 59808-59846 [05-20048]
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Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF THE INTERIOR
Field Supervisor, Oklahoma Ecological
Services Office (telephone 918/581–
7458; facsimile 918/581–7467).
SUPPLEMENTARY INFORMATION:
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)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
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 https://
ifw2es.fws.gov/Oklahoma.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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59813
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
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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
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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
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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
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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.,
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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
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59815
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
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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.
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(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.
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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
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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
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$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
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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
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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
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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 100foot 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
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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
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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
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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
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59819
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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
Kansas ..........................................................................................................................................
New Mexico ...................................................................................................................................
Oklahoma ......................................................................................................................................
Texas .............................................................................................................................................
Total .......................................................................................................................................
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
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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
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invasive plant species exists within this
reach. Funding for this program has
been secured through a Private
Stewardship Grant and the goal of this
program is to work with private
landowners to increase stream flow in
this reach of the Canadian River and
thus providing a clear conservation
benefit to the Arkansas River shiner.
Excluding these lands preserves the
partnerships that we developed with the
Oklahoma Farm Bureau and other
stakeholders. Therefore we have
concluded that the benefits of exclusion
outweigh the benefits of designating
critical habitat in this area (see
‘‘Exclusion Under Section 4(b)(2) of the
Act’’ section below for a more detailed
discussion).
(4) Within Unit 1b, we identified a 42
km (26 mi) reach of the Canadian River
upstream of the Oklahoma state line and
extending to the U.S. Highway 60/83
bridge near Canadian, Texas. As a result
of this segment being surrounded by
conservation lands and detached from a
considerably larger designated reach, it
is our determination that this segment
no longer meets the definition of critical
habitat and was removed from
consideration.
Table 1 below provides the
approximate area (in miles (km))
designated as critical habitat for the
Arkansas River shiner and areas
excluded from the final critical habitat
designation by State.
Areas designated as
critical habitat
State
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59823
62.5 (100.6)
0
470.2 (756.7)
0
532.7 (857.3)
Areas excluded from
the final critical habitat
designation
194.1 (312.4)
38.0 (61.2)
336.2 (541.1)
142.6 (229.6)
710.9 (1,084.3)
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
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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
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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.
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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.
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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
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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).
history strategies and microhabitat
preferences that enable them to cope
with these conditions. Matthews (1987)
classified several species of fishes,
including the Arkansas River shiner,
based on their tolerance for adverse
conditions and selectivity for
physicochemical gradients. The
Arkansas River shiner was described as
having a high thermal and oxygen
tolerance, indicating a high capacity to
tolerate elevated temperatures and low
dissolved oxygen concentrations
(Matthews 1987). Observations from the
Canadian River in New Mexico and
Texas revealed that dissolved oxygen
concentrations, conductivity, and pH
rarely influenced habitat selection by
the Arkansas River shiner (Wilde et al.
2000). Arkansas River shiners were
collected over a wide range of
conditions—water temperatures from
0.4 to 36.8° 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).
Water
Most plains streams are highly
variable environments. These streams
can have either intermittent or perennial
streamflow, and typically experience
periodic flooding that scours vegetation
and replenishes fine sediments. Water
temperatures, flow regimes, and overall
physicochemical conditions (e.g.,
quantity of dissolved oxygen) typically
fluctuate so drastically that fishes native
to these systems often exhibit life-
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
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.
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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
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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;
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(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
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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
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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
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59827
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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59831
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
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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
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
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.
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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.
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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
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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
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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)
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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,
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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
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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.
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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
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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
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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
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59835
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
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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
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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
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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
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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.
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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
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59837
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
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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
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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
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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
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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
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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.
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59839
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
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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
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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
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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
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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.
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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
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59841
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
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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
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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
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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
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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
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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
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59843
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
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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:
I
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
I
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:
I
§ 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
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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
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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
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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
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Agencies
[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Rules and Regulations]
[Pages 59808-59846]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20048]
[[Page 59807]]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Final Designation of
Critical Habitat for the Arkansas River Basin Population of the
Arkansas River Shiner (Notropis girardi); Final Rule
Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 /
Rules and Regulations
[[Page 59808]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT84
Endangered and Threatened Wildlife and Plants; Final Designation
of Critical Habitat for the Arkansas River Basin Population of the
Arkansas River Shiner (Notropis girardi)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
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 https://
ifw2es.fws.gov/Oklahoma.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Oklahoma Ecological
Services Office (telephone 918/581-7458; facsimile 918/581-7467).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 470 species or 38 percent
of the 1,253 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat.
We address the habitat needs of all 1,253 listed species through
conservation mechanisms such as listing, section 7 consultations, the
section 4 recovery planning process, the section 9 protective
prohibitions of unauthorized take, section 6 funding to the States, and
the section 10 incidental take permit process. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
We note, however, that two courts found our definition of adverse
modification to be invalid (March 15, 2001, decision of the United
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish
and Wildlife Service, et al., F.3d 434 and the August 6, 2004, Ninth
Circuit judicial opinion, Gifford Pinchot Task Force, et al. v. United
States Fish and Wildlife Service). On December 9, 2004, the Director
issued guidance to be used in making section 7 adverse modification
determinations.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides little additional
protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA). None of these costs result in
any benefit to the
[[Page 59809]]
species that is not already afforded by the protections of the Act
enumerated earlier, and they directly reduce the funds available for
direct and tangible conservation actions.
Background
Background information on the Arkansas River shiner and its habitat
requirements can be found in our previous final designation of critical
habitat for this species, published in the Federal Register on April 4,
2001 (66 FR 18002). Additional background information is also available
in our recent proposal of critical habitat for the Arkansas River
shiner, published on October 6, 2004 (69 FR 59859). That information is
incorporated by reference into this final rule. This rule, which
becomes effective on the date listed under EFFECTIVE DATE at the
beginning of this document, replaces the April 4, 2001, critical
habitat designation for this species.
Previous Federal Actions
We previously designated a total of approximately 1,846 kilometers
(1,148 miles) of rivers, and 91.4 meters (300 feet) of their adjacent
riparian zones, encompassing portions of the Arkansas River in Kansas,
the Cimarron River in Kansas and Oklahoma, the Beaver/North Canadian
River in Oklahoma, and the Canadian River in New Mexico, Texas, and
Oklahoma on April 4, 2001 (66 FR 18002). On April 25, 2002, the New
Mexico Cattle Growers Association and 16 other plaintiffs filed a
complaint in United States District Court for the District of New
Mexico for alleged violations of the Act, the Administrative Procedure
Act, and NEPA. A Memorandum Opinion in that case was issued by Senior
U.S. District Judge C. LeRoy Hansen in September of 2003 that vacated
critical habitat for the Arkansas River shiner and ordered the Service
to complete a final rulemaking to redesignate critical habitat by
September 30, 2005. In accordance with this Memorandum Opinion, we
published a proposed rule to designate 2,002 kilometers (1,244 miles)
of linear distance of rivers, including 91.4 meters (300 feet) of
adjacent riparian areas measured laterally from each bank on October 6,
2004. This distance included areas that were proposed to be excluded in
the final rule. We extended the comment period associated with this
proposed rule on April 28, 2005 (70 FR 21987). On August 1, 2005, we
published a notice announcing the availability of the draft economic
analysis (DEA) and draft environmental assessment, public hearing
locations and dates, and reopening of the public comment period (70 FR
44078).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Arkansas River shiner in the
proposed rule published on October 6, 2004 (69 FR 59859). We also
contacted the appropriate Federal, State, and local agencies, Tribes,
scientific organizations, and other interested parties and invited them
to comment on the proposed rule. The initial comment period was open
from October 6, 2004 through April 30, 2005. We extended this comment
period until June 17, 2005 (April 28, 2005, 70 FR 21987). A second
comment period was open from August 1, 2005 to August 31, 2005, to also
solicit comments on the draft environmental assessment and draft
economic analysis and to announce the dates, locations, and times of
the public hearings (70 FR 44078). In addition, we published newspaper
notices inviting public comment and announcing the public hearings in
the following newspapers in New Mexico: Quay County Sun; Kansas: Dodge
City Globe, Hutchinson News Herald, and Wichita Eagle Beacon; Oklahoma:
Woodward News, The Daily Oklahoman, and Tulsa World; Texas: Amarillo
Globe News and Lubbock Avalanche Journal. We held three public hearings
on the proposed rule: Oklahoma City, Oklahoma (August 15, 2005);
Amarillo, Texas (August 17, 2005); and Liberal, Kansas (August 18,
2005). Transcripts of these hearings are available for inspection (see
ADDRESSES section). All comments and new information received during
the two comment periods have been incorporated into this final rule as
appropriate.
A total of 255 commenters responded during the two comment periods,
including 11 Federal agencies (including elected officials), 7 State
agencies, 11 private organizations, and 226 individuals. Several
commenters individually submitted more than one set of comments. We
received 5 comments after the close of the second comment period, but
those comments were similar in nature to comments we had already
received. During the comment period that opened on October 6, 2004, and
closed on June 17, 2005, we received 26 comments directly addressing
the proposed critical habitat designation: 2 from peer reviewers, 4
from Federal agencies, 3 from State agencies, and 5 from private
organizations. Of the 26 parties responding to the proposal during the
first comment period, 2 supported the proposed designation, 15 were
opposed, and 9 provided additional information or otherwise expressed
no position on the proposal. During the second comment period that
opened on August 1, 2005, and closed on August 31, 2005, we received
235 comments directly addressing the proposed critical habitat
designation, DEA, and draft environmental assessment. Of these latter
comments, 8 were from a Federal agency, 7 from members of Congress, 7
from State agencies, 8 from private organizations, and 212 from
individuals. Many of the comments (138) from private individuals were
signed form letters. During the second comment period a total of 2
commenters supported the designation of critical habitat for the
Arkansas River shiner and 71 opposed the designation. Many of those
opposing the designation or not expressing a position did express
support for excluding one or more of the proposed critical habitat
units. We reviewed all comments for substantive information and new
data regarding the Arkansas River shiner and its critical habitat.
Comments have been grouped together by issue and are addressed in the
following summary. All comments and information have been incorporated
into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited independent opinions from at least three
knowledgeable individuals who have expertise with the species, with the
geographic region where the species occurs, and/or familiarity with the
principles of conservation biology. Of the six individuals contacted,
two responded. The peer reviewers who submitted comments generally
supported the proposal and their comments are included in the summary
below and incorporated into the final rule, as appropriate.
Peer Review Comments
(1) Comment: A peer reviewer at an academic institution who
conducts research on a variety of fish species found our proposal to be
extremely thorough and appropriate for an understanding of the needs of
the Arkansas River shiner. He stated that the life history of the
Arkansas River shiner dictates that long stretches of free-flowing
water are critical Arkansas River shiner habitats.
Our Response: As noted by the peer reviewer, we have tried to be as
thorough as possible, and have considered and applied every known
[[Page 59810]]
study describing the life history and habitat requirements of the
species when determining critical habitat for the Arkansas River
shiner.
(2) Comment: This peer reviewer found the argument for excluding
the Beaver/North Canadian River in Oklahoma and the Arkansas River in
Kansas to be convincing and supported using these areas to establish
experimental populations of the Arkansas River shiner.
Our Response: We agree that excluded areas still have the features
that are essential for the Arkansas River shiner and we intend to
utilize many recovery tools throughout the range of the species,
including establishing experimental populations, as appropriate.
(3) Comment: Another peer reviewer at a different academic
institution who has extensive experience with riverine systems in
Kansas, New Mexico, and Oklahoma expressed concern regarding proposed
exclusion of Beaver/North Canadian River in Oklahoma and the Arkansas
River in Kansas. He stated that our position is based on the assumption
that Arkansas River shiner populations in these two reaches are either
so small that they cannot recover or that these populations are
extirpated. In his opinion, these two reaches have not been sampled
adequately for us to reach this conclusion. The recent capture of the
Arkansas River shiner from the Cimarron River near Guthrie, Oklahoma is
used as an example of our inability to conclude that the Arkansas River
shiner has been extirpated from any particular reach.
Our Response: We agree that only a small percentage of either of
these two reaches have been extensively searched for the Arkansas River
shiner. We strive to base our listing decisions on the best scientific
and commercial data available. Unfortunately, extensive survey data for
both of these reaches were unavailable. We will not designate critical
habitat in areas outside the geographic area occupied by the species at
the time of listing when the best available scientific and commercial
data do not demonstrate that the conservation needs of the species
require such designation. Additionally, designation of critical habitat
may not include all of the habitat areas that may eventually be
determined to be necessary for the recovery of the species. For these
reasons, critical habitat designations do not mean that habitat outside
the designation is unimportant or may not be required for recovery.
Before initiating any efforts to establish experimental populations in
these reaches, we intend, subject to available funding, to conduct more
exhaustive surveys of both units.
We believe a major benefit of excluding areas from critical habitat
designation is that landowners, local jurisdictions, and other entities
involved in recovery efforts for the Arkansas River shiner will be more
willing to work with us in a spirit of cooperation and partnership. A
possible benefit of including critical habitat on such lands is
education about the species and its habitat needs. We considered that
this educational benefit has largely already been met by the public
participation process, and therefore, that this would not be a
particularly important benefit of critical habitat designation. We have
concluded, therefore, that the benefits of excluding critical habitat
from such lands exceed the value of including the lands as critical
habitat. See additional discussion under ``Exclusion Under Section
4(b)(2) of the Act.''
(4) Comment: This peer reviewer, in his best professional judgment,
suggested that restoring Arkansas River shiners in the Beaver/North
Canadian River in Oklahoma and the Arkansas River in Kansas would be
extremely beneficial considering these repatriated populations would
help ensure that multiple populations of the species persist. However,
he expressed reservation that repatriation of the species was the only
means to accomplish this objective. Instead both habitat restoration
and repatriation might be necessary or habitat restoration alone would
be sufficient should remnant populations still persist.
Our Response: We agree that restoration of Arkansas River shiner
populations to additional portions of their historical range
significantly reduces the likelihood of extinction and that some
habitat restoration may also be necessary. A vital recovery component
for this species will likely involve establishment of secure, self-
sustaining populations in habitats from which the species has been
extirpated. While we believe excluding historically occupied areas from
the critical habitat designation could be detrimental to conservation
of the species, we also believe negative public perceptions with
respect to critical habitat could seriously hamper voluntary
restoration efforts. Establishing experimental populations under
section 10(j) of the Act appears to be the most appropriate tool to
utilize in future restoration efforts. We believe the provisions of
section 10(j) would help foster an atmosphere of cooperation that would
encourage future voluntary conservation actions. Section 10(j) of the
Act enables us to designate certain populations of federally listed
species that are released into the wild as ``experimental.'' The
circumstances under which this designation can be applied are the
following: (1) The population is geographically separate from non-
experimental populations of the same species (e.g., the population is
reintroduced outside the species' current range but within its probable
historic range); and (2) we determine that the release will further the
conservation of the species. Section 10(j) is designed to increase our
flexibility in managing an experimental population by allowing us to
treat the population as threatened, regardless of the species status
elsewhere in its range. In situations where we have experimental
populations, certain section 9 prohibitions (e.g., harm, harass,
capture) that apply to endangered and threatened species may no longer
apply, and a special rule can be developed that contains the
prohibitions and exceptions necessary and appropriate to conserve that
species. This flexibility allows us to manage the experimental
population in a manner that will ensure that current and future land,
water, or air uses and activities will not be unnecessarily restricted
and the population can be managed for recovery purposes. Please see the
``Units 2 and 4'' discussion under the ``Exclusion Under Section
4(b)(2) of the Act'' section below for more detailed information on the
section 10(j) regulation and process.
(5) Comment: This peer reviewer expressed concern that we proposed
to exclude the Beaver/North Canadian River in Oklahoma and the Arkansas
River in Kansas and was unclear why reintroduction of the Arkansas
River shiner could not occur in these units if they were designated as
critical habitat. The importance of these units to the conservation of
the species would seem to outweigh the benefit of not designating these
reaches as critical habitat.
Our Response: We strongly believe that, in order to achieve
recovery for the Arkansas River shiner, we would need the flexibility
provided for in section 10(j) of the Act to help ensure the success of
augmenting and reestablishing Arkansas River Shiner populations in the
Beaver/North Canadian River and/or the Arkansas River. Use of section
10(j) is meant to encourage local cooperation through management
flexibility. Section 10(j)(2)(C)(ii) of the Act states that critical
habitat shall not be designated under the Act for any experimental
population determined to be not
[[Page 59811]]
essential to the continued existence of a species. In the case of the
Arkansas River shiner, the flexibility gained by establishment of an
experimental population through section 10(j) would be of little value
if a designation of critical habitat overlaps it. This is because
Federal agencies would still be required to consult with us on any
actions that may adversely modify critical habitat. In effect, the
flexibility gained from section 10(j) would be rendered useless by the
designation of critical habitat.
If, during the recovery planning process we determine a revision is
warranted, we can amend critical habitat at that time. Provided such a
revision is warranted, and funding available, we could propose revised
critical habitat and consider any new information provided, both on
additional areas to be considered in the revision as well as areas
included in the current designation as essential (i.e., excluded and
designated areas). Based on the best available science at this time, we
determine that the areas designated by this rule are sufficient to
conserve the species.
(6) Comment: This peer reviewer stated the proposal did a good job
referencing the existing literature and outlining the factors limiting
the existence of the Arkansas River shiner. However, he expressed
concern that much was still unknown and management actions should
proceed with caution. What was clear was the critical importance of
habitats in the Arkansas and Beaver/North Canadian Rivers for recovery
of the species.
Our Response: We have based this proposal on the best scientific
and commercial data available but we agree that many details of
Arkansas River shiner life history and habitat requirements are still
unknown. Our intent is to implement conservation actions for the
species in a manner consistent with the available information but which
avoids or minimizes the risk to the species. We agree that these
habitats are important for recovery of the species and intend to
address appropriate conservation of these habitats during the recovery
planning process. However, based on the current information, which
indicates these two reaches are unoccupied, we have excluded these
areas from the final critical habitat designation.
Comments Related to Previous Federal Actions, the Act, and Implementing
Regulations
(7) Comment: Designating critical habitat prior to development of a
recovery plan for the Arkansas River shiner is inappropriate. The
public should be allowed to participate in developing a recovery plan
for the species, which would be far more effective than designating
critical habitat.
Our Response: We agree that, in an ideal situation, we would have a
recovery plan in place for any species prior to designating its
critical habitat. In that way, the public would have input into the
recovery process, and enough would be known about the species to help
determine what areas should be designated as critical habitat. However,
the Act requires that critical habitat be designated concurrently with
a species' listing or, in some circumstances, within one year of a
final listing determination. Unfortunately, the Act does not allow for
a delay in critical habitat designation until after a recovery plan is
in place.
It is important to note that the recovery planning process, which
will allow the involvement of affected individuals; local, state, and
tribal governments; and others interested in conservation of the
Arkansas River shiner, will result in development of specific recovery
actions to be implemented on behalf of the species' conservation.
Although implementation is not mandatory, the recovery plan provides a
``blueprint'' for achieving recovery and substantially influences how
the species is managed under the Act. Thus, although critical habitat
is usually designated prior to recovery plan development, its on-the-
ground recovery implementation can be influenced by a final recovery
plan.
(8) Comment: Critical habitat designation is not necessary and
provides little conservation benefit or protection to the species.
Our Response: The Act under section 4(a)(3) requires that critical
habitat be designated for species listed as threatened or endangered
unless such designation would not be prudent. We believe such
designation would be prudent for the Arkansas River shiner. Critical
habitat designation is only one facet of species conservation. The
protections afforded listed species under sections 7 and 9 are
substantial, and a critical habitat designation usually adds only
marginal protections above those already afforded listed species.
Partnerships with individual landowners and a variety of stakeholders
can provide a much greater conservation benefit for listed species, as
they offer positive management actions that cannot be achieved through
a critical habitat designation. We agree that designation of critical
habitat often provides little or no additional benefit to species
conservation (see ``Designation of Critical Habitat Provides Little
Additional Protection to Species'').
(9) Comment: The Service has underestimated the degree to which
federal actions will trigger section 7 consultation for actions that
occur within or near critical habitat.
Our Response: We disagree. As described in the ``Section 7
Consultation'' section below, consultation would occur when the action
agency determines that activities they sponsor, fund, or authorize may
affect federally listed species or are likely to destroy or adversely
modify their critical habitat. The threshold for triggering section 7
consultation is clear. During the informal section 7 consultation
process, we will assist Federal agencies in making a determination if
their action is likely to affect critical habitat. However, the Federal
Action Agency has the responsibility to make that determination, not
us.
(10) Comment: The comment period for the NEPA document and economic
analysis were inadequate to allow the public to understand and comment
meaningfully and should be extended.
Our Response: The notice of availability for the NEPA document and
economic analysis published August 1, 2005. We accepted comments on
these two documents, in addition to the proposed rule, for 30 days
ending on August 31, 2005. We believe this public comment period
provided adequate opportunity for public comment. In addition, due to
the large scope of this rule and in order to comply with our September
30, 2005, court ordered date for completion of the final rule it would
not have been possible to extend the comment period beyond August 31,
2005.
Comments Related to Critical Habitat, Primary Constituent Elements, and
Methodology
(11) Comment: The 300-foot lateral extent or ``buffer zone'' is
excessive and unnecessary.
Our Response: Critical habitat includes the area of bankfull width
plus 300 feet on either side of the banks. This is not for the purpose
of creating a ``buffer zone.'' Rather, it defines the lateral extent of
those areas we believe contain the features that are essential to the
species' conservation. Although the Arkansas River shiner cannot be
found in the riparian areas when they are dry, these areas are
sometimes flooded and provide habitat during high-water periods. In
addition, the riparian vegetation within these lateral areas
[[Page 59812]]
provides seeds and insects eaten by Arkansas River shiners, and thus
contains a primary constituent element of critical habitat.
The riparian zone also provides an array of important watershed
functions that directly benefit plains fishes. Vegetation in the
corridor shades the stream, stabilizes banks, and provides organic
litter and large woody debris. The riparian zone stores sediment,
recycles nutrients and chemicals, mediates stream hydraulics, and
controls microclimate. Healthy riparian zones help ensure water quality
essential to aquatic life. Conversely, human activities in the riparian
zone can harm stream function and fishes by directly and indirectly
interfering with these important functions. Because the riparian
corridor is particularly susceptible to degradation, we concluded that
the adjacent riparian corridor would require special management
consideration and therefore was appropriate for inclusion in critical
habitat.
Comments Related to Site-Specific Areas
The following comments and responses involve issues related to the
inclusion or exclusion of specific stream reaches or our methods for
selecting appropriate areas for designation as critical habitat.
(12) Comment: Several commenters expressed support for exclusion of
various units or portions of those units. One supported exclusion of
the City of Wichita from Unit 4, four supported exclusion of the
entirety of Unit 4, four supported exclusion of Units 2 and 4, and 141
supported exclusion of Unit 2 alone. Others (15) expressed support for
exclusion of all or a portion of Unit 1a, including the segment within
the upper reaches of Lake Meredith.
Our Response: Areas in Unit 1a, Unit 2, and Unit 4 are excluded
from critical habitat (see ``Exclusion Under Section 4(b)(2) of the
Act'' section below for a detailed discussion).
(13) Comment: Several commenters expressed support for exclusion of
Units 1b and 3 or exclusion of all of the units from the designation.
Our Response: All proposed areas in Unit 1b and Unit 3, with the
exception of a 204 km (127 mi) long reach of Unit 1b, were not excluded
from critical habitat (see ``Exclusion Under Section 4(b)(2) of the
Act'' section below for a detailed discussion). Units 1b and 3 contain
all of the primary constituent elements and require special management.
We cited streamflow alteration, introductions of nonnative species and
water quality degradation as some of the threats in those areas that
require special management considerations.
(14) Comment: Several commenters expressed concern regarding the
designation of Unit 3. One stated the Cimarron River does not support a
viable population, two stated the unit is unoccupied by the Arkansas
River shiner, four stated the portion of Unit 3 in Kansas is
unoccupied, and five stated the Cimarron River does not support the
primary constituent elements.
Our Response: The Cimarron River is included in the designation
because it contains all of the primary constituent elements and is
occupied by the species. As stated in this final rule, 16 specimens of
the Arkansas River shiner were reported captured from the Cimarron
River between 1985 and 1992. In August of 2004, eight Arkansas River
shiners were collected near Guthrie, Oklahoma, by SWCA Environmental
Consultants (Stuart Leon, U.S. Fish and Wildlife Service, in litt.
2004). While this population is undoubtedly small and is by no means
secure, it continues to persist over time. Because the Arkansas River
shiner has a maximum life span of about 3 years, with the majority not
surviving past two years of age, it is doubtful that the species would
continue to be collected if a small population did not persist. We
cannot reasonably conclude the species is extirpated from any portion
of the Cimarron River unit based on the continued, although infrequent,
observation of the Arkansas River shiner. Failure to record Arkansas
River shiner from specific locations in the past several years is
generally indicative of low population levels but does not necessarily
support a declaration of extirpation from the entire stream.
Documentation of small populations is very difficult and often results
in false declarations of extirpation (Mayden and Kuhajda 1996). At the
least, this illustrates the need for caution in concluding that a
population has been extirpated. Fish, particularly small species, are
often very difficult to locate when population levels are very low.
We agree that the Cimarron River and many of the other rivers and
streams historically occupied by the Arkansas River shiner have
portions that dry either seasonally, during drought conditions, or for
other natural reasons. This species is adapted to this phenomenon and
often persists in isolated pools and tributary refugia only to
recolonize these dewatered areas once flow resumes. If sufficient areas
of flow persist, and if all other habitat requirements are met, the
stream is suitable for the species whether or not there is flow
throughout all areas at all times. Consequently, the absence of the
Arkansas River shiner from an area during certain periods or under
certain conditions does not necessarily demonstrate that they are not
present at other times. As long as a permanent barrier does not exist,
Arkansas River shiners move fairly long distances within these streams.
Comments Related to National Environmental Policy Act (NEPA) Compliance
(15) Comment: An Environmental Assessment (EA) is not adequate for
an action of this magnitude; instead an Environmental Impact Statement
(EIS) is required.
Our Response: Our EA considered a no-action alternative and several
action alternatives and discussed the adverse and beneficial
environmental impacts of each. We determined through the EA that the
overall environmental effects of this action are insignificant. An EIS
is required only if we find that the proposed action is expected to
have a significant impact on the human environment. Based on our
analysis and comments received from the public, we prepared a final EA
and made a Finding of No Significant Impact (FONSI), negating the need
for preparation of an EIS. We believe our EA was consistent with the
spirit and intent of NEPA. The final EA, FONSI, and final economic
analysis provide our rationale for determining that critical habitat
designation would not have a significant effect on the human
environment. Those documents are available for public review (see
ADDRESSES section).
Comments Related to Section 7 Consultation
(16) Comment: Consultation will result in project-related delays.
Our Response: As described in the ``Section 7 Consultation''
section below, consultation would occur when the action agency
determines that activities they permit, fund, authorize, or undertake
may affect federally listed species or destroy or adversely modify
their critical habitat. The designation of critical habitat only
affects these activities. Absent Federal permitting, funding, or
authorization, critical habitat designation on private (non-Federal)
lands would not obligate or trigger any consultation requirement for
private (non-Federal) actions on private land.
Section 3 of the draft economic analysis addressed the
administrative costs associated with section 7 consultation. The
duration and complexity of any particular section 7
[[Page 59813]]
consultation can be influenced by a number of factors and may require
substantial administrative effort on the part of all participants.
Generally most delays related to project implementation can be avoided
or minimized if consultation is initiated early during the project
planning process. The Act specifies timeframes under which
consultations are to be completed and we strive to meet those
timeframes.
Comments Related to Biological Concerns
The following comments and responses involve issues related to the
biological basis for the designation and status of the Arkansas River
shiner.
(17) Comment: The Arkansas River shiner does not require the
protection of the Act.
Our Response: The Arkansas River Basin population of the Arkansas
River shiner was listed as threatened in 1998. Additional information
on the biology and status of this species and our rationale for the
listing can be found in the November 23, 1998, final listing
determination (63 FR 64772).
(18) Comment: Current soil conservation practices keep runoff from
entering the river and such measures would likely preclude existence of
Arkansas River shiner habitat.
Our Response: Some soil conservation practices, such as terracing,
are very effective at reducing run-off and may contribute to overall
declines in peak discharge during rainfall events. However many
conservation practices, such as construction of terraces, shelterbelts,
grassed waterways, and certain vegetative plantings, are specifically
designed to minimize soil erosion and control sedimentation. Without
these practices in place, soil erosion and ensuing increased siltation
would likely occur in rivers and streams of the Arkansas River basin.
We do not believe that construction of terraces, shelterbelts, grassed
waterways, and other vegetative plantings for conservation are likely
to significantly impact habitat or threaten survival of the Arkansas
River shiner.
(19) Comment: Grazing by livestock will not have an adverse impact
on the Arkansas River shiner, at least no more significant than grazing
by other ungulates such as deer or bison.
Our Response: As stated in the final listing determination (63 FR
64772), we believe well-managed, free-range livestock grazing is
compatible with viable Arkansas River shiner populations and will not
cause significant degradation of the riparian zone. In fact, low to
moderate grazing and seasonal or rotational grazing practices are
compatible with many natural resource objectives.
(20) Comment: The Arkansas River shiner has no lasting value and
should be allowed to become extinct.
Our Response: Congress, in section 2 of the Act (Findings,
Purposes, and Policy), found that numerous species of fish, wildlife,
and plants had become extinct or were in danger of, or, threatened
with, extinction due to a lack of concern for their conservation.
Furthermore, Congress found that these species of fish, wildlife, and
plants are intrinsically valuable to the nation and its people for
reasons of aesthetic, ecological, educational, historical,
recreational, and scientific value (section 2(a)(3)). These findings
are the basis of the Act.
A variety of opinions likely exist as to a particular species'
contribution to society. We believe that conserving all species of
wildlife has a positive effect on society. Society, like the Arkansas
River shiner, depends upon reliable supplies of clean water. Conserving
water resources will help to provide a necessary resource for future
generations of people and maintain a healthy aquatic ecosystem for fish
and wildlife. As the health of ecosystems declines, the number of
species inhabiting those systems decline. In general, the presence of
rare and declining species is very often a good indicator of failing
ecosystem health. It would be contrary to the Act and our mission to
allow the Arkansas River shiner to become extinct without undertaking
all reasonable conservation actions.
(21) Comment: The Arkansas River shiner and Red River shiner
(Notropis bairdi) are not distinct species.
Our Response: We disagree. While the morphological characteristics,
life history, and phylogeny of the two fishes are similar, all of the
published scientific literature concludes the two fishes are separate
and taxonomically distinct. For example, the scholarly publications on
the fishes of Oklahoma (Miller and Robison 1973), Arkansas (Robison and
Buchanan 1988), and Kansas (Cross 1967) all show the two fishes to be
distinct species. Other scientific publications such as Felley and
Cothran (1981), Marshall (1978), Cross et al. (1983), and Gilbert
(1980) also consider these fishes to be separate, distinct taxa. Hubbs
and Ortenburger (1929) provided the first description of both the
Arkansas River shiner and the Red River shiner. They considered both to
be separate and taxonomically distinct. Most recently, Mayden (1989)
thoroughly examined the phylogenetic relationships of all North
American minnows. He concluded that the two species are valid and
distinct. We are not aware of any studies, scholarly or otherwise,
which suggest these two species are not separate and taxonomically
distinct.
(22) Comment: Several commenters provided additional information or
confirmed the existence of numerous threats to the Arkansas River
shiner including: impoundments, predation, introduction of Red River
shiner, water quality degradation, and declining stream flows.
Our Response: We agree that these and other threats have influenced
the distribution and abundance of the Arkansas River shiner. Please
refer to information in this rule or refer to the ``Summary of Factors
Affecting the Species'' section of our final listing determination (63
FR 64772).
Comments Related to the Effects of Designation
The following comments and responses involve issues related to the
effects of critical habitat designation on land management or other
activities.
(23) Comment: We received many comments from individuals expressing
their concern that critical habitat designation will infringe on their
rights as private property owners and that the designation could result
in a reduction in their property's value.
Our Response: Only activities taking place on private property
having some sort of Federal nexus (e.g., Federal funding, permitting,
authorization) could potentially be affected. Our experience has shown
that the majority of such activities have rarely triggered formal
section 7 consultation. Please see our economic analysis for further
information about economic effects of this designation.
(24) Comment: Numerous commenters expressed concern that the
designation of critical habitat will restrict access to the affected
areas, impose land use restrictions, force fencing of the riparian
zone, further regulate the oil and gas industry, or restrict off-road
and recreational vehicle use.
Our Response: Individuals, organizations, States, local and tribal
governments, and other non-Federal entities could potentially be
affected by the designation of critical habitat only if their actions
occur on Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding and the action has the
potential to affect the species or its critical habitat. In this
instance, Federal agencies are required to enter into section 7
consultation with us. Effects of
[[Page 59814]]
the designation on projects with a Federal nexus are explained in the
``Effect of Critical Habitat Designation'' section. Designation of
critical habitat does not prescribe specific management actions but
does serve to identify areas that are in need of special management
considerations.
(25) Comment: Off-road vehicle (ORV) use is not affecting the
Arkansas River shiner.
Our Response: Specific information on this issue is lacking,
however it is possible that heavy recreation use may adversely impact
the stream and habitat for the Arkansas River shiner, particularly
during periods of low flow. Recreational activities involving a Federal
nexus are rare within any of the units and occur primarily within Unit
1a. The entirety of Unit 1a, including the Rosita ORV area, has been
excluded from the final critical habitat designation, thus should not
be influenced by the designation of critical habitat. However, the
National Park Service is contemplating restrictions within the Rosita
ORV area to prevent potential adverse impacts to the Arkansas River
shiner under the jeopardy standard. The primary adverse impacts involve
use of the river channel during the spawning season and during
summertime low-flow periods when fish are concentrated in isolated
pools. The Rosita ORV area is considered to be occupied by the Arkansas
River shiner; therefore, this restriction is being considered
regardless of the critical habitat designation.
(26) Comment: The designation of critical habitat will result in
control of, or ``taking'' of, private property in violation of the
rights granted under the Fifth and Tenth Amendments to the U.S.
Constitution.
Our Response: The mere promulgation of a regulation, like the
enactment of a statute, does not take private property unless the
regulation on its face denies the property owners all economically
beneficial or productive use of their land (Agins v. City of Tiburon,
447 U.S. 255, 260-263 (1980); Hodel v. Virginia Surface Mining and
Reclamation Ass'n, 452 U.S. 264, 195 (1981); Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1014 (1992)). The Act does not
automatically restrict all uses of critical habitat, but only imposes
requirements under section 7(a)(2) on Federal agency actions that may
result in destruction or adverse modification of designated critical
habitat. This requirement does not apply to private actions that do not
need Federal approvals, permits, or funding. Furthermore, as discussed
above, if a biological opinion concludes that a proposed action is
likely to result in destruction or modification of critical habitat, we
are required to suggest reasonable and prudent alternatives. In
accordance with Executive Order 12630, we conclude that this
designation does not have significant takings implications (see
``Required Determinations'' section below).
Comments Related to Recovery
The following comments and responses involve issues related to
recovery and recovery planning for the Arkansas River shiner. Although
not relevant to the designation of critical habitat, we chose to
address some of the comments related to this issue.
(27) Comment: Some comments expressed concern regarding
implementation of unfavorable recovery actions or noted that the
details, costs, and recovery goals of the recovery program have not
been provided. Others mentioned specific tasks, such as further
research, captive propagation, control of salt cedar (Tamarix spp.),
stream flow restoration, control of nonnative fishes, and restoration
of the Arkansas River shiner to unoccupied habitat, which we might
implement during recovery.
Our Response: On July 1, 1994, the Secretaries of the Interior and
Commerce set forth an interagency policy to minimize social and
economic impacts of the Act consistent with timely recovery of listed
species (59 FR 34272). Consistent with this policy, we intend to work
closely with stakeholders throughout the Arkansas River basin regarding
development of recovery actions for the Arkansas River shiner and will
strive to balance implementation of those recovery actions with social
and economic concerns.
The ultimate purpose of listing a species as threatened or
endangered under the Act is to recover the species to the point at
which it no longer needs the Act's protections. The Act mandates the
conservation of listed species through different mechanisms. Section
4(f) of the Act authorizes us to develop and implement recovery plans
for listed species. A recovery plan delineates reasonable actions which
are believed to be required to recover and delist the species, and
which may include measures specifically mentioned during the comment
period. Recovery plans do not, of themselves, commit personnel or funds
nor obligate an agency, entity, or person to implement the various
tasks listed in the plan. Recovery plans serve to bring together
Federal, State, and private stakeholders in the development and
implementation of conservation actions for the species, by providing a
framework to identify site specific management actions necessary to
achieve conservation and survival of the species, set recovery
priorities, and estimate costs of various tasks necessary to accomplish
the goals of the plan. One of the main emphases of recovery plans is to
address threats affecting the survival of the species and to remove or
minimize their influence. However, we have no intention of restoring
these ecosystems to pristine conditions.
In the ``Available Conservation Measures'' section of the final
listing determination, we listed four general conservation measures
that could be implemented to help conserve the Arkansas River shiner.
While this list does not constitute the entire scope of a recovery plan
as discussed in the provisions of section 4(f) of the Act, it does
provide an indication of measures we intend to investigate during
preparation of a recovery plan.
Future conservation and recovery of the shiner will emphasize
remaining aggregations and habitats in the Canadian, Cimarron, and
Beaver[bs]North Canadian Rivers. We also intend to
address the implications of groundwater withdrawals and diversions of
surface water during the recovery process. Generally, we will support
and encourage the States in their efforts to increase irrigation
efficiency and improve conservation of groundwater sources in the High
Plains. Conservation of the High Plains aquifer, and the resulting
benefits to streamflow within the Arkansas River basin, will not occur
without the participation of the States. We believe voluntary
conservation of the groundwater resource will be more effective in
recovery efforts for the Arkansas River shiner than restricting or
otherwise regulating withdrawals.
Introductions of non-indigenous species, such as the Red River
shiner, will be closely monitored. Where needed, we will develop and
implement measures to minimize or eliminate the accidental or
intentional release of these species. Studies will be initiated to
determine the feasibility of, and techniques for, eradicating or
controlling Red River shiners in the Cimarron River. If control or
eradication is feasible, a control program will likely be implemented.
We have already begun steps to evaluate and study captive
propagation of the Arkansas River shiner using the non-native Pecos
River population. And we have begun participating in a joint effort to
investigate the feasibility of controlling salt cedar as a means of
enhancing stream flow in western portions of the basin. The State of
Texas
[[Page 59815]]
has also initiated similar efforts in the Canadian River. We believe
such efforts will be beneficial to recovery of the species.
At the time of final listing, we prepared a recovery outline for
the shiner and have begun to implement some preliminary recovery tasks
identified in the outline. Recovery outlines are brief internal
planning documents that are prepared within 60 days after the date of
publication of the final rule. These documents are intended to direct
recovery efforts pending completion of the recovery plan. We have not,
to this point, completed or even begun drafting a recovery plan.
Considering the first two sections of a recovery plan present
information on the biology, life history, and threats to the species,
the final listing determination and this document will be used in the
preparation of these sections. As such, much of the work required to
draft a recovery plan has been completed. However, an implementation
schedule, which details estimates of the time required to complete
identified tasks and costs to carry out those measures needed to
achieve the plan's goal is far from complete. We hope to utilize the
expertise of the many stakeholders in the completion of this section of
the plan. Once a recovery plan for the Arkansas River shiner has been
developed, the plan will be available for public review and comment
prior to adoption.
Comments Related to Economic Impacts and Analysis--General Comments on
Methodology
(28) Comment: A comment offers that the Draft Economic Analysis
(DEA) should present results at a more disaggregated spatial level than
watersheds to facilitate land exclusions by the Secretary of the
Interior. The aggregated level at which impacts are presented fails to
pinpoint specific areas of high economic impact.
Our Response: We believe that the level of resolution of impact
estimates presented in the DEA is appropriate for this rulemaking. The
Service identified five critical habitat units, which are subdivided
into 18 watersheds. The watershed level is an appropriate geographic
boundary for disaggregating economic impacts associated with protecting
aquatic species, because it provides important information about the
linkage between upstream economic activities and downstream impacts. As
described in Appendix C, the DEA uses the smallest delineation of a
watershed provided consistently across all States by the U.S.
Geological Survey (i.e., watersheds named using an eight-digit
hydrologic unit code, or ``HUC''). In addition, the eight-digit HUC is
currently used by U.S. Environmental Protection Agency (EPA) and the
Service as it considers which Concentrated Animal Feeding Operations
(CAFOs) will be required to take additional action to protect the
shiner. The State of Oklahoma has mapped smaller watersheds, naming
them using 11-digit HUCs. If the analysis were to subdivide shiner
habitat by 11-digit HUCs in Oklahoma, the analysis would mistakenly
exclude impacts to CAFOs in 11-digit HUCs that do not intersect
habitat. This erroneous exclusion of potential costs would also occur
if some other, smaller geographic boundaries such as census tracts,
were used. Finally, economic activity within this habitat is relatively
homogenous, and much of the data used to project future economic
activity is not detailed enough to allow for further, meaningful
disaggregation. As a result, presentation of costs at a more
disaggregated spatial level is unlikely to pinpoint smaller areas
bearing disproportionate costs.
(29) Comment: One comment states that most oil and gas operators
are not familiar with references to watersheds provided in Exhibits 5-1
and 5-2, and a list or map of counties associated with each watershed
would be helpful to clarify what areas are included and which wells are
encompassed.
Our Response: The information requested is available in Exhibit ES-
2 of the DEA, which provides a map overlaying the watersheds on county
and State boundaries in addition to the names of each.
(30) Comment: One commenter stated that that the DEA neglects to
consider the role of risk and uncertainty about future impacts. Because
future scenarios are difficult to predict, the commenter asserts that
the DEA should acknowledge the effect of altering assumptions.
Our Response: The DEA provides extensive discussion of the
likelihood and uncertainty about future impacts and the bias associated
with key assumptions. For example, discussion of factors influencing
the frequency and impact of administrative efforts is discussed in
paragraph 107. The potential for impacts at Lake Meredith, other
Canadian River Municipal Water Authority (CRMWA) projects, and Ute Dam,
and uncertainty surrounding the quantification of costs, is discussed
in paragraphs 119, 121, and 126 through 128. Key assumptions,
probability of impact, and areas of uncertainty in the estimation of
impacts to the oil and gas industry are discussed in paragraphs 148
through 149, 152 through 157, 162, 165, 171, 175, and 178. The
likelihood and uncertainty about future impacts to CAFOs, and the
effect of key assumptions are discussed in paragraphs 181, 190 through
193, and 196 through 199. The effect of major assumptions and areas of
uncertainty in estimating other agricultural impacts are described in
paragraphs 202 through 203, 207 through 209, 212 through 213, 217, 222,
227, 229, 233, 235 through 236, 240, 244 through 247, and 252 through
253. In the analysis of transportation-related impacts, paragraph 255
provides information about the uncertainty associated with estimated
impacts. Issues related to the estimation of impacts to recreators are
discussed in paragraphs 273, 275, 278, and 279. Paragraphs 283 through
285 describe the uncertainty associated with predicting impacts to
utility projects. Uncertainty regarding other types of effects, such as
impacts to exotic plant control, wildlife management areas, real estate
development activities, and the development of management plans is
discussed in paragraphs 286 through 287, 293, 295, and 297 through 298.
(31) Comment: One comment states that the annualizing of total cost
in the CAFO section of the DEA is not consistent with the annualization
method applied in other sections of the DEA.
Our Response: We disagree. The DEA uses a consistent method to
calculate annualized costs for each category of impact, as described in
note (a) of Exhibit ES-4b and ES-4c.
(32) Comment: A comment notes that in estimating the impact to row
cropping activities, the DEA considers two alternate scenarios. The
projected total costs for row-cropping are presented as the sum of the
two scenarios, while it's more likely that either one or the other will
occur.
Our Response: We provide the following clarification. Paragraph 15
notes: ``The analysis assumes that farmers may discontinue
participation in Federal farm assistance programs and retire cropland/
pastureland in proposed habitat from productive economic activity, but
that a choice of one option or the other is more likely.'' In Exhibits
ES-4a through ES-4c, the total lower bound impact estimate assumes
neither of these scenarios takes place, while the high-end impact
estimate assumes that they both occur. It is likely that the actual
level of impact that occurs equals an amount between these two
estimates, consistent with the statement in paragraph 15.
We acknowledge that the text in paragraph 15 of the Executive
Summary
[[Page 59816]]
is incorrect, specifically under the fifth bullet point in which the
DEA states: ``Therefore, the analysis does not sum costs of
agricultural land retirement and non-participation in Federal farm
programs.'' In fact, as stated above, the DEA does sum the costs of
agricultural land retirement and non-participation in Federal farm
programs for the high-end impact estimate in Exhibits ES-4a through ES-
4c.
(33) Comment: One comment on the DEA states that the impact to
water supplies and wastewater treatment in communities along these
rivers is not completely addressed. The additional cost of upgrading
wastewater treatment is $1,000,000 per 1,000 people. It lists 40
communities in Units 1b and 3 that would be directly impacted.
Our Response: Impacts of water management activities at dams are
estimated in Section 4 of the DEA. Impacts of potential reductions in
groundwater withdrawals are estimated in Section 7. The DEA estimates
the impacts of wastewater management associated with CAFOs in Section
6. The impacts to small entities associated with regulating water
supplies and wastewater treatment is estimated separately in Appendix
A.
In addition, paragraph 282 of the DEA explains that since the
shiner's listing, 77 utility-related consultations, which include
projects related to wastewater treatment facility management and
construction and construction of water and transmission lines, have
occurred. Only eight of the consultations resulted in project
modifications. Interviews with a regional engineering firm typically
involved with such projects revealed that the costs associated with the
project modifications were comparable to costs for the originally-
designed project. Paragraphs 283 through 285 forecast the rate of
future consultations for utility projects, discuss the uncertainty
associated with predicting future costs for large projects, and provide
a case study of potential costs for the Norman, Oklahoma Wastewater
Treatment Division. This represents the best available information at
this time.
(34) Comment: One commenter stated that the assumption that the
impact to CAFO operations would be passed on to the consumer is
incorrect, because cattle owners don't price the cattle but take
whatever they can get for them.
Our Response: We agree with this comment. The DEA does not assume
that costs are passed on to the consumer. It assumes that compliance
costs are borne entirely by the CAFO operators.
(35) Comment: A comment states that critical habitat designation
has a negative impact on the value of properties within the boundaries
of the designation, regardless of whether any future regulatory action
is taken by the Service in connection with the activities on those
properties.
Our Response: As stated in paragraph 40 of the DEA, we agree that
critical habitat designation may stigmatize properties, resulting in a
decrease in property value. However, empirical data measuring the
difference in property values before and after critical habitat
designation in this region are not available.
Comments Related to Economic Impacts and Analysis--Clarification of
Costs Attributed to Particular Consultations Or Actions
(36) Comment: A comment states that the DEA projects a formal
consultation if the CRMWA expands its wellfield but does not make clear
the costs associated with this potential consultation.
Our Response: As shown in Exhibit 3-5, the analysis assumes that
the Bureau of Reclamation will undergo a formal section 7 consultation
on the potential development of its wellfields. The range of
administrative costs of a typical section 7 consultation are presented
in Exhibit 3-1 and are applied to this project. Paragraph 120 provides
information about the general costs of the wellfield project. It also
notes that data to estimate the incremental cost of pipeline placement
related to shiner protection were requested but not received.
(37) Comment: A comment notes that costs associated with
consultations for brush control are not clear.
Our Response: Exotic plant control activities are discussed in
Section 9.3 of the DEA; associated administrative costs are discussed
in Section 3 of the report at paragraph 103 and Exhibit 3-5. Formal
consultation on exotic plant control activities in Texas is
anticipated. As shown in Exhibit 3-5, the costs of these consu