[Federal Register Volume 62, Number 206 (Friday, October 24, 1997)]
[Proposed Rules]
[Pages 55381-55388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28231]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE42
Endangered and Threatened Wildlife and Plants; Proposed Rule To
List the Topeka Shiner as Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list
the Topeka shiner (Notropis topeka) as an endangered species under the
authority of the Endangered Species Act of 1973 (Act), as amended (16
U.S.C. 1531 et seq.). The Topeka shiner is a small fish presently known
from small tributary streams in the Kansas and Neosho river basins in
Kansas; the Missouri, Grand, Lamine, Chariton, and Des Moines river
basins in Missouri; the North Raccoon River basin in Iowa; the James
and Vermillion river watersheds in South Dakota; and, the Rock River
watershed in Minnesota. The Topeka shiner is threatened by habitat
destruction, degradation, modification, and fragmentation resulting
from siltation, reduced water quality, tributary impoundment, stream
channelization, and stream dewatering. The species is also impacted by
introduced predaceous fishes. This proposal, if made final, will
implement Federal protection provided by the Act for Notropis topeka. A
determination of critical habitat is neither beneficial nor prudent.
DATES: Comments from all interested parties must be received by
December 23, 1997. Public hearing requests must be received by December
8, 1997.
ADDRESSES: Comments and materials concerning this proposal should be
sent to: Field Supervisor, Ecological Services Field Office, 315
Houston Street, Suite E, Manhattan, Kansas 66502. Comments and
materials received will be available for public inspection, by
appointment,
[[Page 55382]]
during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: William H. Gill, Field Supervisor, or
Vernon M. Tabor, Fish and Wildlife Biologist, at the above address
(913/539-3474).
SUPPLEMENTARY INFORMATION:
Background
The Topeka shiner was first described by C.H. Gilbert in 1884,
using specimens captured from Shunganunga Creek, Shawnee County, Kansas
(Gilbert 1884). The Topeka shiner is a small, stout minnow, not
exceeding 75 millimeters (mm) (3 inches (in)) in total length. The head
is short with a small, moderately oblique mouth. The eye diameter is
equal to or slightly longer than the snout. The dorsal fin is large,
with the height more than one half the predorsal length of the fish,
originating over the leading edge of the pectoral fins. Dorsal and
pelvic fins each contain 8 rays. The anal and pectoral fins contain 7
and 13 rays respectively, and there are 32 to 37 lateral line scales.
Dorsally the body is olivaceous (olive-green), with a distinct dark
stripe preceding the dorsal fin. A dusky stripe is exhibited along the
entire longitudinal length of the lateral line. The scales above this
line are darkly outlined with pigment, appearing cross-hatched. Below
the lateral line the body lacks pigment, appearing silvery-white. A
distinct chevron-like spot exists at the base of the caudal fin (Cross
1967; Pflieger 1975; Service 1993).
The Topeka shiner is characteristic of small, low order
(headwater), prairie streams with high water quality and cool
temperatures. These streams generally exhibit perennial flow, however,
some approach intermittency during summer. At times when surface flow
ceases, pool levels and cool water temperatures are maintained by
percolation through the streambed, spring flow and/or groundwater
seepage. The predominant substrate types within these streams are clean
gravel, cobble and sand. However, bedrock and clay hardpan overlain by
a thin layer of silt are not uncommon (Minckley and Cross 1959). Topeka
shiners most often occur in pool and run areas of streams, seldom being
found in riffles. They are pelagic (living in open water) in nature,
occurring in mid-water and surface areas, and are primarily considered
a schooling fish. Occasionally, individuals of this species have been
found in larger streams, downstream of known populations, presumably as
migrants (Cross 1967; Pflieger 1975; Tabor in litt. 1992a).
Data regarding the food habits and reproduction of Topeka shiners
are limited and detailed reports have not been published. However,
Pflieger (Missouri Department of Conservation, in litt. 1992) reports
the species as a nektonic (swimming independently of currents)
insectivore. In a graduate research report, Kerns (University of
Kansas, in litt. 1983) states that the species is primarily a diurnal
or daytime feeder on insects, with chironomids (midges), other
dipterans (true flies), and ephemeropterans (mayflies), making up the
bulk of the diet. However, the microcrustaceans cladocera and copapoda
(zooplanktons) also contribute significantly to the species' diet. The
Topeka shiner is reported to spawn in pool habitats, over green sunfish
(Lepomis cyanellus) and orangespotted sunfish (Lepomis humilis) nests,
from late May through July in Missouri and Kansas (Pflieger 1975; Kerns
in litt. 1983). Males of the species are reported to establish small
territories near these nests. Pflieger (in litt. 1992) states that the
Topeka shiner is an obligate spawner on silt-free sunfish nests, while
Cross (University of Kansas, pers. comm. 1992) states that it is
unlikely that the species is solely reproductively dependent on
sunfish, and suggests that the species also utilizes other silt-free
substrates as spawning sites. Data concerning exact spawning behavior,
larval stages, and subsequent development is lacking. Maximum known
longevity for the Topeka shiner is three years, however, only a very
small percent of each year class attains the third summer. Young-of-
the-year attain total lengths of 20 mm to 40 mm (.78 to 1.6 in) age 1
fish 35 mm to 55 mm (1.4 to 2.2 in), and age 2 fish 47 mm to 65 mm (1.8
to 2.5 in) (Cross and Collins 1975; Pflieger 1975).
Historically, the Topeka shiner was widespread and abundant
throughout low order tributary streams of the central prairie regions
of the United States. The Topeka shiner's historic range includes
portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South
Dakota. Stream basins within the range historically occupied by Topeka
shiners include the Des Moines, Raccoon, Boone, Missouri, Big Sioux,
Cedar, Shell Rock, Rock, and Iowa basins in Iowa; the Arkansas, Kansas,
Big Blue, Saline, Solomon, Republican, Smoky Hill, Wakarusa,
Cottonwood, and Blue basins in Kansas; the Des Moines, Cedar, and Rock
basins in Minnesota; the Missouri, Grand, Lamine, Chariton, Des Moines,
Loutre, Middle, Hundred and Two, and Blue basins in Missouri; the Big
Blue, Elkhorn, Missouri, and lower Loup basins in Nebraska; the Big
Sioux, Vermillion, and James basins in South Dakota. The number of
known occurrences of Topeka shiners has been reduced by approximately
80 percent, with approximately 50 percent of this decline occurring
within the last 25 years. The species now primarily exists as isolated
and fragmented populations.
Recent fish surveys were conducted across the Topeka shiner's
range. In Missouri, 42 of the 72 sites historically supporting Topeka
shiners were resurveyed in 1992. The species was collected at 8 of the
42 surveyed locales (Pflieger, in litt. 1992). In 1995, the remaining
30 historical sites not surveyed in 1992 and an additional 64 locales,
thought to have potential to support the species, were sampled. Topeka
shiners were found at 6 of the 30 remaining historical locations and at
6 of the 64 additional sites sampled. In total, recent sampling in
Missouri identified Topeka shiners at 14 of 72 (19 percent) historic
localities, and at 20 of 136 (15 percent) total sites sampled (Gelwicks
and Bruenderman 1996). Gelwicks and Bruenderman (1996) also note that
the species has apparently experienced substantial declines in
abundance in the remaining extant populations in Missouri, with the
exception of Moniteau Creek.
In Iowa, 24 locales within 4 drainages were sampled in 1994 at or
near sites from which the species was reported extant during surveys
conducted between 1975 and 1985. The Topeka shiner was captured at 3 of
24 sites, with these 3 captures occurring in the North Raccoon River
basin (Tabor, U.S. Fish and Wildlife Service, in litt. 1994). Menzel
(in litt. 1996) reports 6 collections of the species in 1994 and 1995,
also from the same drainage.
In Kansas, 128 sites at or near historic collection localities for
the Topeka shiner were sampled in 1991 and 1992, The species was
collected at 22 of 128 (17 percent) sites sampled (Tabor, in litt.
1992a; Tabor, in litt. 1992b). Extensive stream surveys completed in
1995 and 1996 identified 10 new localities for Topeka shiners and
reconfirmed the species in a historic locale where it was believed
extirpated (Mammoliti, in litt. 1996).
In South Dakota, the species was recently captured in low numbers
from one stream in the James River basin and four streams in the
Vermillion River basin. (Braaten, South Dakota State University, in
litt. 1991; Schumacher, South Dakota State University, in litt. 1991).
In Minnesota, 14 streams in the area likely to be occupied by
Topeka shiners
[[Page 55383]]
were surveyed over the past 10 years. The species was collected from 5
of 9 (56 percent) streams with historic occurrences, and was not found
in the 5 streams with no historic occurrences. These locales are all in
the Rock River drainage (Baker, in litt. 1996).
In Nebraska, the species was assumed extirpated from all historic
locales. However, in 1989 the species was discovered in the upper Loup
River drainage, outside its former known range, where two specimens
were collected (Michl and Peters 1993). In 1996, a single specimen was
collected from a stream in the Elkhorn River basin, within the species'
historic range (Nebraska Game and Parks Commission, in litt. 1997). In
Nebraska, this was the first collection of a Topeka shiner within the
known historic range since 1940. It is presently considered extant at
these two localities (Cunningham, University of Nebraska--Omaha, pers.
comm. 1996).
The Topeka shiner began to decline throughout the central and
western portions of the Kansas River basin in the early 1900's. Cross
and Moss (1987) report the species present at sites in the Smoky Hill
and Solomon River watersheds in 1887, but by the next documented fish
surveys in 1935, the Topeka shiner was absent. The Topeka shiner was
extirpated from the Wakarusa River watershed during the 1970's (Cross,
University of Kansas, pers. comm. 1995). The species disappeared from
the Big Blue River watershed (Kansas River basin) in Nebraska after
1940 (Clausen, Nebraska Game and Parks Commission, in litt. 1992). The
last record of the Topeka shiner from the Arkansas River basin,
excluding the Neosho River watershed, was 1891 near Wichita, Kansas
(Cross and Moss 1987). In Iowa, the species was extirpated from all
Missouri River tributaries except the Rock River watershed prior to
1945. It was also eliminated from the Cedar and Shell Rock River
watersheds prior to 1945. Since 1945, the Topeka shiner has
subsequently been extirpated from the Boone, Iowa, and Des Moines
drainages, with the exception of the North Raccoon River watershed
(Harlan and Speaker 1951; Harlan and Speaker 1987; Menzel, Iowa State
University, in litt. 1980; Dowell, University of Northern Iowa, in
litt. 1980; Tabor in litt. 1994). In Missouri, since 1940 the species
has been apparently extirpated from many of the tributaries to the
Missouri River where it formerly occurred, including Perche Creek,
Petite Saline Creek, Tavern Creek, Auxvasse Creek, Middle River, Moreau
River, Splice Creek, Slate Creek, Crooked River, Fishing River, Shoal
Creek, Hundred and Two River, and Blue River watersheds.
Previous Federal Action
The Topeka shiner first received listing consideration when the
species was included in the Animal Candidate Review for Listing as
Endangered or Threatened Species, as a category 2 candidate species,
published in the Federal Register (56 FR 58816) on November 21, 1991.
In 1991, the Service's Kansas Field Office began a status review of the
Topeka shiner, including information gathered from stream sampling and
requests from knowledgeable individuals and agencies. Included were
State fish and wildlife conservation agencies, State health and
pollution control agencies, colleges and universities, and other
Service offices. The Service subsequently prepared a status report on
this species dated February 16, 1993 (Service 1993). In the November
15, 1994, Animal Candidate Review for Listing as Endangered or
Threatened Species, published in the Federal Register (59 FR 58999),
the Topeka shiner was reclassified as a category 1 candidate species.
Category 1 candidates comprised taxa for which the Service had
substantial information on biological vulnerability and threats to
support proposals to list the taxa as endangered or threatened. The
Service has since discontinued the category designations for candidates
and has established a new policy on the definition of candidate species
(formerly category 1 candidates). In the February 28, 1996, Review of
Plant and Animal Taxa That Are Candidates for Listing as Endangered or
Threatened Species, published in the Federal Register (61 FR 7596), the
Topeka shiner was reclassified as a candidate species. Candidate
species are those species for which the Service has on file sufficient
information on biological vulnerability and threats to support issuance
of a proposed rule to list as endangered or threatened species.
Summary of Factors Affecting the Species
Section 4(a)(1) of the Act and regulations (50 CFR part 424)
promulgated to implement the listing provisions of the Act set forth
the procedures for adding species to the Federal ``List of Endangered
and Threatened Wildlife and Plants.'' A species may be determined to be
an endangered or threatened species due to one or more of the five
factors described in Section 4(a)(1). These factors and their
application to the Topeka shiner (Notropis topeka) throughout the
species range are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Once abundant and widely
distributed throughout the central Great Plains and western tallgrass
prairie regions, the Topeka shiner now inhabits less than 10 percent of
its original geographic range. The action most likely impacting the
species to the greatest degree in the past is sedimentation and
eutrophication resulting from intensive agricultural development. Most
populations of Topeka shiners occurring west of the Flint Hills region
of Kansas are believed to have been extirpated prior to 1935 (Cross and
Moss 1987). Minckley and Cross (1959) report that watersheds with high
levels of cultivation, and subsequent siltation, and domestic pollution
are unsuitable for the species. These streams often cease to flow and
become warm and muddy during the summer months. Cross (1970) indicates
that some of the areas where depletion of the species has occurred also
coincide with areas having poor aquifers. Pflieger (1975) reports that
increased siltation as a result of intensive cultivation may have
reduced the amount of Topeka shiner habitat in Missouri. Pflieger (in
litt. 1991) also reports that a known population of the species in
Boone County, Missouri was extirpated between 1970 and 1976, presumably
due to increased turbidity and nutrient enrichment resulting from
urbanization and highway construction. Feedlot operations on or near
streams are also known to impact prairie fishes due to organic input
resulting in eutrophication (Cross and Braasch 1968).
The species was historically known from open pools of small prairie
streams with cool, clear water. Many streams of this nature reportedly
existed throughout the geographic range of the Topeka shiner ``prior to
the plowing of the prairie sod'' (Cross 1967). These conditions
continue to exist in many of the streams in the Flint Hills region of
Kansas, primarily due to shallow, rocky soils with numerous limestone
exposures which prevent cultivation. This is in contrast to the
perturbation of the natural fish faunas and their associated habitats
in prairie areas more suitable to intensive rowcrop agriculture, which
is characteristic of the vast majority of the natural range of the
species (Menzel et al. 1984). Menzel et al. (1984) also notes
accelerated rates of soil erosion and instream deposition of fluvium
(deposits caused by the action of flowing water) throughout many former
prairie streams in Iowa,
[[Page 55384]]
encompassed by the former range of the species. Today, outside the
Flint Hills region of Kansas, only a few, small isolated areas not
severely impacted, or impacted to an extent within the tolerance of the
species, continue to exist.
Mainstem reservoir development, tributary impoundment, and
channelization have also impacted the species in some areas.
Populations located within small tributary streams upstream from both
mainstem and tributary impoundments attempt to utilize these water
bodies as refuges from drying streams during periods of drought. During
this time, the populations are subject to predation by larger predatory
fish inhabiting the impounded water bodies. In unaltered systems, fish
move downstream during drought to find suitable habitat. Deacon (1961)
reports fishes characteristic of the small and mid-sized tributaries of
the Neosho and Marais des Cygnes rivers' watersheds occurred in the
mainstems following several years of protracted drought in the mid-
1950's. Tributary dams also serve to block migration of fishes upstream
following drought, effectively prohibiting recolonization of upstream
reaches.
Several recently extant populations have been extirpated from
tributaries to Tuttle Creek and Clinton reservoirs, both mainstem
impoundments in the Kansas River basin of eastern Kansas. The species
continues to exist in two tributaries to Tuttle Creek Reservoir;
however, during sampling on one of these streams in 1994 only a single
Topeka shiner was captured. All populations within the Wakarusa River
watershed (Clinton Reservoir) are believed extirpated. Clinton
Reservoir's completion coincided with large scale development of
tributary impoundments throughout the Wakarusa's upper basin which may
have compounded impacts to the species. Layher (1993) reports the
extirpation of Topeka shiners from a stream following construction of a
single tributary impoundment in Chase County, Kansas. Layher reported
that the species had disappeared both upstream and downstream of the
dam site, and noted significant habitat changes below the impoundment.
Pflieger (in litt. 1992) reports that an abundant population of the
species in Missouri was extirpated following construction of an
impoundment. This population, located downstream from the dam site, was
not present when revisited several years after construction. The
habitat had changed from clear rocky pools, to pools filled with
gravel, layered over by silt and choked with filamentous algae.
Pflieger further reports that ``the SCS (Soil Conservation Service)
reservoir has profoundly altered the hydrology and biota of this stream
by eliminating the scouring floods that formerly created pool habitat
and maintained the rocky, silt-free substrate.'' During 1994 sampling
efforts in southeast Iowa, a stream with recent records of the species
was found to have been impacted by the construction of multiple
impoundments throughout its upper reaches and tributaries. No Topeka
shiners were captured (Tabor in litt. 1994). Impoundment of prairie
streams has also resulted in the documented extirpation of other
prairie stream minnow species (Winston et al. 1991).
In Kansas, substantial tributary impoundment is occurring
throughout the Flint Hills region, threatening Topeka shiners in these
locales. As of 1993, 46 tributary impoundments had been completed in or
near habitat for the Topeka shiner in the Cottonwood River basin, with
an additional 115 planned for construction (Service in litt. 1993).
Presently in the Mill Creek watershed, the largest remaining complex of
habitat for the species, 16 dams have been completed, with an
additional 48 planned (Hund, Mill Creek Watershed District, pers. comm.
1997; State Conservation Commission of Kansas, in litt. 1992). Dam
construction is also a threat to the species throughout the rest of the
species' range, but to a lower degree due to less immediate and
intensive development.
Stream channelization has also occurred throughout much of the
Topeka shiner's range. Channelization negatively impacts many aquatic
species, including the Topeka shiner, by eliminating and degrading
instream habitat types, altering the natural hydrography (physical
characteristics of surface waters), and by changing water quality
(Simpson et al. 1982). Intensive channelization of low order streams
throughout the species' Iowa and Minnesota range is suspect in the
species' drastic decline in these areas. Menzel (in litt. 1980) reports
the extirpation of Topeka shiners from previous collection sites
following stream channelization projects in Iowa. During 1994 status
surveys across this portion of the range, most streams were found to
have been severely altered from natural conditions (Tabor in litt.
1994). Changes included elimination of pool habitats, instream debris,
and woody riparian vegetation. Water velocities were consistently high
throughout the channel and deep silt was the dominant substrate. It is
suspected that the Topeka shiner is an obligate spawner on sunfish
(Lepomis spp.) nests (Pflieger in litt. 1992) or other silt-free
substrates, but no sunfish were captured, nor suitable sunfish spawning
habitat observed in these channelized streams. At Iowa sites where
Topeka shiners were captured, streams were not intensively channelized
and many natural conditions persisted.
Intensive land-use practices, dewatering of streams, and continuing
tributary impoundment and channelization represent the greatest
existing threats to the Topeka shiner. Grazing of riparian zones and
the removal of riparian vegetation to increase tillable acreage greatly
diminish a watershed's ability to filter sediments, organic wastes and
other impurities from the stream system (Manci 1989). Irrigation draw-
down of groundwater levels affect surface and subsurface flows which
can impact the species. At present, both Federal and State planning for
development of watershed impoundments and channelization continue in
areas with populations of Topeka shiners. Several impoundments are
planned for construction on streams with abundant numbers of the
species. Portions of these stream reaches will be inundated by the
permanent pools of the reservoirs, imperiling the species' future
existence in these localities. Prior to the planning of the
impoundments, these populations of Topeka shiners were considered to be
the most stable range-wide, due to their occurrence in watersheds
dominated by high quality prairie with generally very good grazing
management and land stewardship.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Some collecting of Topeka shiners by individuals
for use as bait fish and display in home aquaria does occur. However,
overutilization is not thought to currently contribute to the decline
of the Topeka shiner.
C. Disease or predation. There have been no studies conducted on
the impacts of disease or predation upon the Topeka shiner; therefore,
the significance of such threats to the species is presently unknown.
Disease is not likely to be a significant threat except under certain
habitat conditions, such as crowding during periods of reduced flows,
or episodes of poor water quality, such as low dissolved oxygen or
elevated nutrient levels. During these events, stress reduces
resistance to pathogens and disease outbreaks may occur. Parasites,
bacteria, and viral agents are generally the most common causes of
mortality. Lesions caused by
[[Page 55385]]
injuries, bacterial infections, and parasites often become the sites of
secondary fungal infections. However, Topeka shiners captured from a
Missouri stream in 1996 were discovered to be afflicted with scoliosis,
a condition of deformity affecting the vertebrae. Scoliosis can result
from contact with environmental contaminants, or severely reduced
genetic variability resulting from geographic isolation. No causal
factor for this occurrence has been identified.
The green sunfish (Lepomis cyanellus) is the most common predator
typical of Topeka shiner habitat throughout its range. The spotted bass
(Micropterus punctulatus) and largemouth bass (M. salmoides) are also
naturally occurring predators of the Topeka shiner in portions of its
range but to a much lower degree due to minimal habitat overlap. These
bass species typically occur in only the downstream extremes of Topeka
shiner habitat. The construction of impoundments on streams with Topeka
shiners and the subsequent introduction of piscivorous (fish eating)
fish species not typically found in headwater habitats, such as
largemouth bass, crappie (Pomoxis spp.), white bass (Morone chrysops),
northern pike (Esox lucius), and channel catfish (Ictalurus punctatus),
may affect the species during drought or periods of low flows when
Topeka shiners seek refuge in the impoundments or permanent stream
pools now occupied by these introduced fishes. The most common fishes
captured in streams directly upstream and downstream of tributary
impoundments in Kansas are largemouth bass, crappie, and bluegill
(Lepomis macrochirus), and these species are often captured to the
exclusion of cyprinids, including Topeka shiner (Mammoliti, Kansas
Department of Wildlife and Parks, pers. comm., 1997). Tabor (in litt.
1994) captured only largemouth bass from a stream segmented by numerous
dams in Iowa. A cooperative report completed by the Soil Conservation
Service and Kansas Department of Health and Environment (1981) on the
effects of watershed impoundments on Kansas streams states that
predacious game fishes increased in abundance, and several minnow
species, including the Topeka shiner, decreased in abundance upstream
and downstream from dam sites following impoundment. While the extent
of predation is undocumented, known populations have apparently been
extirpated in the time period immediately following impoundment of
several low order streams (Layher 1993; Pflieger, in litt. 1992; Tabor,
in litt. 1992b). Topeka shiners were also reportedly extirpated from a
small impoundment previously lacking largemouth bass, following
stocking of largemouth bass (Prophet et al. 1981). Extirpation of the
Topeka shiner from small, direct tributary streams to large mainstem
impoundments has also been documented. These extirpations presumably
occurred in part due to predation by introduced piscivorous fishes
during drought and low flow periods when Topeka shiners seek refuge in
permanent water downstream from their typical headwater habitats
(Service 1993).
D. The inadequacy of existing regulatory mechanisms. In Kansas, the
Topeka shiner is listed as ``species in need of conservation,'' under
the Kansas Nongame and Endangered Species Conservation Act of 1975.
This status prohibits the direct taking of specimens but does not
protect habitat or give opportunity to review actions or projects which
may affect the species in Kansas. Under Missouri law, the species is
listed as endangered. This status prohibits direct taking of specimens
and provides a limited review process to suggest remediation for
actions potentially impacting the species' habitat. Minnesota,
Nebraska, and South Dakota consider it a species of concern, with no
legal protection. In Iowa, the species has no legal status.
At present, only Missouri provides statutory protection for both
the species and its habitat. No significant protections exist for the
Topeka shiner and its habitat in the other states encompassing its
range. Listing under the Act would provide significant protection
against taking of the species, ensure coordinated review of Federal
actions which may affect its habitat, and encourage proactive
management throughout its range.
E. Other natural and manmade factors affecting its continued
existence. In the species' Missouri range, possible interspecific
competition between the Topeka shiner and the introduced blackstripe
topminnow (Fundulus notatus) has been suggested (Pflieger, in litt.
1992). The absence of the Topeka shiner from suitable habitat, with
blackstripe topminnow present, has also been observed in Kansas
(Mammoliti, pers. comm. 1997). Both species are nektonic insectivores
utilizing similar pool habitat. At present, the extent of possible
competition between these species is undocumented. In degraded or
suboptimal habitat conditions where Topeka shiners persist, competition
by species more tolerant to these conditions, such as red shiner
(Cyprinella lutrensis), may negatively affect the species.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in determining to propose this
rule. Based on this evaluation, the preferred action is to list the
Topeka shiner as endangered. Endangered status, which means that the
species is in danger of extinction throughout all or a significant
portion of its range, is appropriate for the Topeka shiner because of
its significantly reduced range, including the apparent extirpation of
the species throughout most of its historic range. Threatened status
does not appear appropriate considering the extent of the species'
population decline and the vulnerability of the remaining populations.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection and; (ii) specific areas outside the geographic areas
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures needed to
bring the species to the point at which listing under the Act is no
longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. The Service
finds that designation of critical habitat is not prudent for the
Topeka shiner at this time. The Service's regulations (50 CFR
424.12(a)(1)) state that a designation of critical habitat is not
prudent when one or both of the following situations exist--(1) The
species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species.
Section 7 of the Act requires that Federal agencies refrain from
contributing to the destruction or adverse modification of critical
habitat in any action authorized, funded or
[[Page 55386]]
carried out by such agency (agency action). This requirement is in
addition to the section 7 prohibition against jeopardizing the
continued existence of a listed species, and it is the only mandatory
legal consequence of a critical habitat designation. Implementing
regulations (50 CFR part 402) define ``jeopardize the continuing
existence of'' and ``destruction or adverse modification of'' in very
similar terms. To jeopardize the continuing existence of a species
means to engage in an action ``that reasonably would be expected to
reduce appreciably the likelihood of both the survival and recovery of
a listed species.'' Destruction or adverse modification of habitat
means an ``alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed species.''
Common to both definitions is an appreciable detrimental effect to both
the survival and the recovery of a listed species. In the case of
adverse modification of critical habitat, the survival and recovery of
the species has been significantly diminished by reducing the value to
the species' designated critical habitat. Thus, actions satisfying the
standard for adverse modification also jeopardize the continued
existence of the species concerned.
Many activities that pose threats to the continued existence of the
Topeka shiner are funded, permitted, or carried out by Federal agencies
(e.g., channelization, impoundment, dredge and fill, and other stream
and wetland modification projects). Programs that result in these
activities in Topeka shiner habitat are most often regulated by the
U.S. Army Corps of Engineers and the U.S. Department of Agriculture,
Natural Resources Conservation Service, under a variety of authorities,
and are thus subject to section 7 consultation under the Act. In areas
where suitable habitat exists within the historical range of the Topeka
shiner, but the species is not present, the section 7 process would
still allow for the jeopardy threshold to be reached. Considerations in
such cases would include, but not be restricted to, proximity to extant
populations and areas essential for the recovery of the species. As
explained above, designation of critical habitat would not provide any
additional protection to the species beyond those already provided by
listing the species.
Other State or private actions resulting in ``take'' of Topeka
shiners would be prohibited by section 9 of the Act, and remediation of
those potential threats would not be significantly advanced by
designation of critical habitat.
Recovery activities to assist landowners in maintaining or
improving the habitat quality of their streams or otherwise addressing
known threats to Topeka shiners would not benefit from a designation of
critical habitat. However, such conservation and recovery actions could
be significantly impaired by public apprehension or misunderstanding of
a critical habitat designation.
Intentional taking of the Topeka shiner is not known to be a
problem. The Topeka shiner is found in very specialized, easily
accessible and identifiable habitat characterized by small volumes of
flow. It is possible that a local population could be intentionally
eliminated. Publication of maps providing its precise locations and
descriptions of critical habitat, as required for the designation of
critical habitat, would reasonably be expected to increase the degree
of threat to the species, increase the difficulties of enforcement, and
could further contribute to the decline of the Topeka shiner.
In light of the above, the Service concludes that designation of
critical habitat would not be beneficial to the species and could
increase the degree of threat to the species from taking. Therefore,
designation of critical habitat for the Topeka shiner is neither
beneficial nor prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against taking and harm are
discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) requires Federal agencies to confer with the Service on
any action that is likely to jeopardize the continued existence of a
species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. If a species is listed
subsequently, section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
A number of Federal agencies have jurisdiction and responsibilities
potentially affecting the Topeka shiner, and section 7 consultation may
be required in a number of instances. Federal involvement is expected
to include the Corps of Engineers throughout the species' range in the
administration of Section 404 of the Clean Water Act. The U.S.
Environmental Protection Agency will consider the Topeka shiner in the
registration of pesticides, adoption of water quality criteria, and
other pollution control programs. The U.S. Department of
Transportation, Federal Highway Administration, will consider the
effects of bridge and road construction at locations where known
habitat may be impacted. The U.S. Department of Agriculture, Natural
Resources Conservation Service and Farm Service Agency, will need to
consider the effects of structures and channelization projects
installed under the Watershed Protection and Flood Prevention Act, (16
U.S.C. 1001-1009, Chapter 18; Pub.L. 83-566, August 4, 1954, c 656,
Sec. 1, 68 Stat. 666; as amended), ``Farm Bill'' programs, and other
activities which may impact water quality, quantity, or timing of
flows. The Federal Energy Regulatory Commission will consider potential
impacts to the Topeka shiner and its habitat resulting from gas
pipeline construction over streams and from hydroelectric development.
Private actions, that are not federally funded or permitted,
undertaken within or near habitat occupied by Topeka shiners, would not
be subject to the regulations as stated above in section 7 of the Act.
Some examples of private actions not subject to section 7 consultation
include, but are not limited to: farming and ranching practices,
construction of private stock watering ponds on normally dry channels,
and fuelwood harvest. However, private actions that result in ``take''
of Topeka shiners, as discussed below, would be prohibited by section 9
of the Act.
The Act and its implementing regulations set forth a series of
general
[[Page 55387]]
prohibitions and exceptions that apply to all endangered wildlife. The
prohibitions, codified at 50 CFR 17.21, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
also is illegal to possess, sell, deliver, carry, transport, or ship
any species that has been taken illegally. Certain exceptions apply to
agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.
Requests for copies of the regulations regarding listed wildlife
and inquiries about prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center,
Denver, Colorado 80225 (303/236-8189) or fax (303/236-0027).
It is the policy of the Service to identify, to the extent known at
the time a species is listed, specified activities that will and will
not be considered likely to result in violation of section 9 of the
Act. The intent of this policy is to increase public awareness of the
effect of the listing on ongoing and likely activities within a
species' range. The Service believes the actions listed below would not
result in a violation of section 9.
(1) Grazing within watersheds at levels consistent with the long
term management of the range or prairie ecosystem, thus precluding
water quality and stream habitat degradation, except where the Service
has determined that such activity would negatively impact the species;
(2) Cropping within stream corridors where stable riparian
vegetation buffers exist, with the buffers serving as filtering
mechanisms for non-point source runoff, decreasing sediment, nutrient,
and pesticide input into streams, except where the Service has
determined that such activity would negatively impact the species;
(3) Construction of small stock watering ponds in upland areas on
normally dry drainage; and
(4) Prescribed burns at levels consistent with the long-term
management of the range or prairie ecosystem, except where the Service
has determined that such activity would negatively impact the species.
The Service believes that the actions listed below may result in a
violation of section 9; however, possible violations are not limited to
these actions alone:
(1) Unauthorized collecting or handling of the species;
(2) Destruction or alteration of the species' habitat (i.e.,
actions that change water quality, quantity, and/or timing of flows;
dredging or other physical modifications that impact instream habitat;
(3) The introduction of nonnative species;
(4) Use of fertilizers or pesticides inconsistent with approved
labeling and application procedures; and
(5) Contamination of soil, streams, or groundwater by spills,
discharges, or dumping of chemicals, silt, or other pollutants.
Questions regarding whether a specified activity will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Manhattan, Kansas Field office (see ADDRESSES section).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to this species;
(2) The location of any additional populations of this species and
the reasons why any habitat should or should not be determined to be
critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on the species.
Final promulgation of the regulation(s) on this species will take
into consideration the comments and any additional information received
by the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Endangered Species Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days of the date of the publication of the proposal in the Federal
Register. Such requests must be made in writing and addressed to Field
Supervisor, Manhattan, Kansas (see ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
Required Determination
The Service has examined the regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Manhattan, Kansas Field Office (See
ADDRESSES section).
Author
The primary author of this proposed rule is Vernon M. Tabor, U.S.
Fish and Wildlife Service (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under ``FISHES,'' to the List of Endangered and
Threatened Wildlife:
[[Page 55388]]
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Shiner, Topeka................... Notropis Topeka..... U.S.A. (KS, IA, MN, Entire............. E ........... NA NA
MO, E, SD).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: October 2, 1997
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-28231 Filed 10-23-97; 8:45 am]
BILLING CODE 4310-55-P
