98-31096. Endangered and Threatened Wildlife and Plants; Final Rule to List the Arkansas River Basin Population of the Arkansas River Shiner (Notropis girardi) as Threatened

[Federal Register Volume 63, Number 225 (Monday, November 23, 1998)]
[Rules and Regulations]
[Pages 64772-64799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31096]



[[Page 64771]]

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Part III





Department of the Interior





_______________________________________________________________________



Fish and Wildlife Service



_______________________________________________________________________



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Rule to List the 
Arkansas River Basin Population of the Arkansas River Shiner (Notropis 
girardi) as Threatened; Final Rule

Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / 
Rules and Regulations

[[Page 64772]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC62


Endangered and Threatened Wildlife and Plants; Final Rule to List 
the Arkansas River Basin Population of the Arkansas River Shiner 
(Notropis girardi) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, determine the Arkansas 
River basin population of the Arkansas River shiner (ARS) (Notropis 
girardi) to be a threatened species under the authority of the 
Endangered Species Act of 1973, as amended (Act).
    The ARS is a small fish found in the Canadian River in New Mexico, 
Oklahoma, and Texas and the Cimarron River in Kansas and Oklahoma, both 
rivers in the Arkansas River basin. A non-native, introduced population 
occurs in the Pecos River in New Mexico; however, we did not propose 
listing of this population and are not including it in this final rule. 
The Arkansas River basin population is threatened by habitat 
destruction and modification from stream dewatering or depletion due to 
diversion of surface water and groundwater pumping, construction of 
impoundments, and water quality degradation. Competition with the non-
indigenous Red River shiner (Notropis bairdi) contributed to diminished 
distribution and abundance in the Cimarron River. Incidental capture of 
the ARS during pursuit of commercial bait fish species may also 
contribute to reduced population sizes. Drought and other natural 
factors also threaten the existence of the ARS.
    We originally proposed to list the ARS as endangered. However, 
since publication of the proposed rule for this species, we decided to 
list this species as threatened due to lesser immediacy and magnitude 
of threats to its existence. New information received during the public 
comment period revealed that modifications to the Lake Meredith 
Salinity Control Project resulted in streamflow reductions that were 
less severe than originally projected in 1994. In addition, new 
information shows that the influence of the High Plains Aquifer on 
streamflows in the Canadian River upstream of Lake Meredith are less 
than originally believed and that the aggregations of Arkansas River 
shiners in the reach between Ute Reservoir and Lake Meredith are stable 
and not declining, as presented in the proposed rule. This action will 
implement Federal protection provided by the Act for the ARS. We have 
determined that designation of critical habitat for the ARS is not 
prudent.

EFFECTIVE DATE: December 23, 1998.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Oklahoma Ecological 
Services Field Office, 222 South Houston, Suite A, Tulsa, Oklahoma 
74127-8909.

FOR FURTHER INFORMATION CONTACT: Ken Collins at the above address, 
telephone [phone], or facsimile 918/581-7467).

SUPPLEMENTARY INFORMATION:

Background

    A. I. Ortenburger discovered the Arkansas River shiner (ARS) in 
1926 in the Cimarron River northwest of Kenton, Cimarron County, 
Oklahoma (Hubbs and Ortenburger 1929). The ARS is a small, robust 
shiner with a small, dorsally flattened head, rounded snout, and small 
subterminal mouth (Miller and Robison 1973, Robison and Buchanan 1988). 
Adults attain a maximum length of 51 millimeters (mm) (2 inches (in)). 
Dorsal, anal, and pelvic fins all have eight rays, and there is usually 
a small, black chevron present at the base of the caudal fin. Dorsal 
coloration tends to be light tan, with silvery sides gradually grading 
to white on the belly.
    The ARS historically inhabited the main channels of wide, shallow, 
sandy-bottomed rivers and larger streams of the Arkansas River basin 
(Gilbert 1980). Adults are uncommon in quiet pools or backwaters, and 
almost never occur in tributaries having deep water and bottoms of mud 
or stone (Cross 1967). Specifically, Polivka and Matthews (1997) found 
that the ARS in the South Canadian River of central Oklahoma, like most 
fishes occurring in the highly variable environments of plains streams, 
used a broad range of microhabitat features. They also found only a 
weak relationship between selected environmental variables and 
occurrence of the species within the stream channel. Water depth, sand 
ridge and midchannel habitats, dissolved oxygen, and current were the 
environmental variables most strongly associated with the distribution 
of ARS within the channel. Juvenile ARS associated most strongly with 
current, conductivity (total dissolved solids), and backwater and 
island habitat types (Polivka and Matthews 1997).
    Cross (1967) believed that adults preferred to orient into the 
current on the ``lee'' sides of transverse sand ridges and feed upon 
organisms washed downstream. Researchers have only recently described 
the feeding preferences and diets of the ARS. In studies on the South 
Canadian River near Norman, Oklahoma, Polivka and Matthews (1997) found 
that gut contents were dominated by sand/sediment and detritus (organic 
matter). Invertebrate prey were only an incidental component of the 
diet. Polivka and Matthews (1997) concluded that the ARS is a 
generalist feeder in which no particular invertebrate dominated the 
diet. In the Canadian River of Texas, the diet of ARS was dominated by 
detritus, aquatic invertebrates, and sand and silt (Bonner et al. 
1997). 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. This led Bonner et al. 
(1997) to similarly conclude that the ARS is a generalized forager, 
feeding on both items suspended in the water column and items lying on 
the substrate. In the Pecos River, fly larvae, copepods, immature 
mayflies, insect eggs, and seeds were the dominant items in the diet of 
ARS (Keith Gido, University of Oklahoma, in litt. 1997).
    The ARS spawns in July, usually coinciding with flood flows 
following heavy rains (Moore 1944). However, recent studies by Polivka 
and Matthews (1997) and Texas Tech University (Gene Wilde, Assistant 
Professor, pers. comm. 1998) neither confirmed nor rejected the 
hypothesis that ARS spawn during rises in the river stage. The ARS 
appears to be in peak reproductive condition throughout the months of 
May, June and July (Polivka and Matthews 1997) and may actually spawn 
several times during this period (Gene Wilde, pers. comm. 1998). 
Arkansas River shiner eggs are non-adhesive and drift with the swift 
current during high flows.
    The mean number of mature ova for ARS in Texas varied between 120.8 
and 274.4, with some large females containing over 400 (Bonner et al. 
1997). Hatching occurs within 24-48 hours after spawning. The larvae 
are capable of swimming within 3-4 days; they then seek out backwater 
pools and quiet water at the mouth of tributaries where food is more 
abundant (Moore 1944). Both Moore (1944) and Cross (1967) inferred that 
this species will not spawn unless conditions are favorable to the 
survival of the larvae.

[[Page 64773]]

    Maximum longevity is unknown, but Moore (1944) speculated that the 
species' life span is likely less than 3 years in the wild. The age 
structure of ARS collected from the Pecos River in New Mexico included 
three, and possibly four, age classes (Bestgen et al. 1989). The 
majority of the fish captured were juveniles (Age-0) and first-time 
spawners (Age-I). Most of the fish in spawning condition were Age-I. 
Bestgen et al. (1989) thought mortality of post-spawning fish was 
extremely high based on the absence of Age-I and older fish from 
collections made after the spawning period (late July and August).
    Historically, the ARS was widespread and abundant throughout the 
western portion of the Arkansas River basin in Kansas, New Mexico, 
Oklahoma, and Texas. In New Mexico, surveys and collection records 
establish that the ARS historically inhabited the Canadian River from 
the Texas-New Mexico State line as far upstream as the Sabinoso area in 
central San Miguel County, New Mexico (Sublette et al. 1990), a 
distance of over 193 river-kilometers (river-km) (120 river-miles 
(river-mi)). The ARS also occurred in Ute and Revuelto creeks and the 
Conchas River.
    In Texas, the Arkansas River shiner occurred throughout the 
Canadian River from State line to State line, a distance of about 370 
river-km (230 river-mi). The first reported captures of ARS from Texas 
were in 1954 (Cross et al. 1955, Lewis and Dalquest 1955). The species 
was captured at several sites extending from near the Texas-New Mexico 
State line at the Matador Ranch in Oldham County downstream to the 
Texas-Oklahoma State line (Lewis and Dalquest 1955).
    Arkansas River shiners (9 specimens) were first reported from 
Kansas in 1926 from near Kinsley (Hubbs and Ortenburger 1929), although 
fish collection records from as early as 1884 exist. More extensive 
collections from the mainstem Arkansas River first occurred in 1952 at 
Holcomb in Finney County, Great Bend in Barton County, and Wichita in 
Sedgwick County (Cross et al. 1985). Arkansas River shiners were 
present but scarce at all 3 sites--41 specimens at Holcomb, 11 
specimens at Great Bend, and 4 specimens at Wichita. Cross et al. 
(1985) believed ARS inhabited the full length of the Arkansas River 
mainstem in Kansas at that time, a distance of over 640 river-km (400 
river-mi); although the species was already suspected to be in decline. 
In the Cimarron River basin of Kansas, ARS were first reported from 
Crooked Creek, Meade County in 1941. Earliest records from the mainstem 
Cimarron were from 1955 near Ulysses, Grant County, and in 1956 from 
near Kismet, Seward County (William H. Busby, Kansas Biological Survey, 
University of Kansas, in litt. 1990). In all, ARS specimens exist from 
17 counties and eight rivers or streams, including several tributaries 
of the Arkansas and Cimarron rivers (Larson et al. 1991, Cross et al. 
1985, William H. Busby, in litt. 1990).
    Records of occurrence for the ARS are most extensive from Oklahoma 
where the majority of the historical range occurs. Collections from as 
early as 1926 exist for 43 counties (Luttrell et al. 1993, Larson et 
al. 1991, Pigg 1991, Hubbs and Ortenburger 1929). Records exist for the 
major rivers in the Arkansas River basin and many of the smaller 
tributaries. A record (one individual) also exists for the Red River 
basin in Oklahoma (Cross 1970), possibly originating from a release of 
bait fish by anglers. Historically, the ARS inhabited over 2,700 km 
(1,700 mi) of habitat in the larger rivers (e.g., Arkansas, Cimarron, 
North Canadian, and Canadian rivers) plus an unknown amount in the 
smaller tributaries.
    Records from Arkansas are scarce. There is one record of several 
specimens from the Arkansas River at the mouth of Piney Creek in Logan 
County, Arkansas (Black 1940, as cited in Robison and Buchanan 1988). 
The ARS is presumed to have been extirpated from (become extinct in) 
Arkansas.
    Researchers conducted comprehensive surveys for the ARS at 155 
localities within the Arkansas River basin from 1989 to 1991 (Larson et 
al. 1991). They collected fish at 128 of 155 localities; the remaining 
27 sites were dry. The researchers captured 1,455 ARS from 23 
localities--14 in Oklahoma, 5 in Texas, and 4 in New Mexico. No ARS 
were captured in Kansas. These data, plus related surveys from 1976 to 
1997 (Kevin R. Bestgen, Larval Fish Laboratory, Colorado State 
University, in litt. 1998; Polivka and Matthews 1997; Bonner et al. 
1997; Eric Berg, Wildlife Biologist, L.W. Reed Consultants, Inc., in 
litt. 1995; Luttrell et al. 1993; Eric Altena, Fisheries Biologist, 
Texas Parks and Wildlife Department (TPWD), in litt. 1993; Pigg 1991; 
and Eugene Hinds, Regional Director, Bureau of Reclamation (Bureau), in 
litt. 1984), confirm that the ARS has disappeared from over 80 percent 
of its historical range within the last 35 years.
    The ARS is now almost entirely restricted to about 820 km (508 mi) 
of the Canadian River in Oklahoma, Texas, and New Mexico. An extremely 
small population may still persist in the Cimarron River in Oklahoma 
and Kansas, based on the collection of only nine individuals since 
1985. A non-native population of the ARS has become established in the 
Pecos River of New Mexico within the last 20 years (Bestgen et al. 
1989). The decline of this species throughout its historical range may 
primarily be attributed to inundation and modification of stream 
discharge by impoundments, channel desiccation (drying out) by water 
diversion and excessive groundwater pumping, stream channelization, and 
introduction of non-native species.
    The ARS began to decline in the Arkansas River in western Kansas 
prior to 1950 due to increasing water diversions for irrigation and 
completion of John Martin Reservoir in 1942 (Cross et al. 1985). The 
Arkansas River between Coolidge to near Great Bend, Kansas, is 
frequently dewatered (Cross et al. 1985). Habitat alteration following 
construction of Kaw and Keystone reservoirs on the Arkansas River in 
Oklahoma, in conjunction with completion of the McClellan-Kerr 
Navigation System in 1970, greatly reduced ARS habitat in Oklahoma and 
Arkansas. The ARS is no longer believed to occur in the Arkansas River 
in Arkansas, Kansas, and Oklahoma, a loss of over 1,240 km (770 mi) of 
previously occupied habitat.
    The ARS was once common throughout the Cimarron River and its 
tributaries (Pigg 1991). The abundance of the ARS in the Cimarron River 
declined markedly after 1964 (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 in Oklahoma in 1976 (Marshall 1978). Cross et al. (1985) 
believed the Red River shiner was first introduced into the Cimarron 
River sometime between 1964 and 1972. Since that time, the Red River 
shiner has essentially replaced the ARS. Habitat alteration and 
resulting flow modification also have contributed to the decline of the 
species from the Cimarron River. A small, remnant population may still 
persist in the Cimarron River.
    The ARS was first reported from the North Canadian River drainage 
in 1926 (Hubbs and Ortenburger 1929). Collections between 1947 and 1976 
indicated that the ARS occurred in large numbers in the river and some 
larger tributaries despite the construction of Optima and Canton 
reservoirs (Pigg 1991). This fish was still sporadically collected from 
the North Canadian River until 1987. Several collection attempts at 15 
localities over the next 2 years failed to result in the capture of any

[[Page 64774]]

ARS (Pigg 1991). In 1990, four specimens were collected from the river 
south of Turpin, Beaver County, Oklahoma (Larson et al. 1991; Jimmie 
Pigg, Oklahoma Department of Environmental Quality, pers. comm., 1993). 
Commercial bait dealers were observed flushing their holding tanks in 
the vicinity of the site where the ARS specimens were captured and may 
have been responsible for the unintentional release of this species 
back into the North Canadian River. The species has not been captured 
from the North Canadian River since 1990 (J. Pigg, pers. comm., 1997), 
indicating a probable loss of over 1,046 km (650 mi) of previously 
occupied habitat.
    Historically, the species occurred in the Canadian River from its 
confluence with the Arkansas River near Sallisaw, Sequoyah County, 
Oklahoma as far upstream as the Sabinoso area in central San Miguel 
County, New Mexico (Pigg 1991, Sublette et al. 1990). Construction and 
operation of Ute and Conchas reservoirs in New Mexico, Lake Meredith in 
Texas, and Eufaula Reservoir in Oklahoma altered or eliminated sections 
of riverine habitat and diminished the range of ARS within the Canadian 
River. Eufaula Reservoir isolated Canadian River populations from the 
Arkansas River and, in combination with Lake Meredith and Ute 
Reservoir, confined ARS to two restricted segments of the Canadian 
River--a 218-km (135-mi) section from Ute Dam to the upper reaches of 
Lake Meredith; and 601 river-km (373 river-mi) downstream of Lake 
Meredith (near Canadian, Texas) to the upper reaches of Eufaula 
Reservoir in Oklahoma. The reservoirs function as barriers, 
significantly inhibiting dispersal and interchange between the two 
segments.

Consideration as a ``Species'' Under the Act

    Section 3(15) of the Act defines ``species'' to include ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife . . .'' On 
February 7, 1996, the Fish and Wildlife Service and the National Marine 
Fisheries Service published a joint policy (DPS policy) (61 FR 4722) to 
clarify our interpretation of the phrase ``distinct population segment 
of any species of vertebrate fish or wildlife'' for the purposes of 
listing, delisting, and reclassifying species under the Act. The policy 
identifies the following three elements to be considered in deciding 
whether to list a possible DPS as endangered or threatened under the 
Act: The discreteness of the population segment in relation to the 
remainder of the species or subspecies to which it belongs; the 
significance of the population segment to the species or subspecies to 
which it belongs; and the conservation status of the population segment 
in relation to the Act's standards for listing.
    Discreteness of the Population Segment: According to our DPS 
policy, a population segment may be considered discrete if it satisfies 
either one of the following conditions: it is markedly separated from 
other populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors; or it is delimited by 
international governmental boundaries across which there is a 
significant difference in control of exploitation, management of 
habitat, or conservation status. The Arkansas River basin population is 
discrete based on natural, geographic isolation from the non-native, 
introduced population in the Pecos River.
    Significance of the Population Segment: Our DPS policy states that 
the consideration of the significance of the population segment to the 
taxon to which it belongs may include, but is not limited to, the 
following: persistence of the discrete population in an ecological 
setting unusual or unique for the taxon; evidence that the loss of the 
discrete population segment would result in a significant gap in the 
range of a taxon; evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere; or evidence that the discrete population 
segment differs markedly from other populations of the species in its 
genetic characteristics. The Arkansas River basin population is 
significant because it represents the only surviving natural occurrence 
of the taxon.
    Because it is both discrete and significant, the Arkansas River 
basin population of the ARS qualifies as a distinct population segment 
under the Act. Although it is discrete, the Pecos River population of 
the ARS is not significant because it is an introduced population 
located outside of the species' historic range and, at this time, is 
not essential for recovery of the species within its historic range. 
Therefore, the Arkansas River basin population of the ARS is a listable 
entity under the Act, and the non-native, introduced Pecos River 
population is not a listable entity under the Act.
    Furthermore, protection of the non-native Pecos River population of 
the ARS would conflict with the preservation of the Pecos bluntnose 
shiner (Notropis simus pecosensis) and possibly the Rio Grande silvery 
minnow (Hybognathus amarus). Management of native Pecos River fishes 
will focus on the preservation and restoration of habitat conditions 
favored by these species. Restoration of historic flow conditions in 
the Pecos River and control of competitive, non-indigenous fishes, 
including the ARS, may be necessary in recovery efforts for the Pecos 
bluntnose shiner. While the non-native, introduced Pecos River 
population of the ARS could be important in efforts to supplement 
native populations of the ARS within the species' historical range, 
protection of the Pecos River population would not improve the status 
of the ARS within the species' historical range.

Previous Federal Action

    We included the ARS in our September 18, 1985, Review of Vertebrate 
Wildlife (50 FR 37958) as a category 2 candidate for listing. At that 
time, category 2 comprised those taxa for which information indicated 
that a proposal to list as endangered or threatened was possibly 
appropriate, but for which conclusive data on biological vulnerability 
and threats were not currently available to support proposed rules. Our 
January 6, 1989, revised Animal Notice of Review (54 FR 554) retained 
this status for the ARS.
    We first received detailed information on the status of the species 
in 1989 (Pigg 1989). A partial status survey by Larson et al. (1990) 
was a source of additional information. We subsequently prepared a 
status report on this species (U.S. Fish and Wildlife Service 1990). 
Following this report, Larson et al. (1991) and Pigg (1991) provided 
comprehensive status survey information. In our November 21, 1991, 
Animal Candidate Review for Listing as Endangered or Threatened Species 
(56 FR 58804), we reclassified the ARS as a category 1 candidate. At 
that time, category 1 comprised taxa for which we had substantial 
information on biological vulnerability and threats to support 
proposals to list the taxa as endangered or threatened.
    In the August 3, 1994, Federal Register, we published a proposed 
rule to list the Arkansas River basin population of the ARS as 
endangered and invited public comment (59 FR 39532). We based the 
proposal primarily on status information from reports to the Oklahoma 
Department of Wildlife Conservation (ODWC). We also used collections 
and observations made by Dr. Frank Cross, Mr. Jimmie Pigg, the TPWD, 
and the Bureau and our own collections and observations in preparing 
the proposed rule.

[[Page 64775]]

    The enactment of Public Law 104-6 in April, 1995, and subsequent 
series of continuing resolutions from October 1, 1995, through April 
26, 1996, established a moratorium on issuing final listings or 
critical habitat designations. During that time, we were prohibited 
from making final determinations on listing proposals. Following this 
delay, we reopened the comment period on the proposal to list the ARS 
on December 5, 1997 (62 FR 64337), to solicit any new relevant data and 
to allow the public to review and comment on data we had obtained since 
publication of the proposed rule.
    Since publication of the proposed rule for the ARS, we have 
determined that the Arkansas River basin population of the Arkansas 
River shiner, which we proposed to list as endangered, should be listed 
as threatened due to a lesser immediacy and magnitude of threats to its 
existence. New information received during the comment period revealed 
that modifications to the Lake Meredith Salinity Control Project 
resulted in streamflow reductions that were less severe than originally 
projected in 1994. Also, the influence of the High Plains Aquifer on 
streamflows in the Canadian River upstream of Lake Meredith is less 
than originally believed. In addition, we discovered that the 
aggregations of ARS in the reach between Ute Reservoir and Lake 
Meredith are stable and not declining, as presented in the proposed 
rule. The most recent information on the status of the ARS is discussed 
in the ``Summary of Factors Affecting the Species'' section.
    The processing of this final rule conforms with our listing 
priority guidance published in the Federal Register on May 8, 1998 (63 
FR 25503). This guidance further clarifies the order in which we will 
process the remaining backlog of rulemakings resulting from the 1995-
1996 moratorium. The guidance calls for giving highest priority to 
handling emergency situations (Tier 1) and second highest priority to 
resolving the listing status of outstanding proposed listings, 
resolving the conservation status of candidate species, processing 
petitions, and delisting or reclassifications (Tier 2). The guidance 
assigns the lowest priority (Tier 3) to processing of proposed or final 
designations of critical habitat. Processing of this final rule is a 
Tier 2 action.

Summary of Comments and Recommendations

    In the August 3, 1994, proposed rule (59 FR 39532), associated 
notifications, and in subsequent notices to extend or reopen the public 
comment period, we requested all interested parties to submit factual 
reports or information that might contribute to the development of a 
final rule. The original public comment period closed on October 3, 
1994, but we reopened it from January 6, 1995, to February 3, 1995 (60 
FR 2070) to accommodate three public hearings. We reopened the comment 
period a second time from December 5, 1997 to January 5, 1998 (62 FR 
64337). We contacted numerous Federal and state agencies, county 
governments, municipalities, scientific organizations, knowledgeable 
individuals, and other interested parties and requested them to comment 
during the comment periods. We published newspaper notices during all 
comment periods in the Dodge City Globe (KS), the Hutchinson News 
Herald (KS), the Quay County Sun (Tucumcari, NM), the Daily Oklahoman 
(Oklahoma City, OK), the Tulsa World (OK), Woodward News (OK), and the 
Amarillo Globe (TX), inviting general public comment and attendance at 
public hearings. In addition, we published a notice in the Lubbock 
Avalanche-Journal (TX) announcing the reopening of the comment period 
on December 5, 1997.
    We received 114 requests for public hearings--46 from interested 
parties in Kansas, 40 from Oklahoma, and 28 from Texas. We received 16 
other requests for public hearings after the 45-day period for 
requesting hearings had expired. We held public hearings on January 23, 
1995, in Meade, Kansas; January 24, 1995, in Woodward, Oklahoma; and 
January 25, 1995, in Amarillo, Texas.
    In Meade, 154 people attended and 25 commented; in Woodward at 
least 45 attended and 29 commented; and in Amarillo 381 attended and 27 
commented. Thirty-seven individuals at the Amarillo hearing did not 
have an opportunity to make oral comments because of time limitations. 
However, many of these individuals did submit written comments at the 
conclusion of the hearing. In addition, the High Plains Underground 
Water Conservation District Number One sponsored a public meeting in 
which an unknown number of individuals attended. The District provided 
a video tape and transcript of this meeting containing the comments of 
25 individuals.
    We received a total of 734 comments (letters and oral testimony) 
from Federal (12) and State (45) agencies/elected officials, local 
governments (62), and private organizations, companies, and individuals 
(615) during the comment periods. The total number of entities 
providing comments was 671, with several individuals submitting more 
than one comment. We also received three letters containing numerous 
signatures opposing listing of the ARS.
    We address written and oral comments received during the comment 
periods in the following summary. Comments from all respondents, 
including the invited peer reviewers, are combined. These comments 
addressed a diversity of economic, social, and political issues. 
Because multiple respondents offered similar comments in some cases, 
comments of a similar nature are grouped. Most comments opposed listing 
or favored delaying the listing. Of those actually stating a position, 
380 specifically opposed listing and 8 supported listing. The 
remainder, while not specifically stating a position on the rule, often 
expressed concerns over what impact the listing would have on various 
activities. Some comments were non-substantive or dealt with matters of 
opinion or legal history, which are not relevant to the listing 
decision. The substantive comments and our responses, grouped by issue 
category, are as follows:

Issue 1: Procedural Concerns

    Comment: Thirty commenters noted that the Act expired in 1992 and 
has not yet been reauthorized, leaving us without authority from 
Congress to implement it. These commenters believed that, therefore, we 
should either postpone listing or take no action until the Act has been 
reauthorized.
    Service Response: The Act remains in place unless unfunded in the 
annual Congressional appropriations process. With the exception of the 
recision of listing funds described earlier, Congress has continued to 
fund the Act. We prepared this final rule using funds specifically 
appropriated by Congress for conducting the Act's listing activities.
    Comment: Seven commenters believed that we fail to use common sense 
in implementing the Act, relying on regulation instead of innovation, 
leaving landowners with no incentive to protect listed species and 
their habitat.
    Service Response: By Federal Register notice on July 1, 1994 (59 FR 
34272), 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. Therefore, we will 
work closely with stakeholders throughout the Arkansas River basin to 
accommodate economic and recreational activities to the extent possible 
while ensuring the continued survival and recovery of the ARS.
    Comment: One commenter stated that we do not have the authority to 
list the ARS in only a portion of the species'

[[Page 64776]]

known range. Another individual stated that if we can exclude listing 
of the Pecos River population, we could exclude listing of the ARS 
population upstream of Lake Meredith.
    Service Response: As described previously, our policy published in 
the Federal Register on February 7, 1996 (61 FR 4721), established that 
to qualify as a distinct population segment, the population must be 
both discrete in relation to the remainder of the species to which it 
belongs, and significant to the species to which it belongs. In the 
case of the ARS, the Arkansas River basin population is clearly 
separate from the Pecos River population and represents the only 
surviving natural occurrence of the species. Thus the Arkansas River 
basin population segment is both discrete and significant.
    With respect to the Canadian River segment upstream of Lake 
Meredith, we do not believe it would be prudent to consider these 
aggregations of ARS as a distinct population segment. Although Lake 
Meredith is a human-made barrier to dispersal, the ARS aggregations 
upstream of Lake Meredith are not markedly separated from those in the 
remainder of the Arkansas River basin.
    Comment: Eighteen commenters requested a longer comment period or 
stated that we did not give adequate time for public comment. Five 
commenters thought we were unwilling to disclose pertinent information 
or denied access to materials which the rule was based on. One 
commenter requested that all data, information, and results of 
investigations, including information on occurrence of Red River 
shiners in the Canadian River, be available for review by interested 
parties. Another felt we provided ``Fact Sheets'' only to select 
individuals.
    Service Response: Regulations at 50 CFR 424.16(c)(2) require us to 
allow a minimum of 60 days for public comment on proposed rules. The 
first comment period on the ARS proposed rule was open for 60 days. We 
also provided two additional comment periods, encompassing a total of 
59 days. We believe that the comment periods provided were adequate and 
fulfilled the requirements of the Act.
    The proposed rule contained a complete summary of the information 
available to us regarding the status of the ARS and sources of that 
information. The cited material was available to the pubic through a 
variety of sources. We have incorporated new information on the 
occurrence of the Red River shiner in the Arkansas River basin into 
this rule and the administrative record. All documents, records, and 
correspondence relating to this listing, including data, survey 
results, analyses, supporting information, and public comments, are 
included in the administrative record and are available for review by 
the public by appointment, during normal business hours, at the 
Oklahoma Field Office. Appointments can be made by contacting the Field 
Supervisor (see ADDRESSES section).
    In several instances, we provided copies of referenced material, 
including information on Red River shiners, in response to requests 
from the public. Also, in accordance with the Act and its implementing 
regulations, the Administrative Procedure Act, and the Freedom of 
Information Act (5 U.S.C. Sec. 552), we provided copies of documents to 
members of the public who requested such information.
    We prepared Fact Sheets and distributed them to the public in 
conjunction with notification letters for the public hearings. We also 
distributed copies of the Fact Sheets to the public at the three public 
hearings. Any individual who was not on our mailing list at the time of 
the hearings or did not attend the public hearings did not receive 
copies of the Fact Sheets. We would have provided this material to 
anyone requesting it; however, we have no record of any specific 
requests for the Fact Sheets following conclusion of the public hearing 
process.
    Comment: Three commenters felt that we had already reached a 
decision prior to receiving public comment and did not value public 
participation in the decision-making process. Ten commenters stated 
that we had not adequately notified the public regarding the hearings 
or the proposed rule. Commenters specifically stated that we did not 
contact the TPWD, Texas State elected officials, and affected municipal 
governments and that newspaper notices were inadequate.
    Service Response: We reviewed and evaluated all written and oral 
comments, as recorded in the public hearing transcripts, before making 
a final determination on the proposed rule. We have addressed all 
substantive comments in this section. Based on the comments we 
received, we revised the status of the shiner and incorporated new 
information into this final rule.
    We conducted an extensive notification process to make the public 
aware of the proposal. In addition to newspaper and Federal Register 
notices (see discussion at beginning of this section), we mailed 153 
separate notifications of the proposed rule to Federal, State, county 
and city governments, species experts, and other individuals to solicit 
their input. Subsequently, we mailed 355 separate notifications of the 
public hearing to species experts, other interested individuals, and 
Federal, State, county and city government entities. We directly 
notified all interested parties known to us. We continually updated the 
mailing list to include all parties who had expressed interest in the 
rulemaking or had requested to be added to the mailing list. Our 
mailing list currently contains 1,153 separate entities. We believe our 
notification process fully satisfied the requirements of the Act.
    We first contacted the TPWD concerning the status of the ARS by 
letter dated May 7, 1993. We sent copies of this letter to Andrew 
Sansom, the Executive Director; Larry McKinney, then Director of the 
Resource Protection Division, and David Diamond, Coordinator of the 
Natural Heritage Program. We received a response from David Bowles, 
Endangered Species Biologist with TPWD. We also contacted the Federal 
Congressional delegation and the commissioners and judges within the 
counties encompassing the ARS historic range during the notification 
process. Subsequent to this initial mailing, we received over 200 
requests for additions to the mailing list. Included in these additions 
were Texas Senator Teel Bivins, Texas Representatives Warren Chisum and 
David Counts, and the cities of Brownfield, Canadian, Hereford, 
Plainview, and Slaton, Texas.
    Comment: Some respondents were disappointed with the quality of the 
hearings, and thought we deliberately misled the public. Others 
believed the hearings were inadequate to obtain full public input on 
the proposal or that we had deliberately tried to limit the number of 
individuals who were allowed to comment.
    Service Response: We are obligated to hold at least one public 
hearing on a listing proposal if requested to do so within 45 days of 
publication of the proposal (16 U.S.C. 1533(b)(5)(E)). Considering the 
number of requests received and the geographic distribution of the 
species, we decided that holding a single public hearing in each State, 
excluding New Mexico, would be adequate and would not cause undue 
inconvenience to those wishing to attend. We selected the locations and 
times of the public hearings to be convenient to most citizens living 
within the affected area. We reviewed and considered all oral comments 
presented at the public hearings. In one instance, we had to limit oral 
comments; however, all persons were allowed to submit written comments,

[[Page 64777]]

which receive equal consideration to oral comments.
    Comment: Two respondents wanted to know if information in the 
proposed rule had been peer reviewed.
    Service Response: The information used in determining to propose 
listing the ARS has been peer reviewed (see ``Peer Review'' section).
    Comment: One commenter stated that we must prepare an Environmental 
Impact Statement (EIS), pursuant to the National Environmental Policy 
Act (NEPA), on this rule.
    Service Response: For the reasons set out in the NEPA section of 
this document, we have determined that the rules issued pursuant to 
section 4(a) of the Act do not require the preparation of an EIS. The 
Federal courts have held in Pacific Legal Foundation v. Andrus, 657 
F2d. 829 (6th Circuit 1981) that an EIS is not required for listing 
under the Act. The Sixth Circuit decision noted that preparing an EIS 
on listing actions does not further the goals of NEPA or the Act.
    Comment: One respondent believed we were being pressured to list 
the ARS in response to pending litigation.
    Service Response: We classified the ARS as a category 1 candidate 
species independent of any litigation, meaning that we had substantial 
information on biological vulnerability and threats to support a 
proposal to list the taxon as endangered or threatened. Our decision to 
propose the ARS for listing was based on the mandates of the Act and 
not any ``pressures'' from litigants.

Issue 2: Recovery Planning and Implementation

    Comment: Many comments were received regarding our recovery 
planning process. Twenty-four commenters felt that we should not list 
the species because recovery of the species is too costly and recovery 
is not guaranteed by listing or through the recovery process or that we 
should provide details, costs, and recovery goals of the recovery 
program before proceeding with the listing. Seventeen commenters 
requested that we involve stakeholders in meetings and in the 
development of recovery actions. Sixty-six respondents suggested 
potential recovery actions or focus areas for recovery, or expressed 
concern regarding implementation of unfavorable recovery actions.
    Service Response: Regulations at 50 CFR 424.11(b) require the 
Secretary of the Interior to make listing decisions based on ``the best 
available scientific and commercial information regarding a species' 
status, without reference to possible economic or other impacts of such 
determination.'' Neither the Act nor implementing regulations allows us 
to consider the recovery potential or recovery cost for a species in 
determining whether a species should be listed.
    We solicit active participation by the scientific community, local, 
State, and Federal agencies, Tribal governments, and other interested 
parties in the development and implementation of recovery plans (59 FR 
34270). We agree that local community support and the cooperation of 
private landowners is essential to fully protect and recover listed 
species, and we will work closely with stakeholders in the management 
and recovery of the ARS to ensure that the concerns of local 
governments, citizens, and others are considered.
    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/or 
protect listed species and may address 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. Once we develop a 
recovery plan for the ARS, the plan will be available for public review 
and comment prior to adoption.

Issue 3: Critical Habitat

    Comment: We received many comments regarding the designation of 
critical habitat. Numerous (110) commenters expressed concern regarding 
the economic implications of critical habitat designation and often 
stated that such designation would severely limit a number of land and 
water uses or affect residents' quality of life and economic growth 
potential. Seventeen commenters requested we involve stakeholders in 
any economic analysis conducted during identification of critical 
habitat. Eleven others urged us to designate critical habitat at the 
same time the species is proposed for listing. A few (3) suggested 
locations that should or should not be included as critical habitat.
    Service Response: We have determined that designation of critical 
habitat is not prudent (see ``Critical Habitat'' section).

Issue 4: Pecos River Population

    Comment: We received a variety of comments relating to the Pecos 
River population of the ARS. Fifteen commenters questioned the need to 
eradicate the Pecos River population stating that it is not in direct 
adverse competition with native fish fauna, it is valuable in 
restoration efforts, habitat in the Pecos River is optimal for 
maintaining a thriving population, and the Act requires protection of 
the ARS and does not authorize eradication of this population. One 
individual questioned whether the ARS population in the Pecos River was 
truly an anomaly or if it was actually a natural event. Another 
respondent stated that the historic range should be expanded to include 
the Pecos River. Conversely two commenters stated that our description 
of the Pecos River population was accurate. Twenty respondents believed 
the Arkansas River Basin population of the ARS should not be listed 
because the species is abundant, robust, and thriving in the Pecos 
River of New Mexico and its habitat is stable and optimal for spawning. 
Two other commenters stated that the Arkansas River basin population 
should not be listed if recovery of the Pecos bluntnose shiner is more 
important than conservation of the ARS.
    Service Response: In the ``Background'' section of this rule we 
included a discussion of the Pecos River population of the ARS that 
addresses most of these comments. As we explained in that section, the 
Act clearly authorizes us to list distinct population segments of 
vertebrate species.
    The occurrence of the ARS in the Pecos River is not a natural 
event. Researchers examined fish collections housed at Eastern New 
Mexico University in Portales and at the University of New Mexico for 
evidence of any historical occurrence of ARS in the Pecos River. Two 
collections from near Ft. Sumner in 1977 and 20 collections from the 
reach extending from near Santa Rosa to the vicinity of McMillan 
Reservoir between the years 1974 to 1977 did not contain ARS. A 
collection taken in September of 1978 downstream of Sumner Dam 
contained 16 specimens. This led Bestgen et al. (1989) to conclude that 
the initial release of ARS into the Pecos River occurred in 1978 and 
that the Pecos River population is artificial and not within the 
historic range of the ARS. We concur with this assessment.
    The purpose of the Act is to conserve threatened and endangered 
species and the ecosystems on which they depend. Non-native, introduced 
populations, while possibly useful in recovery/restoration efforts, are 
not a viable substitute for species conservation in native ecosystems. 
We do not believe listing or active conservation of the introduced 
Pecos River population is appropriate nor is such conservation required 
by the Act.

[[Page 64778]]

    We agree that the Pecos River population could serve as a source of 
individuals for transplantation into suitable, unoccupied, historic 
habitat. Consequently, we do not currently intend to aggressively 
pursue eradication of the ARS from the Pecos River. However, we do not 
intend to manage the Pecos River as a refugium for the ARS. The 
feasibility of using ARS from the Pecos River in restoration efforts in 
the Arkansas River basin will be fully evaluated during the recovery 
process.

Issue 5: Ecological and Economic Value of the ARS

    Comment: Several (21) commenters questioned the economic or 
ecological value of the ARS, including its use as an indicator of the 
health of ecosystems, its benefit to society, its value for medicinal 
purposes, its importance in comparison with other species, and its 
importance in comparison to the economic benefits of agriculture. 
Another eight individuals believed the shiner was here to be used as 
humans deemed necessary.
    Service Response: In section 2 of the Act (Findings, Purposes, and 
Policy), Congress found that numerous species of fish, wildlife, and 
plants had become extinct, and that other species had become so 
depleted in numbers that these species 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 Endangered Species Act, the purpose of which is to 
conserve threatened and endangered species and the ecosystems on which 
they depend. To that end, the Act requires the Department of Interior 
to maintain a list of endangered and threatened species.
    The Act requires that listing decisions be based on the best 
available scientific and commercial information regarding a species' 
status, without reference to possible economic or other impacts of such 
determination. Although a variety of opinions likely exist as to a 
particular species' contribution to society, this issue is not among 
the five factors upon which a listing determination is based. While we 
cannot consider the intrinsic value of species when making a listing 
determination under the Act, we believe that protecting these species 
has a positive effect on society. Society, like the ARS, 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.
    Comment: Eighteen commenters stated that extinction of the ARS is a 
natural, evolutionary process and we should not interfere with the 
process of natural selection.
    Service Response: We concur that extinction and the dynamic 
processes of natural selection, fitness, and evolution are natural, 
ecological phenomena. Numerous natural, including catastrophic, events 
over geologic time have resulted in the extinction of many species. 
However, evolutionary changes rarely occur at rates comparable to those 
induced by human environmental alteration. Congress clearly recognized 
human-caused increases in the rate of species extinctions and passed 
the Act in an attempt to decrease the rate at which human-caused 
extinction occurs.

Issue 6: Threats

    Comment: Forty-six commenters were concerned that corporate swine 
farms pose a threat to the ARS due to their high usage of surface and 
ground water which could reduce streamflows in the affected rivers. 
These same commenters were concerned that waste application from 
confined swine, poultry, and dairy operations has the potential to 
contaminate surface and groundwater, constituting a threat to the ARS. 
Conversely, one commenter stated that we have no information to 
indicate that commercial livestock operations have impacted the ARS.
    Service Response: We concur that water use and waste application or 
a spill from waste holding facilities represents a potential threat to 
ARS. Since 1990, the number of swine in Oklahoma has increased from 
200,000 to 1.7 million animals, making Oklahoma the eighth largest pork 
producer in the Nation (``State Legislators Expecting Vote on Hog Farm 
Bill,'' Mick Hinton, The Daily Oklahoman, Oklahoma City, February 11, 
1998). The Oklahoma panhandle contains almost one-half of these 
animals. However, we have no data documenting the effects of 
concentrated livestock operations on water quality or quality 
specifically relating to the ARS.
    Comment: Four respondents suggested that salt cedar (Tamarix sp.), 
Russian olive (Eleagnus angustifolia), mesquite (Prosopis sp.), and 
other phreatophytes (i.e., deep rooted plants that obtain water from 
the water table or the zone just above it) have invaded river basins 
and use water, causing streamflows to decline.
    Service Response: We agree that various species of phreatophytes 
have invaded stream channels within the western regions of the Arkansas 
River basin and that they have the potential to use large quantities of 
water when growth is extensive. Stinnett et al. (1988) documented the 
effects of vegetation encroachment within the Canadian River (see 
factor A in ``Summary of Factors Affecting the Species'' section).
    Comment: One respondent stated that when the Eastern New Mexico 
Water Supply Project is completed in the year 2000 (or later), 
diversions from Ute Reservoir would occur, reducing the frequency and 
amount of water released from Ute Reservoir.
    Service Response: The Bureau has preliminarily evaluated the 
feasibility of minimum streamflow releases (2 cubic feet per second 
(cfs)) downstream of Ute Reservoir as a component of the Eastern New 
Mexico Water Supply Project. Such releases would likely preclude 
dewatering of the Canadian River below Ute Reservoir, provided the 
State of New Mexico does not appropriate all of the remaining 
unappropriated water in the Canadian River downstream of Ute Dam. We 
will work with the Bureau pursuant to section 7 to ensure that the 
needs of the ARS are adequately addressed by this project.
    Comment: Twenty-five commenters were concerned that we considered 
agricultural conservation practices a threat to the ARS and would 
discourage practices such as planting of shelterbelts, conservation 
farming (e.g., no-till planting and conservation reserve program grass 
plantings), and construction of terraces, waterways, stockwater ponds, 
and watershed dams. Many included specific information relating to 
these practices. Another 13 specifically were concerned about the 
effect of listing on flood control reservoirs.
    Service Response: All of the conservation practices mentioned in 
this comment, although very effective at reducing run-off, are 
specifically designed to minimize soil erosion and control 
sedimentation. Without these practices in place, increased siltation 
would likely occur in rivers and streams of the Arkansas River basin. 
Construction of terraces, shelterbelts, grassed waterways, and other 
vegetative planting for conservation are not likely to significantly 
impact streamflows and habitat or threaten the survival of the ARS.
    The effects of construction of stock ponds and flood water 
retention structures and other small dams on tributary streams are 
likely to have a

[[Page 64779]]

much different effect on streamflows. The primary goal of most small 
watershed projects is to provide drainage and relief from flooding in 
rural areas. Channelization (e.g. channel modification or 
``improvement'') is often used to provide drainage and flood relief, 
while watershed dams and levees primarily provide flood relief. The 
effects of these activities are discussed in the ``Summary of Factors 
Affecting the Species'' section.
    The Natural Resource Conservation Service (NRCS) Small Watershed 
Project program is subject to the provisions of section 7 of the Act 
and any planned projects must first be examined for impacts to listed 
species before construction may proceed. Private actions, such as 
construction of a farm pond, would generally be exempt from the 
regulatory provisions of the Act unless the actions involve Federal 
funds or Federal authorization, or if the action would result in take 
of ARS. The term ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. A private party could seek a section 10(a)(1)(B) 
incidental take permit to legally take ARS incidental to otherwise 
lawful activities.
    Comment: Two commenters expressed concern that we considered open-
range grazing a threat to the ARS due to water quality concerns. Two 
other commenters implied that white-tailed deer have access to 
streamside zones, have abundant populations, and would cause similar 
impacts on riparian zones as do domestic livestock.
    Service Response: We believe well-managed livestock grazing is 
compatible with viable ARS populations and that certain types of 
grazing in riparian zones likely have minimal impacts on the ARS. In 
fact, low to moderate grazing and seasonal or rotational grazing 
practices are compatible with many natural resource objectives. 
However, negative effects of overgrazing remain a concern (see 
``Summary of Factors Affecting the Species'' section).
    Although white-tailed deer typically inhabit lowland and riparian 
areas in the Central and Southern Plains (Menzel 1984), the overall 
impacts of deer and other native ungulates on riparian zones are less 
than that of livestock. Livestock do not forage, herd, or move in the 
same manner as native ungulates. Deer do not tend to concentrate in 
large numbers and do not remain in riparian areas for long periods of 
time as do cattle. Deer typically do not trample vegetation and 
streambanks to the same extent as cattle. Where cattle have access to 
streamside zones, they generally reduce the suitability of the riparian 
zone for deer, either by consumption of forage or by trampling 
vegetation (Menzel 1984). Restriction of livestock grazing is one of 
the principal management tools used for white-tailed deer on public 
lands. Additionally, the dietary preferences of deer and livestock 
generally do not overlap to a significant extent. Deer are 
opportunistic feeders, consuming a wide variety of plant species 
(Jackson (1961) as cited in Menzel (1984)), and cattle forage almost 
exclusively on grasses and forbs. Consequently, we do not believe that 
deer exert the same influence on the riparian zone as do cattle and do 
not consider use of riparian zones by deer to be a threat to ARS.
    Comment: Two individuals were concerned that the Federal 
government, through construction of reservoirs and support of soil and 
water conservation practices, was responsible for the decline of the 
ARS. Three other respondents stated that agriculture was singled out as 
a threat, even though Federal reservoirs were known to have an impact 
on ARS.
    Service Response: We acknowledge that some Federal actions are, in 
part, responsible for the threats facing the Arkansas River basin 
population of the ARS. As a result of listing, those ongoing Federal 
actions will be subject to consultation under section 7 of the Act.
    We did not intentionally single out agriculture as the primary 
threat to survival of the ARS. We believe a number of threats 
collectively imperil the ARS, and no single threat likely poses a 
sufficient threat to the ARS to justify listing. When making a listing 
determination, we assess the potential impact of all threats, including 
agriculture, to the species. Although agricultural activities can 
impact the ARS in various ways, we do not believe agriculture is the 
primary threat to the ARS.
    Comment: Two commenters stated that overcollection for scientific 
purposes, particularly during spawning periods, is a threat.
    Service Response: We have no information indicating that collecting 
for scientific or educational purposes poses a significant threat to 
the ARS. However, take by private and institutional collectors could 
pose a threat, if left unregulated. With the exception of the States of 
Texas and Arkansas, the ARS is listed as an endangered or threatened 
species by States within its historical range and take is prohibited 
without a valid State collecting permit. Such provisions should 
minimize the threat of overcollecting for scientific or educational 
purposes. Federal protection of the ARS also will help to reduce 
illegal and inappropriate take.
    Arkansas River shiners are thought to spawn communally (Cross et 
al. 1985) but are not known to make basin-wide migrations to a few 
traditional spawning areas where large numbers of individuals would be 
susceptible to a single collection event. Additionally, ARS may spawn 
several times during the course of the spawning season and even 
widespread scientific collecting during this period would not likely 
eliminate the entire reproductive effort for the year.
    Comment: Numerous (115) commenters stated that irrigation and 
groundwater pumping are not a threat to the ARS because water levels 
have stabilized, primarily due to conservation and more efficient 
irrigation systems, and the effect on streamflow, where it occurs, is 
limited. Similarly, 58 commenters stated that we have no evidence to 
support the assumption that irrigation and pumping from the High Plains 
(Ogallala) aquifer has diminished flow in the Canadian River or has 
affected habitat conditions for the ARS. Two commenters stated that we 
have new information regarding the influence of groundwater on flows in 
the Canadian River basin. Six others stated that springflow is not 
reliable or has not been affected by groundwater pumping.
    Service Response: We agree that water conservation efforts have had 
a significant effect on reducing the amount of water used. These 
efforts have reduced the rate of depletion of the High Plains aquifer 
in Texas. However, groundwater depletion continues within the Central 
Regional Subdivision of the High Plains aquifer. Although certain 
underground water conservation districts have recently shown stabilized 
groundwater levels within their districts or have shown that average 
depletions over the past several years have been reduced to less than 
10 centimeters (cm) (4 in), these statistics are not indicative of the 
entire western region of the Arkansas River basin. Dugan and Sharpe 
(1996) state that water level declines in the Central High Plains 
subregion from 1980 to 1994 were the largest, both in area and 
magnitude of decline, of any in the entire High Plains. A nearly 
continuous area including much of southwestern Kansas, portions of the 
Oklahoma Panhandle, and much of the northern Panhandle of Texas has 
shown a decline of more than 3 meters (m) (10 feet (ft))(see factor A 
in ``Summary of Factors Affecting the Species'' section).
    Regarding the influence of water level declines on streamflow, 
specific, regionwide data are lacking. We concur

[[Page 64780]]

that groundwater pumping has likely had a minimal effect on streamflow 
in the Canadian River upstream of Lake Meredith. We evaluated new 
information provided during the public comment period and concluded 
that pumping has reduced spring flow but the overall effect on flow in 
the Canadian River between Ute Reservoir and Lake Meredith has been 
relatively minor. This new information has been incorporated into this 
rule (see factor A in ``Summary of Factors Affecting the Species'' 
section).
    Information on the contribution of springs to flow in the Canadian 
River below Lake Meredith and the effects of groundwater pumping on 
this springflow is generally unavailable. However, we believe that, 
based on the predevelopment discharge from the aquifer within the 
Arkansas River basin (Luckey and Becker 1998), continuing groundwater 
depletion will affect streamflow in the Arkansas River basin.
    Comment: Seven commenters stated that, based on the rate at which 
water moves through the High Plains aquifer, the aquifer would not 
contribute to streamflow. Similarly, one respondent stated that water 
level contour maps of the aquifer show that water only moves toward the 
river within the area described as the ``breaks.''
    Service Response: The rate at which water moves through the aquifer 
has no bearing on the contribution of the aquifer to streamflow. The 
aquifer is an underground body of water that resembles a ``reservoir;'' 
the water bearing strata are a mixture of gravel and sands. A 
withdrawal from one end of the ``reservoir'' affects water levels in 
the entire reservoir. Water within the aquifer exists in balance with 
the rate of recharge, that is, natural discharge to streams equals 
recharge, at least under predevelopment conditions. Pumping from the 
aquifer essentially represents an artificial discharge from the 
aquifer. When this artificial discharge exceeds recharge, natural 
discharges must decline accordingly.
    Comment: Five commenters stated that the Canadian River was below 
the elevation of the High Plains aquifer and thus not connected.
    Service Response: We partly agree with this comment. The Canadian 
River has cut below the elevation of the Ogallala formation upstream of 
the Hutchinson-Roberts County line in Texas (Dugan and Sharpe 1996). 
Downstream of this point the Canadian River is confined within the 
sediments of the Ogallala formation (see factor A in ``Summary of 
factors Affecting the Species'' section).
    Comment: One respondent stated that the threat analysis is 
incorrect because very little surface water is diverted from the 
Canadian River in Texas.
    Service Response: We agree that very little diversion of stream 
surface water occurs in the Canadian River of Texas. However, surface 
water is diverted from Lake Meredith via the Canadian River Project. 
Diversion of surface water also occurs within other Arkansas River 
tributaries. Our threat analysis includes threats occurring in other 
portions of the Arkansas River basin, not just those in Texas.
    Comment: Seven commenters expressed opposing views concerning the 
influence of predation on the ARS. Four individuals stated that 
predation is a threat and three commenters did not believe that 
existing information suggested that predation was a threat.
    Service Response: Studies on the impact of disease or predation 
upon the ARS have not been conducted and the significance of these 
threats is unknown. While neither disease nor predation are thought to 
be a significant threat to a healthy ARS population, they could, in 
certain localized areas, occur more frequently or have a more 
significant impact and hinder recovery of the ARS. This threat is 
addressed in more detail under factor C in the ``Summary of Factors 
Affecting the Species'' section.
    Comment: One commenter stated that illegal dumping of oil field 
brines in the 1960s caused fish kills, and fish populations never 
recovered. Two commenters stated that a major threat to the ARS and 
other aquatic species was water quality degradation. Two others stated 
that we have no information that any chemical has been introduced into 
ARS habitat. One commenter stated that changes in turbidity and 
salinity were not threats to the ARS.
    Service Response: Dumping of oil field brines was suspected to have 
partially accounted for the decline of the ARS from the North Canadian 
River in the vicinity of Oklahoma City, Oklahoma (Pigg et al. 1997a). 
Nutrient enrichment from municipal waste water effluent, particularly 
in the North Canadian River, also may have contributed to degradation 
of water quality. Pigg et al. (1992) stated that 64 municipal sewage 
treatment plants, 34 industries, and 2 electric power plants discharge 
into the North Canadian River. Matthews and Gelwick (1990) examined 
fish communities within a highly urbanized reach of the North Canadian 
River in Oklahoma City that received concentrated feedlot runoff and 
secondary treated sewage effluent. Dumping of construction materials 
and a smaller secondary sewage source occurred at a site approximately 
30 river-km (18 river-mi) downstream of that site. Although ARS were 
not collected during that study, fish communities in these reaches did 
not appear to be significantly depressed by urbanization (Matthews and 
Gelwick 1990).
    Advancements in waste water treatment facilities and reductions in 
other sources of pollution have occurred since passage of the Clean 
Water Act in 1972. Species which are less tolerant of degraded 
conditions would generally not occur in stream reaches affected by 
urbanization. Where water quality degradation has dramatically altered 
ARS habitat, we would agree that such events have played a role in the 
decline of this species. However, we have very little specific 
information documenting the effects of poor water quality on ARS and 
cannot conclude that these types of pollution are a significant factor 
contributing to the decline of the ARS. The effects of changes in 
turbidity or salinity on the ARS are unknown.
    Comment: Three commenters stated that drought is the main threat to 
the ARS and is responsible for its decline; twelve others stated that 
minnows inhabiting plains streams are adapted to withstand a variety of 
harsh conditions, such as dewatered and drought conditions, and lack of 
streamflow is not a threat.
    Service Response: Arkansas River shiners evolved under natural 
cycles of flooding and drought, and are adapted to a wide variety of 
physical and chemical conditions. Fish populations in such systems tend 
to be cyclic in nature, responding to such natural factors as weather 
events, disease, and predation. Natural events, however, including 
long-term drought or extreme rainfall, have less of a negative effect 
overall on a species when that species is widely and continuously 
distributed. Where populations are small, fragmented, or isolated by 
various human-related factors, they are more vulnerable to extirpation 
by naturally occurring or random events and cumulative effects.
    Construction of mainstream dams hinder natural expansion and 
contraction of populations, preventing fish from recolonizing dewatered 
reaches when flows return. This may have contributed to the extirpation 
of aggregations of the ARS. Drought also accentuates the effect of 
human-caused events (Matthews 1998), such as overallocation of 
streamflows and overdraft of groundwater resources. Stream dewatering 
combined with long-term drought could result in permanent

[[Page 64781]]

elimination of ARS from a large part of the Arkansas River drainage. 
Although the species as a whole has persisted to date, we do not 
believe remaining populations are secure. Considering the species' 
ability to withstand harsh conditions within prairie streams, the fact 
that this species has disappeared from over 80 percent of its 
historical range suggests that the effects of natural events are 
exacerbated by human influences.
    Comment: Two commenters thought introductions of non-native species 
was a primary reason for the disappearance of the ARS. Five individuals 
stated that introductions of Red River shiner did not affect 
aggregations of ARS because the species had already declined and the 
Red River shiner simply replaced the ARS. Two others stated that 
reduced flows or drought, not introductions of non-native fishes, was 
the primary threat. Six commenters stated that introductions of Red 
River shiners only affected a small portion of the historical range and 
thus are not a primary threat to remaining populations.
    Service Response: The introduction of the Red River shiner 
represents a potentially serious threat to the ARS; however, we do not 
believe introductions of the Red River shiner have had a detrimental 
effect on any ARS aggregations other than those in the Cimarron River. 
The primary threat to ARS aggregations is streamflow alterations due to 
reservoir construction and water withdrawals (see ``Summary of Factors 
Affecting the Species'' section).
    Comment: Seven respondents stated that the ARS is not likely to be 
affected by commercial bait harvest. One commenter stated that using 
ARS as fish bait should be illegal.
    Service Response: We agree that abundance of the ARS is not likely 
to be seriously impacted by commercial harvest of bait fish. The ARS is 
not a highly prized bait fish, and it is not selectively harvested as 
bait. Arkansas River shiners may occasionally be captured incidental to 
capture of other commercial bait fishes (see factor B in ``Summary of 
Factors Affecting the Species'' section). The ARS is already listed as 
threatened or endangered in the States of Kansas, New Mexico, and 
Oklahoma, and collection is prohibited without a valid permit. The 
greatest potential threat to the ARS from commercial bait operations is 
the possible accidental release of non-indigenous fishes into the 
Arkansas River basin.
    Comment: Twenty-two commenters requested clarification or 
documentation that reservoirs and impoundments were a threat to the 
ARS. Four of these individuals stated that construction and operation 
of John Martin Reservoir in Colorado had affected streamflow within the 
Arkansas River in Kansas. Conversely, one individual stated that the 
threat from John Martin Reservoir is speculative and inconclusive. One 
individual stated that construction of Medford Dam was a threat. 
Another stated that construction of Forgan Reservoir on the Cimarron 
River was no longer a threat. Four individuals stated that reservoirs 
were beneficial and that we should consider these benefits in the 
analysis. Two others stated that our assessment of the impacts of dams 
was inconsistent. One individual asked if we had considered the effects 
of releases from Keystone Reservoir on ARS spawning requirements. 
Conversely, one individual stated that flood pulses still occur below 
dams and reproduction should still occur. Five individuals stated that 
damming has diminished habitat but the effects are short-term and the 
river will stabilize allowing populations to persist. Another 
individual stated that streamflows following impoundment have 
stabilized and are not going to decline. One individual stated that 
Lake Meredith was the primary threat.
    Service Response: Cross et al. (1985) stated that irrigation 
diversions and flow regulation by John Martin Reservoir led to declines 
in several species of fish in western Kansas, including ARS. They found 
that the initial effect of impoundment by John Martin Reservoir was a 
moderation of flow extremes (e.g., reduction peak flows and increase in 
minimum flows) between 1943 and 1965. After 1965, streamflow generally 
ceased after July and did not resume until January or February. 
Although these declining streamflow conditions cannot be entirely 
attributed to John Martin Reservoir, this reservoir definitely 
contributed to flow alterations in the western portion of the Arkansas 
River.
    We could not verify the existence of a Medford Dam and cannot 
address this comment.
    In its Northwest Oklahoma Water Supply Study (Bureau 1991), the 
Bureau proposed the construction of Forgan Reservoir, to be located 
near the Kansas-Oklahoma State line on the Cimarron River. This 
reservoir would impound about 8 km (5 mi) of the Cimarron River. 
Although this reservoir has not been authorized, and planning has been 
deferred, we consider this reservoir a potential threat to the ARS.
    We disagree that reservoirs have had a beneficial effect on the 
ARS. Reservoirs function as barriers, significantly inhibiting 
dispersal and interchange between populations. Reservoirs also have 
inundated, dewatered, or otherwise directly altered considerable 
sections of riverine habitat once inhabited by ARS (see factor A in 
``Summary of Factors Affecting the Species'' section). It is possible 
that, under certain conditions, fragmentation of ARS habitat by 
reservoirs could help reduce the probability that a release of Red 
River shiners would impact all ARS aggregations within a river basin. 
However, such protection is minimal considering the popularity of 
recreational fishing in the basin and the lack of specific regulations 
prohibiting bait-bucket releases of non-native fishes. We believe that 
the known adverse effects of reservoirs far outweigh any such potential 
small benefit.
    We have not evaluated the implications of releases from Keystone 
Dam on ARS reproduction. The specific spawning requirements of ARS are 
not yet known. However, we suspect that these releases are not 
compatible with ARS spawning requirements and that these flow 
modifications are largely responsible for the decline of ARS below the 
reservoir. We anticipate that once reproductive requirements are known, 
we will initiate discussions with the Tulsa District of the Army Corps 
of Engineers (Corps) to evaluate whether releases from the reservoir 
could be modified to benefit ARS.
    We agree that flood pulses necessary to support reproduction by ARS 
still occur below some impoundments. Reproducing populations of ARS 
persist downstream of Lake Meredith and Ute Reservoir; however, neither 
of these impoundments provide regular downstream releases. Runoff and 
tributary inflow during precipitation events within these river 
segments provide stage rises sufficient to induce spawning in these 
populations. In the eastern regions of the Arkansas River basin, 
reservoir releases often cause streamflows to fluctuate on a daily 
basis which is not conducive to spawning by ARS.
    Flow fluctuations caused by releases from reservoirs tend to 
attenuate or dampen with distance downstream of the dam. Thus, at some 
point, the effects of such releases on the aquatic community would be 
minor and reproduction could occur. However, in the absence of 
sufficient river length or without modification of existing releases, 
regulated flows rarely mimic those which occurred prior to impoundment. 
Under these conditions, reproduction will not occur, and populations 
will not likely persist.

[[Page 64782]]

    We agree that Lake Meredith has exerted the greatest influence over 
ARS aggregations in Texas. However, Lake Meredith is not the primary 
threat to ARS. The decline of the ARS is due to a variety of factors, 
many of which act synergistically. The cumulative and synergistic 
effects of all of the identified threats are responsible for the 
present and threatened destruction of ARS habitat and its diminished 
range.
    Comment: One respondent stated that minimal alterations of the flow 
regime did not directly cause the ARS to diminish in range and 
abundance, and thus are of little consequence.
    Service Response: We agree that very minor alterations in 
streamflow are not likely to be a significant threat to the ARS. 
However, the commenter did not state what constitutes minimal 
streamflow alterations. As discussed under factor A of the ``Summary of 
Factors Affecting the Species'' section, certain alterations of the 
natural flow regime are detrimental to the ARS.
    Comment: One commenter stated that a present threat must be 
demonstrated and asked to what extent reservoirs now impact or threaten 
the ARS.
    Service Response: The Act requires us to consider ``the present or 
threatened destruction'' of a species' habitat or range. The lack of 
streamflow downstream of a reservoir would qualify as a present, 
ongoing threat because if streamflows were restored, downstream 
populations could recolonize those areas that are presently unsuitable. 
For example, if releases were made from Lake Meredith, these flows, 
under certain conditions, could be beneficial and allow shiner 
aggregations which exist downstream to recolonize the entire reach of 
the river. Withholding these releases prevents this from occurring and 
is a present, ongoing threat to ARS habitat downstream of the 
reservoir, particularly in Texas. Similarly, where reservoir releases 
have modified ARS habitat such that these reaches can no longer be 
inhabited, the present, ongoing operation of these reservoirs prevents 
ARS from recolonizing these stream reaches.
    Comment: One individual commented that the decline of the ARS is 
due to channelization of the Cimarron River below Tulsa for navigation.
    Service Response: We suspect this commenter mistakenly referred to 
the Cimarron River instead of the Arkansas River. The Cimarron River 
has not been modified to support navigation. We agree that modification 
of the Arkansas River for navigation eliminated habitat for the ARS 
(see ``Summary of Factors Affecting the Species'' section).

Issue 7: Sufficiency of Information

    Comment: Eighty commenters questioned why we were listing the ARS, 
either rangewide or within the State of Texas. Few of these commenters 
provided substantive new information relevant to making risk 
assessments or assessing the status of the species. Forty-six 
commenters stated that the proposed rule contained inadequate, 
incomplete, inaccurate, or unclear information concerning the need to 
list the ARS. Three commenters stated that the listing is premature and 
that the need for listing has not been fully researched. Two others 
believed that the listing should be postponed until more information 
outlining why the species continues to survive in the Canadian River 
has been obtained. One individual felt that the listing should be 
delayed until more studies have been completed on habitat requirements. 
Eighteen individuals requested that we provide life history information 
on the species or conduct additional studies.
    Service Response: Section 4(b)(1)(A) of the Act requires us to make 
listing determinations on the basis of the best scientific and 
commercial data available. Although we consider historical habitat loss 
and rates of decline, we also consider many other factors, including 
current rates of decline, potential and imminent threats, number and 
status of populations, and amount and quality of remaining habitat. We 
use historical habitat loss and rates of decline to ascertain whether a 
species is undergoing a precipitous or gradual decline. Reduced 
abundance, loss of habitat, and extirpation of ARS aggregations from a 
variety of causes have been documented. This information shows that the 
range of the ARS in the Arkansas River basin has been reduced by over 
80 percent.
    In preparing both the proposed and final rules on this listing, we 
have used information received from a variety of sources including 
museum collections, knowledgeable biologists, groundwater hydrologists, 
and studies specifically directed at gathering information on the 
distribution and threats to the ARS. This rule summarizes all of the 
available information on the status of and threats to the ARS.
    We have incorporated in this rule all substantive new data, 
including an investigation of ARS habitat requirements, obtained since 
the species was first proposed for listing in 1994. This new 
information caused us to reassess our analysis of the nature and 
immediacy of threats affecting the species. Specific justification for 
listing the species is summarized in factors A through E in the 
``Summary of Factors Affecting the Species'' section.
    We have summarized all of the available life history information in 
this rule. We agree that many aspects of the biology of this species 
are unknown and need further study. This is true for most species of 
fishes, including common species that have been studied extensively. 
However, we are not required to address all of the biological and 
ecological requirements of the species in order to list it. In fact, 
delaying listing in order to complete a large, long-term biological or 
ecological research effort could seriously compromise the survival of 
the Arkansas River basin population of the ARS.
    Comment: Four commenters were concerned that we had not used all of 
the available information in preparing the proposed rule; specifically 
status information from the TPWD and the Bureau, collections of 
commercial bait dealers, and groundwater depletion records from 
underground water conservation districts in Texas.
    Service Response: We examined data from the TPWD (Lewis and 
Dalquist 1955 and Eric Altena, in litt. 1993 ) and the Bureau (Eugene 
Hinds, in litt. 1984) but did not specifically cite them in the 
proposed rule. We used harvest data from the commercial minnow dealers, 
to the extent possible. However, this information is not always 
reliable (see factor B in ``Summary of Factors Affecting the Species'' 
section). We used information available from the U.S. Geological Survey 
(USGS) to document groundwater depletion in the High Plains aquifer. 
During the comment period, we received additional information on 
groundwater depletion from several underground water conservation 
districts. We also obtained additional information from the USGS. We 
have incorporated all of the information from these sources into this 
final rule.
    Comment: One individual stated that there is currently more water 
in the Canadian River than there was before the reservoir was 
constructed.
    Service Response: This commenter did not specify which portion of 
the Canadian River, above or below Lake Meredith, now has more water. 
An analysis of streamflow records for the period of record up to 1963 
(USGS 1963) above Lake Meredith, shows that average annual discharge 
was 12.4 cubic meters per second (cubic m/s) (439 cfs) as measured at 
the gage north of Amarillo. This measurement included some regulation 
by Conchas Reservoir, but was prior to construction of Ute Reservoir. 
Analysis of flows in the

[[Page 64783]]

Canadian River, as measured at Logan, New Mexico in 1961 (USGS 1961) 
shows that flows averaged 11.1 cubic m/s (392 cfs) prior to 
construction of Conchas Reservoir and 7.6 cubic m/s (270 cfs) after 
construction. The average annual discharge at Amarillo for the period 
of record up to 1996 has been reduced to 8.1 cubic m/s (286 cfs).
    Streamflow records up to 1996, as measured at Canadian, Texas, 
approximately 121 river-km (75 river-mi) downstream of Lake Meredith, 
show that the average annual discharge was 15.5 cubic m/s (549 cfs) 
before Lake Meredith was built and 2.4 cubic m/s (83.7 cfs) after the 
reservoir was built. Flow in both reaches of the river may now be 
perennial, due to seepage from Ute and Sanford dams, but there is not 
more water in the river now compared to years prior to construction of 
Lake Meredith.
    Comment: One individual stated that the proposed rule was incorrect 
because water quality improves rather than declines as the river flows 
from Ute Reservoir to Lake Meredith.
    Service Response: We recognize that water quality for human 
consumptive purposes improves as the river flows into Lake Meredith 
because salinity concentrations are diluted by tributary inflows. The 
existing salinity levels in this section of the Canadian River do not 
appear to have an adverse effect on ARS populations. However, the 
proposed rule actually referred to water quality within the entire 
Canadian River in Texas, not just the segment upstream of Lake Meredith 
(see factor A in ``Summary of factors Affecting the Species'' section).
    Comment: Five commenters stated that additional surveys should be 
conducted because one survey was not sufficient. Similarly, three 
individuals stated that a complete census of the ARS should be 
conducted.
    Service Response: We did not rely on one survey to document the 
status of the ARS in the Arkansas River basin. We used data from the 
TPWD, Bureau, University of New Mexico, Oklahoma State University, 
University of Kansas, University of Oklahoma, University of Michigan, 
Westark Community College, and the Oklahoma Department of Environmental 
Quality in assessing the current status of the ARS.
    Complete census data for fishes are extremely difficult, if not 
impossible, to obtain with non-lethal survey techniques. Use of lethal 
techniques are not appropriate for surveys of rare species. 
Additionally, even lethal techniques, such as fish toxicants, are not 
100 percent accurate. We often must rely on data collected from 
numerous sites, often by several individuals, over several years. The 
protocols used in these surveys and in analyzing the data are generally 
accepted by the scientific community as appropriate for sampling fish 
populations (Nielsen and Johnson 1983, Schreck and Moyle 1990).
    Comment: Seventeen commenters stated that a one-time introduction 
of Red River shiners would not constitute a catastrophic event 
sufficient to cause extirpation of the entire Arkansas River basin 
population of the ARS. One other individual stated that the rangewide 
loss of an annual reproductive cycle is remote.
    Service Response: Lake Meredith is an effective artificial barrier 
to movement of stream fishes and potentially could provide a small 
degree of protection to ARS aggregations upstream of Lake Meredith from 
introductions of non-native fishes which might occur downstream of the 
reservoir. However, aggregations of ARS upstream of Lake Meredith are 
much less numerous than those in the remainder of the Canadian River 
and the risk of extinction for the entire Arkansas River basin 
population would increase if Red River shiners became established 
downstream of Lake Meredith. We have reassessed the vulnerability of 
the Arkansas River basin population of the ARS to a single, 
catastrophic event and no longer consider the entire population 
susceptible to extinction from a single, catastrophic event at this 
time. However, as the range and abundance of ARS continue to decline, 
the vulnerability of the ARS to catastrophic events and the likelihood 
that a catastrophic event would lead to extinction of the species 
increases.
    Comment: Thirteen individuals stated that existing Federal and 
State laws and regulatory mechanisms are adequate to protect the ARS.
    Service Response: Although certain laws and regulations provide 
some water quality and quantity benefits, they do not alleviate all of 
the identified threats to the ARS. Flow modification below Federal dams 
is ongoing and prevents ARS from recovering. Irrigation withdrawals 
have dewatered the Beaver River in the Oklahoma Panhandle, as well as 
considerable sections of the Arkansas River in Kansas. Existing 
regulations did not prevent these events from occurring. Existing 
regulations also were ineffective in preventing the introduction of 
non-native fishes into the Cimarron River. With the exception of the 
State of Kansas, none of the States protect ARS habitat. The State of 
Texas does not list the ARS as threatened or endangered and provides no 
special protection. We believe that existing regulatory mechanisms do 
not currently provide adequate protection for the ARS. Additional 
discussion of existing regulations can be found under factor D of the 
``Summary of Factors Affecting The Species'' section.
    Comment: Nineteen commenters believed we did not adequately 
demonstrate that the threats identified in the proposed rule were 
actually affecting ARS aggregations in the Arkansas River basin. One 
commenter stated that ongoing activities within the river basin were 
not likely to change in the foreseeable future.
    Service Response: For the reasons explained in this rule, 
sufficient, ongoing threats exist for us to justify listing the 
Arkansas River basin population of the ARS. Although specific studies 
documenting the influence of a particular threat on the ARS may not 
have been conducted, sufficient information exists to demonstrate that 
ARS are vulnerable to the identified threats. We have presented ample 
evidence for a reasonable person to conclude that a definite cause and 
effect relationship exists. Under section 4 (b)(1) of the Act, we must 
make listing decisions based on the best scientific and commercial data 
available. We have met these requirements in this listing decision.
    Comment: Nine respondents questioned the influence of the 
reproductive characteristics of the ARS during the threat assessment. 
One individual stated that southernmost populations of the ARS may 
spawn repeatedly, giving them an advantage over those populations in 
the northern portion of the range. Two individuals wanted to know how 
much water was necessary to ensure spawning by ARS. Another individual 
stated that the ARS should persist because the species is very fecund. 
One individual requested we explain how stream channelization affects 
spawning of the ARS. Two individuals stated that data do not 
demonstrate that flood pulses are needed to induce spawning. Two 
individuals stated that reproduction is not restricted to only Age-I 
fish.
    Service Response: There is no information in the scientific 
literature which even speculates that reproductive potential varies 
among those ARS aggregations in the Arkansas River and those from the 
Canadian River.
    We do not know what specific flow regimes are necessary to trigger 
spawning in the ARS. As previously discussed, the Act does not require 
us to address all of the biological and ecological requirements of the 
species in order to list it.

[[Page 64784]]

    Cross et al. (1985) stated that female ARS develop 1,500 to 3,500 
eggs of uniform size. Carlander (1969) reported the number of ova for 
several species of minnows in the genus Cyprinella and Notropis. The 
number of eggs varied from 98-2,600 per individual. Although several of 
these species have reproductive strategies which differ from ARS, the 
values presented do not indicate that the ARS is significantly more 
fecund than other species of minnows. Regardless of their fecundity, 
ARS were unable to maintain populations in several Arkansas River basin 
rivers and streams. Fecundity of ARS is not sufficient to maintain 
robust populations where adequate water to support populations no 
longer exists.
    Stream channelization affects fish populations indirectly by 
altering the structural, physical, and chemical characteristics of the 
stream (Simpson et al. 1982). Direct impacts include injury or 
mortality during the actual construction of the channel. The specific 
spawning requirements of ARS are unknown, and we cannot specifically 
describe the influence of channelization on reproduction of ARS. Based 
on known impacts of channelization, we can predict, with a fairly high 
degree of accuracy, how ARS reproduction could be affected. The 
preferred habitat, including presumed microhabitat for spawning, of the 
ARS is found in wide, relatively shallow, sandy bottomed rivers and 
larger streams. Channelization would eliminate this preferred habitat. 
Shallow water habitat would then exist in minute quantities and would 
be restricted to nearshore areas. Production of microscopic plant 
material by photosynthesis would be limited to the shallow near shore 
zones. Consequently, productivity of the stream would decline. 
Channelization also would reduce or eliminate invertebrates and other 
food resources needed to ensure successful reproduction and survival of 
the larvae.
    Channelization also alters the morphology of the channel by 
creating fairly uniform steep sided channels, eliminating habitat 
diversity. Alteration of the channel morphology also would alter water 
velocities, which would in turn affect hatching of the fertilized eggs, 
assuming any would be produced. If ARS prefer to spawn in shallow 
waters, channelization would reduce the amount of habitat available for 
spawning. All of these alterations that occur as a result of 
channelization would likely seriously reduce the number of young fish 
that would be produced, leading to overall declines in the number of 
adult fish in the affected stream reach.
    All of the information published prior to 1997 concluded that flood 
pulses were the primary environmental cue that triggered the onset of 
spawning by ARS. None of these studies, however, documented how much of 
a rise in river stage was necessary to induce spawning. We still lack 
specific data to determine how much of a flood pulse is needed to 
induce spawning. Recent studies (Polivka and Matthews 1997, Bonner et 
al. 1997), have failed to show that reproduction in ARS is entirely 
dependent upon these flood pulses. Flows, however, are important to 
maintaining habitat conditions within the stream channel and for 
hatching of the eggs once a spawn occurs. We believe streamflow is a 
crucial component of suitable ARS habitat even though large flood 
pulses may not be required to induce spawning.
    The proposed rule did not state that reproduction was entirely 
restricted to Age-I individuals. Age-I individuals, however, do provide 
most of the annual reproductive effort. The loss of a single year class 
would significantly reduce the chances of survival of the ARS because 
the Age-I year class is so important to the success of each year's 
reproductive effort (see factor E in ``Summary of Factors Affecting the 
Species'' section).

Issue 8: Conservation Agreement

    Comment: Eight respondents urged us to consummate a conservation 
agreement or seek local attempts to conserve the species without the 
need to list. Seven commenters encouraged us to follow a voluntary 
approach to conservation as fostered in the draft Memorandum of 
Understanding submitted to us by the TPWD and the ODWC.
    Service Response: Candidate conservation agreements are formal 
agreements between us and one or more parties (i.e., land owners, land 
managers, or State fish and wildlife agencies) to address the 
conservation needs of proposed or candidate species. The participants 
take on the responsibility of developing the agreement, and voluntarily 
commit to implementing specific actions that will remove or reduce 
threats. This can contribute to stabilizing or restoring the species, 
thereby precluding or removing the need to list.
    In order to remove the need for listing the ARS, a significant 
number of candidate conservation agreements would have to be developed 
and implemented throughout the four-State range of the Arkansas River 
Basin population. We met with representatives of the Arkansas Game and 
Fish Commission, Kansas Department of Wildlife and Parks (KDWP), New 
Mexico Department of Game and Fish (NMDGF), ODWC, and TPWD in March of 
1997 to discuss the merits and feasibility of developing a conservation 
agreement. Unfortunately, not all States could commit to such an 
agreement due to fiscal and personnel constraints. However, listing of 
the species does not preclude the future development of habitat 
conservation plans or other conservation agreements with private 
individuals or agencies.
    Because the ARS occurs primarily on private property, we fully 
realize that recovery of this species will depend upon local support 
and the voluntary cooperation of private landowners, and we welcome 
them as cooperators in the recovery effort. We will work to provide 
technical assistance to those property owners and land managers who 
wish to implement conservation measures for this species.

Issue 9: Abundance and Range

    Comment: Numerous (249) commenters stated that the ARS is abundant 
in Texas and populations are stable and that, therefore, listing is not 
warranted. In addition, the TPWD does not believe that the ARS should 
be listed in Texas and is opposed to the listing.
    Service Response: A considerable amount of variation can occur in 
samples of fish community structure between sites, years, and sampling 
effort, that makes trends difficult to determine. However, data 
collected by various researchers (e.g., TPWD, Oklahoma State 
University, Bureau, and Texas Tech University) between 1953 and 1998 
from identical, readily identified locations (e.g., major highway 
crossings) document trends in ARS abundance in Texas. In Hemphill 
County, the numbers of ARS collected between 1954 and 1990 declined by 
67 percent. In Hutchinson County, the number of ARS collected declined 
by 99 percent over this same time period. Upstream of Lake Meredith, in 
Potter and Oldham counties, collection records document similar 
declines at one of two sites. At the U.S. Highway 87/287 crossing north 
of Amarillo, Texas, the numbers of ARS collected have declined by 46 
percent. However, in Oldham County, at the U.S. Highway 385 crossing 
near Tascosa, Texas, the numbers of ARS collected have increased by 
about 38 percent.
    An analysis of the amount of occupied habitat demonstrates that the 
range of the ARS also has been reduced

[[Page 64785]]

in Texas. Historically, the Arkansas River shiner occupied 370 km 
(230.0 mi) of the Canadian River in Texas. At present, the ARS occupies 
265 river-km (164.5 river-mi). This represents a loss of 28.5 percent 
of the historically occupied habitat in Texas.
    As discussed previously, our policy on delineating distinct 
vertebrate population segments requires that those segments be both 
discrete and significant. We do not believe that the ARS in Texas is 
discrete from the remainder of the Arkansas River basin population. 
Thus, although the ARS in Texas may have declined less precipitously 
than in other areas of the species' range (see factor A in ``Summary of 
Factors Affecting the Species'' section), we cannot consider the ARS in 
Texas separately from the entire Arkansas River basin population.
    Comment: Three commenters stated that the historical range of the 
ARS did not include Morton, Stevens, or Grant counties, Kansas. Two 
individuals stated that, based on the journals from travelers using the 
Sante Fe Trail, water sufficient to support shiners was not available 
in the Cimarron River of western Kansas.
    Service Response: Morton, Grant, and Stevens counties, Kansas are 
within the historical range of the species. The ARS was first collected 
from the Cimarron River, near Kenton, Oklahoma. This section of the 
Cimarron River is upstream of the section that flows through Morton, 
Stevens, and Grant counties. Hubbs and Ortenburger (1929) state that 
``hundreds of paratypes'' were collected from several sites in Oklahoma 
and at Kinsley, Kansas. The species likely occurred throughout the 
Cimarron River in 1926. In 1955, the species was collected from the 
Cimarron River south of Ulysses, Grant County, Kansas (William H. 
Busby, in litt. 1990). There are also two records from the Cimarron 
National Grassland (Morton County), one in 1962 and one in 1987 
(William H. Busby, in litt. 1990). Records from the Cimarron River in 
Kansas also exist for Clark, Meade, and Seward counties.
    We suspect that the Santa Fe Trail crossed the Cimarron River where 
crossing was most convenient and easiest. People using the trail likely 
did not choose to cross at sites supporting ``abundant'' water.
    Comment: Two commenters stated that we have inadequate evidence to 
show that any populations of the ARS occur in Kansas.
    Service Response: We believe that ARS may indeed have been 
extirpated from Kansas (see ``Background'' section). However, habitat 
within the Cimarron River in Meade County, Kansas appears suitable. 
This segment of the Cimarron River is not separated from that portion 
of the Cimarron River in Oklahoma where other individuals have been 
collected since 1989. The extreme rarity of this species in the 
Cimarron River makes it highly unlikely that infrequent collection 
efforts from one or two sites would locate this species. Consequently, 
we believe the ARS could still exist in very reduced numbers in the 
Cimarron River near the Kansas-Oklahoma State line.
    Comment: Several commenters disagreed with our assessment of the 
historical and current range of the ARS. Three individuals stated that 
the ARS had not disappeared from 80 percent of its historical range. 
Another individual stated that the occurrence of the ARS in Arkansas 
was an anomaly due either to a flood or a misidentification. Similarly, 
one individual thought we had exaggerated the historical range in 
western Kansas and eastern Oklahoma. Another three individuals stated 
that we reported the ARS to be historically abundant and widespread 
without providing sufficient data to support this position. Two other 
individuals stated that we provided no data to document the change in 
abundance alluded to in the proposed rule. Six commenters stated that 
the Arkansas River has been permanently modified by the navigation 
system and should not be included as historical range for the species. 
Three commenters stated that the Beaver/North Canadian River should be 
excluded from the current range of the shiner. One commenter stated 
that many small tributaries of the Arkansas River and its larger 
tributaries incorrectly appear to be included as historical range of 
the ARS.
    Service Response: The distribution and abundance of ARS were 
determined from collections of fish throughout the Arkansas River basin 
since the late 1880s. The collection record establishes that this fish 
occurred abundantly throughout most of the Arkansas River basin with 
the exception of Colorado. A compilation of the museum records for the 
ARS is contained in Larson et al. (1991). These records, however, 
generally only contain a percentage of the number of individuals 
collected because ichthyologists do not always retain and catalog every 
individual captured. Where possible, individuals captured in excess of 
those needed for vouchers are released unharmed at the site of capture. 
Some of the larger vouchers include 533 specimens from the Canadian 
River below Conchas Reservoir in New Mexico; 827 specimens from the 
Canadian River near Norman, Oklahoma; 1,182 specimens from the Salt 
Fork of the Arkansas River in Oklahoma; 1,068 from the Cimarron River 
near Cleo Springs, Oklahoma; and 2,122 specimens from the North 
Canadian River near Woodward Oklahoma. At least 21 other voucher 
collections containing in excess of 200 individuals from over 15 
different sites also exist in several museums.
    It is important to note that the ARS no longer occurs in the 
Canadian River below Conchas Reservoir, the entire Salt Fork of the 
Arkansas River, and the entire North Canadian River and is almost 
extirpated from the Cimarron River. We believe that these data 
accurately document that the species was historically widespread and 
abundant throughout most of the Arkansas River basin and adequately 
document the decline in range and abundance of the ARS. Based on the 
amount of currently occupied habitat compared with the amount of 
historically occupied habitat, either in number of stream miles 
inhabited or percent of the drainage basin occupied, we believe the 80 
percent figure is accurate.
    The records from the eastern and western fringes of the species' 
range are both documented by voucher specimens deposited in natural 
history museums. We have no information indicating that the 
identification or capture locations of any of these fish are in doubt.
    Arkansas was likely the eastern periphery of the range for the ARS. 
The individuals collected from the mouth of Piney Creek were deposited 
as voucher specimens in the University of Michigan, Museum of Zoology 
(catalog number 128394) and are available for inspection. In addition, 
Robison and Buchanan (1988) consider the ARS a valid member of the fish 
community of Arkansas.
    The range of the ARS in western Kansas extended at least as far 
west as Holcomb, Finney County, Kansas based on collection of 41 
individuals in 1952. At that time, Cross et al. (1985) believed the 
species inhabited the full length of the Arkansas River in Kansas. 
There are no records from Colorado, thus the Arkansas River west of 
Garden City to the Kansas State line was likely the western periphery 
of the range of ARS.
    Although the Arkansas River in extreme eastern Oklahoma and western 
Arkansas was not likely optimal habitat for the ARS, this reach is 
established historic range of the ARS. Records for the ARS exist for 
this section of the Arkansas River prior to construction of the 
McClellan-Kerr Arkansas River Navigation System and impoundment by 
Keystone and Kaw reservoirs (Larson et al. 1991). We agree that the ARS

[[Page 64786]]

likely no longer occurs in the Beaver/North Canadian River.
    Some smaller tributaries supported populations of the ARS, at least 
temporarily, based on verified collection records (Larson et al. 1991). 
These tributaries, while not likely essential habitat for the ARS, are 
a vital component of the entire watershed and are indirectly important 
to the survival of the ARS. These tributaries contribute streamflow, 
sediments and other important habitat constituents; influence water 
quality; and supply nutrients to the larger tributaries and river 
mainstems. These inputs are necessary to sustain the ecological 
integrity of the entire Arkansas River basin.
    Comment: One respondent stated that journals of the early explorers 
reported the western region of the Arkansas River basin to be devoid of 
water long before the arrival of irrigation on the plains, thus 
irrigation could not have affected habitat for the ARS.
    Service Response: Historically, the western region of the Arkansas 
river basin did not have an abundant supply of surface water. Average 
annual precipitation in this region varies from 40-61 cm (16-24 in) and 
pan evaporation during the growing season varies from 25-38 cm (10-15 
in) (Johnson and Duchon 1995). Various periods of drought, generally 
lasting from 3-5 years each, also have occurred (Johnson and Duchon 
1995). Despite these harsh conditions, ARS occurred at a number of 
sites in the western basin as early as 1926, which is prior to 
extensive irrigation development (see ``Background'' section). The 
general lack of water reported by these explorers does not disagree 
with information in this rule and does not indicate that ARS or their 
habitat were non-existent in this region prior to extensive irrigation 
development.
    Comment: Thirteen respondents stated that the ARS is abundant in 
the Canadian River, Revuelto Creek, Palo Duro Creek, and throughout its 
range.
    Service Response: Data available to us, as presented in this rule, 
document that the ARS has decreased in abundance and has been 
completely eliminated from over 80 percent of its historical range. The 
number of fish collected, an indication of the abundance of the 
species, has declined at numerous sites within the Canadian River 
(Larson et al. 1991).
    In the Canadian River, habitat upstream of Ute Reservoir and 
downstream of Lake Meredith and Eufaula Reservoir has been eliminated 
or degraded to the point that this habitat no longer supports the ARS. 
Habitat throughout the entire length of the Arkansas River in Kansas, 
Oklahoma, and western Arkansas has been destroyed or degraded to the 
point that the ARS no longer occurs. Likewise habitat in the North 
Canadian River, Salt Fork of the Arkansas River, and many of the 
smaller tributaries, including Palo Duro Creek, no longer supports ARS. 
The introduction of the Red River shiner, in combination with habitat 
loss and degradation has severely depleted the ARS in the Cimarron 
River.
    Comment: Two commenters stated that records on the periphery of the 
ARS historical range could be due to bait bucket introductions.
    Service Response: These records could be due to bait bucket 
introduction. However, we believe this is very unlikely. Considering 
the size of the human population in western Oklahoma and Kansas, the 
wide-spread distribution of the species, and the general lack of access 
to the technology necessary for transporting minnows over long 
distances, we do not believe populations in the Arkansas River were 
established by bait bucket introductions.
    Comment: Two individuals stated that the ARS is thriving in ponds 
and lakes (e.g., Optima Reservoir) in Oklahoma.
    Service Response: All of the existing life history information 
indicates that the ARS is an obligate riverine species. Flowing water 
is necessary to keep the eggs suspended in the water column until 
hatching and the larvae become free-swimming. The few collection 
records from reservoirs were obtained following a flood event, 
immediately post-impoundment, or under similar circumstances. A 
persistent, self-perpetuating reservoir population has never been 
documented.

Issue 10: Socioeconomic Impacts

    Comment: Numerous (325) commenters stated that listing and the 
regulations which follow will have a devastating effect on the economy 
of the region. Conversely, two commenters stated that society will 
benefit when habitat for threatened and endangered species is 
protected. One other commenter stated that Federal listing of the 
interior least tern (Sterna antillarum) has not affected landowners 
economically. Fifty commenters requested that we prepare an in-depth 
regional economic impact study describing how listing will affect 
present and future economic growth and metropolitan development. Forty-
eight others believed that listing places the needs of animals over the 
needs of the people.
    Service Response: Under section 4(b)(1)(A) of the Act, we must base 
listing decisions solely on the basis of biological information using 
the best scientific and commercial data available without considering 
possible economic or other impacts. Because we are specifically 
precluded from considering economic effects, either positive or 
negative, in a final decision on a proposed listing, we did not 
evaluate or consider the economic effects of listing this species.
    While economic effects, private property rights, and related 
concerns cannot be considered in listing decisions, we intend to work 
closely with affected parties throughout the Arkansas River basin to 
accommodate economic and recreational activities to the extent possible 
while ensuring the continued survival and recovery of the ARS. By 
Federal Register notice on July 1, 1994 (59 FR 34272), the Secretaries 
of the Interior and Commerce set forth an interagency policy to 
minimize social and economic impacts consistent with timely recovery of 
listed species. We will strive to balance any recovery actions for the 
ARS with social and economic concerns.
    Comment: Three commenters stated that the High Plains aquifer 
exists to be exploited for man's benefit. Another respondent stated 
that once water supplies in the Texas Panhandle are gone, they cannot 
be easily replaced. Similarly, one respondent stated that one of the 
Texas underground water conservation districts is involved in 
developing and implementing an aquifer management plan.
    Service Response: Listing will not preclude a landowner's ability 
to utilize water which exists on or under his property, unless such use 
would result in take of ARS pursuant to section 9 of the Act. A 
description of activities we believe would and would not likely violate 
section 9 is presented in the ``Available Conservation Measures'' 
section.
    If a landowner proposes to withdraw groundwater to an extent that 
taking of ARS would likely occur, the landowner could seek a section 
10(a)(1)(B) incidental take permit to legally take ARS incidental to 
otherwise lawful activities. We recognize the importance of the aquifer 
to the citizens of the region but also realize the importance of the 
aquifer to streamflow within the basin. We believe that a region-wide 
focus on conservation will ensure that the aquifer can meet the needs 
of people and the ARS simultaneously. Even at reduced pumping rates, 
the supply of water within the aquifer is not unlimited. Many citizens 
realize this

[[Page 64787]]

and are diligently striving to conserve this resource. We support such 
efforts.
    Comment: Eleven commenters wanted to know how listing and section 7 
of the Act would affect Federal agencies. One commenter was concerned 
that the section 7 process would increase the costs of and delay 
affected projects. Seventeen commenters stated that listing the shiner 
would impact several existing or proposed water development projects in 
the Arkansas River Basin either by requiring downstream releases or 
eliminating the ability to control floodwaters. Similarly, seven 
commenters stated that any change in operation of the upstream Federal 
reservoirs, which are operated to maximize benefits to the McClellan-
Kerr Arkansas River Navigation System, would have a negative impact on 
navigation either by altering the uses, benefits, and reliability of 
the navigation system or impacting operation and maintenance of the 
system. Three commenters stated that listing will extend the 
regulations of the Act to private land and impact all Federal funds 
spent in the region.
    Service Response: Any action funded, carried out, or authorized by 
a Federal agency that may affect a listed species would be subject to 
the section 7 consultation process. The implications of the 
consultation process on the various agencies would vary according to 
the nature of the project. If a project was determined to adversely 
affect a listed species, the action agency would initiate formal 
consultation with us. We would then prepare a biological opinion, 
pursuant to 50 CFR 402.14 (h) and (i). If incidental take of a listed 
species was involved, we would provide mandatory terms and conditions 
and recommended reasonable and prudent measures in an incidental take 
statement to minimize take and its effects. Under sections 7(b)(4) and 
7(o)(2), taking that is incidental to and not intended as part of the 
agency action is not considered taking within the bounds of the Act, 
provided that such taking is in compliance with an incidental take 
statement in a biological opinion.
    If we determined that a project would jeopardize the continued 
existence of a listed species, we would seek to develop reasonable and 
prudent alternatives to avoid jeopardy. Such reasonable and prudent 
alternatives might require project modifications. Implementation of 
reasonable and prudent alternatives and terms and conditions are not 
discretionary. Discretionary measures to minimize or avoid adverse 
effects of a proposed action on listed species or critical habitat 
would be provided as conservation recommendations in the biological 
opinion.
    We are required to deliver a biological opinion, which concludes 
consultation, to the action agency within 135 days of receipt of a 
request for formal consultation (50 CFR 402.14(e)). If the action 
agency incorporates consultation into their planning process and 
consultation is initiated early, project delays are unlikely. Meetings 
with us, preparation of documents, and implementation of any reasonable 
and prudent alternatives or measures identified in the biological 
opinion may result in some additional project costs.
    Large water development projects virtually always involve a Federal 
agency through funding, permitting, or other action. Therefore, future 
construction and ongoing operation of reservoirs will be evaluated for 
impacts to the ARS, and, where impacts occur, these actions would 
undergo consultation under section 7 of the Act. If feasible, 
modifications to these projects will be sought to ensure that the 
ecosystems upon which this species depends are conserved. However, if 
no adverse impacts would occur, or if the affected habitat is 
unoccupied and unsuitable, such as in the McClellan-Kerr Navigation 
System, further consultation under section 7 would be unlikely.
    Private actions, such as construction of a private residence, would 
be exempt from the regulatory provisions of section 7, unless Federal 
funds were expended or Federal authorization was required. However, 
private actions that would result in the taking of an ARS are not 
exempt. In the latter case, a private party could seek a section 
10(a)(1)(B) incidental take permit to legally take ARS incidental to an 
otherwise lawful activity.
    Comment: Seven commenters stated that listing would affect 
recreational activities (fishing and trail rides) on the Canadian 
River, at the Lake Meredith National Recreation Area, and at Conchas 
and Ute reservoirs.
    Service Response: We believe that normal, lawfully authorized 
recreational activities such as hiking, trail rides, camping, boating, 
hunting, and fishing, do not result in take of the ARS and would not be 
prohibited under section 9 of the Act (see ``Available Conservation 
Measures'' section). These activities do not generally impact or 
destroy the physical habitat for the ARS. However, recreational vehicle 
use within the river bed to the extent that habitat for the ARS is 
adversely impacted could be a violation of section 9.
    The Lake Meredith National Recreation Area is managed by the 
National Park Service. Consequently, the National Park Service has an 
obligation under section 7 of the Act to evaluate its activities for 
possible effects on listed species. Similarly, if a Federal agency 
funds, authorizes, or carries out a recreation program at Ute or 
Conchas Reservoir, that agency has an obligation to evaluate its 
activities for possible effects on listed species. We do not anticipate 
that recreational activities at the Lake Meredith National Recreation 
Area, Ute Reservoir, or Conchas Reservoir will be altered as a result 
of these evaluations.
    Comment: Eighty-four commenters contended that the listing of the 
ARS will result in control of, or ``taking'' of private property (e.g., 
grazing and water rights), in clear violation of their rights within 
the Fifth, Tenth, and Fourteenth Amendments to the U.S. Constitution. 
Similarly, 25 others concluded that property would be taken without 
compensation or that listing would impact ability to generate income. 
Conversely, one individual stated that Federal listing of a fish, the 
leopard darter (Percina pantherina), in southeastern Oklahoma did not 
result in the loss of private land rights.
    Service Response: Listing under the Act does not imply that private 
land would be confiscated or taken without just compensation, and the 
Act itself does not authorize ``takings'' of private lands. Many of the 
provisions of the Act apply only to Federal agencies and Federal lands. 
However, section 9 of the Act prohibits taking of a listed species, 
including the ARS, regardless of land ownership. Recovery planning for 
the species may include recommendations for land acquisition or 
easements involving private landowners. These efforts would only be 
undertaken with the cooperation of the landowner. In the vast majority 
of cases, listing of a species does not preclude private landowners 
from using their land as they always have.
    We do not anticipate significant land use restrictions, impacts to 
local economies, or to the well-being of citizens. The listing of the 
Arkansas River Basin population of the ARS does not, in itself, 
restrict groundwater pumping or water diversions, does not in any way 
limit or usurp water rights, and does not violate State or Federal 
water law. Through section 7 consultations, extraction or use of water 
that is funded, carried out, or authorized by Federal agencies that 
might adversely affect the ARS could be modified through reasonable and 
prudent measures or alternatives in a biological

[[Page 64788]]

opinion, as discussed previously. However, compliance with section 7 or 
other provisions of the Act has never resulted in the wrongful taking 
of property.
    Comment: Numerous (105) respondents expressed concern that listing 
would either reduce land and property values or diminish or eliminate a 
property owner's equity. Two other commenters specifically stated that 
listing will depress property values as shown in the Texas A&M 
University Real Estate Center's study on the Edwards Aquifer.
    Service Response: The Act and regulations at 50 CFR 424.11(b) 
require the Secretary of the Interior to make listing decisions based 
on the best available scientific and commercial information regarding a 
species' status, without reference to possible economic or other 
impacts of such determinations. However, we do not anticipate that 
listing would result in reduced land and property values or other 
significant impacts to the economy. The results of one study, conducted 
by the Massachusetts Institute of Technology (Meyer 1995), show that 
endangered species listings have not depressed State economic 
development activity as measured by growth in construction employment 
and gross State product. Continuing depletion of the High Plains 
Aquifer and related reduction in the region's water supply is likely to 
be an equally important factor determining future land and property 
values in the Region.
    Comment: Twelve individuals expressed concern regarding the 
implications of section 9 of the Act and either urged us to follow the 
interpretation of the ``Sweet Home'' decision or expressed concern that 
actions causing habitat alterations would constitute take under section 
9.
    Service Response: The Sweet Home decision (Sweet Home Chapter of 
Communities for a Great Oregon v. Babbitt, 17 F.3d 1463) found the harm 
regulation at 50 CFR 17.3 invalid because our definition of harm 
exceeded our statutory authority and was not a reasonable 
interpretation of the statute. The definition of harm at 50 CFR 17.3 
includes ``. . . significant habitat modification or degradation. . . 
.'' In this decision, the court found that harm does not include 
habitat modification. However, on June 29, 1995, the Supreme Court 
upheld our definition of harm to include habitat modification. The 
prohibition against take of listed species applies to Federal and non-
Federal lands without respect to whether critical habitat has been 
designated. In accordance with our policy published in the Federal 
Register on July 1, 1994 (59 FR 34272), we have identified those 
activities that would or would not constitute a violation of section 9 
of the Act (see ``Available Conservation Measures'' section).
    Comment: Twenty-two commenters believed we intend to restrict 
grazing in riparian zones to reduce damage by livestock.
    Service Response: We consider livestock grazing to be one of many 
contributing factors affecting water quality within the Arkansas River 
basin. However, we do not envision recommending widespread fencing of 
riparian zones as a means of reducing water quality degradation within 
the basin. Excluding livestock from riparian zones is just one means of 
preserving water quality. Best grazing management practices, such as 
low to moderate grazing and seasonal or rotational grazing, are 
compatible with many natural resource objectives and likely do not 
adversely modify the riparian zone.
    Comment: Two respondents stated that we would hamper activities of 
the commercial minnow industry in order to protect the ARS.
    Service Response: We anticipate that listing of the ARS would only 
have minimal effects on the activities of the commercial minnow 
industry. At present, take of ARS in Kansas, New Mexico, and Oklahoma 
without a valid permit is already prohibited by State law. Federal 
listing will only increase the penalties for unauthorized take. 
Considering the ARS is not sought by the commercial minnow industry, 
any take that occurs is incidental to capture of other bait species and 
will likely be minor. Collectors could minimize take of ARS by using 
nets having a larger mesh size. We will work with the States and the 
commercial minnow industry to reduce the threat to ARS from 
recreational use of bait fish. We expect that any required changes in 
bait fish collection practices would be minor.
    Comment: Eight commenters were concerned that, in order to increase 
streamflows, we would mandate which soil and water conservation 
practices could be applied on local farms and ranches.
    Service Response: The U.S. Department of Agriculture (USDA) has 
already developed a list of approved soil and water conservation 
practices. Under section 7 of the Act, we would consult with the USDA 
to determine which practices are likely to result in impacts to the 
ARS. Considering the number of practices that are available, we do not 
believe that listing of the ARS would significantly affect the soil and 
water conservation options for local farms and ranches. We have already 
determined that certain conservation practices, such as terracing, 
would not likely result in take of ARS (see ``Available Conservation 
Measures'' section).
    Comment: Ten commenters believed that listing would impact the 
Bureau's Lake Meredith Salinity Control Project. Seven commenters 
stated that this project is not a threat and would not impact the ARS.
    Service Response: We expect the effects of the Lake Meredith 
Salinity Control Project on the ARS will be minimal. Consequently, 
conservation of the ARS will have little influence over the anticipated 
construction and operation of this project (see factor a in ``Summary 
of Factors Affecting the Species'' section).
    Comment: Five commenters were concerned about the effect of the 
listing on operation of Lake Meredith.
    Service Response: In 1968, the Bureau turned operation and 
maintenance of the reservoir over to the Canadian River Municipal Water 
Authority (CRMWA). However, until the cost of the reservoir has been 
repayed to the Federal government, operation of the reservoir is still 
considered a Federal action. Arkansas River shiners are not known to 
inhabit Lake Meredith. Arkansas River shiners prefer riverine 
environments; if they occur in the reservoir, they would only occur in 
the upper reaches of the reservoir on a temporary basis. Existing 
literature on spawning requirements of the ARS do not indicate that the 
species could complete its entire life cycle within the confines of the 
reservoir. Consequently, we do not anticipate any impacts to reservoir 
operation.
    Scheduled, downstream releases from Lake Meredith have not occurred 
since the reservoir was constructed. Water releases could occur at 
three points, the spillway, control gates, and river outlet works. 
Water levels in the reservoir have never reached the elevation of the 
spillway. Releases could still occur from one of the other two points 
as long as the water surface elevation was above 868.6 m (2850 ft). 
Although lack of releases from Lake Meredith has had a significant 
effect on ARS habitat below the reservoir, we do not believe releases 
from Lake Meredith would provide any significant, long-term benefit to 
the ARS. The Canadian River floodplain below Lake Meredith has been 
invaded by salt cedar, mesquite, and other perennial woody vegetation 
such that a single, one-time release would not likely result in 
significant improvements in habitat for the ARS. This vegetation would 
likely consume a considerable portion of the released water and prevent 
restoration to a wider,

[[Page 64789]]

unvegetated floodplain unless the density of the vegetation was reduced 
or vegetation was removed prior to release. Likewise, we do not believe 
sufficient precipitation occurs in this area to support sufficient 
releases, either in duration or frequency, to improve downstream 
aquatic habitat permanently.
    During the recovery process, we intend to investigate the potential 
for improving habitat below Lake Meredith with the Bureau, CRMWA, and 
TPWD. If releases from Lake Meredith ever occur, we will work with 
responsible entities to ensure that ARS benefit to the extent possible.
    Comment: Thirty-seven commenters stated that listing would affect 
municipal water systems. Two others were concerned about the 
consequences of listing on municipal storm water drainage systems and 
waste water treatment facilities.
    Service Response: Unless a city's water supply system, storm water 
drainage system, or waste water treatment facility is funded, carried 
out, or authorized by a Federal agency, these projects would not be 
subject to the requirements of section 7 (see other comment response 
under this issue for further discussion of the section 7 consultation 
process). If these projects result in take of ARS, the provisions of 
section 9 would apply. As stated in the ``Available Conservation 
Measures'' section, existing discharges into waters supporting the 
species that are carried out in accordance with existing regulations 
and permit requirements generally would not constitute a taking of ARS.
    The States, with assistance from and oversight by the U.S. 
Environmental Protection Agency (EPA), set water quality standards that 
are presumably protective of aquatic life, including the ARS. If new 
information indicates that current water quality criteria are 
insufficient to prevent the likelihood of jeopardy to the ARS, new 
standards may be needed. In this instance, the EPA would consult with 
us under section 7 of the Act to determine appropriate standards. 
However, we believe that no significant increase in regulatory burden 
regarding waste water discharge permits would result from listing of 
the ARS.
    Comment: Nineteen respondents wanted to know what impact this 
listing would have on the use of agricultural chemicals. Another was 
concerned that listing would hinder ability to obtain section 18 
exemptions under the Federal Insecticide, Fungicide and Rodenticide Act 
(FIFRA).
    Service Response: The EPA, during its pesticide registration 
process, consults with us to determine if a pesticide will likely 
jeopardize the continued existence of any federally listed species. If 
we determine that the application of the chemical is likely to 
jeopardize a species, we provide reasonable and prudent chemical 
application alternatives, if any, that would avoid the likelihood of 
jeopardy. These alternatives generally consist of some type of 
application restriction to protect the species (e.g., prohibit 
pesticide application within a prescribed distance from an inhabited 
stream reach). Thus, it is possible that we could require restrictions 
on the use of a pesticide to avoid jeopardizing the ARS.
    Although there may be some added restrictions to pesticide use as a 
result of this listing, we believe that the resulting impacts to 
pesticide users will be minimal. We have already assessed the stream 
reaches inhabited by the ARS that are populated with previously listed 
species (interior least tern and bald eagle (Haliaeetus 
leucocephalus)). Additionally, some pesticides reviewed for 
registration are not believed to be harmful to fishes and no 
restrictions are applied. If we find a pesticide to be harmful to a 
species, pesticide users can sometimes use other unrestricted, 
alternative chemicals to control the same pest.
    Comment: Fifteen commenters stated that listing the ARS would have 
the same implications for the High Plains aquifer as listing did for 
the Edwards Aquifer.
    Service Response: We do not expect the implications to be the same 
because the two situations differ. The High Plains aquifer is not a 
porous limestone, karst aquifer, as is the Edwards Aquifer. Recharge in 
the southern portions of the High Plains Aquifer is no more than 2.5 cm 
(1 in) annually (Opie 1993). Although discharge from the High Plains 
Aquifer is important to streamflow in the western portions of the 
Arkansas River basin (Luckey and Becker 1998), the ARS is not an 
obligate spring inhabitant. Several of the listed species occurring in 
the Edwards Aquifer Region are entirely dependent on spring discharge 
for habitat maintenance or actually reside underground within the 
aquifer.
    Comment: Numerous (280) commenters stated that listing or 
designation of critical habitat would result in the Federal government 
regulating or restricting the use of surface/stream water and 
groundwater within the Arkansas River basin. Similarly, one respondent 
stated that although pumping from the aquifer may one day cease to be 
economically feasible, the free enterprise system must determine when 
this occurs, not a fish or the Federal government.
    Service Response: The listing of the ARS does not, in itself, 
restrict groundwater pumping or stream water diversions, does not in 
any way limit or usurp water rights, and does not violate State or 
Federal water law. Likewise, we have no authority to regulate surface 
water or groundwater. However, groundwater pumping or a surface water 
withdrawal that would dewater a stream or reduce base flows to the 
point that a take of ARS occurred would be a violation of section 9 of 
the Act.
    We believe that groundwater pumping at existing rates does not pose 
an immediate threat to remaining ARS aggregations in the Canadian River 
in Texas and Oklahoma, but that withdrawals at existing rates will 
eventually deplete the aquifer to the point that streamflows will be 
reduced and ARS will be affected. Because withdrawals of groundwater 
and surface water at current rates have already reduced streamflows in 
other areas of the ARS historic range in western Oklahoma and Kansas, 
northern Texas, and eastern New Mexico, continued withdrawals at 
current rates will further diminish streamflow and make habitat more 
unsuitable for ARS. In the currently occupied range of the ARS, 
withdrawals will likely cause adverse effects in the foreseeable future 
unless mitigating actions are implemented. In the long term, 
groundwater withdrawals must be reduced to the point that they do not 
exceed recharge, or ARS habitat in the western reaches of the Arkansas 
River basin will ultimately be lost. A recent report by the USGS 
(Luckey and Becker 1998) demonstrates the predevelopment influence of 
the High Plains aquifer on streamflows in the western reaches of the 
Arkansas River basin. However, we recognize that groundwater pumping is 
not entirely responsible for reduced streamflows and the demise of the 
ARS in the Arkansas River basin.
    We intend to fully 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. Groundwater management 
districts in the Texas High Plains have aggressively encouraged 
implementation of water-saving technologies that have minimized annual 
depletion. For example, low head, low pressure sprinkler (LEPA) systems 
have largely replaced high

[[Page 64790]]

pressure sprinkler systems in the Texas High Plains.
    Some other States do not have underground water conservation 
districts or similar groups that encourage water conservation to the 
same extent. Unfortunately, conversion to LEPA systems in other States 
has not been as widespread. Flood irrigation and high pressure center 
pivot and side roll systems are still often used in western Oklahoma 
and Kansas. Conservation of the High Plains aquifer, and the resulting 
benefits to streamflow within the Arkansas River basin, will not occur 
without the participation of other States. We believe voluntary 
conservation of the groundwater resource will be more effective in 
recovery efforts for the ARS than restricting or otherwise regulating 
withdrawals.
    Comment: Two commenters stated that groundwater withdrawals in the 
extreme southern portion of the High Plains aquifer do not influence 
groundwater levels or streamflows in the Canadian River basin and that 
we mislead the public with these statements.
    Service Response: We agree that this portion of the High Plains 
aquifer appears to have little influence, if any, over groundwater 
levels or streamflows within the Canadian River basin in Texas.
    Comment: Four commenters stated that listing might impose 
additional cuts on oil and gas development, causing imports of foreign 
oil to rise.
    Service Response: The listing of the ARS will not, in itself, 
restrict oil and gas development. However, if such development is 
funded, authorized, or carried out by a Federal agency, that agency has 
an obligation to evaluate it's activities for possible effects on 
listed species. If such activities may adversely affect the ARS, then 
some conservation actions may be necessary. Use of water from the High 
Plains aquifer for secondary oil recovery is not likely to be 
restricted as a result of this listing. We believe voluntary 
conservation of the groundwater resource will be more effective in 
recovery efforts for the ARS than restricting or otherwise regulating 
withdrawals.

Peer Review

    We routinely solicit comments from parties interested in, and 
knowledgeable of, taxa which have been proposed for listing as 
threatened or endangered species. On May 7, 1993, we mailed a summary 
of the available status information on the ARS to 72 Federal and State 
agencies, organizations, and knowledgeable individuals, including 10 
university scientists familiar with the status of fishes in the 
Arkansas River basin. We solicited their comments on life history, 
threats, and the need to propose this species under the Act. We 
received 13 responses.
    Of the 13 respondents, the National Park Service, the Corps' Tulsa 
District, Kansas Water Office, and a fishery scientist from Texas Tech 
University provided no new information. The Bureau submitted 
information on the Lake Meredith Salinity Control Project. The TPWD 
submitted known collection records and stated that the last recorded 
observation in Texas was from 1954. Two acknowledged scientific 
authorities and one research assistant from Oklahoma State University 
responded that the status and threats we presented were accurate and 
supported listing. A highly respected fisheries ecologist from the 
University of Oklahoma commented that periodic scientific collecting 
would not harm the species and stated that modification of streamflow 
was the primary threat. A biologist employed by the State of Oklahoma, 
who has annually surveyed fish communities throughout the State since 
1976, submitted information relative to the status of the species. Two 
of our offices, one in Kansas and one in New Mexico, also provided 
status information. Our New Mexico Ecological Services Field Office 
concurred that listing of the Pecos River population of the ARS was not 
appropriate. The most extensive comments were submitted by the New 
Mexico Interstate Stream Commission. They did not express an opinion on 
the need to list but did provide considerable information on threats to 
the species. We considered all of the information provided in preparing 
this rule.
    A July 1, 1994, policy on peer review (59 FR 34270) requires us to 
solicit peer review on our listing proposals from a minimum of three 
independent peer reviewers. We sent copies of the proposed rule to 20 
appropriate and independent specialists who have extensive knowledge or 
expertise in the life history, taxonomy, and ecology of the ARS. All of 
these specialists were employed at universities within the States 
affected by the proposed rule. We received one response which expressed 
support for the proposed listing and provided additional insight into 
threats affecting the species. The remaining reviewers did not respond 
to our request. We also met with USGS staff in Oklahoma to discuss 
threats affecting this species.
    We also requested and/or received comments on the proposed rule 
from a variety of Federal, State, county, and private individuals, 
including all parties known to us having expertise regarding the ARS. 
Additionally, the State fish and game agencies as well as the State 
water management agencies were requested to comment. The game and fish 
agencies in the States of Kansas, New Mexico, and Oklahoma supported 
listing. The TPWD opposed listing the species in Texas. Various State 
water management agencies and the USGS provided information on threats 
to the species. We considered all of these comments in preparing this 
final rule.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that the Arkansas River basin population 
of the ARS is not in imminent danger of extinction. However, we have 
determined that this population is likely to become in danger of 
extinction within the foreseeable future and, therefore, should be 
listed as a threatened species.
    Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) 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 
lists. 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). These factors and their application to the Arkansas River basin 
population of the ARS (Notropis girardi) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The primary threat facing the ARS 
and its associated habitat is the destruction and modification of 
habitat by one or more of the following: stream channelization, 
reservoir construction, streamflow alteration and depletion, and, to a 
lesser extent, water quality degradation.
    Navigation improvements on the Arkansas River by the Corps began in 
Arkansas in 1832, 4 years before Arkansas adopted statehood (Corps 
1989). Initially, constructed projects generally consisted of small 
improvements, such as clearing and snagging operations, until passage 
of the River and Harbor Act in 1946 authorized construction of the 
McClellan-Kerr Arkansas River Navigation System from the Mississippi 
River upstream to Catoosa, Oklahoma. Project construction began in the 
1950s and intensified during the 1960s. Project segments from the 
Mississippi confluence upstream to Fort Smith, Arkansas were completed 
by 1969. By 1970, the channel had been extended up

[[Page 64791]]

the Arkansas River as far as Muskogee, Oklahoma and was essentially 
complete. The project included numerous bank stabilization and channel 
rectification projects, 17 locks and dams (12 in Arkansas), annual 
channel maintenance, and port facilities. Several of the locks and dams 
are multipurpose facilities, providing hydropower generation. The Corps 
maintains a minimum channel depth of 3 m (9 ft) and minimum width of 76 
m (250 ft).
    Channelization causes a variety of changes in natural stream 
channels, including altering the channel shape, form, and width, water 
depth, substrate type, stream gradient, streamflow, water velocity, and 
the hydroperiod (Simpson et al. 1982). Channelization of the Arkansas 
River has permanently altered and eliminated suitable habitat for the 
ARS and is largely responsible for the extirpation of the ARS within 
the State of Arkansas. This channelization has also contributed to the 
decline of the species in Oklahoma. In the Arkansas River downstream of 
Muskogee, Oklahoma, ARS were last observed in 1985 (Pigg 1991). 
Buchanan (1976) failed to collect any ARS specimens from the Arkansas 
River Navigation System in Arkansas, and fish collections between 1972 
and 1988 from the Arkansas River near Fort Smith, Arkansas also failed 
to produce any ARS specimens (Robison and Buchanan 1988).
    Reservoir construction is the most widespread cause of habitat loss 
for the ARS. Numerous multipurpose impoundments, including three 
mainstem reservoirs on the Arkansas River (John Martin, Kaw, and 
Keystone) and four mainstem reservoirs on the Canadian River (Conchas, 
Ute, Meredith, and Eufaula) have been constructed within the Arkansas 
River basin. Other large mainstem impoundments also have been 
constructed within the historical range of the ARS--Optima and Canton 
reservoirs on the North Canadian River, and Great Salt Plains Reservoir 
on the Salt Fork of the Arkansas River. All of these impoundments have 
inundated, dewatered, fragmented, or otherwise directly altered 
considerable sections of riverine habitat once inhabited by ARS. 
Arkansas River shiner populations persist only below Ute Reservoir in 
New Mexico and Lake Meredith in Texas (Bonner et al. 1997; Eric Altena, 
in litt. 1993; Larson et al. 1991; Pigg 1991).
    Inundation following impoundment eliminated ARS spawning habitat, 
isolated populations, and favored increased abundance of predators both 
upstream and downstream of these reservoirs. Water releases from 
impoundments may be infrequent or non-existent in the western portions 
of the Arkansas River basin causing streams to be dewatered for 
considerable distances downstream of the reservoir.
    In the eastern region of the basin, sufficient water is released to 
maintain downstream flows. However, these releases generally alter the 
natural flow regime for considerable distances downstream of the 
impoundment, establishing a stream environment unlike that which 
existed under pre-impoundment conditions. Regulation of streamflows has 
severely modified or eliminated natural cycles of flooding, drought, 
and sediment transport. Physical changes from these altered flows may 
include modifications to water velocity, wetted perimeter (amount of 
streambed exposed to water at any given flow), water depth, streambed 
and bank erosion, and suspension and re-distribution of bed and bank 
sediments.
    Impoundments also function as barriers, fragmenting populations and 
habitat into smaller, more isolated units. These fragmented sections 
are then more likely to be affected by influences from external factors 
(e.g., localized drought, water withdrawals, permitted and unpermitted 
wastewater discharges). Once the habitats are isolated, other 
aggregations of ARS can no longer disperse into them and help maintain 
or restore populations of ARS there.
    In 1952, the ARS was believed to inhabit the entire Arkansas River 
mainstem in Kansas, but was already suspected to be declining due to 
the construction of John Martin Reservoir 10 years earlier on the 
Arkansas River in Bent County, Colorado (Cross et al. 1985). By 1960, 
the species had disappeared from the Arkansas River mainstem west of 
Wichita, Kansas and was absent from the entire Kansas portion of the 
Arkansas mainstem by 1983 (Cross et al. 1985).
    Arkansas River shiners were apparently abundant in the Arkansas 
River near Tulsa, Oklahoma prior to construction of Keystone Reservoir 
in 1964 (Pigg 1991). Following addition of hydropower at Keystone Dam 
in 1968, the resultant flow alterations severely depleted ARS 
populations. The ARS was last observed from the section of the Arkansas 
River between Keystone Reservoir and Muskogee, Oklahoma, in 1982. Kaw 
Reservoir, another Arkansas River mainstem impoundment, located 
upstream of Keystone Reservoir, became operational in 1976. Arkansas 
River shiners were last observed downstream of Kaw Reservoir in 1986 
(Larson et al. 1991, Pigg 1991).
    On the Canadian River, Eufaula Reservoir, Lake Meredith, Conchas 
Reservoir, and Ute Reservoir have impacted the ARS. Construction of 
Conchas Reservoir in 1938 ultimately led to the extirpation of upstream 
populations. Flows in the Canadian River prior to construction of 
Conchas Reservoir, as measured at Logan, New Mexico (before Ute 
Reservoir was completed in 1963), averaged 11.1 cubic m/s (392 cfs). 
Flows declined to 7.6 cubic m/s (270 cfs) after Conchas Reservoir was 
built. Flows at Logan declined to 1.1 cubic m/s (38 cfs) after 
construction of Ute Reservoir.
    Prior to completion of Eufaula Reservoir, ARS were abundant in the 
Canadian River between the proposed dam site and the Arkansas River 
(Pigg 1991). Arkansas River shiners have not been collected from this 
reach of the Canadian River since the reservoir became operational in 
1964. The disappearance of ARS from the 43-km (27-mi) section of the 
Canadian River below Eufaula Reservoir has been attributed to rapid 
water level fluctuations occurring during hydropower generation and 
altered conditions favoring an abundant predatory fish population (Pigg 
1991).
    Lake Meredith was constructed by the Bureau in 1965 and 
conservation storage is presently managed by the CRMWA. Prior to 
construction of the reservoir, historical streamflow measured at 
Canadian, Texas, 121 river-km (75 river-mi) below Lake Meredith, 
averaged 15.5 cubic m/s (549 cfs). Releases from Lake Meredith are now 
infrequent to non-existent (Williams and Wolman l984) and have 
considerably altered flows in the Canadian River downstream of the 
reservoir. Annual discharge at Canadian, Texas now averages only 2.4 
cubic m/s (83.7 cfs). Principal sources of water to the Canadian River 
below Lake Meredith are wastewater discharges, tributary inflows, and 
groundwater discharges (Buckner et al. 1985). Although ARS persist in 
the Texas portion of the Canadian River some 121 river-km (75 river-mi) 
downstream of Lake Meredith, remaining populations are small.
    Reduced flows downstream of Lake Meredith, and to a lesser extent 
below Ute Reservoir, have considerably altered the morphology of the 
Canadian River and have reduced the extent of suitable habitat for ARS. 
Stinnett et al. (1988) examined a 370-km stretch of the Canadian River 
and associated 72,843 hectares (ha) (179,495 acres (ac)) of floodplain 
between the western Oklahoma border and the western

[[Page 64792]]

Pottawatomie County line near Norman, Oklahoma. Between 1955 and l984, 
the amount of riverine wetlands (shoreline and open water) had 
decreased by about 50 percent. Sandbar acreage alone had been reduced 
by 54 percent. Wetland and associated floodplain changes were 
principally the result of hydrological modifications due to the 
influence of Lake Meredith (Stinnett et al. 1988). The lack of 
significant scouring flows permitted the encroachment of vegetation 
into the channel, reducing channel width by almost 50 percent since 
1955. Although ARS persist in the Canadian River downstream of Ute 
Reservoir and Lake Meredith, the reduction in available habitat has 
likely suppressed shiner populations in affected reaches. Habitat 
alterations associated with reduced flows downstream of Lake Meredith 
are considered to be a significant, ongoing threat to the continued 
existence of the ARS within the Canadian River.
    Surface water withdrawals constitute a small percentage of the 
total water used within the western sections of the historical range of 
the ARS, primarily because of the limited number of impoundments and 
elevated levels of chlorides. However, surface flows in the Cimarron 
River upstream of Waynoka, Oklahoma are affected by several diversions 
for irrigation. Within the western portion of the Arkansas River basin, 
groundwater is an extremely important water source due to limited 
surface supplies and lack of precipitation during the summer months 
(Oklahoma Water Resources Board 1997, 1990, 1980; Kansas Water Office 
and Kansas Division of Water Resources 1992; Texas Water Resources 
Board 1990; Stoner 1985; Texas Department of Water Resources 1984). For 
example, withdrawals from western Oklahoma aquifers account for about 
80 percent of the State's total groundwater usage (Oklahoma Water 
Resources Board 1990). Irrigation of croplands in the basin is the 
dominant use of this water. Withdrawal from the High Plains aquifer and 
from alluvial and terrace deposits associated with the major river 
systems in conjunction with diversion of surface water has affected 
streamflow in several of the major tributaries. Kromm and White (1992) 
state that streamflow has been dramatically reduced by groundwater 
withdrawals in western Kansas and has eliminated aquatic ecosystems in 
many areas of the High Plains.
    During the period from 1950 to 1975, water tables receded from 3 m 
(10 ft) to more than 30 m (100 ft) over much of southwestern Kansas 
(Cross et al. 1985). Between 1955 and 1980, declines in water levels by 
as much as 31 m (102 ft) have been recorded from the High Plains 
Aquifer in Oklahoma (Oklahoma Water Resources Board 1980). In 1960, 
there were about 400 groundwater wells in the Oklahoma panhandle; by 
1974, the number of wells had risen to 2,067 (Oklahoma Water Resources 
Board 1980). By 1988, there were an estimated 3,200 high capacity wells 
overlying the Ogallala Aquifer in western Oklahoma alone (Oklahoma 
Water Resources Board 1990).
    In Texas, withdrawals of groundwater in the Canadian River Basin 
were as much as 33 times higher than the annual natural recharge in 
1980 and irrigation return flows in the Basin are negligible (Texas 
Department of Water Resources 1984). From 1980 to 1994, Dugan and 
Sharpe (1996) documented a nearly continuous area of decline exceeding 
3 m (10 ft) in the Central High Plains subregion of the aquifer, 
including much of southwestern Kansas, portions of the Oklahoma 
Panhandle, and much of the northern Panhandle of Texas. The water level 
declines in the Central High Plains subregion were the largest, both in 
area and magnitude of decline, of any in the entire High Plains 
aquifer. Even precipitation that averaged about 5 cm (2 in) above 
normal from 1981-93 in the Central High Plains appeared to have a 
minimal effect on the large rate of water level decline (Dugan and 
Sharpe 1996). Portions of this subregion also showed evidence of a 
long-term decline in the amount of irrigated cropland acreage during 
this same period.
    Streamflow is the largest natural discharge from the aquifer and 
pumping from the aquifer has caused water level declines and streamflow 
reductions (Luckey and Becker 1998). The relationships between 
groundwater pumping and river flow are complicated. Generally, when 
groundwater is pumped faster than it is restored, water tables drop, 
channel seepage ceases, and streams dry up. Under these conditions, 
suitable habitat to support ARS populations is non-existent.
    The Canadian River appears to have been affected the least by water 
withdrawals from the High Plains aquifer primarily because much of the 
Canadian River in Texas and New Mexico has cut below the water bearing 
strata and the alluvium has not been significantly tapped as a source 
of water. Much of the land immediately adjacent to the Canadian River 
in Texas is rangeland and relatively little groundwater use occurs. 
Upstream of the Hutchinson-Roberts county line, including Lake 
Meredith, the Canadian River stream bed is below the elevation of the 
High Plains aquifer. Induced recharge of the High Plains aquifer by the 
Canadian River within this segment, caused by a lowering of the water 
table, is not likely to occur. The primary influence of the High Plains 
aquifer on streamflow within this reach would be predominantly through 
spring flow and similar emissions (e.g., natural discharge) where the 
water table intersects the land surface.
    Springs and seeps in the Canadian River basin of Texas issue 
largely from Ogallala sand, gravel, and caliche, and from Triassic 
sandstone (e.g. Dockum and Santa Rosa formations), with a few flowing 
from Permian dolomite (Brune 1981, Peckham and Ashworth 1993). Upstream 
of Lake Meredith, Brune (1981) identified 57 springs or seeps from 
Oldham and Potter counties and another 25 from Hutchinson County. In 
his discussion of the importance of these water bearing formations and 
the effects of groundwater withdrawal on spring flow, Brune (1981) 
stated that the water tables in the Ogallala and Dockum aquifers were 
rapidly being depleted and flow within the associated springs had 
declined or ceased to flow. However, the contribution of these springs 
and seeps to flow in the Canadian River upstream of Lake Meredith is 
relatively minor.
    In 1937-38, prior to large scale development of the High Plains 
aquifer for irrigation, flow contributions from 56 known springs in 
Oldham and Potter counties were measured (Texas State Board of Water 
Engineers 1938a, 1938b). Measured flows from these springs totaled 
between 2 and 4 cfs. Prior to construction of Conchas Reservoir, New 
Mexico in 1938, 2-4 cfs represented only about 0.5-1 percent of the 
average annual discharge in the Canadian River, as measured at Logan, 
New Mexico, and less than one percent at Amarillo (USGS 1961, 1963). 
Based on this information, the influence of irrigation withdrawals from 
the High Plains aquifer on streamflows upstream of Lake Meredith 
appears to be insignificant, particularly compared to flow reductions 
caused by impoundment of the Canadian River in New Mexico.
    Downstream of Lake Meredith, the Canadian River is below the 
elevation of the High Plains aquifer in Hutchinson County, but is 
confined within the sediments of the aquifer in Roberts and Hemphill 
counties (John Ashworth, Texas Water Development Board, in litt. 1995). 
Within Hutchinson County, as within the segment above Lake Meredith, 
contributions from springflow are the primary influence of the aquifer 
on streamflow. Unfortunately, we have

[[Page 64793]]

been unable to locate comparable historic spring flow information for 
the reach downstream of Lake Meredith. Brune (1981) provides 
information on flow from some 62 springs in Hutchinson, Hemphill, and 
Roberts counties. These springs generally have relatively low flows, 
with only Spring Lake Springs in Hutchinson County, Texas having a 
measured flow exceeding 1 cfs (Brune 1981). However, these measurements 
were taken in 1977 and 1978 after widespread irrigation development had 
already had its greatest effect on water levels in the High Plain 
aquifer. Consequently, we cannot determine the influence of groundwater 
pumping on the observed springflows with the available information. 
Considering the small contribution of springflow within this segment, 
we believe a reduction in spring flow is not likely to have had a 
profound impact on streamflows or habitat for the ARS. Certainly, any 
impact from a reduction or cessation of flows from these springs and 
seeps is considerably less significant than the influence of Lake 
Meredith on existing streamflows.
    Downstream of the Hutchinson County segment, however, groundwater 
moves toward the river where it eventually either discharges as spring 
flow into the river or seeps into the alluvial deposits (John Ashworth, 
in litt. 1995). The potential for groundwater depletion to affect 
streamflows is much greater in this segment of the Canadian River. For 
example, a proposed project adjacent to the Canadian River in Roberts 
and Hutchinson counties, Texas has the potential to reduce median 
streamflows over the 50-year life of the project by as much as 25 
percent, as measured at Canadian, Texas (Kathy Peters, USGS, in litt. 
1998). The proposed project would also dewater White Deer Creek, a 
Canadian River tributary, over much of its length. This project 
ultimately would involve the pumping of some 1,200 cubic meters (40,000 
acre-feet) of groundwater annually (Bureau 1997). Currently, no 
reliable means of augmenting streamflows in White Deer Creek or the 
Canadian River have been identified. Occurrences of the ARS in the 
Canadian River within the project are extremely rare. No ARS were 
reported from fish collections made by Texas Tech University, Bureau, 
and us from White Deer Creek or the Canadian River in 1998 (Shirley 
Shadix, Bureau, in litt. 1998). Only three ARS were reported captured 
by Texas Tech University at Canadian, Texas in 1995 (Gene Wilde, in 
lit. 1997). However, we are currently working with the Bureau and the 
CRMWA to identify feasible measures which would reduce the impacts of 
the proposed project.
    Continued unmitigated groundwater withdrawal threatens to further 
reduce or eliminate baseflows in western sections of the Arkansas River 
basin. Fortunately, improved conservation, more efficient irrigation 
practices, and improved technology have resulted in less water demand 
over the last 5 years. However, precipitation and runoff contribute 
little recharge to the underlying aquifers. In the Canadian River basin 
in Texas, water demand is projected to decrease only slightly over the 
next 50 years primarily due to improvements in irrigation efficiency 
(Texas Water Development Board 1990). In Oklahoma, water use is 
projected to increase statewide over the next 50 years (Oklahoma Water 
Resources Board 1997). Municipal and industrial demands are expected to 
increase by about 30 percent and agricultural demands by 29 percent. 
Streamflows will continue to diminish despite declining agricultural 
demand in Texas and basinwide decreases in the amount of water used per 
irrigated acre.
    Depletion of the High Plains aquifer is expected to continue to 
occur in Kansas, New Mexico, Oklahoma and Texas. When two below-average 
flow years occur consecutively, a short lived species such as the ARS 
can be severely affected, if not completely eliminated from portions of 
the river. Dewatering and reduced base flows, due to groundwater and 
surface water withdrawals, is considered a significant, ongoing threat 
to the ARS in southwestern Kansas, northwestern Oklahoma and the Texas 
panhandle (Larson et al. 1991, Cross et al. 1985).
    The Bureau's Lake Meredith Salinity Control Project is designed to 
control brine water seeping into the Canadian River downstream of Ute 
Reservoir from a brine aquifer in New Mexico. The Bureau completed a 
Final Supplemental Environmental Assessment (EA) for the salinity 
control project in September 1995 (Bureau 1995). At that time, we were 
concerned with projected streamflow reductions as a result of the 
project. However, the Bureau has changed the scope of the salinity 
control project since they completed the EA and expects these changes 
to reduce the impacts of the project.
    As originally proposed, the salinity control project would have 
reduced streamflow by 1.4 cfs, with a maximum project potential 
streamflow reduction of 3.2 cfs. A reduction of 1.4 cfs represents 
about a 35 percent reduction in the average baseflow of the Canadian 
River as measured at the downstream end of the project and a 12-14 
percent reduction in average base flow as measured at the confluence of 
Revuelto Creek in New Mexico. The reduced project is now anticipated to 
reduce flows by only 0.7 cfs, with a maximum potential of 1.4 cfs. This 
represents an estimated flow reduction of 8-15 percent, with only 
minimal expectations of ever operating the project above the 
anticipated pumping rate of 0.7 cfs. Downstream of Revuelto Creek, the 
effects on streamflow from revised project operation are expected to be 
no more than 5 percent of average base flow.
    In addition, the CRMWA anticipates no additional surface water 
withdrawals upstream of Lake Meredith, at least in Texas, once the 
project is operational (J.C. Williams, CRMWA, in lit. 1997). The State 
of New Mexico has expressed an intent to use Canadian River water below 
Ute Reservoir in conjunction with the Eastern New Mexico Water Supply 
Project (Bureau 1995). These withdrawals would affect Canadian River 
streamflows, particularly between Ute Dam and the confluence of 
Revuelto Creek. However, the future of this project is unclear. A 
Special Environmental Report prepared by the Bureau (1993) on this 
project recommends that base flows of the Canadian River below Ute 
Reservoir be maintained at a minimum of 2 cfs. Such mitigation would 
preclude dewatering of the Canadian River below Ute Reservoir but would 
still result in streamflow reductions. Arkansas River shiner 
populations in this 219-km (136-mi) reach of the Canadian River are 
isolated from other populations by Ute and Meredith reservoirs. Any 
additional flow reductions in this reach could severely deplete these 
populations.
    We believe that water quality degradation within the Arkansas River 
basin can cause localized impacts to ARS populations, particularly in 
areas with rapidly expanding urban populations. Water quality in the 
Canadian River in Texas generally declines as the river flows eastward. 
The Canadian River traverses oil and gas producing areas and receives 
municipal sewage effluent and manufacturing return flows, all of which 
degrade existing water quality (Texas Department of Water Resources 
1984). Water quality within the Canadian River begins to improve as the 
river flows through the sparsely populated counties in western 
Oklahoma. However, several discharges influence water quality in the 
remainder of the Canadian River. The wastewater treatment facility for 
the City of Norman is the largest single

[[Page 64794]]

discharge into the Canadian River in Oklahoma.
    Poor water quality in the North Canadian River near Oklahoma City 
and in the Arkansas River at Tulsa are also believed to have 
contributed to localized declines in ARS populations. The North 
Canadian River from western Oklahoma City downstream to Eufaula 
Reservoir is considered to be the most nutrient enriched stream in 
Oklahoma (Pigg et al. 1992). The ARS has not been found in this section 
of the North Canadian River since 1975 (Jimmie Pigg, pers. comm. 1997). 
In 1997, there were 623 active National Pollution Discharge Elimination 
System (NPDES) permits in Oklahoma. The majority of these are in the 
Arkansas River basin.
    Some agricultural practices have contributed to water quality 
degradation in the Arkansas River basin, likely resulting in impacts to 
ARS aggregations. Agriculture can be a key contributer of nutrients, 
sediments, chemicals, and other types of non-point source pollutants, 
primarily due to runoff from range and pastureland and tilled fields. 
The EPA (1994, 1998) found that agricultural practices were the primary 
source of water quality impairment in both rivers and lakes and were 
responsible for the impairment of 72 percent of the stream miles 
assessed nationwide in 1992 and 25 percent in 1996. The decline in 1996 
was largely due to an expansion of the national estimate of total river 
miles to include nonperennial streams, canals, and ditches, which 
essentially doubled the total river miles surveyed since 1992 (EPA 
1998). Siltation and nutrient pollution were the leading causes of 
water quality impairment in both studies. Increased nutrients promote 
eutrophication of aquatic ecosystems, including the growth of bacteria, 
algae, and nuisance aquatic plants, and lower oxygen levels.
    Overgrazing of riparian areas also can affect ARS habitat. 
Overgrazing in riparian zones is likely to be locally detrimental and 
is one of the most common causes of riparian and water quality 
degradation (Kauffman and Krueger 1984). High livestock densities may 
result in excessive physical disturbances, such as trampling, and 
changes in water quality. Trampling of pool margins and thinning of 
vegetation from overgrazing induce changes in the plant community 
structure, species composition, relative species abundance, and plant 
density which are often linked to more widespread changes in watershed 
hydrology. For example, soil compaction may increase pasture runoff, 
leading to erosion and increased siltation in streams.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. We have no evidence that the ARS is being 
overutilized for commercial, recreational, scientific, or educational 
purposes. We speculate that the ARS may occasionally be collected for 
personal use as bait by individual anglers. The States of Kansas, New 
Mexico, Oklahoma, and Texas allow the harvest of fish for personal use 
as bait. The introduction of the ARS into the Pecos River, presumably 
by anglers, provides some evidence that ARS are at least occasionally 
collected and used as bait. A record also exists for the Red River 
system in Oklahoma that was presumed to have been a bait bucket release 
(Cross 1970). However, the rarity of the ARS outside of the Canadian 
River would indicate that this fish is not likely to occur in the 
retail trade or to be collected for personal use very frequently.
    Larson et al. (1991) reported that there is no evidence that the 
species has been adversely affected by the commercial harvest of bait 
fish. The reported capture of predominantly large species (plains 
minnows (Hybognathus placidus)) and the continued existence of the ARS 
in portions of the South Canadian River was the primary evidence used 
in arriving at this conclusion. Larson et al. (1991) suggested that 
slender-bodied fishes such as ARS would constitute only a small 
percentage of the commercial harvest, assuming the commercial bait 
industry used large-mesh seines as the major mode of capture. However, 
other evidence described below indicates that ARS, while perhaps not a 
highly sought commercial species, is being affected by the commercial 
bait industry or is being harvested for personal use as bait.
    The greatest potential threat to ARS from incidental collection 
occurs in the State of Oklahoma. In 1985, the Cimarron and South 
Canadian rivers produced over 55 percent of the bait fish harvested in 
Oklahoma, providing over 20,846 kilograms (kg) (45,958 pounds (lbs)) of 
fish (Peterson 1986). Plains minnow, which may reach total lengths of 
127 cm (5 in), was the primary species reported harvested by the 
commercial minnow dealers. In 1996, the Cimarron and South Canadian 
rivers produced slightly less than 34 percent of the bait fish 
harvested in Oklahoma, providing over 17,663 kg (38,941 lbs) of fish 
(Wallace 1997). River shiners (species unreported) and plains minnows 
were reported to be the primary species harvested. From 1980-81 to 
1996, the percent of the total harvest taken from the South Canadian 
and Cimarron rivers varied from 67 percent in 1982 (Peterson and Weeks 
1983) to 34 percent in 1996 (Wallace 1997). The amount of fish taken 
varied from over 37,762 kg (83,252 lbs) in 1982 to 17,663 kg (38,941 
lbs) in 1996. The lists of species harvested did not include ARS.
    The rapid establishment of the ARS in the Pecos River, presumably 
from the release of bait fish, indicates that a sufficient number of 
fish were released in a single event to establish a reproducing 
population. If ARS occur only occasionally in the commercial harvest or 
are rarely used as bait, several releases over a short period of time 
would be required to ensure that a large enough population existed to 
facilitate natural reproduction. In either instance, the evidence 
indicates that ARS may occasionally occur in commercial catches in 
fairly large numbers or are occasionally being harvested for bait. The 
capture of four individuals from the North Canadian River in 1990 also 
suggests that ARS are occasionally being used as bait fish.
    Lists of fish species reported captured by commercial bait dealers 
are not always accurate and likely fail to report the capture of ARS. 
Based on the large percentage of golden shiners (Notemigonus 
crysoleucas) reported captured by commercial bait dealers in 1989, 
Larson et al. (1991) believed the lists to be suspect. River shiners 
are often one of the primary ``species'' reported harvested by 
commercial bait dealers. However, the river shiner (Notropis blennius) 
has not been recorded from several of the rivers where commercial 
minnows are harvested (Miller and Robison 1973). Larson et al. (1991), 
in their survey for ARS, also did not report capturing a single river 
shiner from 128 sampling localities within the Arkansas River basin. We 
suspect that the term ``river shiner'' is used to represent all minnows 
captured, except for the plains minnow.
    The large numbers of fish collected from the South Canadian River 
would imply that ARS could constitute a measurable percentage of the 
by-catch taken during commercial harvest. While there is no conclusive 
evidence to suggest that commercial harvest has contributed to the 
decline of the ARS, take of this species during commercial bait harvest 
may be significant which suggests that the effect of this factor 
warrants further investigation.
    The most significant threat to the ARS from the commercial bait 
industry or bait collection for personal use is the potential for 
introduction of non-indigenous fishes into occupied ARS habitat (see 
factor E of this section).

[[Page 64795]]

    C. Disease or predation. No studies have been conducted on the 
impact of disease or predation upon the ARS; therefore, the 
significance of these threats upon existing populations is unknown. 
There is no direct evidence to suggest that disease threatens the 
continued existence of the species. Disease is not likely to be a 
significant threat except in isolated instances or under certain 
habitat conditions, such as crowding during periods of reduced flows, 
or episodes of poor water quality (e.g., low dissolved oxygen or 
elevated nutrient levels). During these events, stress reduces 
resistance to pathogens and disease outbreaks may occur. Parasites and 
bacterial and viral agents are generally the most common causes of 
mortality. Lesions caused by injuries, bacterial infections, and 
parasites often become the sites of secondary fungal infections.
    Some predation of ARS by largemouth bass (Micropterus salmoides), 
green sunfish (Lepomis cyanellus), channel catfish (Ictalurus 
punctatus), and other fish species undoubtedly occurs, but the extent 
is unknown. Predation by aquatic birds (e.g., terns, herons, and 
egrets) and aquatic reptiles (e.g., snakes and turtles) also may occur. 
Plains fishes have evolved under adverse conditions of widely 
fluctuating, often intermittent flows, high summer temperatures, high 
rates of evaporation, and high concentrations of dissolved solids. 
These conditions are not favored by most large predaceous fish and tend 
to preclude existence of significant populations of these species. 
However, alteration of historic flow regimes and construction of 
reservoirs have created favorable conditions for some predatory species 
such as white bass (Morone chrysops) and striped bass (M. saxatilis). 
State and Federal fish and wildlife management agencies, through 
cooperative efforts to develop sport fisheries in these reservoirs, 
have facilitated expansion of the distributions of some predatory 
species. The impact of predation to the species is likely to be 
localized and insignificant, particularly where habitat conditions 
upstream of mainstem reservoirs are not favorable to the long-term 
establishment of abundant predatory fish populations.
    D. The inadequacy of existing regulatory mechanisms. Federal and 
state laws and regulations can protect the ARS and its habitat to some 
extent. The State of Kansas lists the ARS as a State endangered 
species. The KDWP has designated portions of the mainstem Cimarron, 
Arkansas, South Fork Ninnescah, and Ninnescah rivers as critical 
habitat for the shiner (Kansas Administrative Regulation 23-17-2). A 
permit is also required by the State of Kansas for public actions that 
have the potential to destroy listed individuals or their 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. 
Kansas does not permit the commercial harvest of bait fish from rivers 
and streams.
    The State of New Mexico lists the ARS as a State endangered 
species. This listing prohibits the taking of the ARS without a valid 
scientific collecting permit but does not provide habitat protection. 
The State of Oklahoma lists the ARS as a State threatened species, but 
like New Mexico, this listing does not provide habitat protection. The 
States of Arkansas and Texas provide no special protection for the 
species or its habitat.
    While Kansas, New Mexico, and Oklahoma protect the ARS from take 
and/or possession, only Kansas addresses the problem of habitat 
destruction or modification. Only New Mexico provides significant 
protection from the potential introduction of non-native, competitive 
species. Licensed commercial bait dealers in New Mexico may sell bait 
minnows only within the drainage where they have been collected and 
cannot sell any State-listed fish species.
    The Kansas legislature can identify a minimum desirable streamflow 
for a stream as part of the Kansas Water Plan. The Chief Engineer is 
then required to withhold from appropriation the amount of water 
necessary to establish and maintain the minimum streamflow. New Mexico 
and Oklahoma water law does not include provisions for acquisition of 
instream water rights for protection of fish and wildlife and their 
habitats. However, Oklahoma indirectly provides some protection of 
instream uses, primarily by withholding appropriations for flows 
available less than 35 percent of the time.
    Section 404 of the Clean Water Act (33 U.S.C. 1251-1376) is the 
primary Federal law that could provide some protection for aquatic 
habitats of the ARS, if the habitats are determined by the Corps to be 
Federal jurisdictional areas (i.e., waters of the United States). 
Listing of the ARS will require the Corps to consult and obtain our 
concurrence prior to issuing any section 404 permit affecting ARS 
habitat.
    The NEPA requires Federal agencies to consider the environmental 
impacts of their actions. The NEPA requires Federal agencies to 
describe a proposed action, consider alternatives, identify and 
disclose potential environmental impacts of each alternative, and 
involve the public in the decision making process. It does not require 
Federal agencies to select the alternative having the least significant 
environmental impacts. A Federal action agency may decide to choose an 
action that will adversely affect listed or candidate species provided 
these effects were known and identified in a NEPA document.
    The status and threats to the ARS reflect, in part, the inability 
of these laws and regulations to adequately protect and provide for the 
conservation of the ARS. Even listing as threatened or endangered by 
the States of Kansas, New Mexico, and Oklahoma has not reversed the 
decline of this species.
    E. Other natural or manmade factors affecting its continued 
existence. The overall trend in the status of this species is 
characterized by dramatic declines in numbers and distribution despite 
the fact that this species evolved in rapidly fluctuating, harsh 
environments. The occurrence of a single, catastrophic event, such as 
the introduction of competitive species, or a prolonged period of low 
or no flow, would increase the likelihood of extinction. Arkansas River 
shiners are undoubtedly capable of recovering from drought, provided 
other factors have not irreparably degraded their habitat. The 
fragmentation and apparent isolation of self-sustaining populations of 
ARS renders the remaining populations vulnerable to any natural or 
manmade factors that might further reduce population size. 
Recolonization of some reaches following a significant drought or 
period of no flow will be considerably reduced by habitat 
fragmentation, and may require human intervention.
    The introduction and establishment of the Red River shiner, a 
species endemic to the Red River drainage, into the Cimarron River in 
Oklahoma and Kansas has had a detrimental effect on the ARS (Cross et 
al. 1983, Felley and Cothran 1981). The Red River shiner was first 
recorded from the Cimarron River in Kansas in 1972 (Cross et al. 1983) 
and Oklahoma in 1976 (Marshall 1978). The Red River shiner has since 
colonized the Cimarron River and frequently may be a dominant component 
of the fish community (Cross et al. 1983, Felley and Cothran 1981). The 
morphological characteristics, population size, and ecological 
preferences exhibited by the Red River shiner suggest that it

[[Page 64796]]

competes with the ARS for food and other essential life requisites 
(Cross et al. 1983, Felley and Cothran 1981). The unintentional release 
of Red River shiners, or other potential competitors, into the Canadian 
River by anglers or the commercial bait industry is a potentially 
serious threat and could lead to decimation or extirpation of the 
remaining ARS populations.
    Accidental or intentional releases of the Red River shiner within 
stream segments occupied by the Arkansas River shiner have occurred on 
several instances but no populations have become established outside of 
that in the Cimarron River (Luttrell et al. 1995). A recent record of 
another Red River endemic, the Red River pupfish (Cyprinodon 
rubrofluviatilis), from the Salt Fork of the Arkansas River (Pigg et 
al. 1997b) indicates that releases of fish from the Red River continue.
    The Red River, native habitat for the Red River shiner and Red 
River pupfish, exhibits high concentrations of chlorides due to 
contributions from brine seeps and springs. Concentrations in some 
tributaries often exceed that of sea water. Within the Arkansas River 
basin, the Cimarron River and the Salt Fork of the Arkansas River also 
exhibit elevated levels of chlorides due to the influence of brine 
seeps and springs. Although studies have not been conducted, we suspect 
that the elevated chloride loads in the Cimarron River may be at least 
partially responsible for the success of the Red River shiner in this 
stream system. The ability of the Red River shiner to cope with 
elevated chloride concentrations may have provided a competitive 
advantage over the native ARS aggregations. Lower chloride 
concentrations in other stream systems may partially explain why Red 
River shiners have not yet become established in other Arkansas River 
tributaries after accidental introductions.
    While the introduction of non-indigenous fishes do not fully 
account for the disappearance of ARS within the Arkansas River basin, 
particularly outside of the Cimarron River, competition with introduced 
species can have a significant adverse impact on ARS populations under 
certain conditions. The consequences of non-indigenous species on 
native organisms have been widely documented and are summarized by U. 
S. Congress, Office of Technology Assessment (1993).
    The reproductive characteristics and specialized spawning and early 
life history requirements of this species makes it especially 
vulnerable to certain natural or manmade factors, such as drought. 
Successful reproduction of the ARS appears to require precise flow 
conditions conducive to breeding and embryonic development. Spawning is 
triggered, in part, by abrupt increases in streamflow during the late 
spring or summer (Cross et al. 1983, Moore 1944). Streamflows favorable 
to spawning must be sustained over at least a 24-hour period to ensure 
complete embryonic and larval development. As discussed under factor A 
of this section, suitable habitat conditions are becoming scarce and 
where conditions are not favorable, populations have rapidly declined.
    Declining populations of the ARS may also be due to poor survival 
of juveniles. Bestgen et al. (1989) observed that spawning in ARS 
appeared to be primarily limited to Age-I individuals, based on an 
absence of Age-I and older fish from collections made after the 
spawning period. The apparent extremely high post-spawning mortality 
observed in Pecos River ARS populations suggests that the reproductive 
contribution of Age-II or older individuals is very limited. Thus, the 
continued existence of ARS populations may be almost entirely dependent 
upon successful annual reproduction and subsequent recruitment of 
juvenile individuals into the population. The loss of a single 
reproductive event or cycle would seriously reduce recruitment, and 
possibly lead to localized extirpations. The fragmentation of ARS 
habitat by impoundments intensifies the effects of failed reproduction 
by hindering repopulation following rapid declines or localized 
extirpations.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species in determining to issue this final rule. Based on 
this evaluation, the preferred action is to list the Arkansas River 
basin population of the Arkansas River shiner (Notropis girardi) as 
threatened due to its significantly reduced range, including the 
apparent extirpation of the shiner in Arkansas and throughout much of 
its historical range in Kansas and Oklahoma. Threatened status, which 
means that the species is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range, more accurately reflects the threats facing this species than 
does endangered status, the designation we proposed on August 3, 1994 
(59 FR 39532). New information recieved during the comment period 
revealed that modifications to the Lake Meredith Salinity Control 
Project resulted in streamflow reductions that were less severe than 
originally projected in 1994. Also, the influence of the High Plains 
Aquifer on streamflows in the Canadian River upstream of Lake Meredith 
is less than originally believed, and the threat from groundwater 
withdrawals on the Texas High Plains does not appear to be as severe or 
as imminent as first suspected. In addition, new information shows that 
the aggregations of Arkansas River shiners in the reach between Ute 
Reservoir and Lake Meredith are stable and not declining, as presented 
in the proposed rule.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographical 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 
geographical 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 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 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. Our regulations (50 CFR 
424.12(a)) state that 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 such threat 
to the species; or (2) such designation of critical habitat would not 
be beneficial to the species.
    We find that the designation of critical habitat for the Arkansas 
River basin population of the ARS is not prudent due to lack of 
benefit. The prohibition of destruction or adverse modification of 
critical habitat is provided under section 7 of the Act and only 
applies to Federal agency actions (see ``Available Conservation 
Measures'' section). Under section 7, actions funded, authorized, and 
carried out by Federal agencies may not jeopardize the continued 
existence of a species or result in the destruction or adverse 
modification of critical habitat. To ``jeopardize the continued 
existence'' of a species is defined as an action that

[[Page 64797]]

appreciably reduces the likelihood of its survival and recovery. 
``Destruction or adverse modification of critical habitat'' is defined 
as an appreciable reduction in the value of critical habitat for the 
survival and recovery of a species.
    Future conservation and recovery of the ARS will emphasize 
remaining aggregations and habitats in the Canadian River. All suitable 
ARS habitat in the Canadian River is believed to be occupied by the 
species. Therefore, Federal actions involving the Canadian River that 
would cause habitat alteration of a severity that would result in 
destruction or adverse modification of critical habitat would also 
jeopardize the continued existence of the Arkansas River shiner. 
Furthermore, reasonable and prudent alternatives that would remove the 
likelihood of jeopardy would also remove the likelihood of destruction 
or adverse modification of critical habitat. Due to the considerable 
overlap in the jeopardy and adverse modification standards associated 
with the ARS in the Canadian River, designation of critical habitat 
would provide no additional benefit to the species when dealing with 
the Federal actions under section 7 of the Act.
    The major threat to the ARS is the depletion of surface and ground 
waters by non-Federal entities (e.g., State water agencies, ground 
water and irrigation districts, private individuals). In most cases, 
the management of water is under the jurisdiction of the States and is 
not under the purview of section 7 of the Act. Therefore, the 
designation of critical habitat would provide no benefit in addressing 
this important threat to the ARS.
    The benefits of listing, specifically the jeopardy standard under 
section 7 and the provisions of sections 9 and 10 of the Act, will 
provide the principal mechanisms to protect ARS populations and 
habitats. For these reasons, the designation of critical habitat for 
the ARS would provide no benefit to the species beyond that conferred 
by listing alone and is, therefore, not 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 consultation under section 7, 
and prohibitions against certain practices. Recognition through listing 
encourages and results in conservation actions by Federal, State, and 
private agencies, groups, and individuals. The Act provides for 
possible land acquisition and cooperation with the States and 
authorizes recovery plans 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 to be listed 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)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed 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 
must enter into consultation with us.
    A number of Federal agencies have jurisdiction and responsibilities 
potentially affecting the ARS, and section 7 consultation may be 
required in a number of instances. Federal involvement is expected to 
include the Bureau's Canadian River Project and operation of the Corps' 
multi-purpose reservoirs throughout the Arkansas River Basin. The Corps 
will also consider the ARS in administration of Section 404 of the 
Clean Water Act. The EPA will consider the ARS 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 USDA 
NRCS will consider the effects of structures installed under the 
Watershed Protection and Floodwater Prevention program (Public Law 
566). Also, the U.S. Forest Service will consider the effects of their 
management actions on the Cimarron and Kiowa National Grasslands.
    The intent of the section 7 consultation process is to ensure that 
agency actions are implemented in a manner that will not jeopardize the 
continued existence of a listed species. We have conducted numerous 
section 7 consultations, and very rarely has the consultation process 
stopped a Federal action. In fact, in the vast majority of 
consultations the actions are implemented with little or no 
modification.
    The USGS has recently initiated a water quality assessment of the 
High Plains aquifer under the National Water Quality Assessment program 
(NAWQA). Through this project the USGS will evaluate existing water 
quality problems in the aquifer and provide information that will help 
protect water quality in the aquifer.
    The CRMWA, the non-Federal sponsor of the Lake Meredith Salinity 
Control Project, has agreed to implement certain conservation actions 
for the ARS. The CRMWA has agreed to--(1) conduct routine evaluations 
of flow conditions within the immediate project area, (2) adjust 
operation of the salinity control project to minimize any potential 
effect upon the ARS, and (3) monitor water quality within the affected 
stream segment (J.C. Williams, in litt. 1997). In response to 
provisions under the Supreme Court ruling in Oklahoma and Texas v. New 
Mexico, No. 109, the CRMWA also has agreed to cooperate with us and the 
State of New Mexico in scheduling releases from Ute Reservoir to 
benefit the ARS. The CRMWA has already sought our input in scheduling 
releases of excess waters from Ute Reservoir. Most recently, the CRMWA 
initiated releases on June 9, 1997, and concluded them in July 1997. 
Researchers at Texas Tech University are currently evaluating the 
effect of these releases on reproductive ecology of the ARS and will 
provide us and CRMWA with recommendations for scheduling any future 
releases. We anticipate that such releases will result in conservation 
benefits for the ARS.
    The CRMWA also speculates that the reduction in salinity 
anticipated from operation of the salinity control project may hinder 
the establishment of Red River shiners within the affected reach of the 
Canadian River, should this non-native species be introduced upstream 
of Lake Meredith (J.C. Williams, in litt. 1997). While we have no 
conclusive evidence to support this premise, reduced salinities could 
indeed influence establishment of Red River shiners. The ARS exhibit 
preferences for certain water quality conditions (Polivka and Matthews 
1997) which may differ from those preferred by the Red River shiner.
    Reducing or eliminating incidental take of ARS during personal 
collections or commercial bait operations can be achieved through gear 
restrictions. State regulations requiring the use of seines with mesh 
sizes of 1.3 cm (0.5 in) or greater could minimize the capture of ARS 
during collections for bait. We intend to work with the States to 
ensure that collection of bait fish for personal or commercial uses 
does not reduce the abundance or distribution of the ARS.
    Eliminating opportunities for introductions of non-indigenous 
fishes is more difficult. Commercial bait

[[Page 64798]]

operators should take steps to ensure that holding tanks have been 
thoroughly emptied and flushed before moving from one river basin to 
another. This is particularly important if collections are obtained 
from the Red River basin or the Cimarron River. Informing anglers of 
the potential harm from releases of unused live bait is also important.
    Other general conservation measures that could be implemented to 
help conserve the species are listed below. This list does not 
constitute our interpretation of the entire scope of a recovery plan as 
discussed in the provisions of section 4(f) of the Act.
    (1) Ensure that water extractions, diversions, and groundwater use 
for agriculture and municipal purposes do not adversely affect habitat 
of the ARS. Increase efforts to improve irrigation efficiency and 
implement appropriate water conservation measures.
    (2) Closely monitor introductions of non-indigenous species. 
Develop and implement measures to minimize the accidental or 
intentional release of non-indigenous species. Initiate studies to 
determine the feasibility of and techniques for eradicating or 
controlling Red River shiners in the Cimarron River. If feasible, 
implement a control program.
    (3) Monitor and maintain existing aggregations of ARS throughout 
the Arkansas River basin.
    (4) Conduct studies to further define biological and life history 
requirements of the ARS.
    The Act and implementing regulations found at 50 CFR 17.21 and 
17.31 set forth a series of general prohibitions and exceptions that 
apply to all threatened wildlife. These prohibitions, 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 such wildlife that has been taken illegally. Certain exceptions 
apply to our agents and agents of State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22, 17.23, and 17.32. 
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. For threatened species, 
there are also permits available for zoological exhibition, educational 
purposes, or special purposes consistent with the purposes of the Act. 
You should send requests for copies of the regulations regarding listed 
wildlife and inquiries about prohibitions and permits to the U.S. Fish 
and Wildlife Service, P.O. Box 1306, Albuquerque, New Mexico, 87103 
(telephone [phone]; facsimile 505/248-8063).
    It is our policy (59 FR 34272) to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not likely constitute a violation of section 9 of the Act. The 
intent of this policy is to increase public awareness of the effect of 
this listing on proposed and ongoing activities within the species' 
range.
    The Service believes that, based on the best available information, 
the following actions will not likely result in a violation of section 
9:
    (1) Authorized taking of ARS in accordance with a permit issued by 
us pursuant to section 10 of the Act or with the terms of an incidental 
take statement pursuant to section 7 of the Act, or possessing 
specimens of this species that were collected prior to the date of 
publication in the Federal Register of this final regulation adding 
this species to the list of endangered and threatened species;
    (2) Normal, lawful recreational activities such as hiking, trail 
rides, camping, boating, hunting, and fishing, provided unused bait 
fish are not released back into the water;
    (3) Normal livestock grazing and other standard ranching activities 
within riparian zones that do not destroy or significantly degrade ARS 
habitat;
    (4) Routine implementation and maintenance of agricultural 
conservation practices specifically designed to minimize erosion of 
cropland (e.g., terraces, dikes, grassed waterways, and conservation 
tillage);
    (5) Existing discharges into waters supporting the ARS, provided 
these activities are carried out in accordance with existing 
regulations and permit requirements (e.g., activities subject to 
sections 402, 404, and 405 of the Clean Water Act); and
    (6) Improvements to existing irrigation, livestock, and domestic 
well structures, such as renovations, repairs, or replacement.
    Activities we believe could potentially harm the ARS and result in 
a violation of section 9 include, but are not limited to:
    (1) Take, which includes harassing, harming, pursuing, hunting, 
shooting, wounding, killing, trapping, capturing, or collecting, or 
attempting any of these actions, of ARS without a valid permit;
    (2) Possess, sell, deliver, carry, transport, or ship illegally 
taken ARS;
    (3) Introduction of non-native fish species that compete or 
hybridize with, displace, or prey upon ARS;
    (4) Unauthorized destruction or alteration of ARS habitat by 
dredging, channelization, impoundment, diversion, recreational vehicle 
operation within the stream channel, sand removal, or other activities 
that result in the destruction or significant degradation of channel 
stability, streamflow/water quantity, substrate composition, and water 
quality used by the species for foraging, cover, and spawning;
    (5) Unauthorized discharges (including violation of discharge 
permits), spills, or dumping of toxic chemicals, silt, household waste, 
or other pollutants (e.g., sewage, oil and gasoline, heavy metals) into 
surface or ground waters or their adjoining riparian areas that 
support/sustain ARS;
    (6) Applications of pesticides, herbicides, fungicides and other 
chemicals, including fertilizers, in violation of label restrictions;
    (7) Withdrawal of surface or ground waters to the point at which 
baseflows in water courses (e.g., creeks, streams, rivers) occupied by 
the ARS diminish and habitat becomes unsuitable for the species.
    Not all of the activities mentioned above will result in a 
violation of section 9; only those activities that result in ``take'' 
of ARS would constitute a violation of section 9.
    The above lists only provide some examples of the types of 
activities that we would consider as likely or not likely to take ARS. 
You should direct questions regarding whether specific activities may 
constitute a violation of section 9 of the Act to the Field Supervisor, 
Oklahoma Ecological Services Office (see ADDRESSES section). You should 
mail requests for copies of the regulations concerning listed animals 
and inquiries regarding prohibitions and permits to the U.S. Fish and 
Wildlife Service, Endangered Species Permits, P.O. Box 1306, 
Albuquerque, New Mexico 87103-1306 (telephone [phone]; facsimile 
505/248-6922).

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the

[[Page 64799]]

National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this final rule, as well as 
others, is available upon request from the Oklahoma Ecological Services 
Field Office (see ADDRESSES section).

Author

    The primary author of this proposed rule is Ken Collins, 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, Transportation.

Regulation Promulgation

    For the reasons given in the preamble, part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, is amended 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. In Sec. 17.11(h) the following is added to the List of 
Endangered and Threatened Wildlife in alphabetical order under 
``FISHES'':


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, Arkansas River.......  Notropis girardi...  U.S.A. (AR, KS, NM,  Arkansas River       T                       653            NA          NA
                                                         OK, TX).             basin (AR, KS, NM,
                                                                              OK, TX).
 
            *                   *                   *                   *                   *                   *                           *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: November 13, 1998.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 98-31096 Filed 11-20-98; 8:45 am]
BILLING CODE 4310-55-P