Questions and Answers
About Proposed Critical Habitat
and the
Topeka Shiner


The U.S. Fish and Wildlife Service (Service) is proposing to designate critical habitat for the Topeka shiner. Critical habitat is a term used in the Endangered Species Act that refers to specific geographic areas that contain habitat features essential for the conservation of a threatened or endangered species. These areas may require special management considerations or protection for the species. The proposal for the Topeka shiner is on file at the Federal Register. The public may comment on the proposals until October 21, 2002 (60 days after the date of publication). The following frequently asked questions are provided with responses to help you understand the proposed critical habitat designations for the Topeka shiner.

What is a Topeka shiner?

The Topeka shiner is a small minnow, normally less than 3 inches long. The head is short, with a small mouth, large eyes, and a large dorsal fin. The Topeka shiner is silvery-green in color, with a distinct dark stripe preceding the dorsal fin and a dusky stripe along the entire length of the fish. The scales above this line are outlined with dark pigment, appearing cross-hatched, while the scales below this line have no pigment, appearing silvery-white in color.

What is critical habitat?

Critical habitat is a term used in the Endangered Species Act (ESA) that refers to specific geographic areas that contain habitat features essential for the conservation of a threatened or endangered species. These areas may require special management considerations or protection for the species.

What is the purpose of designating critical habitat?

Designating critical habitat is a tool used to identify areas that are important to the recovery of a listed species. It is also used to notify Federal agencies of areas that must be given special consideration when they are planning, implementing, or funding activities. Federal agencies are required to consult with the Service on actions they carry out, authorize, fund, or permit, that may affect critical habitat. A critical habitat designation has no effect when a Federal agency is not involved. For example, a landowner undertaking a project on private land that involves no Federal funding or permit has no additional responsibilities if the property falls within critical habitat boundaries.

Why is designation of critical habitat being proposed for the Topeka shiner?

Section 4(a)(3) of the ESA states that when a species is added to the endangered species list, we must designate critical habitat "to the maximum extent prudent." This section makes it clear that Congress expected the Service to routinely designate critical habitat. History shows that judicial decisions have been based on a strict interpretation of this section of the Act resulting in a requirement that the Service complete critical habitat designations. The final listing rule for the Topeka Shiner did not include a critical habitat designation. In June 2000, the Biodiversity Legal Foundation and several other organizations filed a suit for failure to designate critical habitat for the Topeka shiner. As a result of the lawsuit and a resulting court settlement the Service agreed to publish a proposed critical habitat designation by August 13, 2002.

The Service believes that designation of critical habitat for the Topeka shiner will be beneficial to conservation of the Topeka shiner. This designation benefits listed species through identifying and alerting the public and private entities as well as governmental agencies to the attributes and locations of critical habitat important to the recovery of a listed species. Critical Habitat designation may also provide educational and informational benefits regarding the Topeka shiner.

Why wasn’t critical habitat designated when the Topeka shiner was listed?

At the time of final listing, the Service determined that the designation of critical habitat was not prudent because critical habitat designation would not have provided substantially more protection for the Shiner than its status as an endangered species. As a result of a court-mediated settlement, the Service agreed to review the determination of critical habitat.

What is the range of the Topeka shiner?
The Topeka shiner’s historic range includes portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South Dakota. It continues to exist in portions of these states.

Where do Topeka shiners live?

Topeka shiners live in small to mid-size prairie streams in the central United States. These fish inhabit streams, which usually run continually and that have good water quality and cool to moderate temperatures. Occasionally, Topeka shiner have been found in larger streams, downstream of larger populations. They usually live in pools and run areas of streams. In Iowa, Minnesota and portions of South Dakota, the species also lives in oxbows and off-channel pools. The streams that the Topeka shiner inhabits must have plenty of aquatic or invertebrate food sources, and few competitive non-native species present.

Why is the Topeka shiner declining? What are the threats to it?

The Topeka shiner was once a common fish throughout its range. The occurrence of the species at known collection sites has decreased by approximately 70 percent, mostly in the past 40-50 years. The fish has been negatively affected by habitat destruction, sedimentation, and changes in water quality. The Topeka shiner can also be negatively impacted by impoundment of the small streams that it inhabits and subsequent introduction of predaceous fishes, such as largemouth bass. It now exists primarily in small, isolated populations.

What is being done to protect the Topeka shiner?

A variety of protection measures have been implemented for the Topeka shiner , and include:

Listing: The Topeka shiner is listed as an endangered species throughout its range (parts of Kansas, Iowa, Minnesota, Missouri, Nebraska, and South Dakota).

Recovery Plans: The Service is developing a recovery plan that describes actions necessary to conserve the Topeka shiner.

Research: Several university and private researchers and Federal and State biologists are conducting research to better understand the needs of the Topeka shiner.

Management and Habitat Protection: State and private organizations in Missouri and other states are working to create protection and management plans to ensure the recovery of the fish. The state of Missouri has developed a comprehensive management plan, which may provide the State exemption from critical habitat designation. In Minnesota, the Department of Natural Resources and the Service have cooperated to develop a list of Best Management Practices for projects that take place in and along streams occupied by Topeka shiners.

What are the recovery goals for the Topeka shiner?

To bring the status of the Topeka shiner to a point where protection is no longer needed with secure populations of the fish occurring across its range in Kansas, Iowa, Minnesota, Missouri, Nebraska, and South Dakota. A team of experts from State governments, the Service and universities have a draft recovery plan, which is being reviewed internally and will be available for public comment in the near future. It outlines activities that need to be carried out to ensure survival of the fish.

Some of the proposed recovery actions include reintroduction of Topeka shiner in some streams, conservation efforts including prevention of erosion and sedimentation, and landowner incentives to promote conservation on private lands. Conservation of Topeka shiners depends on protecting and restoring riparian vegetation, instream, pools, off-channel habitats, and natural stream flow patterns.

What protection does the Topeka shiner currently receive as a listed species?

The ESA prohibits the import, export, or interstate or foreign sale of protected animals and plants without a special permit. It also prohibits "take" - that is, the killing, harming, harassing, possessing, or removing of protected animals from the wild.

Federal agencies must consult with the Service to conserve listed species and ensure that any activity they fund, authorize, or carry out will not jeopardize the continued survival and recovery of a listed species. The ESA also directs all Federal agencies to use their existing authorities to develop and carry out programs to conserve endangered and threatened species.

Permits may be issued by the Service for activities that are otherwise prohibited under the ESA, if these activities are for scientific purposes or to enhance the propagation or survival of the affected species, or for take that is incidental to otherwise lawful activities.

 

Do listed species in critical habitat areas receive more protection?

Added protection is minimal. A critical habitat designation does not set up a preserve or refuge to protect the species. It only affects Federal activities; that is activities that Federal agencies fund, authorize, or carry out. Listed species and their habitats are protected by the ESA whether or not they are in areas designated as critical habitat. However, designation of critical habitat can bring awareness and public recognition to the issues affecting a listed species.

Do Federal agencies have to consult with the Service outside critical habitat areas?

Even when there is no critical habitat designation Federal agencies must consult with the Service if an action that they fund, authorize, or permit may affect listed species.

How would this proposed designation of critical habitat affect Federal agencies?

Because Federal agencies are already required to consult on actions that may affect the Topeka shiner, we anticipate little or no additional regulatory burden will be placed on Federal agencies as a result of designating critical habitat.

Would a critical habitat designation for Topeka shiner affect use of my personal property? Would this result in any taking of my property?

The designation of critical habitat on privately-owned land does not mean the government wants to acquire or control the land. Activities on private lands that do not require Federal permits or funding are not affected by a critical habitat designation. Critical habitat does not require landowners to carry out any special management actions or restrict the use of the land. However, protections already afforded the species through the ESA prohibit any individual from harming or otherwise taking the species unless such taking has been authorized by an incidental take permit issued by the Service.

If a landowner applies for a Federal permit or if a Federal agency proposes to provide funds for a specific activity, the Federal agency responsible would consult with the Service to determine how the action may affect the Topeka shiner or its designated critical habitat. If such actions would affect the Topeka shiner, we will work with all interested parties to minimize or avoid adverse effects. .

What happens if State lands and streams are designated as critical habitat for the Topeka shiner?

Non-Federal activities are not affected by critical habitat designation. Designation of critical habitat requires Federal agencies to review activities they fund, authorize, or carry out, to assess the likely effects of the activities on critical habitat.

What impact would critical habitat designation have on existing recreational uses of the rivers and streams?

Due in part to the fact that most of the streams affected by this proposal are located on private property and are not available to the public, impact on recreational use would likely be minimal. In addition, only activities involving the Federal government are impacted by this proposal.

How might critical habitat affect my normal, ongoing agricultural operation?

The designation of critical habitat does not affect non-Federal actions. Moreover, because this proposal would include only areas currently occupied by Topeka shiners, it will likely also have little or no effect on the activities of Federal agencies because Federal and non-Federal actions are already subject to the prohibitions against the take (harming, killing, etc.) of Topeka shiners. Therefore, it is also likely to have little or no effect on normal, ongoing farm operations and on the activities (loan programs, etc.) of Federal agricultural agencies. Critical Habitat designation may play a positive role by increasing the awareness of landowners and agency personnel regarding the importance of these stream habitats. This may result in increased opportunities for landowners to implement conservation practices. Landowners who are concerned that their activities may result in the unintentional take of Topeka shiners should contact the U.S. Fish and Wildlife Service.

Would this proposed critical habitat designation reduce the amount of water available for irrigation on my land?

No. Designating critical habitat for the Topeka shiner would not reduce the amount of water that is available for irrigation on private land. If large amounts of water are used, so as to cause a detrimental impact to the shiner, it would be considered a "take" under Section 9 of the ESA and would require consultation and a permit regardless of critical habitat designation.

Would livestock grazing on my private property be impacted by this proposed designation of critical habitat?

No. Activities on private property would not be impacted by the designation of critical habitat. Only projects involving the Federal government are restricted under this proposal.

How would this proposed designation affect water rights?

Water rights will not be impacted under this proposal. Since this proposed designation of critical habitat has no impact on state water law, there would be no adverse affect on water rights.

What activities could adversely affect critical habitat?

Some activities could have an adverse effect on Topeka shiner critical habitat. Such activities might include:

Development and degradation of streams.
In-stream gravel mining.
Changes in the stream hydrology.
Stream channelization projects.
Dam construction and development.
Confined animal feeding operations.
Highway construction projects.

How would this proposed designation of critical habitat benefit the Topeka shiner?

Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for the conservation of that species. Critical habitat also alerts the public as well as land management agencies to the importance of these areas.

Critical habitat will provide for a more concentrated approach to helping the shiner recover. By improving the quality of habitat for the shiner, other wildlife, river users and residents will benefit from cleaner water for drinking and recreation.

How does the Service determine which areas to designate as critical habitat?

All areas proposed as critical habitat for the Topeka shiner possess one or more of the elements that provide for the physiological, behavioral, and ecological requirements essential for the conservation of the species. These elements include sufficient instream flows, substantial areas of pools and off-channel habitats, gravel substrates for spawning, and few or no introduced predator species. Specific geographic areas in Kansas, Iowa, Minnesota, Missouri, Nebraska, and South Dakota that are essential for the conservation of the Topeka Shiner will be evaluated to determine if they are suitable for designation as critical habitat. The areas being considered only include those that currently have Topeka Shiner populations, or are used as migration channels for the fish.

Are areas unoccupied by the shiner proposed as critical habitat?

No. The Service has only proposed critical habitat in stream reaches in which Topeka shiners currently are known to occur. We have not proposed critical habitat in areas now unoccupied by the Topeka shiner.

Are all areas within the proposed Topeka shiner critical habitat boundaries considered critical habitat?

No. Within areas designated as critical habitat, only those places that contain the physical and biological habitat features needed for life and successful reproduction of the species are considered "critical habitat." For example, already existing human-built structures within the shiner’s habitat would not be included as "critical habitat" within that area.

Does the ESA require an economic analysis as part of designating critical habitat?

Yes. The Service must take into account the economic and other relevant impacts of specifying any particular area as critical habitat. The Service may exclude any area from critical habitat if it determines that the benefits of such exclusion outweigh the benefits of designating the area as critical habitat. We may still designate such areas as critical habitat, however, if we determine, based on the best scientific and commercial data available, that the failure to designate the area as critical habitat will result in the extinction of the species.

Is an economic analysis required when a species is added to the list of threatened and endangered species?

No. Under the ESA, a decision to list a species is made solely on the basis of biological data and analysis.

How would the proposed critical habitat designation impact economic development?

The vast majority of activities that require consultation with the U.S. Fish and Wildlife Service (which would be only those involving a Federal agency) proceed with little or no modification. If a proposed project is likely to affect critical habitat of the Topeka shiner, consultation under Section 7 of the Endangered Species Act would be required. During this process, the agencies involved would consider modifications to the project to avoid or reduce adverse impacts to the Topeka shiner and its critical habitat. This proposal is likely to cause little or no additional consultations among Federal agencies because it only affects areas where the species already occurs and, therefore, where such consultation is already required. Therefore, this proposal may have little or no additional impact on economic development. An economic analysis is being prepared to analyze any potential economic impacts as the result of this proposed designation. This economic analysis will be made available for public review and comment.

For how many species has the Service designated critical habitat ?

As of January 2002, the Service has designated critical habitat for 152 of the 1,256 species listed as threatened or endangered.

Why hasn't the Service designated critical habitat for more species?

After a Congressional moratorium on listing news species ended in 1996, the Service faced a huge backlog of species needing to be proposed for listing as threatened or endangered. For this reason, we have assigned a relatively low priority to designating critical habitat because we believe that a more effective use of our limited staff and funding has been to place imperiled species on the List of Endangered and Threatened Species. Recent court decisions, however, have required the Service to designate critical habitat for an increasing number of listed species.

Additionally, the critical habitat designation usually affords little extra protection to most species and in some cases it can result in harm to the species. This harm may be due to negative public sentiment to the designation, to inaccuracies in the initial area designated, and to the fact that there is often a misconception among other Federal agencies that if an area is outside of the designated critical habitat area, then it is of no value to the species.

 

Will the public have an opportunity to comment on the proposed critical habitat designation of the Topeka shiner?

Yes. To make the information upon which we base the final decision to designate critical habitat as complete as possible, the Service is soliciting comments from the general public, Federal and State Agencies, private landowners, conservation organizations, Tribal organizations, congressional groups, counties, and municipalities. The Service is issuing news releases, placing public notices in newspapers, and sending letters to interested parties to announce the opening of the public comment period on the proposal.

You may obtain the Topeka shiner proposal by visiting the Service’s web site at http://mountain-prairie.fws.gov/endspp/shiner or writing to: U.S. Fish and Wildlife Service, Kansas Ecological Services Field Office, U.S. Fish and Wildlife Service, 315 Houston Street, Suite E, Manhattan, Kansas 66502.

What can I do to conserve Topeka shiners?

There are a number of things that landowners and others can do to conserve Topeka shiners, including:

restoring stream habitats
placing vegetated buffers along streams
revegetating exposed, eroding banks
conserving soil throughout watersheds
avoiding or reducing direct impacts to streams and oxbows

The U.S. Department of Agriculture, Soil and Water Conservation Districts, U.S. Fish and Wildlife Service, and State conservation agencies can assist landowners with the funding and implementation of projects to conserve Topeka shiners and their stream habitats.

Where can I get more information on the Topeka Shiner and critical habitat?

For more information, visit our web site at http://mountain-prairie.fws.gov/endspp/shiner. You may also contact the following Service office:

Kansas Ecological Services Field Office, U.S. Fish and Wildlife Service, 315 Houston St., Suite E, Manhattan, KS 66502; telephone 785/539-3474, facsimile 785/539-8567.


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