[Federal Register: March 17, 2004 (Volume 69, Number 52)]
[Proposed Rules]
[Page 12619-12631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr04-31]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI20


Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Topeka Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revisions to proposed critical habitat,
reopening of comment period, notice of availability of draft economic
analysis and draft environmental assessment, and announcement of public
meeting.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of a 30-day public comment period for the proposed rule to designate
critical habitat for the Topeka shiner (Notropis topeka) pursuant to
the Endangered Species Act of 1973, as amended (Act). The proposed rule
to designate critical habitat in the States of Iowa, Kansas, Minnesota,
Nebraska, and South Dakota was published on August 21, 2002 (67 FR
54261). We herein propose critical habitat segments for Missouri and
one additional segment for South Dakota, and discuss potential
exclusions from critical habitat designation under the authority of
section 4(b)(2). We also exclude habitat on the Fort Riley Military
Installation in Kansas under authority of section 4(a)(3) of the Act.
In addition, we announce the availability of the draft economic
analysis and draft environmental assessment for the proposed
designation, and announce a public meeting.

DATES: The public meeting will be held from 7 to 9 p.m. central
standard time on April 13, 2004, in Boonville, Missouri.
    The comment period is hereby reopened until April 16, 2004. We will
consider comments from all interested parties on the proposed rule of
August 21, 2002 (67 FR 54261), the additional information provided
herein, the draft economic analysis, and the draft environmental
assessment. We must receive all comments by the closing date. Any
comments that we receive after the closing date will not be considered
in the final decision on this proposal.

ADDRESSES: The public meeting will be held at the Boonville High
School, 1690 Ashley Rd., Boonville, Missouri.
    Written comments and materials concerning the proposed rule and
amendments, proposed exclusions, draft economic analysis, and draft
environmental assessment may be submitted to us at the hearing, or
directly by any one of several methods:
    (1) You may submit written comments and information to the Kansas
Ecological Services Field Office, U.S. Fish and Wildlife Service, 315
Houston Street, Suite E, Manhattan, Kansas 66502.
    (2) You may hand-deliver comments and information to the Kansas
Ecological Services Field Office, at the above address, or send
comments via facsimile to (785) 539-8567.
    (3) You may send comments via electronic mail (e-mail) to 
fw6_tshiner@fws.gov. For directions on how to submit comments

electronically, see the ``Public Comments Solicited'' section.
    The complete file for this notice and the proposed rule are
available for public inspection, by appointment, during normal business
hours at the above address. Copies of the proposed rule, draft economic
analysis, and draft environmental assessment are available by writing
to the above address or by connecting to the Service Internet Web site
at http://mountain-prairie.fws.gov/topekashiner/ch.


FOR FURTHER INFORMATION CONTACT: Vernon Tabor, Kansas Ecological
Services Field Office, at the above address (telephone: (785) 539-3474,
extension 110; facsimile: (785) 539-8567; e-mail: 
fw6_tshiner@fws.gov).


SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend for any final action resulting from this reopened
proposal to be as accurate and effective as possible. Therefore, we are
soliciting comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, landowners,
or any other interested party regarding the revisions to the proposed
rule, the draft economic analysis, and the draft environmental
assessment. In addition, we are requesting any further comments
regarding our August 21, 2002, proposed rule (67 FR 54261), pertaining
to the designation of critical habitat in the remainder of the Topeka
shiner's range, which includes portions of Iowa, Kansas (not including
Fort Riley), Minnesota, Nebraska, and South Dakota. We particularly
seek comments concerning:
    (1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the

[[Page 12620]]

benefits of designation will outweigh any threats to the species
resulting from designation;
    (2) Specific information on the amount and distribution of Topeka
shiner and its habitat, and which habitat is essential to the
conservation of this species and why;
    (3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families;
    (5) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments;
    (6) Whether the economic analysis identifies all State and local
costs. If not, what other costs are overlooked;
    (7) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the designation of critical habitat;
    (8) Whether the economic analysis appropriately identifies land and
water use regulatory controls that will likely result from the
designation;
    (9) Whether the economic analysis appropriately identifies all
costs that could result from the designation;
    (10) Whether the economic analysis correctly assesses the effect on
regional costs associated with land use controls that derive from the
designation;
    (11) Whether the designation will result in disproportionate
economic impacts to specific areas that should be evaluated for
possible exclusion from the final designation;
    (12) The economic analysis should identify all costs related to the
designation of critical habitat for the Topeka shiner which was
intended to take place at the time the species was listed. As a result,
the assumption is the economic analysis should be consistent with the
Service's listing regulations. Does this analysis achieve that
consistency?
    (13) Whether our characterization of existing regulatory
protections in the listing document is consistent with the costs of the
regulation imposed as a result of this critical habitat determination.
    All previous comments and information submitted during the initial
comment period need not be resubmitted. Refer to the ADDRESSES section
for information on how to submit written comments and information.
Please submit electronic comments in an ASCII file format and avoid the
use of special characters and encryption. Please also include ``Attn:
RIN 1018-AI20'' and your name and return address in your e-mail
message. If you do not receive a confirmation from the system that we
have received your e-mail message, please contact us directly at our
Kansas Ecological Services Field Office (see ADDRESSES section and FOR
FURTHER INFORMATION CONTACT).
    Our practice is to make comments that we receive on this
rulemaking, including names and home addresses of respondents,
available for public review during regular business hours. Individual
respondents may request that we withhold their home address from the
rulemaking record, which we will honor to the extent allowable by law.
In some circumstances, we would withhold from the rulemaking record a
respondent's identity, as allowable by law. If you wish for us to
withhold your name and/or address, you must state this request
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, including the individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.

Designation of Critical Habitat Provides Little Additional Protection
to Species

    In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act

    While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 306 species or 25 percent
of the 1,211 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,211 listed species through conservation mechanisms such as
listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters

[[Page 12621]]

a second round of litigation in which those who fear adverse impacts
from critical habitat designations challenge those designations. The
cycle of litigation appears endless, is very expensive, and in the
final analysis provides relatively little additional protection to
listed species.
    The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with NEPA all
are part of the cost of critical habitat designation. None of these
costs result in any benefit to the species that is not already afforded
by the protections of the Act enumerated earlier, and they directly
reduce the funds available for direct and tangible conservation
actions.

Background

    The Topeka shiner is a small, stout minnow. It has a dorsal (back)
side that is olive-green, a distinct dark stripe preceding the dorsal
fin, and a dusky stripe running along the entire longitudinal length of
the lateral line. The Topeka shiner is found in small-to mid-size
prairie streams of the central prairie regions of the United States
with relatively high water quality and cool to moderate temperatures.
Many of these streams exhibit perennial flow, although some become
intermittent during summer or periods of prolonged drought. The Topeka
shiner's historic range includes portions of Iowa, Kansas, Minnesota,
Missouri, Nebraska, and South Dakota. The species continues to exist in
these States, but in most areas, its range is greatly reduced.
    We published a final rule in the Federal Register on December 15,
1998, designating the Topeka shiner as an endangered species; we also
determined that designation of critical habitat for the species was not
prudent (63 FR 69008). In an April 4, 2001, court settlement of the
case, Biodiversity Legal Foundation et al. v. Ralph Morgenweck et al.
(C00-D-1180), we agreed to reconsider our prudency determination and,
if prudent, to propose critical habitat for the shiner by August 13,
2002, and to finalize our designation of critical habitat by August 13,
2003. On August 21, 2002, we published a proposed rule in the Federal
Register (67 FR 54261) for the designation of Topeka shiner critical
habitat. The proposed designation included 3,766 kilometers (km) (2,340
miles (mi)) of stream in the States of Iowa, Kansas, Minnesota,
Nebraska, and South Dakota as critical habitat. We also proposed not to
include Topeka shiner habitat in the State of Missouri and on the Fort
Riley Military Installation, Kansas, under the authority of section
3(5)(A) of the Act. Following publication of the proposed rule, we
opened a 60-day public comment period. We also held one public meeting
in each of the six affected States during September 2002. Due to
budgetary constraints, we did not finalize the designation of critical
habitat by August 13, 2003. We petitioned the court to extend this
deadline until July 17, 2004, and, in an order dated February 10, 2004,
the court granted us this extension.
    In the August 2002 proposed rule for designation of critical
habitat for the Topeka shiner, we indicated our intention not to
include critical habitat in Missouri and on Ft. Riley, Kansas, in the
critical habitat designation. This was based upon our interpretation of
the definition of critical habitat found in section 3(5)(A) of the Act.
Section 3(5)(A)(i) of the Act, as amended (16 U.S.C. 1531 et seq.),
defines critical habitat as areas on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protection. In order to give meaning to the last clause of the
definition, we have considered that if an area was already adequately
managed, there would be no requirement for special management
considerations or protection. A management plan is considered adequate
when it meets the following three criteria: (1) The plan provides a
conservation benefit to the species (i.e., the plan must maintain or
provide for an increase in the species' population, or the enhancement
or restoration of its habitat within the area covered by the plan); (2)
the plan provides assurances that it will be implemented (i.e., those
responsible for implementing the management plan are capable of
accomplishing the objectives, have an implementation schedule, and/or
adequate funding for the management plan); and (3) the plan provides
assurances the management plan will be effective (i.e., it identifies
biological goals, has provisions for reporting progress, and is of a
duration sufficient to implement the plan and achieve the plan's goals
and objectives).
    Subsequent to publication of the proposed rule, two issues arose.
The first issue is a January 2003 court ruling on a separate case not
pertaining to the Topeka shiner (Center for Biological Diversity v.
Norton, Civ. No. 01-409 TUC DCB, D. Ariz., Jan. 13, 2003). In that
ruling, a Federal District Court in Arizona disagreed with our
application of the definition of critical habitat as it pertains to
section 3(5)(A) of the Act. The court stated that ``whether habitat
does or does not require special management is not determinative on
whether the habitat is `critical' to a threatened or endangered
species.'' The court affirmed the Secretary's authority to exclude
areas from critical habitat designation pursuant to section 4(b)(2) of
the Act.
    The second issue is that section 318 of the National Defense
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136, adopted
November 24, 2003) amended the Endangered Species Act by adding new
language to section 4(a)(3), which prohibits the Service from
designating as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an Integrated Natural Resources Management
Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary of the Interior determines in writing that such
plan provides a benefit to the species for which critical habitat is
proposed for designation. The Sikes Act Improvement Act of 1997
requires each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an INRMP. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found there. Each INRMP includes an assessment of the ecological needs
on the installation, including needs to provide for the conservation of
listed species; a statement of goals and priorities; a detailed
description of management actions to be implemented to provide for
these ecological needs; and a monitoring and adaptive management plan.
The Service consults with the military on the development and
implementation of INRMPs for installations with listed species.
    Because of the court's decision and the amendment to the Act, we
decided to clarify the basis for proposed exclusions to critical
habitat for the Topeka shiner. In the following paragraphs we address
our consideration of Fort Riley, Kansas under section 4(a)(3), followed
by our clarification of the basis for our proposed exclusion of the
State of Missouri. In addition, we are proposing to designate one
additional stream segment in South Dakota as critical habitat, based on
information received since the proposed rule was published in 2002.

[[Page 12622]]

Fort Riley, Kansas

    We previously proposed not to include stream segments on the Fort
Riley Military Installation, Kansas, in critical habitat, on the basis
of our interpretation of section 3(5)(A) of the Act. Because of the
court's decision and the amendment to the Act, we know clarify the
basis for not proposing stream segments on Fort Riley. Section 4(a)(3)
of the Act now allows the Secretary of the Department of the Interior
to exempt defense sites from critical habitat designations if an
adequate INRMP is in place. The law says the Secretary ``shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense * * * that are subject
to an integrated natural resources management plan * * * if the
secretary determines in writing that such a plan provides a benefit to
the species for which critical habitat is proposed for designation.''
    We consider an INRMP adequate under section 4(a)(3) for military
installations when it meets the same three criteria we consider under
section 3(5)(A) of the Act: (1) The plan provides a conservation
benefit to the species (i.e., the plan must maintain or provide for an
increase in the species' population, or the enhancement or restoration
of its habitat within the area covered by the plan); (2) the plan
provides assurances that it will be implemented (i.e., those
responsible for implementing the management plan are capable of
accomplishing the objectives, have an implementation schedule, and/or
adequate funding for the management plan); and (3) the plan provides
assurances the management plan will be effective (i.e., it identifies
biological goals, has provisions for reporting progress, and is of a
duration sufficient to implement the plan and achieve the plan's goals
and objectives).
    The Topeka shiner has been a focal species for planning and
conservation efforts on Fort Riley since the early 1990s, with numerous
stream surveys occurring from this time to the present. Fort Riley
initiated development of management guidelines for the species in 1994.
The first Endangered Species Management Plan for Topeka Shiner on Fort
Riley was formalized in 1997. This management plan was revised and
incorporated into Fort Riley's INRMP 2001-2005, which was formalized
July 30, 2001 (Keating, Ft. Riley Natural Resources Division, pers.
comm. 2002). This management plan outlines and describes conservation
goals; management prescriptions and actions; a monitoring plan;
estimates of time, cost, and personnel needed; a checklist of tasks;
and an annual report (Department of the Army 2001).
    We evaluated the Fort Riley Endangered Species Management Plan for
Topeka Shiner and the Fort's associated Topeka shiner conservation
actions that have been completed, ongoing, or planned, against our
three criteria used to determine whether the requirements of section
4(a)(3) are being satisfied. This management plan provides conservation
benefits to the species; the plan provides assurances that conservation
efforts will be implemented; and the plan and efforts of the Army will
be effective since they include biological goals, restoration
objectives, and monitoring consistent with the draft Recovery Plan.
    The primary benefit of proposing critical habitat is to identify
lands essential to the conservation of the species, which, if
designated as critical habitat, would require consultation with the
Service to ensure that activities would not adversely modify critical
habitat. As previously discussed, Fort Riley has a completed final
INRMP that provides for sufficient conservation management and
protection for the Topeka shiner. Moreover, this INRMP has already
undergone section 7 consultation with the Service prior to its final
approval. Further, activities authorized, funded, or carried out by the
military or Federal agencies in these areas that may affect the Topeka
shiner will still require consultation under section 7 of the Act,
based on the requirement that Federal agencies ensure that such
activities not jeopardize the continued existence of listed species.
This requirement applies even without critical habitat designation on
these lands.
    Based on the foregoing discussion, we believe that the requirements
of section 4(a)(3) of the Act are satisfied in relation to Topeka
shiner habitat on Fort Riley. We, therefore, do not include these
stream segments in the proposed critical habitat for Topeka shiner.

Missouri

    We previously proposed not to include stream segments in the State
of Missouri in proposed critical habitat, based on our interpretation
of section 3(5)(A) of the Act. We determined that adequate special
management or protection would be provided by a legally operative plan
that addresses the maintenance and improvement of essential habitat
elements and that provides for the long-term conservation of the
species. We further determined that a plan is adequate when it meets
the three criteria listed in a previous paragraph of this preamble.
    In the proposed rule for designation of critical habitat for the
Topeka shiner, we evaluated Missouri's State Action Plan for the Topeka
Shiner (Action Plan) and associated Topeka shiner conservation actions
that have been completed, ongoing, or planned in Missouri against the
three criteria to determine whether lands require ``special management
considerations or protections.'' The Action Plan clearly provides
conservation benefits to the species; the Action Plan provides
assurances that conservation efforts will be implemented because MDC
has authority to implement the plan, has put in place the funding and
staffing necessary to implement the Plan, and has completed or begun
work on many significant elements of the Plan; and the Action Plan and
efforts of MDC will be effective because they include biological goals,
restoration objectives, and monitoring consistent with a Service
preliminary draft Recovery Plan. We continue to believe that the
Missouri Action Plan provides for special management of the Topeka
shiner under the definition of critical habitat in section 3(5)(A) of
the Act. However, as a consequence of the court's decision in Center
for Biological Diversity v. Norton, we now propose the previously-
excluded segments in Missouri, and also clarify the basis for proposing
to exclude these areas from the critical habitat designation for Topeka
shiner.
    The 12 stream segments, representing 148 km (92 mi) of stream,
described below, constitute our best assessment of areas in Missouri
needed for the conservation of the Topeka shiner, based on the best
scientific and commercial information available. These areas are: (1)
Currently considered occupied by the Topeka shiner or provide critical
links or corridors between occupied habitats and/or potentially
occupied habitats; (2) provide all or some of the primary constituent
elements essential to the conservation of the species as described in
our proposed rule; and (3) may require special management
considerations or protection. A more detailed description of the stream
segments follows (see ``Proposed Regulation Promulgation'' section of
this document for legal descriptions and maps of these stream
segments).
    1. Sugar Creek Complex (three stream segments), Daviess and
Harrison Counties, Missouri. The stream segments proposed in this
complex provide the primary constituent elements necessary for
designation as critical habitat, including natural stream

[[Page 12623]]

morphology and in-stream habitat. Stream habitat within this complex
can be characterized as moderate in quality, with the watershed
draining a mosaic of cropland and pastureland. This complex includes
portions of the mainstem of Sugar Creek, Tombstone Creek, and an
unnamed tributary to Sugar Creek. A downstream portion of Sugar Creek
has been severely altered by channelization, and does not provide the
primary constituent elements.
    2. Moniteau Creek Complex (four stream segments), Cooper and
Moniteau Counties, Missouri. Stream habitat within this complex can be
characterized as moderate to good in quality, with the watershed
draining a mosaic of cropland, woodlands, and pastureland. Riparian
areas are mostly wooded and appear stable. This complex includes
portions of Moniteau Creek, an unnamed tributary to Moniteau Creek,
Smiley Creek, and Pisgah Creek.
    3. Bonne Femme Creek Complex (five stream segments), Boone County,
Missouri. The Bonne Femme Creek complex is comprised of four tributary
streams, including Turkey Creek, Bass Creek, and two unnamed tributary
streams to Bass Creek, as well as a portion of mainstem Bonne Femme
Creek. Extensive watershed modification is occurring throughout this
basin as the growth of Columbia, Missouri, rapidly spreads through this
watershed from the north. There have been no documented collections of
Topeka shiners from the streams of the Bonne Femme Creek watershed
since 1997. However, it has yet to be determined if the species has
been completely eliminated from the watershed or is still present in
very reduced numbers. The stream segments in this complex provide the
primary constituent elements, including natural stream morphology and
in-stream habitat.
    Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
We may exclude areas from critical habitat designation if we determine
that the benefits of such exclusion outweigh the benefits of including
the areas within critical habitat, unless we determine, based on the
best scientific and commercial data available, that the failure to
designate such areas as critical habitat will result in the extinction
of the species. For the areas of Missouri that were not included in the
proposed designation pursuant to the definition of critical habitat, we
believe that the benefits of excluding those areas from the final
designation outweigh the benefits of including them. If we determine
that the benefits of exclusion are greater than those of designation,
critical habitat will be excluded from the final designation pursuant
to section 4(b)(2).
    For our evaluation of potential critical habitat sites in Missouri,
we have conducted an analysis of the economic impacts and other
relevant impacts of designating critical habitat. Economic factors
include: (1) Costs to us and Federal action agencies from increased
workload to conduct consultations under section 7 of the Act and
technical assistance associated with critical habitat; (2) costs of
modifying projects, activities, or land uses resulting from
consultations involving critical habitat; (3) costs of delays from
increased consultations involving critical habitat; (4) costs of
reduced property values or income resulting from increased regulation
of critical habitat designation; (5) potential offsetting economic
benefits associated with critical habitat, including educational
benefits.
    Other relevant impacts include: (1) The willingness of landowners
and land managers to work with natural resource agencies and
participate in voluntary conservation activities that directly benefit
the Topeka shiner and other threatened or endangered species, including
such cooperative partnerships as Safe Harbor Agreements; (2) the
implementation of various cooperative conservation measures agreed to
through various State and local partnerships, such as those outlined in
Missouri's State Action Plan or through similar collaborative efforts;
(3) management or regulatory flexibility, such as the establishment of
nonessential experimental populations under section 10(j) of the Act,
to recover Topeka shiners through reintroductions; and (4)
opportunities and interest of landowners to participate in various
incentive and assistance programs offered by the Service and other
Federal, State, and local agencies that restore habitats and improve
water quality in watersheds containing Topeka shiners.
    Benefits of designating critical habitat include: (1) Focusing
conservation activities for listed species by identifying areas
essential to conserve the species; (2) increasing awareness by the
public and land management agencies of the importance of these areas
for conservation of the species; and (3) assisting Federal, State, and
local agencies in prioritizing landowner incentive programs, developing
agreements with private landowners, and implementing other conservation
and land management programs.
    We are herein providing notice of availability of an analysis of
the economic impacts of designating these areas as critical habitat,
along with an opportunity for the public to formally comment on this
analysis. This economic analysis along with the analysis of other
relevant beneficial and detrimental impacts will serve as the basis of
our analysis under section 4(b)(2), and our determination of any
exclusions from critical habitat finalized in our future final rule.
The final rule will contain our analysis of economic factors and other
relevant impacts of designating critical habitat in Missouri, and our
consideration of comments received during the public comment period. As
a result, we may identify certain areas that will be excluded from the
final critical habitat designation, and if so, the final critical
habitat determination may exclude or reduce in extent the areas
described in this proposal.
    In Missouri, the Topeka shiner historically occurred in small,
headwater streams in northern portions of the State, within the
Missouri/Grand River Watershed. The Topeka shiner has been a focal
species for planning and conservation efforts in the State since the
mid-1990s. In 1995, the Missouri Department of Conservation (MDC)
established a 5-member Topeka Shiner Working Group, and a 16-member
Advisory Group to direct, implement, and facilitate Topeka shiner
recovery actions in Missouri. In 1996, the MDC, with approval of the
Conservation Commission of Missouri (Conservation Commission), listed
the Topeka shiner as an endangered species under the State's Wildlife
Code (Conservation Commission 2001).
    In 1999, the Conservation Commission established the Private Lands
Services Division within the MDC. Eighty-three MDC staff were
redirected to private land conservation throughout the State, including
a minimum of 16 Private Lands Services personnel with responsibility
for the counties with Topeka shiner habitat. Duties of personnel within
this division include the facilitation of conservation efforts on
private property throughout Missouri for all federally listed species,
including the Topeka shiner. Additionally, there are at least 86
fisheries, forestry, natural history, protection, and wildlife staff
delivering services to private landowners as a routine aspect of their
job within the Missouri/Grand River Watershed.
    In January 1999, MDC adopted and approved an Action Plan for the
Topeka shiner in Missouri (MDC 1999). The Action Plan identifies
comprehensive

[[Page 12624]]

conservation measures and programs necessary to achieve recovery of the
Topeka shiner in Missouri. Implementation of recovery efforts for the
Topeka shiner in Missouri, as outlined in this plan, is ongoing. The
current status of tasks in the Action Plan is described in Table 1
below:

   Table 1.--Status of Tasks in the Missouri State Action Plan for the
                              Topeka Shiner
------------------------------------------------------------------------
                     Item                                Status
------------------------------------------------------------------------
Establishment of the Missouri Topeka Shiner    Complete & Ongoing.
 Working Group.
Development & ongoing implementation of the    Complete (1999) &
 Action Plan.                                   Ongoing.
Establishment of permanent sampling sites &    Annual Monitoring--
 standardized monitoring of Missouri's Topeka   Ongoing/Initiated (began
 shiner populations & completion of recent      in 2000) Statewide
 Statewide survey for the species.              Surveying-Complete &
                                                Ongoing.
Initiation of artificial propagation of        Complete & Ongoing.
 Topeka shiners, including the development &
 refinement of captive rearing techniques.
Completion of genetic analysis of different    Complete.
 populations of Topeka shiners in Missouri.
Incorporation of Topeka shiner recovery &      Complete & Ongoing.
 conservation efforts in State strategic
 planning documents on several different
 levels.
Development & dissemination of public          Complete & Ongoing.
 outreach & education materials throughout
 Missouri & elsewhere.
Completion & dissemination of several          Ongoing/Initiated.
 ecological & life history studies involving
 Topeka shiner.
Securing matching funds from the Service to    Complete & Ongoing.
 conduct surveys & ecological studies, & for
 various habitat restoration & enhancement
 activities.
Revision of the Action Plan that will include  Planned.
 actions not yet completed since 1999 & those
 uncompleted actions identified in the
 Service's preliminary draft Recovery Plan.
Implementation of a landowner incentive        Completed (CAFO study).
 program & completion of a study on the         Ongoing/Initiated
 potential impacts of Confined Animal Feeding   (landowner incentive
 Operations (CAFO) within the Moniteau Creek    program).
 Watershed.
Development of 10-year fish monitoring plans   Complete--Plan developed
 for Moniteau, Bonne Femme, & Sugar Creek       with initial sampling
 Watersheds.                                    conducted in 2000 &
                                                annual sampling since.
Development & implementation of Sugar Creek    Complete & Ongoing.
 subbasin management plan..
Development & implementation of a Three        Complete & Ongoing.
 Creeks Conservation Area management plan.
Protection & management of Bonne Femme Creek   Complete & Ongoing.
 by establishing these watersheds as Missouri
 Department of Natural Resources' Non-point
 Source Pollution Special Area Land Treatment
 watersheds.
Reestablishment or restoration of riparian     Initiated/Ongoing.
 corridors through tree plantings, natural
 regeneration, fencing to restrict livestock
 use of stream banks, creation of alternative
 livestock watering sources, establishment of
 warm season grass buffer strips, stream bank
 stabilization activities, & actions outlined
 in grazing plan developed for private
 landowners within the Bonne Femme, Moniteau,
 & Sugar Creek Watersheds.
------------------------------------------------------------------------

    Assurances that the Action Plan will be implemented and
conservation of the Topeka shiner will be achieved in Missouri is
demonstrated by the following actions. Between January 1999 and
December 31, 2003, at least $351,100 was spent on recovery actions for
the Topeka shiner in Missouri, and that total is likely to increase to
at least $600,000 within the next 10 years. Eighty percent (i.e., 12 of
15) of the priority 1 tasks (i.e., those actions deemed necessary to
prevent extinction of the species) identified and outlined in the
implementation schedule of a Service preliminary draft Recovery Plan
have either been completed or are currently being implemented (this
includes 20 percent of tasks that are 100 percent completed, 47 percent
of tasks that are 50 percent or greater completed, and 33 percent of
tasks that are 25 percent or less completed) by the MDC in cooperation
with us, the Topeka Shiner Recovery Team, and other Federal, State, and
private entities. The Private Land Services Division within MDC greatly
facilitates the implementation of recovery actions on private property
where the species currently exists or where the species may be
reintroduced. The planned expansion of our Partners for Fish and
Wildlife Program within Topeka shiner-occupied habitat will benefit an
additional 10-15 landowners at an estimated cost of $100,000 within the
next 5 years (Kelly Srigley Werner, Missouri Private Lands Coordinator,
pers. comm.). MDC Fisheries and Natural History Division staffs have
committed to help coordinate and implement Topeka shiner recovery
efforts between the MDC and Federal, State, and private entities, and
MDC's Topeka Shiner Recovery Coordinator. The MDC is actively
participating in the Topeka Shiner Recovery Team. MDC's revisions to
the Action Plan, scheduled for completion in 2004, will focus on
incorporating any of the recovery actions outlined in a Service
preliminary draft Recovery Plan that are currently not addressed. The
scientific soundness of the MDC's Action Plan was further validated by
us and the Recovery Team when the Action Plan's monitoring protocol and
recommendations for reducing and eliminating threats to the Topeka
shiner were incorporated, in part, into a Service preliminary draft
Recovery Plan. In addition, the MDC, in implementing the Action Plan,
has established cooperative working relationships with private
landowners. These relationships have allowed for the implementation of
conservation programs for the benefit of the Topeka shiner.
    We provide the following preliminary 4(b)(2) analysis of the
benefits of inclusion and the benefits of exclusion in assessing the
potential exclusion of critical habitat in Missouri.
(1) Benefits of Inclusion
    Federal actions that adversely affect critical habitat must undergo
consultation under section 7 of the Act. Consultations on Federal
actions involving critical habitat ensure that habitat needed for the
survival and recovery of a species is not destroyed or adversely
modified. However, if adequate protections are provided in another
manner (e.g., implementation of MDC's State Action Plan), there is no
benefit due to designation of critical habitat.
    Other possible benefits of critical habitat include educating the
public

[[Page 12625]]

regarding the conservation value of an area, focusing conservation
activities on these essential areas, and assisting other parties in
conservation and land management programs. In Missouri, the educational
benefits that may be afforded by a critical habitat designation are
already provided through implementation of the Action Plan.
(2) Benefits of Exclusion
    The benefits of excluding Missouri from designated critical habitat
would include: Maintenance of effective working partnerships to promote
the conservation of the Topeka shiner and its habitat; establishment of
new partnerships; providing benefits from the Action Plan to the Topeka
shiner and its habitat which exceed those that would be provided by the
designation of critical habitat; avoiding added administrative costs to
the Service, Federal agencies, and applicants; and future regulatory
flexibility for the Service and landowners by maintaining the ability
to reintroduce the shiner to formerly occupied streams in Missouri by
experimental populations under section 10(j) of the Act.
    Recovery of listed species is often achieved through partnerships
and voluntary actions. Through the Action Plan, the MDC has gained the
cooperation of landowners and has been successful in developing
voluntary conservation partnerships with these landowners. Cooperators,
with the assistance of MDC, are implementing conservation measures for
the Topeka shiner and its habitat in accordance with management
objectives outlined in the Action Plan. These actions range from
allowing access to private lands for surveys and site visits to
rehabilitation of habitat and implementation of measures to control
erosion and sedimentation. The partners have committed to conservation
measures benefiting the Topeka shiner that are greater than the
benefits of designating critical habitat. It is likely that many
current and potential partners will not assume the cost and work
associated with implementing voluntary management and protection if
critical habitat is designated regardless of their desire to contribute
to the conservation of the species. The MDC has advised us that the
support of voluntary conservation actions of private landowners that
benefit Topeka shiner recovery in the State could be withdrawn if
critical habitat is designated.
    In the draft Economic Analysis of Critical Habitat Designation for
the Topeka Shiner, Industrial Economics, Inc. (2003) determined that
two of the three proposed areas in Missouri (Bon Femme and Moniteau
Creeks) would have significantly higher costs for consultation under
section 7 of the Act than most areas proposed as Topeka shiner critical
habitat. This is despite the fact that minimal project modifications
requiring consultation under section 7 of the Act are projected for
activities conducted within these two watersheds. Consequently,
Industrial Economics, Inc. estimates that consultations conducted
within these two watersheds would be administratively and economically
burdensome to local communities (Jessica Sargent-Michaud, Industrial
Economics, Inc., pers. comm.).
    In summary, we view the continued implementation of the Action Plan
and the cooperative conservation partnerships with landowners to be
essential for the conservation of the Topeka shiner in Missouri. We
believe that the benefits of including critical habitat in Missouri are
small due to the successful implementation of conservation actions, as
identified in the Action Plan, through multiple partnerships. We
believe the benefits of excluding Missouri areas from critical habitat
greatly exceed the limited benefits of including them. Furthermore, we
believe that exclusion from critical habitat in this State will not
result in the extinction of the Topeka shiner. In accordance with
4(b)(2) of the Act, we believe that the benefits of excluding critical
habitat in Missouri outweigh the benefits of designating critical
habitat, and are proposing to exclude areas in Missouri containing
primary constituent elements from the critical habitat designation.
    In making our final decision with regard to areas in Missouri
containing primary constituent elements, we will consider several
factors, including the benefits provided to the Topeka shiner from the
Missouri Action Plan for the Topeka Shiner, as described in the August
2002 proposal. You may request a copy of the Action Plan by contacting
the Field Supervisor, U.S. Fish and Wildlife Service, 101 Park DeVille
Dr., Suite A, Columbia, MO 65203.

South Dakota

    In our proposal to designate critical habitat for Topeka shiner
published on August 21, 2002 (67 FR 54262), we proposed to designate 40
stream segments in South Dakota totaling 1,475 km (917 mi) of stream
channel. In the Big Sioux River basin of South Dakota and Minnesota, we
also proposed off-channel/side-channel pool habitat for designation.
After the publication of the August 2002 proposal, we received
information on additional Topeka shiner habitat in South Dakota. In
examining this information, we concluded that habitat within Stray
Horse Creek, Hamlin County, South Dakota, contains the necessary
elements for proposal as critical habitat. We are proposing one
additional 24-km (15-mi) long stream segment in South Dakota, based on
information received since the proposed rule was published in 2002 (see
``Proposed Regulation Promulgation'' section of this document for legal
description and map of this stream segment). Off-channel and side-
channel habitat, as well as main-channel habitat, also is proposed for
this additional stream.
    1. Stray Horse Creek (one stream segment), Big Sioux River
Watershed, Hamlin County, South Dakota. The stream reach proposed for
designation runs upstream from the confluence with the Big Sioux River,
including adjacent off-channel pool habitat.
    We are giving consideration to exempting South Dakota from critical
habitat designation under section 4(b)(2) of the Act. Since the listing
of the Topeka shiner in 1998, additional surveys conducted for this
species in South Dakota have located extensive occupied habitat that
was unknown at the time of listing. These demonstrate that the entire
historical range of the Topeka shiner continues to be occupied in South
Dakota. Furthermore, these surveys have considerably increased the
known number of occupied streams in South Dakota. South Dakota has also
completed a State Management Plan for the Topeka shiner. We will
continue to evaluate whether listing of areas in South Dakota as
critical habitat will appreciably benefit the Topeka shiner beyond the
protection already afforded the species under the Act and that afforded
by the State Management Plan.

Kansas

    We are giving consideration to exempting Kansas from critical
habitat designation under section 4(b)(2) of the Act. The Topeka shiner
is a State-listed threatened species in Kansas under the Kansas Nongame
and Endangered Species Conservation Act. The State has also designated
its own critical habitat for the Topeka shiner. We will continue to
evaluate whether listing of areas in Kansas as critical habitat will
appreciably benefit the Topeka shiner beyond the protection already
afforded the species under the Act and State laws and regulations.

Land Ownership

    The majority of stream segments containing primary constituent
elements

[[Page 12626]]

in Missouri and South Dakota are in private ownership and are primarily
used for grazing and crop production. Additionally, a portion of the
Charles Green State Wildlife Management Area, owned by the State of
Missouri and managed by the MDC, is within the Bonne Femme Creek
Complex of Missouri.

Economic Analysis

    The draft economic analysis estimates the foreseeable economic
impacts of the critical habitat designation on government agencies and
private businesses and individuals. The Service will make its final
decisions about exclusions based on economic impact, when it has
obtained public comments on the economic analysis and produced an
addendum to the economic analysis containing its final conclusions. The
Service is interested in comments from the public on the draft economic
analysis, on whether any of the areas identified in the economic
analysis as having economic effects should be excluded for economic
reasons, and whether those or any other areas should be excluded for
other reasons.
    The Act requires us to designate critical habitat on the basis of
the best scientific and commercial information available, and to
consider the economic and other relevant impacts of designating these
areas as critical habitat. We may exclude areas from critical habitat
upon a determination that the benefits of such exclusions outweigh the
benefits of designating these areas as critical habitat. We cannot
exclude areas from critical habitat when the exclusion will result in
the extinction of the species. The draft economic analysis serves as
the basis of our economic analysis under section 4(b)(2), and of any
recommended exclusions made in this document for Missouri. Since the
economic analysis supplement will not be completed until after we
receive comments from the public on the draft economic analysis, we
cannot identify final exclusions from critical habitat designation
under section 4(b)(2) in this document. However, we have identified and
recommended areas in Missouri that we believe, at this time, qualify
for exclusion under section 4(b)(2). Upon completion of the economic
analysis supplement, we will analyze the supplement, public comments on
the draft economic analysis, and this proposal, and the benefits of
designating areas as critical habitat in Missouri. At that time, we
will make a final determination whether certain areas containing
primary constituent elements should be excluded from the final critical
habitat designation, provided these exclusions will not result in the
extinction of the species. As a result, the final critical habitat
determination may differ from the proposal.

Public Meeting

    The Act provides for one or more public hearings or meetings on
critical habitat proposals, if requested. Previously, following the
publication of the initial proposed rule on August 21, 2002 (67 FR
54261), we held six public meetings across the species' range
concerning the designation of critical habitat for the Topeka shiner.
Due to the reopening of the comment period, and the changes herein to
the proposed designation of critical, we have scheduled an additional
public meeting.
    The public meeting will be held at Boonville High School, 1690
Ashley Rd., Boonville, Missouri, on April 13, 2004, from 7 p.m. to 9
p.m.

Author

    The primary author of this proposed rule is Vernon Tabor, Kansas
Ecological Services Field Office (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).

Proposed Regulation Promulgation

    For the reasons stated in the preamble, we propose to amend the
proposed amendments to part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as published in the Federal Register
of August 21, 2002, starting on page 54262, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.95, as proposed to be amended by 67 FR 54262:
    a. Revise paragraph (e)(1);
    b. Redesignating paragraphs (e)(15) through (e)(18) as paragraphs
(e)(16) through (e)(19) and adding a new paragraph (e)(15);
    c. Adding Map 10a and related text after the new paragraph (e)(15);
and
    d. Adding new paragraphs (e)(20) through (e)(22), including maps
and legal descriptions:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes. * * *
* * * * *

Topeka Shiner (Notropis topeka)

    (1) Critical habitat is depicted for Calhoun, Carroll, Dallas,
Greene, Hamilton, Lyon, Osceola, Sac, Webster, and Wright Counties,
Iowa; Butler, Chase, Dickinson, Geary, Greenwood, Marion, Marshall,
Morris, Pottawatomie, Riley, Shawnee, Wabaunsee, and Wallace Counties,
Kansas; Lincoln, Murray, Nobles, Pipestone, and Rock Counties,
Minnesota; Boone, Cooper, Daviess, Harrison, and Moniteau Counties,
Missouri; Madison County, Nebraska; Aurora, Beadle, Brookings, Clay,
Davison, Deuel, Hamlin, Hanson, Hutchinson, Lincoln, McCook, Miner,
Minnehaha, Moody, and Turner Counties, South Dakota, on the maps and as
described below.
* * * * *
    (15) Map 10a follows:

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[[Page 12627]]

[GRAPHIC] [TIFF OMITTED] TP17MR04.010


[[Page 12628]]



Stray Horse Creek--Hamlin County, South Dakota

    20. Stray Horse Creek from its confluence with the Big Sioux River
(T114N, R51W, Sec. 7), upstream through T115N, R51W, Sec. 3.
* * * * *
    (20) Map 15 follows:
    [GRAPHIC] [TIFF OMITTED] TP17MR04.011


[[Page 12629]]



Sugar Creek Complex

    1a. Sugar Creek from its confluence with Tombstone Creek (T62N,
R26W, Sec. 25), upstream through T64N, R27W, Sec. 35.
    1b. Unnamed tributary to Sugar Creek from its confluence with Sugar
Creek (T62N, R26W, Sec. 8), upstream through T62N, R27W, Sec. 14.
    1c. Tombstone Creek from its confluence with Sugar Creek (T62N,
R26W, Sec. 25), upstream through T62N, R26W, Sec. 29.
    (21) Map 16 follows:
    [GRAPHIC] [TIFF OMITTED] TP17MR04.012


[[Page 12630]]



Moniteau Creek Complex

    2a. Moniteau Creek from its confluence with Pisgah Creek (T46N,
R15W, Sec. 19), upstream through T45N, R17W, Sec. 17.
    2b. Pisgah Creek from its confluence with Moniteau Creek (T46N,
R15W, Sec. 19), upstream through T47N, R16W, Sec. 36.
    2c. Smiley Creek from its confluence with Moniteau Creek (T46N,
R17W, Sec. 24), upstream through T46N, R17W, Sec. 36.
    2d. Unnamed tributary to Moniteau Creek from its confluence with
Moniteau Creek (T46N, R17W, Sec. 21), upstream through T46N, R17W, Sec.
19.
    (22) Map 17 follows:
    [GRAPHIC] [TIFF OMITTED] TP17MR04.013

Bonne Femme Creek Complex

    3a. Bonne Femme Creek from its confluence with Turkey Creek (T47N,
R12W, Sec. 20), upstream through T47N, R12W, Sec. 12.
    3b. Turkey Creek from its confluence with Bonne Femme Creek (T47N,
R12W, Sec. 20), upstream to U.S. Highway 63 (T47N, R12W, Sec. 15).
    3c. Bass Creek from its confluence with Turkey Creek (T47N, R12W,
Sec. 20), upstream through T47N, R12W, Sec. 35.

[[Page 12631]]

    3d. Unnamed tributary to Bass Creek from its confluence with Bass
Creek (T47N, R12W, Sec. 27), upstream through T46N, R12W, Sec. 4.
    3e. Unnamed tributary to Bass Creek from its confluence with Bass
Creek (T47N, R12W, Sec. 27), upstream through T46N, R12W, Sec. 3.

    Dated: March 5, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5926 Filed 3-16-04; 8:45 am]

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