[Federal Register Volume 62, Number 234 (Friday, December 5, 1997)] [Proposed Rules] [Pages 64337-64340] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-31840] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AC62 Endangered and Threatened Wildlife and Plants; Reopening of Public Comment Period on the Proposed Rule to List the Arkansas River Basin Population of the Arkansas River Shiner as Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; Notice reopening the public comment period. ----------------------------------------------------------------------- SUMMARY: On August 3, 1994, the U.S. Fish and Wildlife Service (Service) proposed to list the Arkansas River basin population of the Arkansas (AR) River shiner (Notropis girardi) as an endangered species under the authority of the Endangered Species Act of 1973, as amended (Act)(59 FR 39532). Public comments were solicited, three public hearings were held, and the last comment period expired on February 3, 1995 (60 FR 2070). The enactment of Pub. L. 104-6 in April 1995, and a series of continuing resolutions from October 1, 1995, through April 26, 1996, established a moratorium against issuing final listings or critical habitat designations. The Service's listing program was essentially shut down and listing program personnel were reassigned to other duties. When the moratorium was lifted, the Service published guidance for assigning relative priorities to listing actions conducted under section 4 of the Act during Fiscal Year 1997 (61 FR 64475). This species was proposed for endangered status in 1994. New information concerning the AR River shiner's status has since become available. This notice identifies possible issues the public should be aware of and provides the public opportunity to comment on these issues. All previous comments submitted in response to the August 3, 1994, proposal, including comments that were received after the expiration of the previous comment periods, will be entered into the public record for the AR River shiner. DATES: Comments from all interested parties must be received by January 5, 1998. ADDRESSES: Written comments and materials should be sent to: Supervisor, Ecological Services Field Office, 222 South Houston, Suite A, Tulsa, Oklahoma 74127-8909. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Ken Collins at the above address (telephone 918/581-7458 ext. 230). SUPPLEMENTARY INFORMATION: Background On August 3, 1994 (59 FR 39532), the Service proposed to list the Arkansas River basin population of the AR River shiner (Notropis girardi) as an endangered species under the authority of the Endangered Species Act of 1973, as amended (Act)(16 U.S.C. 1531 et seq.). The introduced population which occurs in the Pecos River basin is not under consideration for protection under the Act because it is not native to the area. Two public comment periods were established, with the last comment period expiring on February 3, 1995 (60 FR 2070). During the second comment period, the Service held three public hearings, one each in Kansas, Oklahoma, and Texas. The Service received 602 comments (letters and oral testimony) from 567 individuals or agencies, including a petition containing the names of 36 individuals. Contents of the written comments and oral statements obtained during the public hearings and comment periods were being evaluated at the time Public Law 104-6 was enacted. The enactment of Pub. L. 104-6 in April 1995, and a series of continuing resolutions from October 1, 1995, through April 26, 1996, established a moratorium against issuing final listings or critical habitat designations. Funding for the Service's listing program was severely reduced or eliminated and listing personnel were reassigned to other duties, essentially shutting down the listing program. On April 26, 1996, President Clinton approved the Omnibus Budget Reconciliation Act of 1996 and exercised the authority granted under this Act to waive the listing moratorium. When the moratorium was lifted, the Service published guidance for assigning relative priorities to listing actions conducted under section 4 of the Act during Fiscal Year 1997 (61 FR 64475). Based on this priority system, [[Page 64338]] the listing of the Arkansas River basin population of the AR River shiner was assigned to Tier 2. Tier 2 includes processing of final decisions on pending proposed listings. The Service has determined that an additional comment period is needed to allow public comment on all relevant information that has arisen since the close of the last comment period for the AR River shiner. Summary of Information Relevant to the Listing Decision The Service has received information indicating that populations of AR River shiners in the Canadian River upstream from Lake Meredith may be stable (and not declining as suggested in the proposed rule). 1. Effects of the Bureau of Reclamations's Lake Meredith Salinity Control Project In the proposed rule, the U.S. Bureau of Reclamation's (Bureau) Lake Meredith Salinity Control Project was identified as a significant, ongoing threat to the aggregations of AR River shiners that occur in the Canadian River between Ute Reservoir in New Mexico and Lake Meredith in Texas. Based on information available at the time of the proposed listing, the abundance of AR River shiners within this stream segment were believed to be declining and operation of the salinity control project would have resulted in significant reductions in stream flow, affecting habitat for the species within the Canadian River above Lake Meredith. New information (J.C. Williams, Canadian River Municipal Water Authority, in litt. 1997; Gene Wilde, Texas Tech University, in litt. 1997; Bureau 1995) does not support this assertion and the Service solicits questions and comments regarding this issue. 2. Influence of the High Plains Aquifer on Canadian River Stream Flows New information provided by the U.S. Geological Survey, State of Texas, and High Plains Underground Water Conservation District clarified the influence of the High Plains aquifer (Ogallala Aquifer) on Canadian River stream flows, particularly upstream of Lake Meredith. The High Plains aquifer in Texas underlies all or portions of 48 counties of the Panhandle region. The aquifer is constricted in the vicinity of Randall and Potter counties, Texas, and this constriction is considered a subdivision boundary which divides the Southern High Plains from the Central High Plains regions (Dugan and Sharpe 1996). Groundwater in the Southern High Plains region moves in a southeasterly direction away from the Canadian River, based on the altitude of water levels within the aquifer (Peckham and Ashworth 1993). This region of the aquifer appears to have little influence, if any, over observed stream flows within the Canadian River in Texas. Upstream of the Hutchinson-Roberts County line, including Lake Meredith, the Canadian River stream bed is below the elevation of the High Plains aquifer (John Ashworth, Texas Water Development Board, in litt. 1995). 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 stream flow within this reach would be predominantly through spring flow and similar emissions (e.g., natural discharge) where the water table intersects the land surface (Peckham and Ashworth 1993, Brune 1981, Texas State Board of Engineers 1938a, 1938b). The contribution of the High Plains aquifer to stream flows downstream of Lake Meredith, and the influence of groundwater pumping on observed stream flows, is difficult to determine with the existing information available to the Service. Considering the small amounts of springflow within this segment, reductions in such flows are not likely to have had a profound impact on stream flows or habitat for the AR River shiner. Any impact from a reduction or cessation of springflow is considerably less significant than the influence of Lake Meredith on current stream flows. The Service requests questions, comments, or any new information regarding the High Plains Aquifer. Information indicates that withdrawals from the High Plains aquifer may have affected stream flow within the Canadian River in Roberts and Hemphill counties, Texas, but the data necessary to confirm this assumption or determine the degree to which stream flows have been affected is lacking. Comments are sought on this particular issue, including any information that would clarify the influence of the High Plains aquifer on stream flows in this stream segment. 3. Susceptibility of Extant Populations to Catastrophic Events The proposed rule indicated that the Arkansas River basin population was essentially limited to one river system and was extremely susceptible to extinction from a single catastrophic event. In making this determination, the Service essentially discounted the small aggregations of AR River shiners occurring in the Cimarron River and considered the artificially isolated aggregations upstream of Lake Meredith vulnerable to the same singular catastrophic event. Likewise, the Service considered any AR River shiner aggregations in the Beaver/ North Canadian River to be the result of releases by commercial bait operators and such aggregations did not represent a naturally reproducing or self-sustaining population. Upon review of comments received during the comment periods, the Service has reassessed the significance of these factors in the status of the species. Lake Meredith is an effective artificial barrier to movement of stream fishes and does provide a small degree of protection to AR River shiner aggregations upstream of Lake Meredith from introductions of nonnative fishes that might occur downstream of the reservoir. Essentially two separate events would be required to affect both the upstream and downstream aggregations. Consequently, the Service acknowledges that a single catastrophic event, such as establishment of the non-native Red River shiners, would not necessarily affect existing aggregations of AR River shiners in the Canadian/South Canadian River system simultaneously. However, aggregations of AR River shiners upstream of Lake Meredith are less numerous than those in the remainder of the Canadian/South Canadian River system and the risk of extinction for the Arkansas River basin population would increase if Red River shiners became established downstream of Lake Meredith. Comments (from one individual) during the public comment period indicate that AR River shiners may still exist in the Beaver/North Canadian River near Turpin, Oklahoma. Likewise, AR River shiners may still occur in the Cimarron River. The Service recognizes that additional aggregations of AR River shiners may occur outside the Canadian/South Canadian River system. However, the viability of these aggregations is unknown and their present contribution to survival of the Arkansas River basin population is likely to be minimal considering the small size of these aggregations. The Service also did not adequately consider the importance of the Pecos River population to the survival of the Arkansas River basin population of the AR River shiner. The Pecos River population was accidentally established with individuals trans-located from the Arkansas River basin and could be used in conservation efforts following a severe drought within the Arkansas [[Page 64339]] River basin. While the Pecos River population is nonnative and not currently proposed for protection under the Act, this population essentially represents a refugia population that could be utilized in restoration efforts. The Service requests any additional information, questions, or comments regarding AR River shiner aggregations. 4. Status of Population Above Lake Meredith Recent (1995-96) data collected by Texas Tech University, supports the position of the Texas Parks and Wildlife Department (TPWD) for the aggregations of AR River shiners upstream of Lake Meredith. At the time of the publication of the proposed rule, AR River shiner aggregations upstream of Lake Meredith were believed to be declining in abundance. However, current data may indicate otherwise. While the number of AR River shiners collected upstream of Lake Meredith has declined since the 1950's, the relative abundance of the AR River shiner in this stream segment has remained almost constant. Except for 1990 collections, the relative abundance of AR River shiners within this stream segment has varied between 22 and 26 percent (Gene Wilde, Texas Tech University, in litt. 1997). The Service requests information on the aggregations of AR River shiners between Ute Reservoir and Lake Meredith. 5. The Memorandum of Understanding (MOU) Between the Service and the States of Texas and Oklahoma On March 7, 1997, the Service met with representatives from four of the five affected State fish and wildlife conservation agencies and the Bureau to discuss conservation of the Arkansas River basin population of the AR River shiner. The Kansas Department of Wildlife and Parks was unable to send a representative to this meeting. The invited parties included those agencies with the responsibility, authority, and funding mechanisms to implement conservation actions for the AR River shiner. Following this meeting, the Service and the states of Texas and Oklahoma cooperated in drafting a MOU outlining actions the agencies should undertake to conserve the species. The purpose of the draft MOU is twofold--(1) to establish a general framework for cooperation among the signatory parties to conserve the Arkansas River basin population of the AR River shiner, and (2) to seek commitments from the signatory states that will provide conservation benefits to the shiner, thereby lessening the likelihood of extinction. The TPWD and the Oklahoma Department of Wildlife (ODWC) will accomplish the following actions under the MOU, to the extent that funding and authorities allow: (A) Work in partnership with the Service and other State fish and wildlife resource agencies to develop and implement a detailed conservation strategy to address known and possible future threats to the AR River shiner, and recovery opportunities; implementation of the conservation strategy will be initiated within 18 months from the effective date of this MOU. (B) Work in partnership with the Service to coordinate with other applicable State agencies and other stakeholders to develop adequate actions that eliminate or reduce threats to the AR River shiner and identify recovery actions for inclusion in the conservation strategy. (C) Work in partnership with the Service to develop and implement a systematic program to annually monitor the distribution and abundance of the AR River shiner and other nongame fishes within the Arkansas River Basin within each State (the McClellan-Kerr Arkansas River Navigation System is exempt). Likewise, the Service agreed to accomplish the following actions under the MOU, to the extent that funding and authorities allow: (A) Work in partnership with the ODWC, TPWD and other State fish and wildlife resource agencies in the development of a conservation strategy that involves appropriate stakeholders, including applicable Federal and State agencies, that identifies appropriate measures needed to eliminate or reduce threats to the AR River shiner and initiate recovery actions. The Service will coordinate the first meeting with future coordination responsibilities determined by consensus. (B) Seek to increase Endangered Species Act section 6 funds and assist in obtaining funds from other sources for states within the geographic range of the AR River shiner to assist in the conservation of this species as outlined in this MOU, the conservation strategy, and the recovery plan. (C) If the species is listed as threatened, work cooperatively with the State fish and wildlife resource agencies in promulgating a 4(d) rule under the Act that encompasses the conservation strategy and other management/recovery actions developed by the Service in partnership with the State fish and wildlife resource agencies. (D) Initiate delisting activities for the AR River shiner when protection under the Act is no longer warranted and the Service and State fish and wildlife resource agencies fulfill the obligations stipulated in the 4(d) rule, the conservation strategy, and recovery plan. The draft MOU also contains an appendix specific to Texas that reflects the unique nature of the threats and recovery opportunities available in that State and will serve to guide development of the conservation strategy for the AR River shiner. The Texas appendix contains these principles-- (A) Conservation strategies will not restrict or regulate groundwater use of the High Plains Aquifer (formerly the Ogallala Aquifer) in Texas since, based on current knowledge, there is no hydrologic connection between groundwater resources of this aquifer and surface flows in the Canadian River in Texas. Conservation of the aquifer's water resources, however, is encouraged. (B) Conservation strategies will not require releases of water from Lake Meredith, except as might be voluntarily agreed to by controlling authorities in contributing to the conservation and recovery of the species and its habitat. (C) Existing (i.e., traditional, in the sense that they are ongoing) agricultural and land management activities as currently practiced adjacent to occupied AR River shiner habitat in Texas will not be adversely affected as part of developing and implementing conservation strategies, unless--(1) those practices are modified to adversely affect the species or its habitat, existing stream flow, or degradation of water quality; or (2) changes in those practices would benefit the species or its habitat, and are mutually agreed to by the landowner(s), TPWD, and the Service. The draft MOU will become effective upon signature of all parties, and will remain in force until modified or terminated. The MOU may be modified at any time during the period of performance by mutual consent of the signatory parties. If changes to an appendix are warranted, the respective State and the Service may make such changes. If a proposed change to an appendix would affect other signatory states, then all signatory parties must consent to the change. This MOU, as drafted, may be terminated at any time during the period of performance, upon 30 days written notice, by any of the signatory parties. The TPWD and the ODWC signed the draft MOU in early May. The State of Kansas declined to enter into the MOU due to staff and fiscal constraints (Steve [[Page 64340]] Williams, Secretary, Kansas Department of Wildlife and Parks, in litt. 1997). Likewise, the State of New Mexico declined to enter into the MOU due to staff and fiscal constraints (Jerry A. Maracchini, Director, New Mexico Department of Game and Fish, in litt. 1997). Public Comments Solicited The Service solicits written comments on information described in this notice. All previous comments and information submitted in response to earlier comment periods on this proposed action will be considered. Communications received during this comment period may lead to a final regulation that differs from that presented in this notice. References Cited Brune, G. 1981. Springs of Texas volume I. Branch-Smith, Inc. Fort Worth, TX Dugan, J.T. and J.B. Sharpe. 1996. Water-level changes in the High Plains aquifer predevelopment to 1994. Water-Resources Investigations Report 95-4208. U.S. Geological Survey. Lincoln, NE. Peckham, D.S. and J.B. Ashworth. 1993. The High Plains aquifer system of Texas, 1980 to 1990 overview and projections. Texas Water Development Board. Austin, TX 34 pp. Texas State Board of Water Engineers. 1938a. Oldham County, Texas records of wells and springs, driller's logs, water analysis and map showing location of wells and springs. WPA Project 6017-5674. State Board of Water Engineers, U.S. Geological Survey, and Univ. Texas Bureau of Industrial Chemistry. Austin, TX. 50 pp. Texas State Board of Water Engineers. 1938b. Potter County, Texas records of wells, springs, and representative earthen tanks, driller's logs, water analysis and map showing location of wells. WPA Ground-water Survey Project 5674. State Board of Water Engineers, Univ. Texas Bureau of Industrial Chemistry, and U.S. Geological Survey. Austin, TX. 52 pp. U.S. Bureau of Reclamation. 1995. Final supplemental environmental assessment Lake Meredith Salinity Control Project Texas-New Mexico. Great Plains Region, Oklahoma-Texas Area Office. Oklahoma City, OK 57 pp. Author The primary author of this notice is Ken Collins, U.S. Fish and Wildlife Service (see ADDRESSES above). Authority The authority for this action is 16 U.S.C. 1531-1544. Dated: November 24, 1997. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 97-31840 Filed 12-4-97; 8:45 am] BILLING CODE 4310-55-P