mill creek cons agreement

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MIlL CREEK WATERSHBDCONSERVATION AGREEMENT

TOPEKA SHINER. (NotropIs topa-a)

MiDCreek Wafersbed 101ntDistrict No. IS

Kansas Depanmeut ofWUdlife aud PariesU.S. FIShaudWildlife Service

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HILL CREEK WATERSHEDCONSERVAi"ION AGREENEN'.rTopeka Shiner (Notrop.1s topeka)

I. INTRODUCTION AND BACKGROUNDrhe Topeka shiner (Not:rop.1s t:opeka) is a small stout minnow, notexceeding 75 mm (3 inches) in total lenQth. Primary habitat for thespecies is 10w order, perennia1, upland streams with high vater qua1.ityand land cover dominated by expanses of prairie (Cross 1967; Pflieger1915). The historic range of the species includes portions of Iowa,Kansas, Hinnesota, Hissouri, Nebraska, and South Dakota. In the periodfollowing westward expansion into the plains and the resulting intensiveagricultural development of prairie ecosystems, the range of the Topekashiner has drastically declined. The number of known popu1ations hasbeen reduced by app;roximately80 percent, with approximately SO percentof this decline occurring within the last 2S years (USFWS 1993). XnKansas, the species originally occurred throughout the Kansas Riverbasin and portions of the upper Neosho and lower Arkansas River basins,with the largest known concentration of populations occurrinq in theE'1.int H11.1sJAegion (Hi.nck1.ey and Cross 1959). Duri.ng surveys conductedin Kansas in 1991 and 1992, the species was captured at 22 of 128 sitessampled at or near historic record locations.Remaining populations of the Topeka shiner are threatened by habitatdestruction, degradation, modi~ication, and fragmentation re~ulting fromsiltation, reduced water quality, tributary impoundment, streamchannelization, and stream dewatering. The species is also impacted byintroduced piscivorous fishes. This Conservation Agreement ~or the ~11Creek Watershed population of the Topeka shiner has been developed inorder to ensure that conservation measures for the protection of thislimited portion of the species' overall range are initiated and carriedout.II. INVOLVED PAR.'rXES

Mill Creek Watershed Joint District No. 85 (District)P.o. Box 185Paxico, Kansas 66526(913) 636-5477Kansas Department of wildlife and Parks (Department)900 Jackson street, Suite 502Topeka, Kansas 66612-1120(913) 296-2281u.s. Fish and Wild1.i.feP.o. Box 25486, DenverDenver, Co10rado 80225(303) 236-1920

XIX. AtJ'l'HORITY

Service (Service)Federal Center

The signatory parties enter into this Conservation Agreement underFederal and State law, as applicable, including but not limited tosection 2(c) (2) of the Endangered Species Act of 1973,

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2as amended, which states that -the po1icy o~ Congress is that Federa1agencies shall cooperate with State and local agencies to resolve waterresource issues in concert with conservation of endangered species", andthe Kansas Nongame and Endangered Species Conservation Act of 1975, asamended. Although the Topeka shiner is not yet a listed species, thisAqreement is entered into as part of "prelisting conservation" efforts.~l parties to this Agreement recognize that they each have specificstatutory responsibilities that cannot be delegated, particularly withrespect to the management and conservation or wildlife and themanagement, development, and allocation of water resources_ Nothing iri-the Agreement is intended to abrogate any of the parties' respectiveresponsibilities. This Aqreement is subject to and is intended to beconsistent with all applicable Federal and state laws and interstatecompacts.IV. STATUS AND DISTRI'SUTIONOF THE TOPEKA SHiNERThe Topeka shiner first received listing consideration when it wasdesignated a category 2 candidate species under the Endangered SpeciesAct ('OS FIlS 1991.). At that time, category 2 was used to desiqnatespecies for which information indicated that listing as endangered orthreatened may be appropriate, but for which conclusive data were notyet available to support a listing proposal. Following a rangewide- status review by the Service, the species was subsequently rec.1assi1:'.ieaas a category 1.candidate (USFWS 1994), indicating that currentinformation was sufficient to support a listing proposal. AI thoughnumerical categories for candidate species are no longer used, theTopeka shiner remains a candidate species, indicating that ~isting asthreatened or endangered is warranted.The species has no leqal status desiqnation in the States of 'Iowa,Nebraska, or south Dakota. :InKansas it is classified as a "species inneed of conservation", which prohibits direct taking of specimens. 'InKinnesota it is a "special concern'" species, with no legal protectionafforded by this designation. :InMissouri the species was reclassifiedas "endangered- in 1995, with protections for individuals as well ashabitats.

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In Iowa, 24 sites from which the species was reported between 1975 and1985 were sampled again in 1994; the species was captured at 3 of the24 sites. In Kansas the species was collected in 22 of 128 samples ator near known previous records. :InMissouri, 42 sites where Topekashiners were previously collected were sampled, with the speciescaptured at 8 of the 42 sites. More recently, the ~ssouri portion ofthe range was sampled again in 1996, with further reductions apparent.In South Dakota the species has been recent1y captured in low numbersfrom one stream in the James River basin and four streams in ~heVexmi.llion aiver basin. The specie. has been co1lected recently atabout half the historic s1tea in Minnesota, and from only one streamsite in the State of Nebraska.There are 71 known historic localities for the species in Kansas, ofwhich 31 are believed to be extirpated. There are 33 locations atwhich the species is currently known to occurr 28 rrom the original71 historic sites and 5 newly discovered in the past 2 years. Of the33 known locations, 8 are within the Mill Creek Watershed. This

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3represents 24 percent of all known Kansas populations, and may exceed15 percent of all known populations remaining rangewide.V. THREATS TO THE TOPEKA SHINERThe action most likely impacting the species to the greatest degree inthe past is sedimentation and eutrophication resulting from intensiveagricu1tural and urban development. Most populations of Topeka shinersoccurring west of the Flint Hills region of Kansas are believed to havebeen extirpated prior to 1935 (Cross and Hoss 1987). Hinckley andCross (1959) report that watersheds with high levels of cu1tivation, andsubsequent siltation, and domestic pollution are unsuitable for thespecies. These streams often cease to flow and become warm and muddyduring the summer months. Pflieger (1975) reports that increasedsiltation as a result of intensive cultivation may have reduced theamount of Topeka shiner habitat in Missouri. Feedlot operations on ornear streams also have been known to ~pact prairie fishes due toorganic input resulting in eutrophication (Cross and Braasch 1968).Mainstem reservoir development, and tributary impoundment andchannelization has also apparently impacted the species in some areas.Populations located within small tributary streams upstream from bothmainstem and tributary impoundments attempt to uti~ize_these w~ter_bodies as refuges from drying streams during periods of drought. Duringthis time, the populations are subject to predation by ~acustrinepiscivores. In unaltered systems,. fish move downstream to find suitab1.ehabitat.Layher (1993) reported the extirpation of a population of Topeka shinersf01lowing construction of a single watershed ~undment in ChaseCounty, Kansas. He reported the species disappeared both upstream anddownstream of the dam site, and noted significant habitat changes belowthe impoundment. Pflieger (in litt. 1992) reported that an abundantpopulation of the species in ~ssouri was extirpated followingconstruction of a watershed impoundment. This popu1.ation,~ocateddownstream from the dam site, was not present when re~sited severalyears after construction. The habitat had changed from clear rockypools, to pools filled with gravel, layered over by silt and filamento~salgae. Impoundment of prairie streams has resulted in the documentedextirpation of other minnow species characteristic of that habitat(Winston et al. 1991).The green sunfish (LeDomis cyanellus) is the most common predatortypical of Topeka shiner habitat. The spotted bass (Micro9terusDunctulatus) is also a naturally occurring predator, but to a lesserdegree due to minimal habitat overlap, occurring in the downstreamextremes of typical Topeka shiner habitat. The construction of ponds onstreams with populations of Topeka shiners, and the subsequent stockingof species such as largemouth bass (Micropterus salmoides), crappie(Pomoxisspp.), and channel catfish (Ictalurns Dunctatus), may affectthe species during drought or periods of low flows when the Topekashiner seeks refuge in the impoundments or per.manent stream pools nowoccupied by these introduced fishes. A cooperative report completed bythe Soil Conservation Service (now NRCS) and.Kansas Department of Healthand Environment (1981) following a study on the effects of watershedimpoundments on Kansas streams states that predaceous game fishes

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4increased in abundance, and severa~ minnow species, inc1uding the Topekashiner, decreased in abundance both upstream and downstream from damsites fOllowinq impoundment.VI. AGREEMENTS AND RESPONS:IBI:L:ITIESIn an effort to facilitate development of rlood protection measureswithin the Kill Creek basin while s~ultaneously protecting corepopulations of Topeka shiner, the parties have developed aclassification system for tributary streams in the basin (Figure 1).stream namenclatuxe in this Agreement and attached map follows USGSdata, which in some cases does not correspond to stream names used inthe District's Genera~ Plan. Where names are different, the name usedin the General P1.an is provided in parentheses. The streamc1.assification system is based on degree of importance relative tosupporting apparently viable, sel.f-sustaining populations of thespecies, as follows:Class 1: ~critical use" areas, characterized by recent collections ofapparently stable, self-sustaining populations of Topeka shiners, withfew or no existing watershed dams in place. Streams receiving thisclassification include Loire, Hendricks, Phi1.1.ips,Mulberry, Dog, Dry,and spring Creek. This latter stream is one of two Spring creeks in theMill creek Basin, and-lies between Hulberry and Paw Paw Creeks.Class 2: "safe haven" areas, characterized by recent collections ofsmaller or less stable numbers of Topeka shiners, and with samewatershed dam control already in place. Streams receiving thisclassification include Kuenzli, Paw Paw, Illinois, Nehring, South(a.k.a. "Middle") Branch Mill Creek, and the other Spring Creek, locatedwest of Loire Creek.Class 3: "low priorityH areas, characterized by an absence of recentTopeka shiner collections, or the species present in very low numbersassociated with more widespread current and ongoing watershed controlmeasures. Streams receiving this classification include West and EastBranch Kill Creek, as well as Snokomo and Pretty Creek.In Class 1.streams,. it is agreed that no watershed dam constructionshall be done beyond any which may already exist in these areas. InClass 2 streams, watershed dam construction may not exceed 20 percentcontrol of total runoff surface area. ~r example, if a Class 2tributary stream drains 100 surface acres' of runoff area, damconstruction may control no more than 20 acres of runoff area. InClass 3 streams, watershed dam construction may proceed up to as much as40 percent control. of the runoff of the incti.vidual sub-basin. ::Inaddition, no watershed dam will be constructed within one linear streammile of any population of Topeka shiners identified in surveys prior toimplementation of this Agreement.Therefore, with respect to the above framework, the parties agree to thefOllowing: .

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6enhance habitat, or prospective programs ana incentive initiativesas may be later legislatively developed, all of which are to beidentified by the Service and the Department, and provide a list orinterested property owners and address of potential participants rorfollow-up contact concurrently by the Service and Department.

S. Kansas Department of Wild1ife and Parks Agrees:1. To provide surveys as deemed appropriate by the Department todetermine the presence of or the effect on the Topeka shinerresulting from the construction of approved watershed dams withinthe 5-year period of this Agreement. Surveys shall also be used toupdate historic location information as needed for a complete reviewof this agreement every five years.2. Not to oppose, based on Topeka shiner concerns, before any local,state or Federal aQency whatsoever, the construction, maintenance,and operation of the rollowing dam projects:sites # 1, 2, 3, 4, 5, 6, 20, 22, 25, 48, 49, 50, and 51 on WestBranch Mill Creek

site # 33 on Illinois Creeksites # 10, 11, 12, 37, 55, and 56 on a tributary to East(a.k.a. "south-) Branchsites I 13 and 40 on South (a.k.a; "~ddle-) Branch ~ll Creeksites * 28, 29, and 30 on spring CreekSite # 46 on Pretty CreekSites # 47 and 64 on Snokomo Creeksite # 57 on Nehring Creek3. With respect to the dams specified in paragraph B.2, above, to notassert an objection related to the presence or effect upon theTopeka shiner of any kind, character, nature and description whichhas heretofore been made.4. In the event the Topeka shiner may become a state-listed species, to

warrant that the District has met justifiable and adequate measures~or conservation of this species, and that no additional mitigationwill be required.5. To develop a management and recovery plan for the Topeka shinerwithin the ~ll Creek Watershed District.C. The U.S.. Fish and Wi1.dlife Service Agrees:1. To cooperate with the Department in the completion of Topeka shinersurveys described in B.l.. above.2. Except as provided in section II~ of this agreement, not to oppose,based on Topeka shiner concerns, before any 10cal, State or Federa1agency whatsoever, the construction, maintenance, and operation of .the dam projects indicated in paragraph B.2., above.3. In the event the Topeka shiner may become a federally-listedspecies, to recognize the extent to which the District hascooperated in providing for the management and recovery of thespecies, and consistent with section III of this Aqreement, to avoid

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7further regu~atory or habitat protection burdens on the Districtwith respect to this species.

4. In the event the Topeka shiner may become a federally-listedspecies, to incorporate this Agreement as a part of a speciesRecovery P~an, utilizing its conditions as recovery goals ~or thatlimited portion or the species' range included in this Agreement.5. To provide the District with information regarding its ~Partners forwildlife" program, and to cooperate, both technically andfinancially, with any District landowner willing to implementhabitat improvement/protection measures, such as described inparagraph A.6, provided funds are avai1abl-e. .OO . ,6. To cooperate with the Department and the District in the developmentof a management and recovery plan for the species within the HillCreek Watershed District.VIr. D1J'BATIONOF AGREEMENTThe initial term of this Agreement shall be 5 years. If all signatoriesagree that sufficient progress has been made towards the management andrecovery of the Topeka shiner within the Mill Creek basin, thisAgreement may be continued without modification after the first 5 years,and each 5 year period.thereafter, without written notification by anyparty to the other. Further, if any party should desire to modify thisAgreement, or withdraw from this Agreement, notification of such intentshall be served in writing to the other parties not less than 6 monthsin advance of the end of each 5 year period, or the Agreement will bedetermined to be acceptable for another 5 years.VIII. ADMINISTRATION1. The performance of all parties under this Agreement is contingentupon the authorization and appropriation of funds.2. Nothinq in this Aqreement obligates any party to the expenditure offunds in excess of appropriations authorized by law.3 . Amendments or supplements to this Aqreement may be proposed by anysubject party pursuant to paragraph ViI and shall become effectiveupon written ~pproval by all parties. The amendments ~ndsupplements will terminate if this Agreement is terminated.4. This Agreement shall become effective as soon as siqned by the.subject parties and shall continue in force until formallyterminated pursuant to paragraph VI!.5. This Agreement in no way restricts any of the parties fromparticipation in similar activities or arranqements with otherpublic orooprivate agencies, orqanizations or individuals.

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IX. SIGNA'rURES

Gerald Barthuly, PresidentMill Creek Watershed Joint District No. as_.- -

Steve W~lliams. SecretaryKansas Department of Wildlife and Parks

~~--~_lph Morgenweck, Regional Directoru.s. Fish and Wildlife Service

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REFERENCESCross, F.B. 1967. Handbook of ~ishes of Kansas. Misc. Publ. 45,Museum of Natural History, Univ. Kansas, Lawrence, KS. 357 pp.Cross, F.B. and M. Braasch. 1968. Qualitative changes in the fish-fauna of the upper Neosho River system, 1952-1967. Trans. KansasAcad. Sci. 71(3):350-360.Cross, F.B. and R.E. Moss. 1987. Historic changes in fish communitiesand aquatic habitats in plains streams of Kansas. paqes 155-165 inN.J. Mat.thews and D.C. Heins, ed., Community and EvolutionaryEcology of North American stream Fishes. Univ. Oklahoma Press,Norman, OK.Layher, W.G. 1993. Changes in fish community structure resulting froma flood control dam in a Flint Hills stream, Kansas, with emphasis

on the Topeka shiner. Univ. Arkansas at pine Sluff, Pine Bluff~Cooperative Fisheries Research Project. AFC-93-1. 20 pp.~nckley, W.L. and F.B. Cross. 1959. Distribution, habitat, andabundance of the Topeka shiner Notroois topeka (Gilbert) in Kansas.Amer. ~dl. Nat. 61(1):210-217.Pflieger, W.L. 1975. The fishes of Missouri. Missouri Dept. ofConservation, Columbia, MO. pp. 161-162.Pflieger, W.L. 1992. Letter to USFWS commenting on draft Topeka shinerstatus report. Missouri Dept. of Conservation, Columbia, MO.u.s. Fish and wildlife Service. 1991. Endangered and threatenedwildli~e and plants; animal candidate review for listing asendangered or threatened species, proposed ru1e. Federa1 Register.Vol. 56, p. 58816.u.s. Fish and wildlife Service. 1993. Status report on Topeka shiner(NotroDis topeka). Kansas Field.Office, Region 6, Manhattan, KS.22 pp.u.S. Fish and Wildlife Service. 1994. Endangered and threatenedwildlife and p1ants; animal candidate review for listing asendangered or threatened species, proposed rule. Federal Register.Vo1. 59, p. 58999.u.S. Soil Conservation Service and Kansas Department of Health andEnvironment. 1981. The ~pact of floodwater retarding impoundmentson the b:iota and water qua1.i.ty of ephemeral Kansas streams. Coop.proj. FinaL Report, KDHE, Topeka, KS. 39 pp.Winston, M.B.., C.M. Taylor, and J. Pigg. 1991. Upstream extirpation offour minnow species due to damming of a prairie stream. Trans.Amer. Fisheries Soc. 120:98-105.

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07/29/97 08:12 FAX 9132966375 KDWP #2STATE OF KANSAS

DEPARTMENT OF WILDLIFE & PARKS-H-+ PRATT PERSONNEL @01

Office of the SecreQry900 SW Jacbon. Suite 502Topeka. KS 66612

913/29&2281 FAX 913/296-6953

FAX TRANSMITTAL SHEET

DATE: TIME:NUMBER OF PAGES (Including Transmittal)FROM:NAME:TEL:

1:Q:NAME:ORGANIZATION:FAX TEL. NO.:

COMMENTS:P/n~e tlAt/ IUldusLoI'''l'w.lt~

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United States Department of the InteriorFISH AND Wll..DLIFE SERVICEMountain-PrairieRegion

IN /tP[:r 1iIa'ER 11):FWS/R6COIKlS/NE/UT MAll..ING ADDRESS:Post Office Box 25486Denver Federal CenterDenver, Colorado 80225-0486

STREET LOCATION:134 Union BlvdLakewood, Colorado 80228-1801

'JUL 2 ~ 1997Steve Williams, SecretaryKansas Department of Wildlife and Parks900 Jackson Street, Suite 502~opeka, Kansas 66612-1120Dear Mr. Williams:There are three signed copies of the final Conservation Agreement forthe Topeka shiner in the Mill Creek Watershed o Kansas enclosed. 1"heFish and Wildlife Service published a notice of availability of thisAgreement in the Federa1 Regist~~ on June 4 requesting any comments byJuly 7. A total of 16 requests by individuals or entities desiring acopy of the dra:tt Agreement were received in the Manhattan, Kansas FieldOffice. Copies were mailed to all requestors, but no comments have beenreceived.This Conservation Agreement culminates a lengthy coordination betweenthe three signatory parties and, r believe, represents a positive steptoward conservation of a decl~ning spec~es while maintaining a ~espectfor the legitimate needs of human occupants of the basin. I request yousign the three copies of this Agreement at your earliest convenience andforwa~d them to Gerald Barthuly, President, Hill Creek Watershed JointDistrict No. 85, through Duane Hund, Contracting-officer, P.O. Box 185,paxico, Kansas 66526. Once completed, Hr. Barthuly will mail them backto me at the letter head address. An original of the signed Agreementwill then be provided to all parties involved.~hank you for your participation and cooperation.

Sincerely,

I\~\nl Regional DirectorEnclosuresCC: Duane Hund, Contracting OfficerMill Creek WatershedJoint District No. 65P.O." Box 185Paxico, Kansas 66526

mill creek cons agreement

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