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MIlL CREEK WATERSHBD CONSERVATION AGREEMENT

TOPEKA SHINER. (NotropIs topa-a)

MiD Creek Wafersbed 101ntDistrict No. IS Kansas Depanmeut ofWUdlife aud Paries U.S. FIShaud Wildlife Service

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HILL CREEK WATERSHED CONSERVAi"ION AGREENEN'.r Topeka Shiner (Notrop.1s topeka) I. rhe INTRODUCTION AND BACKGROUND

Topeka shiner (Not:rop.1s t:opeka) is a small stout minnow, not exceeding 75 mm (3 inches) in total lenQth. Primary habitat for the species is 10w order, perennia1, upland streams with high vater qua1.ity and land cover dominated by expanses of prairie (Cross 1967; Pflieger 1915). The historic range of the species includes portions of Iowa, Kansas, Hinnesota, Hissouri, Nebraska, and South Dakota. In the period following westward expansion into the plains and the resulting intensive agricultural development of prairie ecosystems, the range of the Topeka shiner has drastically declined. The number of known popu1ations has been reduced by app;roximately80 percent, with approximately SO percent of this decline occurring within the last 2S years (USFWS 1993). Xn Kansas, the species originally occurred throughout the Kansas River basin and portions of the upper Neosho and lower Arkansas River basins, with the largest known concentration of populations occurrinq in the E'1.int H11.1sJAegion (Hi.nck1.ey and Cross 1959). Duri.ng surveys conducted in Kansas in 1991 and 1992, the species was captured at 22 of 128 sites sampled at or near historic record locations.

Remaining populations of the Topeka shiner are threatened by habitat destruction, degradation, modi~ication, and fragmentation re~ulting from siltation, reduced water quality, tributary impoundment, stream channelization, and stream dewatering. The species is also impacted by introduced piscivorous fishes. This Conservation Agreement ~or the ~11 Creek Watershed population of the Topeka shiner has been developed in order to ensure that conservation measures for the protection of this limited portion of the species' overall range are initiated and carried out. II. INVOLVED PAR.'rXES Mill Creek Watershed Joint District P.o. Box 185 Paxico, Kansas 66526 (913) 636-5477 No. 85 (District)

Kansas Department of wildlife and Parks 900 Jackson street, Suite 502 Topeka, Kansas 66612-1120 (913) 296-2281
u.s. Fish and Wild1.i.fe Service P.o. Box 25486, Denver Federal Denver, Co10rado 80225 (303) 236-1920 XIX. AtJ'l'HORITY

(Department)

(Service) Center

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

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as amended, which states that -the po1icy o~ Congress is that Federa1 agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species", and the Kansas Nongame and Endangered Species Conservation Act of 1975, as amended. Although the Topeka shiner is not yet a listed species, this Aqreement is entered into as part of "prelisting conservation" efforts. ~l parties to this Agreement recognize that they each have specific statutory responsibilities that cannot be delegated, particularly with respect to the management and conservation or wildlife and the

management, development, and allocation of water resources _

Nothing

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the Agreement is intended to abrogate any of the parties' respective responsibilities. This Aqreement is subject to and is intended to be consistent with all applicable Federal and state laws and interstate compacts.

IV.

STATUS AND DISTRI'SUTIONOF THE TOPEKA SHiNER

The Topeka shiner first received listing consideration when it was designated a category 2 candidate species under the Endangered Species
Act ('OS FIlS 1991.). At

that time, category 2 was used to desiqnate

species for which information indicated that listing as endangered or threatened may be appropriate, but for which conclusive data were not yet available to support a listing proposal. Following a rangewide - status review by the Service, the species was subsequently rec.1assi1:'.iea as a category 1.candidate (USFWS 1994), indicating that current information was sufficient to support a listing proposal. AI though numerical categories for candidate species are no longer used, the Topeka shiner remains a candidate species, indicating that ~isting as threatened or endangered is warranted. The species has no leqal status desiqnation in the States of 'Iowa, Nebraska, or south Dakota. :In Kansas it is classified as a "species in need of conservation", which prohibits direct taking of specimens. 'In Kinnesota it is a "special concern'" species, with no legal protection afforded by this designation. :InMissouri the species was reclassified as "endangered- in 1995, with protections for individuals as well as habitats. In Iowa, 24 sites from which the species was reported between 1975 and 1985 were sampled again in 1994; the species was captured at 3 of the 24 sites. In Kansas the species was collected in 22 of 128 samples at or near known previous records. :InMissouri, 42 sites where Topeka shiners were previously collected were sampled, with the species captured at 8 of the 42 sites. More recently, the ~ssouri portion of the range was sampled again in 1996, with further reductions apparent. In South Dakota the species has been recent1y captured in low numbers from one stream in the James River basin and four streams in ~he Vexmi.llion aiver basin. The specie. has been co1lected recently at about half the historic s1tea in Minnesota, and from only one stream site in the State of Nebraska. There are 71 known historic localities for the species in Kansas, of

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which 31 are

believed to be extirpated.

There are 33 locations at

which the species is currently known to occurr 28 rrom the original 71 historic sites and 5 newly discovered in the past 2 years. Of the 33 known locations, 8 are within the Mill Creek Watershed. This

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represents 15 percent 24 percent of all known Kansas populations, and may exceed of all known populations remaining rangewide.
TO THE TOPEKA SHINER

V.

THREATS

The action most likely impacting the species to the greatest degree in the past is sedimentation and eutrophication resulting from intensive agricu1tural and urban development. Most populations of Topeka shiners occurring west of the Flint Hills region of Kansas are believed to have been extirpated prior to 1935 (Cross and Hoss 1987). Hinckley and Cross (1959) report that watersheds with high levels of cu1tivation, and subsequent siltation, and domestic pollution are unsuitable for the species. These streams often cease to flow and become warm and muddy during the summer months. Pflieger (1975) reports that increased siltation as a result of intensive cultivation may have reduced the amount of Topeka shiner habitat in Missouri. Feedlot operations on or near streams also have been known to ~pact prairie fishes due to organic input resulting in eutrophication (Cross and Braasch 1968). Mainstem reservoir development, and tributary impoundment and channelization has also apparently impacted the species in some areas. Populations located within small tributary streams upstream from both mainstem and tributary impoundments attempt to uti~ize_these w~ter_ bodies as refuges from drying streams during periods of drought. During this time, the populations are subject to predation by ~acustrine piscivores. In unaltered systems,. fish move downstream to find suitab1.e habitat. Layher (1993) reported the extirpation of a population of Topeka shiners f01lowing construction of a single watershed ~undment in Chase County, Kansas. He reported the species disappeared both upstream and downstream of the dam site, and noted significant habitat changes below the impoundment. Pflieger (in litt. 1992) reported that an abundant population of the species in ~ssouri was extirpated following construction of a watershed impoundment. This popu1.ation, ~ocated downstream from the dam site, was not present when re~sited several years after construction. The habitat had changed from clear rocky pools, to pools filled with gravel, layered over by silt and filamento~s algae. Impoundment of prairie streams has resulted in the documented extirpation of other minnow species characteristic of that habitat (Winston et al. 1991). The green sunfish (LeDomis cyanellus) is the most common predator typical of Topeka shiner habitat. The spotted bass (Micro9terus Dunctulatus) is also a naturally occurring predator, but to a lesser degree due to minimal habitat overlap, occurring in the downstream extremes of typical Topeka shiner habitat. The construction of ponds on streams with populations of Topeka shiners, and the subsequent stocking of species such as largemouth bass (Micropterus salmoides), crappie (Pomoxisspp.), and channel catfish (Ictalurns Dunctatus), may affect the species during drought or periods of low flows when the Topeka shiner seeks refuge in the impoundments or per.manent stream pools now occupied by these introduced fishes. A cooperative report completed by the Soil Conservation Service (now NRCS) and. Kansas Department of Health and Environment (1981) following a study on the effects of watershed impoundments on Kansas streams states that predaceous game fishes

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increased in abundance, and severa~ minnow species, inc1uding the Topeka shiner, decreased in abundance both upstream and downstream from dam sites fOllowinq impoundment. VI. AGREEMENTS AND RESPONS:IBI:L:ITIES

In an effort to facilitate development of rlood protection measures within the Kill Creek basin while s~ultaneously protecting core populations of Topeka shiner, the parties have developed a classification system for tributary streams in the basin (Figure 1). stream namenclatuxe in this Agreement and attached map follows USGS data, which in some cases does not correspond to stream names used in the District's Genera~ Plan. Where names are different, the name used in the General P1.an is provided in parentheses. The stream c1.assification system is based on degree of importance relative to supporting apparently viable, sel.f-sustaining populations of the species, as follows: Class 1: ~critical use" areas, characterized by recent collections of apparently stable, self-sustaining populations of Topeka shiners, with few or no existing watershed dams in place. Streams receiving this classification include Loire, Hendricks, Phi1.1.ips,Mulberry, Dog, Dry, and spring Creek. This latter stream is one of two Spring creeks in the Mill creek Basin, and-lies between Hulberry and Paw Paw Creeks. Class 2: "safe haven" areas, characterized by recent collections of smaller or less stable numbers of Topeka shiners, and with same watershed dam control already in place. Streams receiving this classification include Kuenzli, Paw Paw, Illinois, Nehring, South (a.k.a. "Middle") Branch Mill Creek, and the other Spring Creek, located west of Loire Creek. Class 3: "low priorityH areas, characterized by an absence of Topeka shiner collections, or the species present in very low associated with more widespread current and ongoing watershed measures. Streams receiving this classification include West Branch Kill Creek, as well as Snokomo and Pretty Creek. recent numbers

control
and East

In Class 1.streams,. it is agreed that no watershed dam construction shall be done beyond any which may already exist in these areas. In Class 2 streams, watershed dam construction may not exceed 20 percent control of total runoff surface area. ~r example, if a Class 2 tributary stream drains 100 surface acres' of runoff area, dam construction may control no more than 20 acres of runoff area. In Class 3 streams, watershed dam construction may proceed up to as much as 40 percent control. of the runoff of the incti.vidual sub-basin. ::In addition, no watershed dam will be constructed within one linear stream mile of any population of Topeka shiners identified in surveys prior to implementation of this Agreement. Therefore, with respect to the above framework, the parties
.

agree to the

fOllowing:

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s A. 1. Mill Creek Watershed Joint District No. 85 Aqrees:

To contact the Department and the Service prior to expending significant expenses for the construction of watershed dams within the District. To pro~de site access to Department and Service personnel for the purposes of conducting surveys as appropriate for the Topeka shiner during the construction phase and after completion of all proposed. dam projects. To recognize all streams located within Class 1 sub-basins as "critical use- areas.for the Topeka shiner, and to foreqo construction of impoundments on or other physical alteration of these streams. Dam sites described in the General Plan which will not be constructed include the followinq: Site # 42 on Phillips Creek sites # 43, 44, and 60 on Hendricks Creek Site * 54 on Loire Creek To recoqnize all streams located within Class 2 sub-basins as "safe havenN areas for the Topeka shiner, and to ensure that construction and stream alteration does not exceed 20 percent of control of the total runoff surface acreage. Specific dams which w1ll not-be constructed in these streams include the following: Sites i 7, 27, and 65 on Spring Creek Site * 58 on Nehring Creek Site # 61 on Paw Paw Creek Site * 41 on South (a.k.a. ~HiddleR) Branch Hill Creek Sites # 32, 34, 35, and 67 on Illinois Creek Site # 62 on Kuenzli Creek Xn addition, the following sites will either be eliminated from construction, or will be modified such that their construction will not exceed 20 percent control of runoff in their sub-basin; modification could include relocating the dam to decrease the runoff surface area, building the site as a dry dam, or some other means aqreeable to all parties: Sites * 8 and 36 on Illinois Creek Site # 59 on South (a.k.a. ~Middle~) Branch Mill Creek

2.

3.

4.

5.

For all dams in any sub-basin which

will be constructed which miqht

impact any Topeka shiner, to encouraqe and pursue alternati.ve _ Measures of flood control, including but not limited ~o dry dams with fish passage tubes. 6. To cooperate with the Department and the Service in development o~ a management and recovery plan for the species within the District. The District shall. use best efforts to incorporate in all easements yet to be obtained for structures in all streams in Class 2 and 3 sub-basins measures to protect and improve habitat quality for the species as identified in, and consistent with, the management and recovery p1an, and therea~ter to monitor the implementation of such measures included in easements. The District will encourage participation by property owners within the District in various programs or incentive initiatives, as now exist to protect and

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enhance habitat, or prospective programs ana incentive initiatives as may be later legislatively developed, all of which are to be identified by the Service and the Department, and provide a list or interested property owners and address of potential participants ror follow-up contact concurrently by the Service and Department.

S.
1.

Kansas Department of Wild1ife and Parks Agrees:
To provide surveys as deemed appropriate by the Department to determine the presence of or the effect on the Topeka shiner resulting from the construction of approved watershed dams within the 5-year period of this Agreement. Surveys shall also be used to update historic location information as needed for a complete review of this agreement every five years. 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 West Branch Mill Creek site # 33 on Illinois Creek sites # 10, 11, 12, 37, 55, and 56 on a tributary to East (a.k.a. "south-) Branch sites I 13 and 40 on South (a.k.a; "~ddle-) Branch ~ll Creek sites * 28, 29, and 30 on spring Creek Site # 46 on Pretty Creek Sites # 47 and 64 on Snokomo Creek site # 57 on Nehring Creek With respect to the dams specified in paragraph B.2, above, to not assert an objection related to the presence or effect upon the Topeka shiner of any kind, character, nature and description which has heretofore been made. 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 mitigation will be required. To develop a management and recovery plan for the Topeka shiner within the ~ll Creek Watershed District. The U.S.. Fish and Wi1.dlife Service Agrees:

2.

..

3.

4.

5. C.

1.
2.

To cooperate

with the Department in the completion of Topeka shiner
in B.l.. above.

surveys described

Except as provided in section II~ of this agreement, not to oppose, based on Topeka shiner concerns, before any 10cal, State or Federa1 agency whatsoever, the construction, maintenance, and operation of the dam projects indicated in paragraph B.2., above.

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3.

In the event the Topeka shiner may become a federally-listed species, to recognize the extent to which the District has cooperated in providing for the management and recovery of the species, and consistent with section III of this Aqreement, to avoid

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further regu~atory or habitat with respect to this species. 4. protection burdens on the District

In the event the Topeka shiner may become a federally-listed species, to incorporate this Agreement as a part of a species Recovery P~an, utilizing its conditions as recovery goals ~or that limited portion or the species' range included in this Agreement. To provide the District with information regarding its ~Partners wildlife" program, and to cooperate, both technically and financially, with any District landowner willing to implement habitat improvement/protection measures, such as described in paragraph A.6, provided funds are avai1abl-e. .OO . , for

5.

6.

To cooperate with the Department and the District in the development of a management and recovery plan for the species within the Hill Creek Watershed District. D1J'BATIONOF AGREEMENT

VIr.

The initial term of this Agreement shall be 5 years. If all signatories agree that sufficient progress has been made towards the management and recovery of the Topeka shiner within the Mill Creek basin, this Agreement may be continued without modification after the first 5 years, and each 5 year period.thereafter, without written notification by any party to the other. Further, if any party should desire to modify this Agreement, or withdraw from this Agreement, notification of such intent shall be served in writing to the other parties not less than 6 months in advance of the end of each 5 year period, or the Agreement will be determined to be acceptable for another 5 years.

VIII.
1. 2. 3.

ADMINISTRATION
is contingent of

The performance of all parties under this Agreement upon the authorization and appropriation of funds.

Nothinq in this Aqreement obligates any party to the expenditure funds in excess of appropriations authorized by law.

Amendments or supplements to this Aqreement may be proposed by any subject party pursuant to paragraph ViI and shall become effective upon written ~pproval by all parties. The amendments ~nd supplements will terminate if this Agreement is terminated. This Agreement shall become effective as soon as siqned by the .subject parties and shall continue in force until formally terminated pursuant to paragraph VI!. This Agreement in no way restricts any of the parties from participation in similar activities or arranqements with other public orooprivate agencies, orqanizations or individuals.

4.

5.

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8 IX. SIGNA'rURES

Gerald Barthuly, President Mill Creek Watershed Joint District _.-

Date

No.

as

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Steve W~lliams. Secretary Kansas Department of Wildlife and Parks

Date

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

:u:Date

2 3 1997

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REFERENCES

Cross, 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 fishfauna of the upper Neosho River system, 1952-1967. Trans. Kansas Acad. Sci. 71(3):350-360.
Cross, F.B. and R.E. Moss. 1987. Historic changes in fish communities and aquatic habitats in plains streams of Kansas. paqes 155-165 in N.J. Mat.thews and D.C. Heins, ed., Community and Evolutionary Ecology of North American stream Fishes. Univ. Oklahoma Press, Norman, OK. Layher, W.G. 1993. Changes in fish community structure resulting from a 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, and abundance of the Topeka shiner Notroois topeka (Gilbert) in Kansas. Amer. ~dl. Nat. 61(1):210-217.

Pflieger, W.L. 1975. The fishes of Missouri. Conservation, Columbia, MO. pp. 161-162.

Missouri Dept. of

Pflieger, W.L. 1992. Letter to USFWS commenting on draft Topeka shiner status report. Missouri Dept. of Conservation, Columbia, MO.

u.s. Fish and wildlife Service. 1991. Endangered and threatened wildli~e and plants; animal candidate review for listing as endangered 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 threatened wildlife and p1ants; animal candidate review for listing as endangered or threatened species, proposed rule. Federal Register. Vo1. 59, p. 58999. u.S. Soil Conservation Service and Kansas Department of Health and Environment. 1981. The ~pact of floodwater retarding impoundments on 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 four minnow species due to damming of a prairie stream. Trans. Amer. Fisheries Soc. 120:98-105. of

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DEPARTMENT OF WILDLIFE & PARKS
Office of the SecreQry 900 SW Jacbon. Suite 502 Topeka. KS 66612 913/29&2281 FAX 913/296-6953

FAX TRANSMITTAL DATE: NUMBER FROM: NAME: TEL:
1:Q: NAME:

SHEET

TIME:

OF PAGES

(Including Transmittal)

ORGANIZATION: FAX TEL. NO.: COMMENTS:

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United States Department
IN /t£P[:r 1iIa'ER 11):

of the Interior

FISH AND Wll..DLIFE SERVICE Mountain-PrairieRegion

FWS/R6
COIKlS/NE/UT

MAll..ING ADDRESS: Post Office Box 25486 Denver Federal Center Denver, Colorado 80225-0486

STREET LOCATION: 134 Union Blvd Lakewood, Colorado 80228-1801

'JUL 2 ~ 1997
Steve Williams, Secretary Kansas Department of Wildlife and Parks 900 Jackson Street, Suite 502 ~opeka, Kansas 66612-1120 Dear Mr. Williams: There are three signed copies of the final Conservation Agreement for the Topeka shiner in the Mill Creek Watershed o£ Kansas enclosed. 1"he Fish and Wildlife Service published a notice of availability of this Agreement in the Federa1 Regist~~ on June 4 requesting any comments by July 7. A total of 16 requests by individuals or entities desiring a copy of the dra:tt Agreement were received in the Manhattan, Kansas Field Office. Copies were mailed to all requestors, but no comments have been received. This Conservation Agreement culminates a lengthy coordination between the three signatory parties and, r believe, represents a positive step toward conservation of a decl~ning spec~es while maintaining a ~espect for the legitimate needs of human occupants of the basin. I request you sign the three copies of this Agreement at your earliest convenience and forwa~d them to Gerald Barthuly, President, Hill Creek Watershed Joint District No. 85, through Duane Hund, Contracting-officer, P.O. Box 185, paxico, Kansas 66526. Once completed, Hr. Barthuly will mail them back to me at the letter head address. An original of the signed Agreement will then be provided to all parties involved. ~hank you for your participation and cooperation.
Sincerely,

I\~\nl Regional Director
Enclosures CC: Duane Hund, Contracting Officer Mill Creek Watershed Joint District No. 65 P.O." Box 185

Paxico, Kansas

66526

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